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Boumediene-Chief Justice Roberts and Justice Scalia- DISSENT (on Gitmo ruling)
Bench Memos at National Review ^ | 12 June 2008 | Ed Whelan

Posted on 06/12/2008 1:04:44 PM PDT by SE Mom

Boumediene—Chief Justice Roberts's Dissent [Ed Whelan]

I’m not going to undertake to summarize the 126 or so pages of opinions in Boumediene v. Bush. On the Volokh Conspiracy, Orin Kerr offers selected excerpts from Justice Kennedy’s 70-page majority opinion. I’ll do the same here for Chief Justice Roberts’s dissent and in a later post for Justice Scalia’s.

Various excerpts (citations omitted) from the Chief Justice’s dissent (joined by Justices Scalia, Thomas, and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an "adequate substitute" for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

06/12 02:13 PM


TOPICS: Front Page News; Government; News/Current Events; War on Terror
KEYWORDS: boumediene; boumedienevbush; constitution; enemycombatant; enemycombatants; gitmo; judicialactivism; judiciary; scotus
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To: SE Mom

Kennedy et al flayed alive by Roberts & Scalia.


21 posted on 06/12/2008 1:50:20 PM PDT by savedbygrace (SECURE THE BORDERS FIRST (I'M YELLING ON PURPOSE))
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To: SE Mom

It’s hard to believe what these morons are doing to this country. Let’s release the bad guys bring them to the states and buy houses for them right next to the liberal SC judges. These morons on the SC won’t be happy until we are in worse shape then S. Africa or Zimbabwe.


22 posted on 06/12/2008 1:51:07 PM PDT by kenmcg
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To: savedbygrace

Grand dissents, eh? I loved reading them! Give em hell:)


23 posted on 06/12/2008 1:52:18 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Bump for my tag-line.


24 posted on 06/12/2008 1:56:48 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: brityank

LOL! good one:)


25 posted on 06/12/2008 2:01:34 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Thanks for posting these dissents. Fascinating reading. Amazing words. Why doesn’t some of this rub off on the others?


26 posted on 06/12/2008 2:01:45 PM PDT by AuntB (Vote Obama! ..........Because ya can't blame 'the man' when you are the 'man'.... Wanda Sikes)
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To: benjamin032

Because they’re smarter than the rest of us - you know, we’d all just head off willy-nilly without our black-robed keepers...I’m sure those in the majority will sleep well knowing they’ve protected somebody...


27 posted on 06/12/2008 2:01:59 PM PDT by jagusafr ("Bugs, Mr. Rico! Zillions of 'em!" - Robert Heinlein)
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To: AuntB

I don’t know, Aunt B, I simply don’t know.

http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213280702

The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy’s concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:

(Kennedy)
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.


28 posted on 06/12/2008 2:11:09 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
Way back in my high school history class days, I chuckled at the thought of the ancient Druid class in forested glens passing mystic decisions on life and death. Oh, and how about the Oracle at Delphi who got high on vapors from the earth and advised kings?

You know where I am going and I see little difference.

29 posted on 06/12/2008 2:17:04 PM PDT by Jacquerie ('Tis a pity that judicial tyrants do not fear for their personal safety.)
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To: SE Mom

mark


30 posted on 06/12/2008 2:18:36 PM PDT by Christian4Bush ("In Israel, the President hit the nail on the head. The nails are complaining loudly." - John Bolton)
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To: SE Mom


The Last Days of the United States

Outrage Over Supreme Court Decision
31 posted on 06/12/2008 2:19:24 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: Miss Didi

Thanks:)

OMG I just heard Geraldo get into it about this ruling- he’s THRILLED with 5 of the 4 justices.

He and Judge Nappy are delirious with joy.


32 posted on 06/12/2008 2:23:46 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
The Judge is happy??? Tomorrow's Friends will be unbearable as it's Geraldo Friday with the Judge weighing in, I'm sure.
33 posted on 06/12/2008 2:26:04 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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The only logical result is to take no prisoners, then.


34 posted on 06/12/2008 2:29:18 PM PDT by vollmond (Peace in our time. Obama 2008.)
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To: Miss Didi

Yep- both of them.

I don’t understand it, they’ve GIVEN the right of habeas to the ENEMY, in OUR courts. This is not a uniformed enemy of another state, these are a whole other category. They now have rights under OUR constitution reserved for US CITIZENS.


35 posted on 06/12/2008 2:31:14 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: Czar
Combatants, even suspected foreign combatants, should have NO access to American courts. None.

Exactly, they will exploit a system that was created for our citizens..not our enemies.

I'm happy that this is being undertaken. The loop holes that these new enemies can jump through need to be addressed.

You can not be a shining city on a hill if the enemy is allowed to flatten the hill.

36 posted on 06/12/2008 2:33:08 PM PDT by Earthdweller
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To: SE Mom
RUSH: The moral of the story is don't take any prisoners.
37 posted on 06/12/2008 2:33:46 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: SE Mom
Never mind the military arguments, the most concerning thing about this ruling is that it is fundamentally imperialist. To extend and enforce rights to foreigners without treaty or reciprocity is to literally extend a claim on their lives. It is a violation of the essence of social contract that is the foundation of nationhood for which the Court majority now shows no respect.

Rights may be God-given, but the power to enforce them is not. These clowns have inverted the concept of limited government not only by exceeding powers given to them in the Constitution, but extending that power to global scope.

38 posted on 06/12/2008 2:33:49 PM PDT by Carry_Okie (We have people in power with desire for evil.)
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To: Carry_Okie

Welcome to the New World Order.


39 posted on 06/12/2008 2:35:28 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

This is a terrible decision.
Another example of judicial arrogance run amok.
As usual, Scalia cuts the heart out of the decision, puts it on a skewer, dissects it, and shows how rotten it is.

“What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”


40 posted on 06/12/2008 2:37:14 PM PDT by WOSG (http://no-bama.blogspot.com/ - co-bloggers wanted!)
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