Boumediene-Chief Justice Roberts and Justice Scalia- DISSENT (on Gitmo ruling)

Bench Memos at National Review ^ | 12 June 2008 | Ed Whelan

[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

[Czar]

"Well- the president can’t ignore it-..."

Sure he can. All it takes is the guts to do so.

[Czar]

With dumbass decisions like this one, it’s a wonder the military doesn’t revolt.

[roses of sharon]

Well, we can make examples of the UnAmerican Democrat party, and their liberals on the Court.

We can rail to our family, friends, and every stranger we meet, about their perfidy, their betrayals, their disloyalty and treachery.

It is our duty to let every American know who is responsible for allowing Islamic headchoppers who are so cowardly and evil that they kill women and children, wear NO UNIFORMS in battle, the honor of a US Constitutional right.

[Earthdweller]

"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."

Sovereignty is such a dirty word. Let's dust it off and shine it as a blazing light. The vampires and roaches will scatter from here to Kingdom come.

[WOSG]

“The fact that we have three co-equal branches of government means the President can tell the Supreme Court to take a hike.”

it certainly would seem that the usual deference to other branchs by the Liberal Supremes is kaput.
But if Bush really thumbed his nose at this ...
The Dems would be on the liberal media pronto demanding impeachment over it, calling him a war criminal,. We’d have sob stories about the poor widdle jihadists stuck in Gitmo without even Halal meals and taxpayer-funded lawyers! Obama would win in a landslide and pardon ‘em all. And the dumb-nut people would cheer.

The inmates are running so much of the asylum that normal people are the ones who look crazy.

Fire off a letter to the editor on this - this is outrage of the month ... or at lest judicial outrage since the CALI Supremes imposed homosexual marriage.

[Earthdweller]

Gee..you sure are a doom and gloom one today. You have us losing the election already. LOL

[668 - Neighbor of the Beast]

Logically...if they now have rights one mustn’t violate, how can we take no prisoners, how can we kill the enemy?

[roses of sharon]

UNLEASH Hell, make these bastard hear us for once.

HELPFUL TELEPHONE NUMBERS

Public Information Office: 202-479-3211, Reporters press 1

Clerk’s Office: 202-479-3011

Visitor Information Line: 202-479-3030

Opinion Announcements: 202-479-3360

[Diogenesis]

"Those who cannot remember the past are condemned to (have their citizens suffer and) repeat it."
George Santayana

---

[RoadTest]

Pray. Go over the heads of the Supreme Court to the Supreme Being. He’s listening.

[Carry_Okie]

Without sovereignty, natural law competition among communities cannot function and representative government means nothing.

[Diogenesis]

Justice Scalia: "What drives today's decision is neither the meaning of the Suspension Clause,
nor the principles of our precedents, but rather an inflated notion of judicial supremacy."

[Czar]

"...and representative government means nothing."

It's already reached that point.

[SunStar]

From the AP: Bush disagrees with, will ‘abide by’ court’s Guantanamo ruling

This means that he will find another way to do what he wants to, in a way that circumvents the ruling. Maybe he could just "release" the prisoners in the middle of the Iraqi desert, give them their AK-47s back, and then drop-in some Marines to have a firefight. That would be my preference.

[StormEye]

"...and representative government means nothing."

It's already reached that point.

We've not a representative government in quite a while in my opinion.

[Blackyce]

(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.

Dear Lord, you've got to be kidding me! He just made it up, right there o the spot. He created a new right, then created a new standard by which the right could be abrogated. If they go back to congress to explicitly overrule this, I guarantee Kennedy will again pull something equally asinine out of his posterior.

[Radix]

"...the President should ignore this ridiculous decision. Combatants, even suspected foreign combatants, should have NO access to American courts. None."

Exactly so.

Ignore this stupidity.

[Earthdweller]

No it hasn't...

Every other nation is far worse off. Look at Canada today. They are throwing Priests and journalists from the proverbial bell tower. Even if we have to import every free thinking human on the planet to the US..we will win because socialist countries can not fund themselves without capitalism. They will let us live so they can drink our blood and while we live they will never make all of us slaves.

[Right Cal Gal]

Why doesn’t some of this rub off on the others?

It would require that they actually care something about following the law rather than promoting an agenda.

[Political Junkie Too]

...judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well).

Does that mean the government can use Kelo to seize Mexico citing eminent domain? After all, our industries could put the land to better use than Mexico has.

-PJ