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
You mean just like McCain is less worse compared to Obama, so the conservative base should suck it up and vote for McCain because Obama is so much worse.
Like that?
Three equal branches indeed....then let the judicial branmch enforce its own rulings instead of reigning supreme over the other two branches.
The standard is how today's representative government in America measures up to what we used to have and whether today's passes constitutional muster, not how it compares to that of foreign nations.
I forget the specifics but I believe that Congress, since 2000, limited the jurisdiction of the USSC but that the Court did an end run and ignored Congress.
I think that might be on the way and I hope they take no prisoners
At the risk of sounding shallow, all I need to know is which way Thomas voted to know my opinion. He dissented, so I don’t need to read the opinions.
There are many reasons why we find ourselves about to reach a point once felt to be unthinkable. Take a look at the three losers the powers-that-be scammed up to be presidential candidates—not one even remotely fit for the office. Representative government? Please... Just one example.
More than ever, the activities of foreign nations can not be ignored. That is not to say that we must do what they do but global trends will import their force. Socialism and the world workers party is alive and well on the global front in huge mass. To ignore this would be folly.
The slow boil of Canada's citizens into slavery should send shivers down your spine. The heat has been turned up of late.
We cannot afford one year for the advancment of socialism..let alone four. I would take a moderate over a marxist any day of the week. There are crooks in our own party that need to be purged but we don't have to throw the baby out with the bath water.
Let’s say it together, ‘Illegal combatants.’
Where is THAT argument, in favor of indefinite detainment?
If you look at the Geneva Convention, it requires: combatants give name, rank & serial number, that combatants where uniforms in conflicts, etc.
These folks are illegal combatants. I’m sure the tango’s are cheering, today.
Unthinkable and frightening but......
The Marxists and Socialists which have burrowed deep into our schools ensure more generations of dumbed down voters who have been taught little about the founders who established this wonderful country. Take a look at today's voters and you will see what I mean -- a lying traitor like John F'n Kerry is able to garner 49% of the vote...
"To ignore this would be folly."
And to accord it more attention than it deserves would be far bigger folly...as do various American hack politicians and elitists in black robes.
"The slow boil of Canada's citizens into slavery should send shivers down your spine."
Canada is a sovereign nation. They can do what they want. What should send shivers down your spine is the NWO concept of the SPP/NAU. How would you like the notion of no sovereignty, no borders, and a conjoined Canada, Mexico and the United States? As you say, "The heat has been turned up of late." Indeed it has.
"I would take a moderate over a marxist any day of the week."
You settle too easily; a "moderate" can't make up his mind and therefore stands for nothing. Generations of following the "least worse" approach is what has brought us to our present sad dilemma. By the way, McCain is no "moderate" should you be laboring under that illusion. No, we can no longer pretend there are merely a few shades of difference--it's far more dramatic than that.
"There are crooks in our own party that need to be purged..."
The real crooks, sooner or later, are always caught. They're not the ones I worry about. I am far more concerned about two-faced weasels like McCain who, once in office, will attempt to lead the United States in a direction no true conservative patriot could possibly stomach.
"...but we don't have to throw the baby out with the bath water."
We do once the baby is no longer sustainable.
Representative government? Once long ago, but mostly a memory today.
As an addendum.....we have reached the tipping point where we have in fact ceded authority to one man/woman on the USSC to decide the gravest matters for the entire nation...one man/woman appointed - not elected - for life....virtually impossible to remove from office....free, with no recourse, to continue in office for LIFE as if no Justice is subject to the mental and physical effects of time and aging. This is wrong. It is tyranny.
It’s breathtaking isn’t it?
No- but it might mena that illegal aliens from Mexico can now sieze OUR land under Kelo- after all, precedent is now set giving “illegal” a whole new meaning...
I like giving my opinion here, and have been doing so for quite a long time. I believe it to be worthwhile if my words manage to cause others to think about where we are, really are, today, and where our political hacks intend to take us. Look around you. Wake up. It isn't all that difficult to figure out.
"Why don't you just take your gun to a cave with a beverage and wait for Armageddon?"
Now, now...
"All you are doing is discouraging anyone who still has any fight left."
I doubt it. The real fighters aren't discouraged, just angry and getting angrier every day.
"McCain can be maintained by public opinion."
No he can't, as the amnesty issue amply demonstrates. McCain is an arrogant, hot tempered jerk who has been on the wrong side of just about every issue of any importance to the conservative base. Which is why that base wants no part of him.
Ya thinK?
Yikes. I try to be an optimist ... but this ruling is the worst ruling since ... since the LAST awful ruling by a court! (Kelo, gay marriage, ...)
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