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

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.

"McCain is a moderate..."

If you really believe that, I'm afraid we don't have much more we can discuss. If you would like to understand the viewpoint of the conservative base, you can carefully review the research done by SoConPubbie: http://www.freerepublic.com/focus/news/2029558/posts?page=7#7. You'll have to copy & paste; for some reason my computer won't give me a hot link.

"Maybe if you try helping your fellow conservatives to make their voices heard..."

You're not listening. The conservatives don't need any help. It's the "moderates", liberals and most of the mindless 'Rats who need help--at least the ones who, though confused, love the United States, which leaves quite a few of the others.

I would be most interested in your comments after you have had an opportunity to review the SoConPubbie posting I have cited above.

It is a despairing day for true Americans.

Our own Supreme Court is so busy counting the number of camels that can fit on the head of a pin that they give American rights to fanatic, illegal, foreign murderers with American blood on their hands.

Habeus corpus, Judge Kennedy? I dare you to spend five minutes with one father mourning over the corpse of his American warrior son. You and your ilk are out of balance. You are academic cobs that have spun off the machine and are smashing the engine that is America. You are more dangerous to America than the terrorists that you enabled today.

I am really, truly beyond even anger right now.

It is no less disappointing to hear this news, knowing that John McCain favors shutting down Guantanamo.

I think serious, Constitutional Americans will have to rise up and banish our internal enemies to political oblivion.

Republican Revolution Version 2.00 is needed. We might be able to accomplish it by 2012.

If that’s soon enough to save us.

In all kindness, sir, your words have “managed to cause” wonder as to just whom has appointed you a chief high-priest of conservative ideology - and the answer is readily apparent: yourself.

There is sometimes, I'm sorry to state, a smothering and poisonous and feverish political correctness on the right that is the flip side of that homicidal version promulgated so vehemently by the left.

You say you “like giving (your) opinion here..to cause others to think about where we are, really are...and where our political hacks intend to take us...”

I have a lot of respect, sir, for certain “political hacks” because they have had the character and courage and discipline to publicly put their lives actively on the line in a democracy (and oftentimes in the U. S. military) to stand up for something - rather than being permanently sited in front of a two-dimensional video screen and mewing about how terrible things are.

It isn't all that difficult to be a keyboard warrior. If we want to grasp some reality, we could do worse than run for dog catcher.

“I am deeply disappointed in what I think is a tremendously dangerous and irresponsible ruling by the U.S. Supreme Court. ... The court has conferred upon civilian judges the right to make military decisions. These judges have virtually no training in military matters yet civilian judges, in some of the most liberal district courts in the country, will have an opportunity to determine who is a threat to the United States.” — Sen. Lindsey Graham, R-S.C.

“First of all it’s a Supreme Court decision. We will abide by the court’s decision. It was a deeply divided court and I strongly agree with those who dissented. The dissent was based upon those serious concerns about U.S. national security. Congress and the administration worked very carefully on ... a piece of legislation that set the appropriate procedures in place as to how to deal with the detainees.” — President Bush.

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“Today, the Supreme Court affirmed what almost everyone but the administration and their defenders in Congress always knew. The Constitution and the rule of law bind all of us even in extraordinary times of war. No one is above the Constitution.” — Sen. John Kerry, D-Mass.

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“Today’s opinion is an important and much-needed check by a coequal branch of government on an administration which has shown utter contempt for the rule of law.” — Sen. Joe Biden, D-Del.

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“Today’s 5-4 ruling by the U.S. Supreme Court is a complete victory not only for our clients but for all Americans and citizens the world over, and, most importantly, for the rule of law. It is a powerful repudiation of the Bush Administration’s efforts to undermine the Constitution and create the legal black hole that is Guantanamo,” said David Cynamon, lead counsel for detainee Fawzi al-Odah.

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“It is disappointing that the Supreme Court rejected precedent going back to World War II and chose to give foreign terrorists the constitutional rights and privileges of U.S. citizens.” — Sen. Kit Bond, R-Mo.

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“Today’s Supreme Court decision is yet another stinging rebuke of the Bush administration’s extreme views on executive power.” — Sen. Russ Feingold, D-Wis.

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“Congress carefully crafted procedures by which foreign terrorists — who do not have protections under the Constitution — receive fair and due process. By overturning this congressionally approved process, the court has placed the rights of foreign terrorists over the safety and security of the American people.” — Rep. Lamar Smith, R-Texas.

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“Today’s ruling is a resounding affirmation for the rule of law and a rejection of the president’s sweeping claims of power. We all agree that terrorists must be brought to justice, but we must not abandon the very system of justice we are protecting in the process.” — Rep. Jerrold Nadler, D-N.Y.

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“This ruling is a stunning repudiation of the hubris and legal contortions of the Bush administration. Today, the Supreme Court has reaffirmed what we are all taught from grammar school on: that the United States is a nation of laws and that our Constitution and Bill of Rights must be respected.” — Rep. Edward Markey, D-Mass.

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“Today’s ruling reaffirms the vision of our founders, and helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe. It will solidify our relations with other nations, and will protect Americans abroad.” — William Neukom, American Bar Association president.

Ya I guess illegal means US citizen now. The 6 billion people on earth are all citizens of the US, oh wait, let me rephrase that, the 6 billion people on earth are all to be loved and hugged by the international constitution that the US supreme court created yesterday. Enemy combatants are to be loved and hugged when captured because they will think we are nice and stop fighting us. Mean while, they will kill, kidnap and dismember our brave soldiers fighting over there. I believe that the war on terror is lost unless we stop playing footsy with radical Islam and over turn this despicable ruling or impeach the 5 justices. Terrorists around the world, the Ayotollah in Iran and good ole Achmad must have been doing cartwheels and laughing it up after this ruling. They now know for sure that this country will destroy itself internally, all they have to do is sit back and watch as it happens. We need to execute clean sweep on our government, enact term limits and throw all these pukes out of office and elect real leaders who have americas interest at heart.

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