nor the principles of our precedents, but rather an inflated notion of judicial supremacy."
Various excerpts (citations omitted) from Justice Scalia’s dissent (joined by the Chief Justice and Justices Thomas and Alito):
Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires. The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.
[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President's request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting…. 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.
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. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.
Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed.… It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking 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). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.
06/12 02:40 PM
My mind is simply reeling.
The Nation will continue to die its slow, agonizing death as a result of what leftist courts, SCOTUS included, do nearly every day.
I like Scalia and Roberts.
This is truly appalling: wars run by the Courts!
Text books need to be rewritten ... or simply tossed. We no longer have three co-equal branches of government. Excuse me, gubmint. This is what a “distributed dictatorship” might look like.
The Founders clearly set up the legislature, especially the House of Representatives, as the superior branch of government.
It can restrict what judges may review and impeach those judges that are not performing their duties properly.
In this case, Congress should exert its superior authority and tell the five judges to go to hell. I’d much prefer articles of impeachment be drawn up, followed by swift hanging, but that’s me.
Since that won’t happen, boys and girls, we, the American citizens, are on our own. It is up to us to take back our country. How we do so, history gives numerous examples.
Kennedy et al flayed alive by Roberts & Scalia.
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.
Bump for my tag-line.
Thanks for posting these dissents. Fascinating reading. Amazing words. Why doesn’t some of this rub off on the others?
You know where I am going and I see little difference.
mark
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.
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.”
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
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.
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.
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“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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“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.
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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.