Posted on 06/15/2008 12:16:25 PM PDT by Red Steel
WASHINGTON -- When the Supreme Court goes on recess at the end of this month, Justice Anthony M. Kennedy will be off to his summer teaching job in Salzburg, Austria. For the 19th year, he will teach a class called "Fundamental Rights in Europe and the United States" for the McGeorge Law School.
He tells his American and European students that the belief in individual freedom and the respect for human dignity transcends national borders. There is, he once said in an interview, "some underlying common shared aspiration" in legal systems that protects the rights and liberties of all.
That international perspective was on display Thursday as Kennedy spoke for the Supreme Court in extending legal rights to the foreign military prisoners held at Guantanamo Bay, Cuba. "Security subsists too in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers," Kennedy said.
The 5-4 ruling highlighted the sharp divide over the law and the war on terrorism. The dissenters, agreeing with the Bush administration, said foreigners captured abroad in the war on terrorism had no rights in American courts.
Justice Antonin Scalia dissented with the decision "to extend the right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war." The ruling "warps our Constitution," he wrote in his dissent.
The majority, led by Kennedy, was more in tune with the views across Europe and of civil libertarians in this country, who have condemned the prison at Guantanamo Bay as a "legal black hole" where foreigners are shackled and held in harsh conditions without due process of law. The justices in the majority said that when U.S. authorities take someone into
(Excerpt) Read more at latimes.com ...
No, but how do you know that they are illegal combatants? Because some supply sergeant said so,
Supply sargeant?
Do supply sargeants conduct covert operations into enemy territory? Do they patrol and fight on the front lines and capture the enemy?
How in the world do you figure that supply sargeants will be the ones capturing the enemy?
You seem to have a profound distrust of the military.
You sound like a du troll just stirring up trouble.
I bet if someone like bill clinton did the same thing you would be completely for it.
Well it sounds as though they were not fine with the Secretary of the Navy - conducted as a neutral adversarial proceeding on the record with counsel provided the detainee - which is the major objection of the SC - so you need to have your argument with him.
If they are captured on the battlefield in uniform engaged in combat activities, then there is no problem. You just swear to the time manner and place of his capture.
There you go again.
They have NO UNIFORM.
What if they are captured off the battlefield transfering weapons, or making plans, or setting up an ambush, or any other thousand ways the enemy is captured?
I think you have no concept of what is really happening.
I have the greatest respect for our men and women in combat arms on the front lines. I have little enough for the rear echelon bureaucrats who are about the same as bureaucrats anywhere.
Trust? I presume you have been following the case of the prosecution of the Haditha marines? When the heavy thumb of political influence is placed upon the scales of military justice any result is possible. It is Rumsfeld's most disreputable act.
Would you please answer the questions in post 33.
Well, then you just state the facts. You obviously captured them for some reason, in some place, doing something that you regarded as an act of war. You so state. Nothing more.
Your problem is that you are trying to make this too hard. It isn't hard. Just hold a neutral hearing, with adequate representation, and confine the guy as a prisoner of war or as an unlawful combatant.
By the way, under the Geneva convention, the individual does not lose all rights because you classified him has an illegal combatant. In fact, you are required to treat him as a POW until you can bring evidence to prove that he was an unlawful combatant. It is a higher standard of proof, not a lower one.
OMG. So Scotus didn't just walk off the deep end. They clearly violated the one clause of the Constitution that Congress can use to limit judicial overreach. If that is not reason to fire these clowns, I do not know what is.
For Andy Jackson, do you not agree that Congress removed the subject of Gitmo/Habeas Corpus from Scotus consideration?
Do you think they just sweep up everyone they see and sort things out later like a bunch of locusts eating everything in sight? That is Bush derangement thinking.
I guarantee each capture has some information about why and where.
I trust the military enough for that.
Why don’t you?
Let’s say we follow your opinion about the issue. How do we then gather evidence on the battlefield to support any further “detentions”?
If caputured as legal POWs on the battlefield then they are POWs and are not accused of a crime. Miranda rights are criminal rights.
Do we assign counsel right away so that evidence can be preserved?
No, after the battle, once he has been transferred to a detention facility. PS. Bush I did this in GWI so I don't know why everyone thinks this is an intolerable burden on our fighting forces.
Do we stop any fighting to preserve evidence for trial in U.S. courts?Do we pay for their lawyers?
If it is on a battlefield then the only evidence required is time manner and place of capture and activities at the time. Yes we provide them legal counsel - hint this is not a burden on the US government. Hint - in case you have not been following the Haditha case, there is extensive post operational reporting and investigation anyway, so this need not constitute and extra burden.
Are they to be released on bail in the U.S. to await trial as they are to be considered innocent until proven guilty?
You are being silly. Once it is determined they are POWs under a proper and under the circumstances timely hearing, they remain as POWs under the Geneva convention. No problem.
Our servicemen live under the UCMJ. The islamist dirtbags will get radical DC law firms. How Utopian.
None of them are POWS. No uniform, no country, no recognizable chain of command.
http://news.bbc.co.uk/2/hi/americas/3867067.stm
Justice Scalia said that the "carefree" court's "spurious" ruling on Guantanamo was a "wrenching departure from precedent" and "boldly extends the scope of the habeas statute to the four corners of the earth."
The consequence, he said, was "breathtaking." It enabled "an alien captured in a foreign theater of active combat to petition the Secretary of Defense." It brought the "cumbersome machinery of our domestic courts into military affairs".
You are very naieve.
What if they are not on a battlefield?
This is not GWI which was conducted against the Iraqi army. All in unuform and fighting for a state.
You have absolutely no concept of the current situation.
You actually think that miranda rights will not eventually be required? The left will want that next. Just wait.
We call people like you limousine liberals.
Can the Congress can take from the SC the power over cases arising under the constitution, which this clearly is. I would presume, if so, that that argument would have been made in the dissent, and it appears not to have been.
One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. See Brief for Boumediene Petitioners 5. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generousconstruction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.
Once again, take your argument up with the Secretary of the Navy who decided to write rules for the conduct of the hearings that denied the detainee a fair opportunity to present his case.
Well it sounds as though they were not fine with the Secretary of the Navy - conducted as a neutral adversarial proceeding on the record with counsel provided the detainee - which is the major objection of the SC - so you need to have your argument with him.
I need more details on that
My guess is the liberal lawyers that invaded Guantanamo demanded habeas corpus within the US Federal judicial system. Not the military's. There could be no compromise between them and the Secretary of Navy who to my knowledge doesn't even get involved in such matters
You've got Ruth Bader Ginsberg on your side and David Souter who altered eminent domain laws
I have Justices Scalia and Roberts
Well then what was the basis for taking them? You didnot like the way the looked at you. They talked back. You tried to rip off their rugs and the tried to defend their property? I dunno. You tell me, if they were not on the battlefield, then why were they captured.
This is not GWI which was conducted against the Iraqi army. All in uniform and fighting for a state.You have absolutely no concept of the current situation.
How many years of military service do you have? Do you know what it is like to serve on the battlefield? Furthermore, these guys are not on the battlefield. They are at Guantanamo, 8000 miles away where the greatest action is being bitten by stand fleas.
You have major US corporate law firms defending these Jihadist swine
Not fly by night lefties
These three seem to be the lower than whale shit lawyers who argued for the Guantanamo detainees. Note the major law firms they work for and most work was done pro bono——>>
http://docket.medill.northwestern.edu/archives/004556.php
Attorneys in this case:
Attorneys for Petitioners:
Seth P. Waxman
Wilmer Cutler Pickering Hale and Dorr LLP
(202) 663-6000
1875 Pennsylvania Avenue, N.W.
Washington, DC 20006
Party name: Lakhdar Boumediene, et al.
Attorneys for Petitioners:
Thomas B. Wilner
Shearman & Sterling LLP
(202) 508-8000
801 Pennsylvania Avenue, N.W.
Washington, DC 20004
Party name: Khaled A. F. Al Odah, Next Friend of Fawzi Khalid Abdullah Fahad Al Odah, et al.
Karma B. Brown
Hunton & Williams LLP
(202) 955-1500
1900 K Street, NW
Washington, DC 20006
Party name: Ridouane Khalid
How do we know that the tens of thousands German POWs were in fact POWs? We don’t.
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