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Anthony Kennedy's international view
lat ^ | June 14, 2008 | David G. Savage

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 ...


TOPICS: Extended News; Foreign Affairs; War on Terror
KEYWORDS: anthonymkennedy; fascism; globalism; judicairy; scotus
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To: dennisw
Secretary of Navy who to my knowledge doesn't even get involved in such matters

He wrote the regulations for the conduct of the hearings - his legal staff did an he signed them after they went through a thorough staff review and he had the opportunity to review comments. Of course it could be that SecDef staff wrote them, and then directed SECNAV to sign them, so it is really on SECDEFs head. I just posted the Supreme Courts problems with them. Assuming the SC is accurate, then they messed up, again again again.

81 posted on 06/15/2008 3:25:16 PM PDT by AndyJackson
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To: dennisw
You've got Ruth Bader Ginsberg on your side

Well, not only do I have a majority, but I have the US constitution, Aricle I Secion 9 The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

82 posted on 06/15/2008 3:28:47 PM PDT by AndyJackson
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To: AndyJackson
The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.

Breathtaking arrogance. Now the Scotus can decide which Art III restrictions apply. Reductio ad absurdam. God save our republic.

83 posted on 06/15/2008 3:28:47 PM PDT by Jacquerie ('Tis a pity that judicial tyrants do not fear for their personal safety.)
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To: AndyJackson

Stunning how naieve you are.
There is actually no definable battlefield. The enemy is all over.

You are just being silly if you think the war is only on a certain acreage somehow defined by what some lines and those in are combatants and those out of the lines not combatants and we just don’t know how to keep the war inside the lines?

What about someone planting an IED way off any battlefield?
Is he not the enemy and can’t be captured without a hearing producing evidence?

Your position is absurd.


84 posted on 06/15/2008 3:29:35 PM PDT by smoketree (the insanity, the lunacy these days)
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To: Jacquerie

If I read the decision correctly the court held that the Constitution’s provision for suspending habeas takes precedence over the MCA or the DTA and that congress did not properly suspend habeas corpus because the conditions today don’t meet the justifications in the Constitution. And since the Court have assumed the role of final arbitrator for what is constitutional Article III Section 2 did not come up.


85 posted on 06/15/2008 3:31:35 PM PDT by Libertarianize the GOP (Make all taxes truly voluntary)
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To: AndyJackson

You got shit
One more Justice for me and all your arguments would be moot. In fact you wouldn’t be posting at all


86 posted on 06/15/2008 3:32:15 PM PDT by dennisw (We have an idiocracy not a democracy)
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To: AndyJackson

There you go again.
The constitution is the supreme law of the land, i.e. the U.S. not the supreme law of the world.


87 posted on 06/15/2008 3:32:15 PM PDT by smoketree (the insanity, the lunacy these days)
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To: Jacquerie
You can download a pdf of the decision and read it, pg 14 seems the most relevant but you may want to read some of what leads up to it.
http://supreme.lp.findlaw.com/supreme_court/docket/2007/december/boumediene-v-bush-06-1195.html
88 posted on 06/15/2008 3:34:35 PM PDT by Libertarianize the GOP (Make all taxes truly voluntary)
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To: Libertarianize the GOP
Article III Section 2 did not come up.

I cannot find anywhere that the dissent raises the issue, and surely if they felt the majority were in fact vulnerable here they would have blazoned it.

89 posted on 06/15/2008 3:35:34 PM PDT by AndyJackson
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To: AndyJackson

Exceptions and Regulations clause of the United States Constitution (Art. III, § 2, Cl. 2) grants Congress the power to make exceptions to the constitutionally-defined appellate jurisdiction of the Supreme Court.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


90 posted on 06/15/2008 3:36:01 PM PDT by wfu_deacons
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To: AndyJackson

Thanks for all the details on that. I knew there would be trouble the second those maggot lawyers landed in Guantanamo. All they care about is jerking the system around for their own self glorification. Bullshit civil rights is their god

They get to brag at cocktail parties how they tweaked the US Government by doing pro bono work for Jihadist scum.

Yeah, I know what side I’m on and what side they are on


91 posted on 06/15/2008 3:37:23 PM PDT by dennisw (We have an idiocracy not a democracy)
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To: wfu_deacons

Yes I read it. The dissent did not raise it as an issue, and since this is a separation of powers case under the constitution I don’t know that the Congress can keep the SC out of it. It is a case that arises under Article I section 9.


92 posted on 06/15/2008 3:38:31 PM PDT by AndyJackson
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To: Libertarianize the GOP

Thanks. I will.


93 posted on 06/15/2008 3:40:18 PM PDT by Jacquerie ('Tis a pity that judicial tyrants do not fear for their personal safety.)
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To: All
The primary effect of this ruling on future operations is a drop to zero, or nearly, in the number of Bad Guys detained by US Forces.

Those not killed immediately will be taken into custody by Iraqi or Afghan or Free Persian* (God willing) forces, who may grant access to them multi-agency US interrogators, but not one D-——d US lawyertraitor.

This will not be official policy. Issuance of an official policy will not be required. It will simply just happen that way.

*See tag.

94 posted on 06/15/2008 3:42:41 PM PDT by ExGeeEye (I've been waiting since 11/04/79 for us (US) to do something about Iran.)
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To: AndyJackson
Since islamic dirtbags have full rights to our civilian courts, does it not follow that our own servicemen deserve the same?
95 posted on 06/15/2008 3:43:07 PM PDT by Jacquerie ('Tis a pity that judicial tyrants do not fear for their personal safety.)
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To: AndyJackson
At this point most everybody has accepted the role the the Supreme Court has asserted for itself, the fact that the constitution does not give the Court that authority is deemed irrelevant, but if the words of the constitution are irrelevant then what is the point of pretending that we live in a constitutional republic.
96 posted on 06/15/2008 3:43:36 PM PDT by Libertarianize the GOP (Make all taxes truly voluntary)
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To: ExGeeEye

Exactly.
Another series of unintended consequenses will arise. There will suddenly be no more prisoners held by the U.S. and given humane treatment. Detainees will be held by “others” and will not get humane treatment by any standards.
Just like the lefty enviros who feel good in saving polar bears yet have no compassion in bankrupting the entire nation.


97 posted on 06/15/2008 3:48:47 PM PDT by smoketree (the insanity, the lunacy these days)
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To: dennisw
If they are POWs they should be detained. If they are unlawful combatants they should be so dealt with. But they should be accorded due process in an adversarial process, and the Secretary of the Navy should have been savvy enough to write enacting regulations that ensured that, not enacting regulations that gutted the intent of the DTA. Sorry, but I think it is the Secretary of the Navy that screwed this one up.

Bad legal advice has been a hallmark of this administration. Remember these are the same DOD folks who didn't seem to mind when they lost 6 nukes.

98 posted on 06/15/2008 3:57:36 PM PDT by AndyJackson
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To: AndyJackson

This argument is absurd. The prosecutor will produce what evidence there is against them at trial (military) and they will be judged accordingly.

A laptop with phone numbers picked up in Iraq. A phone number leads to a potential throat slitter in Pakistan who has a record (according to Pakistan) of being part of a terrorist network. Intercepts from NSA indicate this phone was used by “someone” to converse with folks in Iran.

Sufficient evidence - guilty - 10 years at hard labor.

Part of this program is to “send a message” that these
creeps will get the short circuit after 6 years in jail.


99 posted on 06/15/2008 3:59:09 PM PDT by threeoeight
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To: Jacquerie
Since islamic dirtbags have full rights to our civilian courts

The only right they got was the right to a habeas review. That's it. That's all. Nothing more. It isn't that bad. While I understand the other side, I support this decision. We pretend to be a member of the civilized nations, and rule of law. Due process is part of that. Establishing fair rule of law in India is a lot of how England maintained the Raj for so long. The otherwise resentful natives saw it as better than all the alternatives.

100 posted on 06/15/2008 4:00:28 PM PDT by AndyJackson
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