Posted on 06/17/2008 5:02:47 AM PDT by Kaslin
The Supreme Court’s 5-4 opinion in Boumediene v. Bush will go down as one of the most egregiously-wrong decisions in history. Breaking 200 years of settled precedent, the Court has rewritten the Constitution’s allocation of national security powers. In essence, the narrow majority attacked the actions of a Commander-in-Chief in time of war. It attacked the law as rewritten by Congress in response to a prior decision of this very Court. And. it attacked the Court by aggressively ignoring its own prior decisions. The "logic" of this case sets up a bare majority of the Justices as supreme over the President, the Congress, and even other decisions of the Court itself.
The four dissenters were Chief Justice Roberts and Justices Scalia, Thomas and Alito. Roberts and Scalia wrote dissents, with all four justices signing both.
The Court, in an opinion written by Justice Kennedy, held that the writ of habeas corpus—the right of a detainee to contest their detention’s legality—applies to enemies who are not American citizens and are incarcerated abroad by the U.S. military. Yet, the Supreme Court has always held that habeas does not apply to noncitizens that are not on American soil. So, to rule as it did without overturning more than 200 years of precedent, the Court devised a brand-new rule that a location can be de-facto under U.S. sovereign control even though it is legally part of a foreign nation.
The majority held that the writ applies to Guantanamo Bay (Gitmo) because it deems it to be the equivalent of U.S. soil. It expressly allows that if prisoners were held somewhere outside U.S. control, then the writ would not apply, as has historically been the case.
In his dissent, Justice Scalia noted that the effect of Thursday’s ruling is that detainees will now be less safe, because the military will now keep detainees in foreign locations under foreign control, to avoid the question of habeas corpus. The military may even have to allow foreign governments custody of the prisoners, where prisoners will doubtless find less respect for their human rights.
Habeas corpus is a procedural right. For those covered, Chief Justice Roberts noted the legal test is, “whether the system [Congress] designed protects whatever rights the detainees may possess.” After Gitmo detainees go through the military process, they can still appeal to the U.S. Court of Appeals for the D.C. Circuit—the second-highest court in America.
Roberts began his dissent by saying that the Court has struck down the most generous procedural protections ever afforded to detainees in the history of warfare, and did so before a single detainee even appealed his detainment. Had the Court allowed at least one detainee’s case to go through appeal, it may have found their rights fully protected.
Roberts laments, “All today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.” He concluded that Congress’ balancing “the security of the American people” with detainees’ rights has been “brushed aside,” and that the American people have lost control of foreign policy to unelected and politically-unaccountable judges.
Scalia made Roberts look tame by comparison, beginning, “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.”
Central to his dissent is that in Hamdan v. Rumsfeld, the Court had said the president could ask Congress to create military tribunals if he thought them necessary. In what Scalia called a “bait and switch,” Congress did exactly what the Court required, and when the Court struck it down as unconstitutional, Scalia quipped, “Turns out they were just kidding.”
The dissent’s critical point was that habeas does not apply to noncitizens in Cuba, therefore suspending it at Gitmo is unnecessary.
The Wall Street Journal correctly observed that this is the first time in American history that the Supreme Court, which is ill-suited to conduct military matters, interfered not only in the president’s prosecution of a war, but also overrode Congress’ policy judgments.
Justice Scalia ominously concluded, “The Nation will live to regret what the Court has done today.”
We agree.
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Congressman Billybob
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Write your elected Royals:
Article III, Section 2 of the Constitution states:
“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.”
Since the US Congress has made the Exceptions and Regulations for the captured terrorist so that they will be tried by Military Court and to keep them confined how can the Supreme Court make a direct violation of the Constitution when they say that these terrorist killers can be released and tried in the US Federal Court. If this is so then those Nazi and other war criminals should have never been tried nor kept in prison during the WW II.
The Constitution further states that the Congress and the Congress ONLY can: Under Article I, Section 8 ….make Rules concerning Captures on Land and Water.” And Section 9 states that: 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.” It is required for these Terrorist Killers and in this case the Congress, since we have been invaded and are at WAR, may suspend Habeas Corpus which the capture law they passed for these terrorist states.
How can my members of Congress and the US Senate allow the Supreme Court to destroy the Constitution and give terrorist killers, who have declared war on the United States and invaded our land and killed thousands of Americans, the rights of United States Citizens and force the American tax payer to pay millions for the al-Qaeda supports to free these killers?
The Constitution states: “The Congress is to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powders vested by this Constitution in the Government of the United States….” The Court is given NO power to make law.
Can you please follow your oath and the Constitution and stop those on the Supreme Court who have tossed the Constitution under the bus and are supporting killers and enemies of the American People?
You have the power under the Constitution to restrict what the Supreme Court can do and you should use your Constitutional Power to keep the American People SAFE, and not allow left wing Judges to run the country and disregard the Constitution. They were NOT given that Power in the Constitution YOU WERE.
The court screwed up.
In Hamdan, the Supreme Court ruled that Gitmo detainees were entitled to the protections of the Geneva Convention - essentially conferring POW status on them. Now they’re ruling that Habeus Corpus also applies, seemingly ruling that detainees are actually criminal defendants. So, we give non American terrorists habeus corpus rights with this decision as if they were here on a sight seeing tour. Do we now have to register them as motor voters too?
Under the current treaties concerning the Laws of Land Warfare, individuals seized on a battlefield sans uniform or ‘identifying insignia’ bearing arms are not LAWFUL COMBATANTS. Such individuals are not protected by international treaties/joint conventions. Re-constitute ‘field judicial teams’ authorized to convene a Summary Court [once referred to as ‘drumhead courts’] with the authority to judge and punish.
Unlawful Combatant + Summary Court = Summary Judgment. The typical punishment for bearing arms on the battlefield as a non-state actor...death. Better to just shoot these bastards in the field when we catch them ...
You know what party has the majority in the House. As long as they have it it is not going to change. We need to get the majority back again. That is why it is important to vote in November and vote for those who have a chance to get elected, not third party politicans
I can’t wait until those Supreme Court judges are voted out of office! /S
And it becomes the "equivalent" for no better reason than the length of time a prisoner is held.
These are the people who are about to decide what the Second Amendment means.
Can a future court re-visit case after competent justices are seated and strike this case down?
It has caused such a fury by so many people, including the dissenting justices, that if even one of the five retire it can be reversed at a future time, right?
Most Americans who can read already regret the decision and have nothing but contempt for the five so-called justices.
And it’ll only get worse. Can anyone imagine a conservative appointee like Scalia, ever again clearing the Senate?
“It expressly allows that if prisoners were held somewhere outside U.S. control, then the writ would not apply, as has historically been the case.”
And that is partly why we lease that land from Cuba. This even more clearly draws the line between “US soil” and “foreign soil.”
The majority of the USSC are traitors to this country and should be impeached for egregiously violating their sworn duties. Congress should have impeached them the first time they used European constitutions as case studies for interpreting the US Constitution.
I just read your article. Is there anything the people can do to force Congress to allow drilling in ANWR, and all the other places that is prohibited to drill and get the oil out? Whenever ANWR is brought up the democRats come up with the lousy excuse it would take 10 years to get the oil out and the price of oil would only go down one cent
Important article and thread. Thanks.
In the ‘70’s it was a similar situation that allowed the Trans Alaska pipeline to be built. Political pressure from the public, thanks to Jimmuh Karter making such an economic mess of the country. Gas lines and shortages, thanks to the Windfall Profits tax, caused double digit inflation, double digit unemployment, and interest rates at 18%.
With Obama, not only will gas prices go over 6 bucks, but those evil oil companies will just shut down and the Saudis will increase production to force American producers to buy from them. Just like they did in the ‘70’s.
This is actually simple. Next time we capture these bastards, after the interrogaTION IS over turn them over to their enemies in the host company.
In essence is Saddam was in Gitmo he’s be offered protection under the US courts....
Naw, instead of capturing them, just shoot and kill them
Three strikes and these judicial tyrants need to be out. The only question in a sane society would be whether they should be impeached and forbidden to hold an office of public trust for the rest of their lives or tried for treason and given a dignified hanging.
If they did that, our troops would be held and convicted on murder charges. (Like they are now.)
Don’t you remember? 911 was our fault.
It seems that this case has overturned the Verdugo-Urquidez precedent, which stated that a South American drug dealer was not entitled to Fourth Amendment protection when US DEA agents in cooperation with local police kicked in his door and searched his home.
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