Albeit by a narrow 5-4 margin. I bet all those dirty hippies who said that John Roberts would be another Scalia feel sorry now completely vindicated. Just remember, when John McCain gets to replace John Paul Stevens with another member of the Roberts/Scalia/Alito/Thomas school then all your individual rights are belong to the U.S. government. Unless, that is, you're a polluting corporation!
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Rule of Law Still In Force
12 Jun 2008 11:39 am
Comments (53)
All your rights are belong to U.S.
C'mom, Matt, you consistently support the notion that an individual's rights belong to the U.S. Government, when the U.S. Government is doing things you favor.
I suddenly need to get drunk and celebrate! We may be a nation of law yet!
Yep.
Reactionaries hate McCain (for various reasons). But will they turn out and vote for him? Why? Because they know that even if the race were between Bob Casey and Rudy Giuliani, the ultimate word on the law is not who makes it or who executes it but who gets to interpret what the law means ... and the law ultimately is what the judge who decides any given legal dispute says it is.
So reactionaries will vote for McCain ... heck, they'd vote for pro-choice Giuliani over pro-life Bob Casey ... because they know that the guy with the (R) after his name is going to appoint anti-abortion, pro-gummint getting in your bedroom, anti-rule-of-law, pro-corporate judges while the guy with the (D) after his name is not going to do so.
Unfortunately, too many Dems. are more interested in voting for someone with whom they agree on particular issues that they miss the big picture -- voting for a (D) means that you are blocking an (R) from gaining access to the Presidency in which that (R) will nominate odious judges.
It's the SCOTUS, baby! I hope Dems. remember that this time around and turn out to vote for the Big-O no matter what they think of him.
What kind of person observes a ruling like this and then, instead of celebrating, whines bitterly about how we insist upon treating human beings like human beings while denying landowners the right to dump toxic waste in the streams that run through their property?
http://rossdouthat.theatlantic.com/archives/2008/06/classic_obama.php#comments
"The only thing undercutting all this bravery is the fact that Obama himself voted against John Roberts, because Obama himself actually agreed with the the liberal base that "too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give ... Roberts the benefit of the doubt,"
Glad Ross posted this yesterday.
http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?hp
"Chief Justice Roberts said the majority had struck down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."'
The most interesting aspect of the Times article (although I see it's just been removed) was Scalia's flat-out accusation that the Court majority was unpatriotic and "will almost certainly cause more Americans to be killed" -- thus giving the American Right as a whole carte blanche to make the same accusation. And away we go...
"Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”"
This just goes to show how unbelievably hypocritical Scalia is. There is nothing about the above statement that fits his "strict constructionist" method of deciding a case. It is a polemical statment meant to gin up some emotional appeal for the conservative position.
Moreover, if we follow his logic, this decision will "almost certainly cause more Americans to get killed" presumably by allowing suspected terrorists to have a fair trial, which means that some will be found not guilty or aquitted. Doesn't this logic follow for everyone accused of some crime. Some people accused of murder who are guilty will be found not guilty and go on to commit more crimes. Shouldn't Scalia be in favor of not granting a fair trial to anyone accused of murder, afterall, this would save American lives as well.
Well, remember that Scalia also scornfully announced during his famous University of Minnesota speech that atheists are much more upset than Christians about the possibility that innocents may be unfairly executed, since Christians know that "nobody really dies anyway".
the ruling “will almost certainly cause more Americans to get killed.”"
Scalia's just protective of his monopoly to have Americans killed.
I see that Matt has no understanding of "rule of law" either. Hint: it isn't the same thing as rule by lawyers.
jj, it is a polemical statement, and it is meant to hold accountable the majority for the foreseeable effects of the decision. When the decision isn't required by law--which Scalia demonstrates--and will cause more Americans to get killed, well, it's a bad decision.
It's worth quoting Scalia at length so you get the full breadth of his paranoia and irrationality:
America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded
Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.
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.
Where to begin? First is the ludicrous bootstrapping here: our government's over-reaction to the threat of terrorism is itself proof that we need to continue the government's over-reaction! Second is this: Of course civil liberties, including habeas corpus, result in "more Americans [being] killed." Yes! They do! Surely it is beyond dispute that if the government just had the ability to lock up everyone under the slightest suspicion, we'd have far less crime, terrorism would be harder, in short, lives and property would be saved. Lowered "security" is the price you pay for a free society.
Scalia knows this, of course. He's just playing his usual role -- lashing out and foaming at the mouth in the most unintelligent fashion, because (once again) he's lost the battle here. For all the talk about Scalia's intellect, in truth he's got the intellectual maturity of a 5th grader.
"Just remember, when John McCain gets to replace John Paul Stevens with another member of the Roberts/Scalia/Alito/Thomas school then all your individual rights are belong to the U.S. government."
We owe that to Hillary.
Shouldn't Scalia be in favor of not granting a fair trial to anyone accused of murder, afterall, this would save American lives as well.
It wouldn't surprise me if Scalia feels this way. Because people who are innocent have nothing to worry about, it's not like they'd ever get arrested and accused of crimes. And even if they did, it probably means they did something else bad at some point and God's just punishing them.
Or we could simply torture everyone accused of crimes before they have a trial. You see, if they aren't being "punished" then torture isn't cruel and unusual "punishment."
When the decision isn't required by law--which Scalia demonstrates--and will cause more Americans to get killed, well, it's a bad decision
[Clarence] Thomas,
Please explain how granting people fair trials will cause more Americans to get killed. Assertion does not count. Also, please show your work.
and will cause more Americans to get killed,
Perhaps you will explain why we can simply assume that largey unconstrained executive power increases national security. But the, given that you're repeatedly asserted that invading a country that posed no substantial security threat to the United States and had no significant connections to Anti-American terrorism at a ruinous cost in lives and resources was an effective response to 9/11, it seems clear that "causality" and "opportunity costs" aren't really your long suit.
As usual, Bush is a piker in terms of executive overreach. he simply should have emulated FDR, while his popularity was still high six years ago, and had the prisoners executed following a military tribunal, after quietly telling the Court that the executions were going to take place no matter how the Court handled the condemned prisoners' appeal. Hell, FDR did it to U.S. citizens!
You have no chance to survive make your time!
Wow, an FDR tu quoque! Pre-emptively, allow me to say that unlike the most widely-read conservative blogger I think the internment was a disgrace, and unlike Richard Posner that Korematsu was incorrectly decided. (And Wilson was even worse!) Of course, one might use the Japanese internment to question whether unchecked executive power necessarily leads to optimal military policies, but that would be less fun.
It seems also worth noting that the "war on terror" is not really analagous to WWII, what with its logically inifinite duration, a battlefield taht consists of the whole world, and so on.
Golly, Scott, I was referring to FDR having U.S. citizens executed, after having been captured on U.S. soil, and tried by military tribunal, with FDR quietly informing the Court that he was going to have these citizens executed no matter how the Court handled their appeal while on a very short-term Death Row. In a perverse way, I had kind of hoped (only kind of, because I oppose capital punishment) that Bush had perfectly imitated FDR, with, say, Sheikh Khalid Mohammed, so the morbidly amusing spectacle of FDR worshippers calling Bush satanic for such conduct could be observed.
Will Allen: what events, specifically, are you referring to in the FDR administration? I can't figure it out.
drjim, the case is about habeas, not a right to a fair trial. I think that's sufficient to demonstrate that you wouldn't understand anything else about this.
Scott, this case wasn't about "largely unconstrained executive power", but about a law passed by Congress and signed by the president. You too have no idea what you're talking about.
James Gary:
German Saboteurs, some of whom were US citizens, were sent to America to commit sabotage.
They were caught, tried in a tribunal, and executed. It was not FDR's finest moment.
James, here's a good summary....
http://www.law.uchicago.edu/tribunals/lt_111901-2.html
....by the way, I was a little too hard on Roosevelt. He only had one U.S. citizen executed without benefit of a trail that used the beyond a reasonable doubt standard, while he told the Supreme Court to rubber stamp the process, since the executions were going to take place no matter how the Court ruled. The other citizens had their executions commuted to long sentences, while the non-citizens were electrocuted with the sole citizen who was fried.
I am shocked by Scalia's emotive comments. Surely the job of the Court is to interpret the law and the Constitution, not to plan how to get less American citizens killed. That is the function of the Executive and the Legislative branches.
Scalia must be a regular watcher of "24". One would expect a more considered view from a Justice of SCOTUS.
In cabinet governments, there is a tradition of "collective responsibility" ... the decision made by the collective is supported by all, even by those who may have argued against it. If one refuses to accept that, resignation is the option, or (agreeing that it is not a reasonable course for Scalia, must as I would like to see him go) a decent silence.
Justice Scalia said the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”"
what? does scalia think that telling potential terrorists that if they get captured they'll have habius is going to stir up people to kill americans?
I am shocked by Scalia's emotive comments. Surely the job of the Court is to interpret the law and the Constitution, not to plan how to get less American citizens killed. That is the function of the Executive and the Legislative branches.
Scalia must be a regular watcher of "24". One would expect a more considered view from a Justice of SCOTUS.
In cabinet governments, there is a tradition of "collective responsibility" ... the decision made by the collective is supported by all, even by those who may have argued against it. If one refuses to accept that, resignation is the option, or (agreeing that it is not a reasonable course for Scalia, must as I would like to see him go) a decent silence.
Will,
How does the fact that many liberals revere FDR prove that Boumediene v. Bush was wrongly decided?
Is this your normal course of reasoning?
Mark, is this your normal course of demonstrating that you are literate? I made no comment on the quality of the decision being discussed, for the simple reason that I haven't taken the time to read the opinions, and it is my experience that unless one has actualy read the opinions, one is in a poor position to comment on the opinions. Remarkable, huh?
My gut instinct, which may be poorly informed, is that the Bush Administration attempted in this matter to engage in all manner of procedural delay and obsfuscation, and a majority of the Court decided to defend it's institutional turf from encroachment from the Executive branch. It's a lot easier for a Court to do this with an unpopular President. From what short excerpts of the opinions I've seen so far, what leaps out at me is Roberts' contention that the decision does not actually put the prisoners involved in a better situation that they now are in. I don't know whether Roberts' dissent is correct, but I thought it interesting.
I borught up the FDR precedent because I find it alternately amusing and irritating that many people who put FDR on a pedestal condemn this President, in the most invective-laden rhetoric, for engaging in actions which are mild in comparision to their hero. This causes me to think that their condemnation of Bush is mostly situational; that is, if a President they liked or was of their party engaged in such behavior, they would find it far less offensive.
Will Allen is making a lame attempt at the Russert gambit:
"65 years ago, a dubious court decision make under completely different circumstances in a different situation was pressured by a Democratic president. NOW, you're saying that habaeus corpus should be supported in this modern situation. How do you respond?"
Typical juvenile self-importance from Will Allen. However, given that it's irrelevant, I'd happy to see that few people are seriously engaging you.
Tyro, it is remarkable to have someone claim that previous court decisions are irrelevant to current court decisons. That is a little more amusing than your contention that the past circumstances were "completely different", in that one of the reasons that FDR had the prisoners fried so quickly, entailing such pressure on the Court, was to head off a habeus petition.
Yeah, sure, previous examples of executive overreach are irrelevant to current examples of executive overreach. Brilliant.
Scalia has a son in the Army that has deployed at least once.
At Fort Leavenworth there are graves of 14 German POWs that were executed for various offenses. The interesting thing is that they were executed after Germany surrendered.
Since when does a combatant, legal or illegal, have habeus rights? Would millions of German POWs been able to appeal there detention?
I agree with the poster that we should have executed these detainees a long time ago under the laws of land warfare.
"I borught up the FDR precedent because I find it alternately amusing and irritating that many people who put FDR on a pedestal condemn this President, in the most invective-laden rhetoric, for engaging in actions which are mild in comparision to their hero. "
How about we make a list of all of the terrible acts of George Washington, Thomas Jefferson, and Abraham Lincoln (and there are many), then claim to be amused at complaints about George Bush.
FDR and George Bush are judged on the totality of their accomplishments, not just cherry-picked incidents. FDR is one of the greatest Americans, who did some terrible things. George Bush is an incompetent, cruel, juvenile embarrassment, who did some terrible things. Some people see a difference there.
Will Allen, no one is defending FDR on these charges. To the extent that FDR is venerated it is (obviously) for the other stuff. You know, like actually winning World War II, for starters (which the USSR had no role in, right Will). Moreover, the extent to which FDR is venerated among liberal historians or historians on the "left" (whatever that means) is really overstated, which you would know if you had even a passing understanding of the relevant historiography. But being a willfully obtuse clown, you wouldn't, would you. I guess you're paid by the word, huh?
cheers!
Scott, this case wasn't about "largely unconstrained executive power", but about a law passed by Congress and signed by the president. You too have no idea what you're talking about.
Yes, a law which the Court (correctly, in my view) ruled did not provide an adequate subsitute for habeas corpus, and therefore was not an adequate check: it did not provide the restraints on abritrary executive authority required by the Constitution. Hence, it would have left in place "largely [although not absolutely] unconstrained executive power." See? It's really not complicated!
Meanwhile, I await some basis for your claim that people about whom there is so little evidence that they pose a threat that they could actually be granted a habeas writ in federal court are also so dangerous that we can simply assume that "Americans will die" if they are released.
Scott Lemieux - we have killed former Gitmo prisoners in both Afghanistan and Iraq. Some of them just go right back to the frontlines of the Jihad. I would propose that some of them were successful in killing Americans.
Scott, when the legislature creates a statutory framework within which the executive must act, it is unusual for that circumscribed discretion to be referred to as "unconstrained." In this case, the Congress did just that. The result of the case was to limit the power of the Congress--an act of Congress was found unconstitutional.
Detainees could be released for all sorts of reasons--including, for example, an unwillingness to share classified information with them, or an unwillingness or inability to provide sufficent (however that is defined in future litigation) access to witnesses. The majority opinion concedes that habeas proceedings "may divert the attention of military personnel from other pressing tasks."
Scott Lemieux - we have killed former Gitmo prisoners in both Afghanistan and Iraq. Some of them just go right back to the frontlines of the Jihad. I would propose that some of them were successful in killing Americans.
Your touching concern for the rights of, say, the North Vietnamese to continue holding American POWs indefinitely astounds me. Or is the principle that POWs should not be released lest they go do bad things only valid for America, but not for states that America doesn't like?
Or is this a poorly written wish that John McCain had been murdered by his captors? I'm telling the Secret Service!
T. Paine - I want some of what you are smoking. I am not even I am sure of what you are saying. When we were at war with North Vietnam they held our prisoners. When we signed a treaty they released them. POWs are released or paroled as the detaining power sees fit.
"I borught up the FDR precedent because I find it alternately amusing and irritating that many people who put FDR on a pedestal condemn this President, in the most invective-laden rhetoric, for engaging in actions which are mild in comparision to their hero. "
How about we make a list of all of the terrible acts of George Washington, Thomas Jefferson, and Abraham Lincoln (and there are many), then claim to be amused at complaints about George Bush.
FDR and George Bush are judged on the totality of their accomplishments, not just cherry-picked incidents. FDR is one of the greatest Americans, who did some terrible things. George Bush is an incompetent, cruel, juvenile embarrassment, who did some terrible things. Some people see a difference there.
Gerrard, you also seem to be hallucinating, an all to frequent occurence in this thread, in that you seem to have imagined that I wrote something which pertained to historians or the Soviet contribution to the defeat of the Nazis. Time to sober up.
Njorl, many Democrats have claimed in recent years that this President has mounted unique and unprecedented assaults on Constitutional rights, especially in regards to issues like Habeus. This is simply false, and it is preferable that false things not be written.
"...we have killed former Gitmo prisoners in both Afghanistan and Iraq. Some of them just go right back to the frontlines of the Jihad. I would propose that some of them were successful in killing Americans."
I don't find it at all surprising that the people we held in Gitmo now want to kill Americans. That's a great plan. Grab anybody we want and hold them indefinitly because they might turn jihadist because we grabbed them.
I would propose that some of them were successful in killing Americans.
I would propose that that, while it is something we should seek strenuously to prevent, is not a reason for us to trash the Constitution.
Will Allen, no one is defending FDR on these charges. To the extent that FDR is venerated it is (obviously) for the other stuff.
You're wasting your time. Will Allen is clearly too mentally unable to grasp these things, seeing as how his life and soul are enraptured by libertarian fundamentalism , support for torture, and the inexplicable unwavering lopyalty to Bush. His mind is completely impenetrable, and explaining these basic facts to him is a waste of time. The man is engaged in a willful, determined obtuseness and ignorance which can only be regarded as an immoral defiance of rational thought.
FDR was an evil, vindictive, commie cripple. It's too bad that he hadn't died back in 1932 before that S.O.B. was ever elected.
So the fact that he decided to forego due process with an American citizen just proves all the more to me that it is a disgrace that we have a memorial to this piece of feces.
So the fact that FDR did some of the same things that Bush has done, only worse, may cause embarrassment for liberals, but not for me.
Since when does a combatant, legal or illegal, have habeus rights? Would millions of German POWs been able to appeal there detention?
Since we defined "war" in such a way that it cannot ever end. To use "war rules" for prisoners when in a situation where the war, and the enemy, is defined as broadly as with the "war on terror," is to permanently suspend the Coinstitution.
Not legitimate. A misuse of the term "war."
Glaivester, well, no, because the constitution, properly interpreted, doesn't give aliens alleged to be enemy combatants rights, whether their detention arises in a short or long, conventional or unconventional war. The constitution just doesn't protect them, as it doesn't protect all the good people of France and Germany and so on.
"Mark, is this your normal course of demonstrating that you are literate?"
Ha!
Tyro, you are lying. I've always stated that torture should be prohibited, period, and I stated as early as 1998 that there was extremely little in Bush's domestic policy that I would support. Why do you lie so much?
I think the significant impact of the ruling will be that the suspension of habeas corpus was not at the whim of the Executive branch, nor can it be easily shifted about by the Legislature, and that as the Constitution says, it shall not be suspended except in case of actual invasion or rebellion.
A lot of people may think it's just about the Guantanamo detainees, but the impact seems much larger -- and closer to home -- to me.
Granted, though, I'm no Constitutional scholar like George W. Bush or John Yoo, who believe in the Magical Unitarded Executrix theory.
While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."
What I don't understand is the "rights for me but not for thee" attitude that so many people have. Granted, the Guantanamo detainees are not convered by the U.S. Constitution because the Constitution is the contract between American citizens and their government; however, what does that have to do with denying them their intrinsic rights?
Here's the thing, I've always understood that I have "inalienable rights" and that the Constitution was the agreement we have with our government for what powers we give the government to protect our intrinsic rights.
It seems to me that in a perfect world, the American government would be more respectful of the inalienable rights of non-citizens since there is no agreement between the non-citizen and the American government.
Since this isn't a perfect world, and because I know that those views are out of the mainstream, I'd like my government to treat its detainees better because, well, we're America and we're supposed to better than that. I'd love to be able say:
"This is America, we don't torture."
"This is America, we don't hold prisoners without trial."
But because people like Scalia are in charge right now, I can't.
Comments closed June 26, 2008.
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Heads in the Sand
shouldn't that be "all your rights are belong to U.S. Government"?
Posted by mapei123 | June 12, 2008 11:45 AM