Supreme Court Gets it Wrong
This was a bad, bad decision.
In a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled Thursday that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges.
Bush said he strongly disagreed with the decision — the third time the court has repudiated him on the detainees — and suggested he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down.Justice Anthony Kennedy, writing for the 5-4 high court majority, acknowledged the terrorism threat the U.S. faces — the administration’s justification for the detentions — but he declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
It’s a fairly simple concept. The U.S. Constitution applies to U.S. citizens. It does not apply to foreign nationals - especially those captured during war. If I had any advice for the military, it would be to just start shooting the enemy no matter what and don’t even bother trying to take prisoners.
As much as i have supported the President, he got what his inaction deserves. That is so, so sad. The repeated instances of slothlike behavior in this administration makes me wonder in ways I cannot resolve.
I’m sorry Mr. President, wake the f*** up, time is wasting, probably gone. What were these people thinking or are they thinking in terms we understand. It doesn’t seem to matter the issue, the Administration is out of touch and has been for some time. I am completely befuddled, betwixed and drown in disbelief.
Posted by .(JavaScript must be enabled to view this email address) on June 12, 2008 at 2008 hrs
Foreign nationals “captured” in a “time of war” aren’t the same as uniformed military members of a foreign government with which we are at war. I’m extremely uncomfortable with the idea of people being swept up—guilty and innocent—and held indefinitely without charge and without legal recourse.
At the same time, Owen makes a fairly decent point. These rules would not apply to soldiers of a foreign government’s army when we are at war with them.
But is that what they are? It doesn’t seem so.
Posted by scott on June 12, 2008 at 2018 hrs
I am not, of course, a Constitutional scholar or attorney, but the fact is that we do not treat non-citizens differently than we do citizens when on US soil. That’s why illegal immigrants still get Mirandized and attorneyed when they’re arrested, for example.
Today’s ruling applies only to detainees in Gitmo, and I have to wonder whether Gitmo’s status as US-in-all-but-name had something to do with the decision.
There is also a solid argument to be made—and it sounds like Kennedy made it—that the US military, which no one doubts is a part of the US government and thus subject to the SCOTUS and Constitution, should not have been holding prisoners with no charge and no trial for six long years: The point of the habeus clause in the Constitution is to obligate the government not to be frivolous or haphazard in its detention of suspects.
Posted by folkbum on June 12, 2008 at 2031 hrs
If I had any advice for the military, it would be to just start shooting the enemy no matter what and don’t even bother trying to take prisoners.
I am glad you aren’t advising the military.Posted by .(JavaScript must be enabled to view this email address) on June 12, 2008 at 2051 hrs
Even Scalia agreed (in dissent) that habeas applies to non-citizens while held in US or US territories.
Roberts (in dissent) pointed out that this is merely a power struggle between Bush AND Congress vs. SCOTUS.
Two very debatable questions: first, whether Gitmo is “US territory,” and second, whether SCOTUS can act in direct contravention of both Congress and the President (the MCA Act,)
Posted by dad29 on June 12, 2008 at 2124 hrs
While I agree with SCOTUS on the issue, I gotta admit I completely understand Owen’s argument in terms of applying the constitution.
I’m not saying I agree with Owen (yet) but I need to read the entire ruling before I can be convinced to jump on the “liberal” side of this argument.
But that is one damn long opinion. So don’t hold your breath waiting for my final take.
I know many of you are on pins and needles (xxpilot, I’m looking at you), but you’ve gotta be patient.
Posted by .(JavaScript must be enabled to view this email address) on June 12, 2008 at 2135 hrs
Sure the organization PWST911 (People Who Soiled Themselves over (9-11) is against this. But as far as the rest of us who support the constitution, this is a very, very good decision.
As far as the statement:
If I had any advice for the military, it would be to just start shooting the enemy no matter what and don’t even bother trying to take prisoners.
Ignorant on a number of levels. Disappointing for someone such as yourself who is more civil. than that statement implies.
Posted by .(JavaScript must be enabled to view this email address) on June 12, 2008 at 2223 hrs
First, the US Constitution should apply to foreign nationals kidnapped by the US government, especially since there has been NO DECLARATION OF WAR. Disapearing people is something for Eve Peron to do and should be beneath the dignity of G.W. Bush.
Owen, if you are going to argue that the US Constitution should be suspended in whole or in part during time of war, then you should require that there actually be a war.
The constitutional stadard of when the US is at war with whom it is at war with is simple: a declaration of war. No such declaration has be issued anytime during the last 6 years.
There used to be a time when US citizens would have demanded the supreme law of the land be obeyed. Pity that time has past us. I guess we now live in the post-republican phase of the American Experiment.
Posted by John Washburn on June 13, 2008 at 0322 hrs
Well, John, that’s a simple response to a not-so-simple problem.
Against whom, precisely, shall the US declare war?
I’ll remind you, simply, that there IS no nation-state which is “terrorist.” The aggressors are cell-organized and loosely affiliated—but not an armed force of any particular country.
Now John, deliver your simple answer.
Posted by dad29 on June 13, 2008 at 0716 hrs
“just start shooting the enemy no matter what and don’t even bother trying to take prisoners. “
I have two serious questions please. Do they not teach a single course on ethics to the Corps of Cadets? Is it required or an elective?
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 0853 hrs
In order to answer the question you need to who the detainees are and in what manner were they taken.
If they were uniformed combatants, we have traditionally treated such people as POWs and handled them according to the Geneva Conventions. As Al Qaeda is not a nation and has no uniforms, and we released the Iraqi and Afghan army personnel taken, I suspect there are no people at Gitmo taken as uniformed combatants. What we are left with, then, are people who were either taken as non-uniformed combatants or non-combatants taken in areas that either were controlled by the US military or not.
It seems to me that people taken as non-uniformed combatants are subject to execution immediately upon that status being confirmed. The US has traditionally quickly executed such people.
The far more difficult cases are the non-combatants. I think non-combatants taken in areas that were not under US military control should be treated by the civil justice system and neither handled by the military nor subjected to military law. Non-combatants taken in areas controlled by the US military should be treated by the military justice system, but that should not extend beyond the time during which those areas were under US control. These people should either be tried and sentenced by the military during that time period or turned over to the authorities that now control the area in which they were taken.
Clearly we treated the average POW of World War 2 differently than US citizens even when on US soil, so the US soil business is a red herring.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 0914 hrs
people taken as non-uniformed combatants are subject to execution immediately upon that status being confirmed. The US has traditionally quickly executed such people.
I’m sorry, could you run this by me a second time? It sounds like you’re saying if the guy who was shooting at us had a uniform on he’s treated according to Geneva. But if he had street clothes on then we execute him. Please tell me that’s not what you’re saying.
Posted by scott on June 13, 2008 at 0930 hrs
Militias wearing even some semblance of a uniform are recognized as uniformed, Scott. Non-uniformed people, or people wearing the wrong uniform are subject to execution and always have been.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 0932 hrs
Non-uniformed people, or people wearing the wrong uniform are subject to execution and always have been.
That is news to me. Where did you pull that from?
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 0954 hrs
Read Geneva sometime, 3rdWay. Prior to Geneva such people were executed by during the Revolution and US Civil War among others.
The premise behind the Geneva conventions is not to protect participants in war, but to protect civilians. The greatest danger to civilians has traditionally been armed bands officially sanctioned by no government or army. Such bands are normally comprised of people who were criminals before the war, during the war and after the war if they survived. The prime purpose of Geneva is to distinguish between such bands or individuals and legitimate military forces by providing assurance of proper treatment by the opposing force in order to discourage such practices in order to protect the civilian population of the place where the fighting is taking place.
To grant the same protection to forces fighting outside the established rules is to remove any distinction between them and regular military forces. In doing so one removes the incentive to fight as a regular military force and subjects the civilian population to all the degradations of warfare between irregular forces.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1009 hrs
BVBigBro- You are reffering to people who are accused of espionage.
I have to disagree with Owen. The US Constitution applies to everyone whether they are US citizens or not. The Court has been very consistent on this issue, although usually after the fact.
If this ruling had gone the other way, I would worry how it would effect the Status of Forces Agreements we have with other countries. I certainly do not want our soldiers in Germany, Korea, Kuwait, etc, to be treated differently now because people feel we do not follow our own rules.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1012 hrs
No, John. I am not referring to people accused of espionage.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1016 hrs
I must be old fashioned - but people trying to kill our soliders are emeny combatents - whether they are wearing uniforms or pajamas.
I’m all for shutting down Gitmo.
These animals should be executed - not set free to cause more death and destruction.
What the ruling really does is put more decisions on the solider in the field. If i’m in the field, rather than capture someone I’m going to just kill them so I don’t have to take the chance of facing them again.
What you people who are fighting for these people’s “rights” fail to understand is that if you invited them into your home - they would gut you where you stood. We aren’t dealing with Johnny and Jenny the pot dealer here. We are dealing with people who want to end civilization as we know it.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1038 hrs
Welp its time to turn the prisoners over to a country who is out of reach of the SCOTUS and/or congress and who will give them a trial for who they are and what they do. Any suggestions on which country?
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1040 hrs
The Constitution applies only to US citizines ONLY when granting positive rights. The right in question here - the right to not be detained - is a retained right. It is a right retained from the state of nature, enjoyed by all people regardless of national origin.
Governments have no power to grant retained rights; they exist independently of government and above government. The prohibition on unlawful detention in the Consitution, therefore, applies to all such detentions regardless of the identity of the detained.
I am not surprised by Scalia here as he has given up on coherent judicial philosophy for a more outcome based approach. This makes him a huge douche, legally speaking. I’m surprised that Thomas was on the wrong side of this, but not that surprised.
The lefties got this one right. You can’t detain someone for 6 years without any mechanism to challenge that detention.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1046 hrs
There’s very little difference between you, Bill, and the crazy fucks who execute our own soldiers after they’ve been captured.
Posted by scott on June 13, 2008 at 1049 hrs
Unfortunately Scott - it’s kill or be killed. When you realize that - then you will see the difference.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1050 hrs
I think they have some of it right, PaulNoonan. If we accept that Iraq and Afghanistan are now under the control of a civilian government, and if these people were captured therein, then they should have been dealt with during the time frame between military and civilian control or released to the civilian governments.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1051 hrs
I’m no pacifist, Bill. And I don’t think it’s a particularly radical idea that captured foes not be summarily executed.
Posted by scott on June 13, 2008 at 1055 hrs
Okay, I think I’m following the thread. In order to keep them from killing their prisoners we should start executing ours.
Yes, enemy combatants out of uniform are subject to summary execution per Geneva. The problem is in identifying how many of the detainees were captured in combat and how many were simply rounded up on suspicion or given up by paid informants.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1117 hrs
The problem is in identifying how many of the detainees were captured in combat and how many were simply rounded up on suspicion or given up by paid informants.
I can’t speak much on this topic, but I would like to clear up this point. There are systems in place in the AOR to handle the garden-variety capture of insurgents. Gitmo is generally reserved for a much more serious level of offender.
Posted by Jed on June 13, 2008 at 1232 hrs
That seems pretty sensible. But why, then, are there people at Gitmo who aren’t being charged and who aren’t regarded as dangerous by the US military?
Posted by scott on June 13, 2008 at 1244 hrs
I have two points I’d like to make.
First, habeas corpus is not a “Get Out of Jail Free” card. It is simply a check on our system to help make sure that the people we have under detention are really supposed to be there. There is no advantage to us to keep people locked up under false pretenses - people who are innocent or not a threat. It is not only immoral and unethical, it’s damned expensive!Second, habeas corpus is not a right, it’s a responsibility. We are not bestowing a special privilege onto the detainees at Gitmo. We are taking the responsibility upon ourselves to make sure that we are not incarcerating people without good reason.
Posted by Mike Thomas on June 13, 2008 at 1420 hrs
Taking an even larger step back, I wonder that so-called “conservatives—who purport to be about limited government power—all have hard ons for the governments ability to imprison even American citizens indefinitely with no legal recourse. What’s conservative about that? How is that about limiting government intrusion into people’s liberties? Glen Greenwald today thinks it’s the difference between conservatism and authoritarianism. I can’t say that I disagree.
Posted by scott on June 13, 2008 at 1431 hrs
That’s exactly why lots of us believe parts of the decision are correct, Scott.
Posted by .(JavaScript must be enabled to view this email address) on June 13, 2008 at 1504 hrs
Issue Letters of Marqu and Reprieve against terrorist orgainzations.
There are designed specifically to deal with threats to national security from non-nation states.
Better yet! Letters of Marque are a power granted to teh Congress under the the authority of the current, second constitution of the US
Posted by John Washburn on June 13, 2008 at 1722 hrs
Mr Washburn, You say No Decleration of war. What the hell was the bombing in the basement of the WTC, the attack on the U.S.S. Cole, and the horrific events launched against this country on Sept. 11, 2001.
THEY DECLAIRED WAR AND WE ARE RESPONDING.Posted by .(JavaScript must be enabled to view this email address) on June 14, 2008 at 1910 hrs
The Supreme Court has clearly overstepped its authority once again. Habeas Corpus applies only to US citizens, check your the Constitution is a Military matter, and should be handled by the Military. This is a War against an enemy that sees us as fools and will use our way of life against ourselves. You get into Federal Courts and next thing you know our Military will be reading Miranda rights, and the Soldiers and Marines that take these individuals will be asked to come to court? What then if a Judge rules that these Terrorist’s rights were violated? After today’s latest immigration ruling they maybe permitted to live here. Wouldn’t that be wonderful, and all you people who think this is a good thing in anyway can watch these people work right here up close and personal. They laugh at us everyday how we back-stab our Military every chance we get. Tying their hands calling them names, disrespecting their sacrifices, and belittle-ling their mission and sacrifice. They are the only thing that keeps 911 from happening here everyday. You think that’s not possible just wait. This has to be one of the most over reaching decisions yet.
Posted by .(JavaScript must be enabled to view this email address) on June 16, 2008 at 2046 hrs
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