June 17th, 2008

Supreme Court: supreme overreach

Here’s an excellent summary by law professor John Yoo of how the Supreme Court ruling in Boumediene v. Bush is a case of egregious judicial overreach:

First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention…

The Boumediene five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts.

As Matthew Continetti writes here, this is a case of a “judicial power grab” (Yoo called it a “brazen power grab”). The Court here extended the right of habeas corpus where it was never meant to apply, and ignored the fact that Congress has already used its constitutional powers to agree on the appropriate safeguards for trials of these illegal enemy combatants.

There is a general tendency of people in power to want to extend it. So it stands to reason that judicial overreach is one of the built-in hazards of the trade of being a judge. After all, to a hammer, everything looks like a nail. The Supreme Court has only one tool in its kit, its rulings, and judges must fight against the temptation to overuse them to get the results they want to see.

Legal precedent acts as one of the major checks on this tendency. The tradition of following precedent tends to discourage judicial overreach.

But the law is not stagnant, nor should it be. If precedent were the only important thing, there could be no change and no improvement and growth in the law. Precedents are continually being reinterpreted based on ongoing and evolving understanding of the law, language, the intent of the framers, and new problems that arise in the course of time. But there should be no enormous leap that completely ignores and/or contradicts precedent, especially if there is another remedy available for the problem at hand.

There is already another remedy here: the statutes passed by Congress to govern these matters as part of its war powers. As Yoo points out:

The Court refused to wait and see how Congress’s 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

The rule is a “classic” for a reason: it protects us all. One day such overreach may lead to a result that you agree with, but next time it could achieve something quite different. The framers of our Constitution were wise enough to know that we would best be protected by reserving certain powers to each branch of government, and to know that each branch would probably want to usurp the powers of the others and claim them for themselves. The Supreme Court is no different.

42 Responses to “Supreme Court: supreme overreach”

  1. me Says:

    John Yoo, John Yoo … where have I heard that name before? Ah, yes — the chap whose legal reasoning is so stellar that even the Office of Legal Counsel in the current Adminiatration’s DOJ has rescinded multiple Yoo opinions. That certaonly must set some sort of record.

    But on the merits, it’s pretty funny that Yoo (and you) cant’ quite come to grips with the fact that habeas was Really Important to the Framers — as in, so important that it made it explicitly into the original document, unlike other lesser rights that had to be tacked on later (you know: free speech, a prohibition on general warrants & forced quartering of soldiers).

    Do try to keep up.

  2. Thomass Says:

    Me,

    That whole post of yours says nothing.

  3. FredHjr Says:

    The High Court’s decision also re-classifies the shaheeds as criminals, rather than warriors of a political concept (the Ummah) captured on the battlefield. It’s as if the five judges have decided that if the President and Congress will not confer Geneva Convention rights to the jihadis then they will confer Constitutional redress for them.

  4. Chris White Says:

    During a period when fear overtook reason or legal precedents, we allowed the President to create, essentially from nothing, the new classification of “enemy combatant”. This classification gets applied to terrorists caught by US forces in the act of setting up roadside bombs. It also gets applied to taxi drivers of the wrong tribal affiliation captured by roving sectarian gangs who in turn sell these prisoners to their questionable police force who hand these prisoners over to US forces to prove their supposed loyalty and usefulness … such an elegant way of furthering a sectarian feud.

    Now we have hardcore terrorists, petty criminals and young men who were just in the wrong place at the wrong time serving indefinite sentences in tiny cells on the island of Cuba. Without habeas corpus they have essentially all been declared guilty until proven innocent … with no means of proving that innocence.

    It does not take an advanced degree in psychology, nor in law or politics, to make the reasonable assumption that hundreds of detainees who, when they were detained, had no ties to terrorists or terrorism will eventually be released. When that happens they might well be expected to have every reason to become that of which they were wrongly accused and for which they were wrongly imprisoned and perhaps subject to … oh, let’s just call it “harsh interrogation techniques.”

    There is, of course, the option of simply executing them all. Again, this will do nothing to help the over all war on terror, in fact quite the reverse, but at least we’ll be spared those books and news reports about the sad case of some guy with a funny name who got grabbed in the street while trying to get from a Shiite to a Sunni neighborhood after visiting his grandmother only to spend five years in Cuba being interrogated and punished without ever being tried. Another advantage of this approach is it can be done quietly (out of sight and out of mind) and might be less likely to make Americans feel guilty about what has been done in our name.

    When the Russians or the Chinese or other nations have used similar extra-legal nonsense in the past, the US rightly condemned them for failure to allow prisoners access to an impartial and just legal system. That is what the Supreme Court majority decision calls for, a return to the rule of law, not men, as created by the Founders. If we want to talk about “overreach” let’s look at the Presidential power grab under Bush 43.

  5. Sdferr Says:

    John Yoo has become for many, a dog-whistle Pavlov himself would have been proud to own. Sad for the dogs.

  6. Sdferr Says:

    “…we allowed the President to create, essentially from nothing, the new classification of “enemy combatant…”

    And with that, you beclown yourself.

  7. gcotharn Says:

    I find this case increasingly interesting.

    Boumedienne, properly considered, ought to be about which court are the most effective and humane judges of habeus rights of enemy combatants: the CSRT or the federal courts? (CSRT = Combatant Status Review Tribunal)

    However, the SC majority characterizes the case as about the human right to habeus corpus. This is a false construct. The enemy combatants at Guantanamo already had habeus rights, and already had a source to hear their habeus pleas: the CSRT – which has power to review habeus pleas, and to release defendants who merit release.

    If Boumedienne were merely about access to habeus corpus: I might be with the majority, as I believe in habeus rights.

    Chief Justice Roberts accuses the majority of misunderstanding the function of CSRT:

    [The majority’s] comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoner’s status, and not as themselves part of the collateral review to test the validity of that determination.[…] The majority can deprecate the importance of CSRTs only by treating them as something they are not.

    The judicial systems of other respected nations differ from the U.S. judicial system in many respects – yet defendants who pass through those systems are considered to have received fair trials. An enemy combatant need not specifically pass through the U.S. civilian judicial system in order to have received a fair trial – and yet: that is effectively what the SC majority is saying.

    I suspect this SC majority wilfully misunderstood the function of the CSRT. I suspect – at their core – this SC majority does not recognize the CSRT as a judicial institution which is superior to federal courts in any matter – including in the matter of judging enemy combatants.

    Hubris.

  8. gcotharn Says:

    Even if John Yoo were the most incompetent legal mind in America: his points should addressed at the level of intellectual merit, or lack thereof. He should not be dismissed – by commenters on this thread, at least – via fly-by characterizations of incompetence.

  9. I R A Darth Aggie Says:

    Now, now, they’re not enemy combatants, they’re undocumented freedom fighters.

    (I’m surprised Obama & Co. haven’t tried that)

  10. I R A Darth Aggie Says:

    That is what the Supreme Court majority decision calls for, a return to the rule of law, not men, as created by the Founders.

    As I recall, George Washington convened a military tribunal that convicted Major John Andre of being a spy, and sentanced him to hang. Washington carried out that sentance.

    I suppose our friend Chris White would have Washington brought up on charges?

  11. Thomass Says:

    I R A Darth Aggie Says:

    “I suppose our friend Chris White would have Washington brought up on charges?”

    Too late… probably just have to call him a reich winger in the new history books. ;)

  12. Thomass Says:

    Chris White Says:

    June 17th, 2008 at 4:24 pm

    “During a period when overwhelming ignorance and polarization of political life overtook reason or legal precedents, we allowed the Progressives to create, essentially from nothing, the new ‘constitutional’ rights for “enemy combatants”.”

    Fixed

  13. Artfldgr Says:

    Chris White: we allowed the President to create, essentially from nothing, the new classification of “enemy combatant”.

    Sorry… its not a new classification, nor is the issue a game of spirit vs letter of law.

    The term enemy combatant is in the Geneva convention, so unless bush was in Geneva in 1949, he didn’t invent this new classification. On the issue of spirit vs letter, some argue that it doesn’t apply because AQ is not a state. However, even the GC figured out the world is populated by assholes (ergo that’s why they were there), and so they ALSO used the term “Party to the conflict”, to cover civil wars, and other possibilities (like some idjut arguing against the spirit by requiring perfect wording).

    In 1942, the supreme court also ruled as to what was an “unlawful combatant”, but the left only selects whatever is in their favor, having no other real position than its in their favor and it helps lean towards power acquisition.

    Your argument actually doesn’t hold water, because in the unlawful combatants argument, they can kill them without all this.

    Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.(Emphasis added)

    You see… your missing the point… look at the description of what an unlawful combatant is.

    A person who violates the law of war, the agreements that prevent war from being no holds barred without any limits but mans imagination.

    This didn’t stop them from violating this, but what it did do is inform everyone that if you send someone into someone else’s country to spy, plant bombs, etc… would be killed outright, they have no rights, as their purpose is to deny their targets the first right. The right to life… With this decision a sea of change happens.

    It also gets applied to taxi drivers of the wrong tribal affiliation captured by roving sectarian gangs who in turn sell these prisoners to their questionable police force who hand these prisoners over to US forces to prove their supposed loyalty and usefulness … such an elegant way of furthering a sectarian feud.

    Please show a link to the information there. Given the change in things being as drastic as it is (do you know that the US military has the most lawyers and that they review combat decisions now?), I want to know more about these roving sectarian gangs.

    All I could find is leftist screeds that don’t back up anything and make it sound, as you do, that it’s the US militaries fault that people are drilling other people in the knees. Its not. the reason your blaming the US is because these actions don’t fit the model that people do things like this in response to some form of oppression or some such, and not that they are opportunists, with a dark side that would use any situation, no matter how unconscionable to a western sheltered person, to win their terms.

    I searched google news with sectarian gangs, and ZILCH came up… so its not even a news term…

    Now we have hardcore terrorists, petty criminals and young men who were just in the wrong place at the wrong time serving indefinite sentences in tiny cells on the island of Cuba. Without habeas corpus they have essentially all been declared guilty until proven innocent … with no means of proving that innocence.

    Well, first we would have to blindly accept that the low value nothing people go to gitmo.
    Your painting a picture that just isn’t true at all.

    How many people at gitmo? And who are they? Have you ever cared to check?

    These five men are known to have appeared before tribunals and been freed:
    Feroz Ali Abassi, Mamdouh Ibrahim Ahmed Habib, Martin Mubanga, Moazzam Begg, Richard Dean Belmar

    They are not there locked away with no legal rights… that’s a lie.. They are there under military law that covers actions on the field of battle. So they do have legal representation and other things.

    The detainees are not at gitmo because they were randomly picked up. Some have gone back and have died fighting again against the Iraqis and the US.

    More than 18,000 (wash post) are being held in iraq, and there are less than 275 at gitmo.
    At one time there was 770 men, but they are not their any more… they cooperated with their defense and testimonies and so have moved forward.

    The US didn’t kill them… and unlike your point, they had to have some legal positions in order to get out and go back.

    So you aren’t even talking about the real case as the things you assert are untrue.

    It does not take an advanced degree in psychology, nor in law or politics, to make the reasonable assumption that hundreds of detainees who, when they were detained, had no ties to terrorists or terrorism will eventually be released.

    This is similar to the number of deaths from the inquisition (the church opened up their records), 270… hundred… and hundreds… oh the humanity of it… 270 people (as of may 2008).

    I didn’t see the left holler or you holler when the state took over 400 children away from their parents and put them through living hell for NOTHING… where were you when they were taking those children? Oh yeah… protesting about something that you don’t know the details of.

    How about reading their case documents? Here is a copy from http://wid.ap.org/documents/detainees/richardbelmar.pdf a man who is no longer detained. Read page 10..

    He leaves England to flee prosecution, goes to a house… learns how to work an ak47.. then goes to a camp that he says was a “military training camp for muslims”. He gets training in war and techniques

    And to a key line… the detainee says that he got a chance to fight once.. and the detainee said “that is true”.

    And this is one of the men that are no longer there. Search the URL you get a page to link to documents on most of the detainees. Their testimony is interesting.

    There is, of course, the option of simply executing them all. Again, this will do nothing to help the over all war on terror, in fact quite the reverse, but at least we’ll be spared those books and news reports about the sad case of some guy with a funny name who got grabbed in the street while trying to get from a Shiite to a Sunni neighborhood after visiting his grandmother only to spend five years in Cuba being interrogated and punished without ever being tried.

    I just showed that these people are not at gitmo for such a lame reason… and the fact that they were brought to gitmo was as an alternative to your first statement… I also showed the law dating from when, that said we could execute them.

    So the guy you hate chose not to execute them, but to grant them legal standing. Military legal, not US legal as they were captured during war, and they ADMITTED participation on many levels.

    So again, your ignorance is large in that we could have easily killed them and it would not have been any issue other than it doesn’t fit the American protestant morals to just do that.

    When the Russians or the Chinese or other nations have used similar extra-legal nonsense in the past, the US rightly condemned them for failure to allow prisoners access to an impartial and just legal system.

    Oh.. your funny… the whole Russian and chinese systems were not legal or just. Do you have any idea how they worked or were run? How testimony was given? What kind of treatment prisoners got?

    Even today, Russian prisons are considered some of the hardest on the planet. So it boggles the mind that you are asserting what you are asserting. It shows you have no idea of what your talking about.

    The rest of your point is pretty silly since the issue was never that they had no process, and no means of legal action. Just that they couldn’t question the legality of holding a person who tried to kill soldiers and admits it.

  14. ELC Says:

    As I blogged: “Our black-robed masters have once again decided, in Boumediene v. Bush, to further enrich and empower their fellow lawyers.” I think that’s what it boils down to.

  15. Cappy Says:

    Chris White said:
    During a period when fear overtook reason or legal precedents, we allowed the President to create, essentially from nothing, the new classification of “enemy combatant”.

    With that in mind, perhaps a better policy would be similar to that of Lincoln (another President, another time of fear) in treating Valldingham, or that of Roosevelt (yet another President, another time of fear) in treating alleged Nazi terrorists.

    Or to just kill on sight.

  16. Paul Strauss Says:

    I thought this editorial would be relevant:

    OUR VIEW: Win by being true to ourselves
    ——————————————————————————–

    Journal Star
    Posted Jun 16, 2008 @ 11:54 PM
    Last update Jun 17, 2008 @ 11:21 AM

    ——————————————————————————–
    PEORIA — It’s a difficult, courageous, sometimes dangerous but often patriotic thing, being true to yourself. Perhaps the only thing more perilous is not being true to yourself.

    A slim Supreme Court majority planted its flag with being true to ourselves last week in declaring that enemy combatants” held at Guantanamo Bay have a right to challenge their detention before a civilian judge. Essentially the five ruled in Boumediene v. Bush that there are constitutional restraints on this nation’s ability to lock someone up and throw away the key.

    This represents the third time in four years the high court has put the brakes on George W. Bush & Co.’s zeal to expand presidential powers during war. The court relied on Article I of the Constitution, which dictates that “the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The system of military tribunals first established by Congress three years ago is “not an adequate and effective substitute for habeas corpus,” Justice Anthony Kennedy wrote for the majority.

    Unfortunately, the court again split along predictable, ideological lines. While we believe that the epic, pivotal battle against Islamic terrorism is one that the world’s civilized nations cannot lose and that reasonable people who love their country can differ on how to fight it, the sky-is-falling rhetoric of this decision’s critics was especially pronounced.

    Foremost among them was Justice Antonin Scalia, who said that “the nation will live to regret what the court has done,” which “will almost certainly cause more Americans to be killed.” Presumptive GOP presidential nominee John McCain called it “one of the worst decisions in the history of this nation.” Chief Justice John Roberts was more restrained, though he seemed not to get the fuss over a merely “procedural” matter.

    To which we’d respond: 1) Scalia’s words are those of a man with so little faith in America’s judicial system that he believes its judges will be setting evil men free left and right; we’re not so cynical and believe the reality likely will be the opposite, with judges bending over backward to ensure that doesn’t happen; 2) McCain obviously is not a student of Supreme Court history; 3) Habeas corpus is not just a formality but foundational to what makes America unique throughout the world; and 4) Never let it be said that presidential elections do not matter.

    The critics hang their hats on three hooks – citizenship, location and timing.

    First, they object to “the most generous set of … protections ever afforded aliens detained by this country as enemy combatants,” arguing that U.S. citizens only are entitled to such access to civilian courts. Arguably, the Founders viewed matters such as due process, access to legal counsel and the opportunity to defend yourself against threats to your freedom as basic human rights.

    Second, Guantanamo occupies the land mass known as sovereign Cuba. Yes, but it’s also a U.S. military base that has been under our control for more than a century. The White House purposely sought this foreign-territory loophole to try to escape the Constitution’s reach.

    Third, this shifts America’s foreign policy responsibilities to “unelected, politically unaccountable judges” during an “ongoing war.” Even if you argue that 9-11-01 meets the “invasion” requirement of Article I, that was almost seven years ago; some of these guys have been in quiet captivity nearly that long. Can our government hold someone forever without having to explain why?

    We think this: First, this ruling alone will not send a single prisoner home to fight again, as it just promises the right to request a hearing. If Uncle Sam has the terrorist goods on these guys, he should not be reluctant to prove it and give them what they have coming.

    Second, it has been a while since a White House so pushed the envelope of executive power. While there may be something to the contention that the courts are not the place to decide matters of national security, arguably a president who treats the Constitution as a mere inconvenience gives the courts no other choice. This is a victory for the separation and balance of powers so critical to discouraging abuses of our system. Without those checks, we invite the arbitrary rule of men. We believe, as the Founders did, in the rule of law, and make no apologies for it.

    This decision isn’t for our enemies, but for ourselves. We’re not naive. This is a dangerous world; the Constitution is not a suicide pact. But we are not of the school that believes America must drop its principles to the level of its enemies to prevail. Arguably we put ourselves in greater danger when we prove ourselves pretenders, our Constitution a meaningless piece of paper.

    If we become what they are, then we have lost. This decision is one indication that we are not losing.

  17. FredHjr Says:

    The Court and the Democratic Party never believed that Islamic terrorist organizations constituted anything more than a criminal nuisance. There is no getting around that BASIC perception of the problem. This is the constant tug-of-war during the last seven years: one side (the President and his supporters, here and in other nations) concludes that the recrudescence of Islamic jihad arises out of a sense of a state across the Islamic world, animated by the example of the Prophet. While they do not possess the modern understanding of a “state” if you look back into the history of how the Ummah evolved and expanded there clearly is an understanding that jihad is the expression of the Islamic community. It can declare war on the kafir when it has the power to carry the battle to the kafir. If terrorism and propaganda are the only avenues available because the kafir is militarily stronger, then that is how the jihad will be waged.

    The other side sees the jihad as a band of criminals who do not represent a lethal threat to the nation and to Western civilization. They prefer to adjudicate these things through the criminal court system, granting all the usual procedures proper to that venue, including disclosure (which this enemy has used in the past against us, back in the 1993 trail of Rahman because of the first World Trade Center bombing).

    The Democrats also do not want aggressive interrogations of shaheeds. McCain, incredibly, wants them to have Geneva Convention rights – name, rank, and jihad number. These are organizations that are almost impossible to penetrate for intelligence gathering. And if we need to do electronic surveillance on them, we have to go to a judge and get it now, even if it occurs overseas, since the antiquated laws were written at a time before the kinds of networks we now have were in place. If we control the wires, even if overseas, we have to go to a judge. This is suicidal. It is going to kill people in the future.

    So, the only avenue we have, by the logic of the Court, is to detain these prisoners overseas. But the way the logic of the decision was laid out, if we effectively control the location where they are detained, then they are deemed to be covered by the decision.

    This decision will spin off all kinds of unintended and deleterious consequences, mainly harmful to us, but also imposing on our military ROE’s which they will not like: shoot, shovel, and shut up. I am a military veteran and in Army Basic Training, in the aftermath of a certain atypical atrocity in South Vietnam, the emphasis in our training about ROE was that we had an ethical duty to accept the clear surrender of an enemy and hand them over for detention and questioning. We were taught that when the enemy presents a clear, unmistakable intent to surrender we must accept their surrender. And the natural inclination of we American boys is to do just that. We have a code of honor in our culture that is rooted in our Graeco-Roman-Judaeo-Christian civilization. Now, if our men in uniform know that the areas where we have detention centers, being effectively under the control of the U.S. government, will avail the shaheeds of the protections of access to our civilian court system, there will be absolutely no incentive to take prisoners. None. Realistically, in a war zone the enemy is not going to be given even a chance for surrender. They will be annihilated. Let there be NO DOUBT about that.

    Overall, this decision is the Court’s way of flipping the Commander-in-Chief the bird and usurping his Constitutional duty to carry on war policy as he and the Congress have decided.

    We are in the process of committing civilizational suicide. There are just dozens of examples of how this is taking place, across many dimensions of this battlespace. The nation will pay in blood for the hubris of the elites in the West who do not take this enemy at his word. I only hope that some future event animates our nation to take back its right to defend itself against these 7th century savages. Whatever measures it requires for this to happen…

  18. Paul Strauss Says:

    Re: “Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention…”
    This is deliberately because NONE of the defendants who were captured fighting against the USA is challenging his detention.
    The prisoners at Guantanamo caught fighting against the US are charged with being “illegal enemy combatants.” If they are not proven to be “illegal enemy combatants” they naturally revert to being legal enemy combatants, which means that they must be treated as ordinary POWs, which means they will be returned to detention in Iraq or Afghanistan. They are NOT challenging their detention. In fact, they seek to be detained as ordinary POWs.
    A second group of prisoners are challenging their detention in Guantanamo, but they were not captured fighting against the U.S. This is the group of people who were captured far from a battlefield and are being charged with being terrorists. Is it to much to ask that people arrested on the serious charge of terrorism have at least some evidence against them? Is it really in the interest of the United States to give the president the power to order the arrest of just anyone without evidence?

  19. Paul Strauss Says:

    Sorry, a typo:

    Re: “Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention…”
    This is deliberately misleading because NONE of the defendants who were captured fighting against the USA is challenging his detention.

    The prisoners at Guantanamo caught fighting against the US are charged with being “illegal enemy combatants.” If they are not proven to be “illegal enemy combatants” they naturally revert to being legal enemy combatants, which means that they must be treated as ordinary POWs, which means they will be returned to detention in Iraq or Afghanistan. They are NOT challenging their detention. In fact, they seek to be detained as ordinary POWs.

    A second group of prisoners are challenging their detention in Guantanamo, but they were not captured fighting against the U.S. This is the group of people who were captured far from a battlefield and are being charged with being terrorists. Is it to much to ask that people arrested on the serious charge of terrorism have at least some evidence against them? Is it really in the interest of the United States to give the president the power to order the arrest of just anyone without evidence?

  20. Paul Strauss Says:

    Re: But the way the logic of the decision was laid out, if we effectively control the location where they are detained, then they are deemed to be covered by the decision.

    No. This is wrong. The ruling does not apply to any place that is in de facto control of the US government. It only refers to a territory that is in effective control of the US government, like Guantanamo.

  21. neo-neocon Says:

    Paul Strauss: You’re setting up a straw man. Congress has already passed laws that guarantee rights to these detainees, and it is in Congress’s power to do so. The rights just don’t include the full guarantees of habeas corpus and all that goes with it, rights that have never been applied to noncitizen illegal enemy combatants (or noncitizen legal enemy combatants, for that matter).

    This is the subject matter under discussion here.

    And I agree that:

    …separation and balance of powers [are] critical to discouraging abuses of our system. Without those checks, we invite the arbitrary rule of men. We believe, as the Founders did, in the rule of law, and make no apologies for it….Arguably we put ourselves in greater danger when we prove ourselves pretenders, our Constitution a meaningless piece of paper.

    Exactly my point. That’s what the overreaching of the Supreme Court has done in this case—upset the balance of powers by usurping Congress’s role, rather than protecting it.

  22. maneocon Says:

    Not sure this is the end of it. Congress, if it has the nerve, could once again proscribe a law and the executive could implement it. And it could again go back to the same court or a differently constituted court. And the result could be better or worse.

    As for Obama, I have said once before that he is not only disingenuous, he is dangerous. In hailing the decision so quickly, I am not sure he read the full text of it. In fairness, I don’t think McCain did either.

    Most Americans don’t analyze the news, they just want the MSM analyze it for them. So, they don’t realize what has just happened. The supremes haven’t preserved any of our civil rights any more than Bush trampled on them. They just granted our rights to 270 of those who want to take away our fundamental right to “life, liberty and pursuit of happiness”. There is nothing to cheer about – left or right.

    Bush has very little left to be concerned with. But Obama or McCain will be very sorry for this decision.

    Obama is yet to realize this. You see, he has only been part of a legislative body – in fact, “the world’s most deliberative body” – the US Senate. He is under the misguided assumption that once in the White House he can debate with his friends in the senate and get things resolved. Or the Supremes to go his way. He hasn’t yet grasped the separation of powers.

    God Bless America. We are in for a bumpy ride.

  23. gcotharn Says:

    Paul Strauss,

    B/c I’ve gone geeky on Boumediene, I’ve read through Chief Justice Roberts’ dissent. The Peoria Journal Star editorialist misinterprets this part:

    Justice Roberts does not complain that enemy combatants are receiving the most generous protections ever afforded in U.S. history.

    To the contrary: Justice Roberts points to those generous protections to bolster his case that the Executive and the Legislative have already gone to great lengths to consider and to ensure fair treatment for enemy combatants.

    If any unnamed “critics” of the majority’s decision did complain about those protections, then those critics also misunderstood Justice Roberts’ context.

  24. hysperia Says:

    Like many others here, I am pretty surprised to see you, or anyone, quoting John Yoo. I’d thought his reputation quite sunk. Someday I suspect, he’ll be filing his own habeas petition and he’ll be glad of any decision of the Supremes that verifies it’s importance as a key pillar of democracy. Especially if a troop of al-Qaeda ex-prisoners from Guantanamo kidnap him and hold him prisoner there for six years or so.

    But quite apart from that, if you truly do think the Boumediene decision is wrong, like the decision the Supremes made when Bush sued Gore over the 2004 election was wrong (yeah, I agree, they do get it wrong sometimes) then tell me how you’d solve the problem of legal jurisdiction in Guantanamo. Bush et al say habeas doesn’t apply because it’s not American sovereign territory, it’s just a place that the US has occupied for decades under contract with Cuba. My idea is, fine, it’s Cuban sovereign territory then. Let Cuba resolve the situation with the prisoners of war there in Guantanamo Bay, Cuba. I’m sure they’d be more than happy to assist.

    Geez, I’m still amazed to hear that John Yoo is still saying ANYTHING about ANYTHING. If I were him, I’d be looking to head out to Josef Mengele’s old shack in Paraguay.

  25. hysperia Says:

    And whoever that person is, up there somewhere in the comments, who said that the Military Tribunals have the power of habeas, WRONG. The Supremes would have gone for any kind of review in which the government had to show prima facie evidence warranting continuing imprisonment until trial if that evidence had ever been shown. The Supremes also said that, in accord with the rule of law, the habeas-type proceeding had to take place within a reasonable time period. That’s what such proceedings are FOR after all: to ensure that people are not held for long periods of time, such as SIX YEARS, for no dammed reason.

  26. Sergey Says:

    I can not understand this demonization of John Yoo. I have read his legal opinions and found them reasonable. This is nothing else that old principle of raison d’État in times of war. All accusations against him are purely ideological, not legal. You can believe or not believe in raison d’État; but a lot of authoritative ideologists of a realist school of foreign policy, like Henry Kissenger, do believe in it.

  27. Daveg Says:

    the Supremes made when Bush sued Gore over the 2004 election was wrong…

    Huh? Gore ran in 2004? I know it’s hard to tell one droaning, opportunistic, posturing gasbag from another, but…

    For one that is as willing to ignore the merits of Yoo’s argument based on media-fed issues of “credibility,” as you are, well, you run the risk of having the merits of your argument ignored for similar and every bit as facile reasons.

  28. Mitsu Says:

    At last, a relatively reasonable critique of the Boumediene decision. It is erroneous, however, for a number of reasons.

    There are essentially two primary questions here. The first is whether the detainees held at Guantanamo are afforded habeas rights under the Constitution, and second, whether the review commissions are adequate recourse for the detainees under this habeas right. The majority held that in the first case, the answer is yes, and in the second, the answer is no.

    It’s worth pointing out that not all of the detainees held at Guantanamo were captured “on the battlefield” — many were captured away from the battlefield.

    However, the crucial test here was laid out in Johnson v. Eisentrager, in which the Supreme Court denied habeas rights to German citizens captured by American forces in China. In that decision, the Court outlined six tests they used in their reasoning to conclude the German citizens were not entitled to habeas rights:

    “(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

    The key issue here, then, is whether or not Guantanamo Bay can be considered United States territory. The test the majority held in this case was not only whether the territory were under United States control, but whether this control was “absolute and indefinite”. Because our agreements with Cuba allow us to indefinitely extend our control over Guantanamo Bay, the majority quite reasonably concluded that our control over the area of the base is “absolute and indefinite.” This is a reasonably clear standard.

    A second point which the majority brings up which I believe deserves great consideration is the length of detention. In ordinary wars POWs are held for the duration of hostilities; in this case, the hostilities may last indefinitely — the so-called “war on terror” may well extend without end. Note that Scalia, in his dissent, considers the “start” of this war to be the attack in Lebanon against our barracks — an attack not even carried out by Al Qaeda, which was part of a very different conflict. How do we even define the beginning and end of hostilities if it can be so vaguely defined? The Court reasonably concludes that six years of detention without meaningful review is already excessive.

    The final question is whether or not the prisoners have been afforded adequate protections under their habeas rights. Note that Roberts confined his dissent to only this question — he simply said the question of whether the prisoners have habeas rights is moot because he held that their rights have been adequately protected. However, the majority points out several facts about the Combatant Status Review Tribunals, to wit: the prisoner is not allowed an attorney, only a “representative”, anything the detainee tells the representative can be held against him, so far, in 96 percent of the cases, the government produced no witnesses nor any documentary evidence, detainees were only allowed to see summaries of the evidence against them, and the evidence was always presumed to be valid, and in 30 percent of the cases before the CSRT, the “representative” said nothing of substance during the proceedings. The review process set up by the statute only allows the court to review whether the CSRT has followed its own procedures — the Court of Appeals has already declined to review the CSRT because of the inadequacy of the record.

    I applaud you, Neo, for posting a reasoned critique of the decision, and I am not going to engage in ad hominem attacks against John Yoo, but the fact is, the Boumediene case was correctly decided, and Yoo is simply wrong. This decision upholds the Great Writ, as it should, and as a democracy we ought to applaud it.

  29. Richard Aubrey Says:

    When you send a guy down a hole to see what’s in it, and you don’t like what he finds, you ought to be upset with whomever put the stuff down there, not the guy who was sent to find it (Yoo).
    He reasonably interpreted the law. Don’t like the law? Get mad at Yoo. Too many people with juice signed off on the law.

  30. Sergey Says:

    There is no novelty in restriction of constitutionally protected rights in time of war. It was done regularly without much noise about it. The only sound question is if this is really needed and is there realistic possibility of methastasing of such restrictions beyond their proper aim. For the first question, the answer is yes. For the second, the answer is no. For decades of war to follow, even more drastic restrictions may be found needed, and if such judical debacles will follow, the Supreme court can discredit itself to the point of irrelevance. And this will be the actual threat for democracy.

  31. neo-neocon Says:

    Mitsu: You don’t touch on one of the main problems with the decision: the overriding of what should be a Congressional power. See this for one argument about that, by Professor Bainbridge. The other argument is that the remedy already afforded by Congress in its statutes passed explicitly to comply with the earlier SCOTUS decision in Hamdan has not been tested and found wanting in terms of protecting prisioners’ rights, and yet the Court took the extraordinary measure of overriding Congress’s ability to regulate such things. Overreaching.

    And this, from the comments section of Bainbridge’s post, by one ajacksonian:

    Actually, Congress gets to make the military law, too, and can distinguish between military and civil law when making law. In the past Congress actually has made military law to cover just this problem:

    “Art. 82.

    Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers – such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.”

    That from: [url="http://www.yale.edu/lawweb/avalon/lieber.htm#sec4" ]INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD

    Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.[/url]

    Do excuse me if I am less than impressed with the SCOTUS being unable to recognize the differences between military and civilian law and the power of Congress to determine what those differences are, which the courts are to abide by. If Congress, in the past, could readily distinguish between these and set up the necessary legal underpinnings for dealing with this on the military side, then where does the SCOTUS get off doing otherwise today?

    But then I am no legal scholar…

    And in Eisentrager, the fact that the prisoners were aliens rather than citizens was considered important; it wasn’t just the fact that they were being held abroad (the following is from Boumedine, which does not effectively deal with the fact of the prisoners’ non-citizenship in this case):

    iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager-style trial by military commission for violations of the laws of war.

    I have certainly not read the entire text of either deicision, but from looking at what seem to be the relevant clauses it does not appear that the prisoners in Eisentrager were denied habeas corpus right ssolely because Germany was not part of the US (and, by the way, neither is Guantanamo, really; I think it was another stretch by the court to declare it so). The fact that they were enemy aliens was a very important part of the case, and this is the precedent that the present Court swept away without really dealing with the issue in any way that makes sense. They tortured the law to get the result they wanted. That’s never a good thing.

  32. grackle Says:

    What I’m afraid will happen is the same thing that happened as a result of the trials against the bombers of the first unsuccessful attempt to bring down the World Trade Center in 1993. Namely, due to the discovery process necessitated by the treatment of these monsters as ordinary criminals with all the rights ordinary criminals receive in the US courts, Osama bin Laden found out that his phone conversations were being listened to and that source of intel dried up a week later.

    Other intelligence sources also had to be compromised as part of the discovery process during these trials. This is why the Bush administration wants something other than the ordinary judicial process to apply to these captives.

    BTW, several of the prisoners who have already been released from Guantanamo have gone on to more murder and acts of terrorism.

    Congress could remedy the situation by passing further legislation, perhaps with provisions more to the SCOTUS’s liking, dealing with the treatment of these terrorists but considering the partisanship of the congressional majority I very much doubt such a commonsense event will happen.

  33. Bookworm Room » Wonderful stuff to read from the Watcher’s Council Says:

    [...] Supreme Court: Supreme Overreach Neo-Neocon [...]

  34. Thomass Says:

    Paul Strauss Says:

    “No. This is wrong. The ruling does not apply to any place that is in de facto control of the US government. It only refers to a territory that is in effective control of the US government, like Guantanamo.”

    Oh please…. what rulings say doesn’t always demonstrate what they mean and/or show their effect. Why Gitmo and not another US base? Now we have this precedent, so next time it comes up why not?

  35. Thomass Says:

    hysperia Says:

    “Boumediene decision is wrong, like the decision the Supremes made when Bush sued Gore over the 2004 election was wrong”

    2000, the decision was based on a suit Gore brought, and they were right to stop Gore from trying to steal the election with selective recounts…

  36. Artfldgr Says:

    Obama advisers say bin Laden can appeal to U.S. civilian courts

    http://www.examiner.com/printa-1446818~Obama_advisers_say_bin_Laden_can_appeal_to_U.S._civilian_courts.html

  37. Ymarsakar Says:

    With any means and at any costs is the battle banner of Leftist ideology.

    And the Democrats both have the ruthlessness and the craving for power to uphold such Leftist ideology in its true colors.

  38. Jimmy J. Says:

    This issue is extra-territorial as these detainees were picked up on battlefields in Afghanistan or in SOF raids in foreign countries. The detainees were not conducting themselves according to the rules of war, (No uniforms or insignias, not attached to a sovereign state, and not attacking only military targets.) so are not legally POWs. Nor do they come under the purview of the Geneva Conventions except as civilians who have clandestinely taken up arms during war. The haziness of their status was the reason our government opted to imprison them at Gitmo, outside of CONUS.

    Under the classification of unlawful combatants they are not entitled to treatment as POWs . They can be interrogated, and tried for crimes. They can be also be summarily executed by their captors, which may be the new recommended course of events.

    This country, IMO, has given these prisoners far better treatment than is called for under the Geneva Conventions.

    The detainees at Gitmo are NOT U.S. citizens! Habeas corpus under the Constitution applies only to citizens and aliens legally in this country.

    U.S. citizens legal aliens, and illegal aliens that have been arrested for plotting terror ops against this country have been afforded proper criminal trials in civilian courts. All to the detriment of the security of classified information and the safety of the judge, prosecutors, jurors, and prosecution winesses.

    All of the above trial participants have been marked for death. The culture of these killers honors revenge as a duty and necessity, even if it takes generations to carry out. These good people who have carried out their duties in our justice system can never be sure of their future safety.

    Secret military tribunals may seem like star chambers, but they are the only practical method for bringing barabarians from an honor shame- culture to justice without repercussions for those who participate in the trial.

    It is my understanding that the few hundred captives remaining are the worst of the worst and not just some schmucks who were in the wrong place at the wrong time. It has been proven that many of those who seemed to be just poor schmucks and were released went right back to the battlefield.

    The administration and Congress, at the urging of the democrats, asked SCOTUS how to go about handling these unlawful combatants. They then passed a law conforming to the plan SCOTUS outlined. Now SCOTUS has opined that the plan they asked for was not good enough. What they really wanted was to extend the rights of U.S. citizens to these unlawful combatants because – well, it’s just the right thing to do, in their learned opinions.

  39. FredHjr Says:

    Jimmy J,

    I agree with everything you have written above. But the context is more complicated, because we are also in the middle of a vicious political war within the country that the President has effectively lost. Part of this internal political war involves the legal establishment against the President and the military. Party vs. Party, too. The wider context of the Islamic Ummah waging jihad against dar al Harb seems completely moot to the legal elites, who seek to wage this war against the government, claiming the government is the real enemy, not the jihadi.

    My experience with the people on that side of the issue is that they have no interest whatsoever in getting up to speed to the Islamic enemy’s scriptures (Qur’an), traditions (ahadith), law (Sharia), and the template for war fighting (Sira – the life and deeds of Muhammad). They do not believe that this enemy is even a pimple on our arse. Our academic institutions are bought out by the money collected from the Muslim zakat (tithing) throughout the Islamic world, and it does filter down into the legal establishment. There is a law professor at Harvard who believes that we should make accommodations for including Sharia Law in our country (the irony is that he is Jewish and a “Progressive”).

    We have no control over the blindness and sloth of our elites. But some day, if things do reach an intense crisis, they most certainly may have a date with the gallows.

  40. Jimmy J. Says:

    FredHjr,
    Yes, you’re quite right. There is, in fact, a civil war going on within our culture. It has not reached the violent stage……….yet. Let us pray it doesn’t.

  41. troglaman Says:

    “and judges must fight against the temptation to overuse them to get the results they want to see.” neo

    Maybe the Supreme Court tried to uphold the law. Isn’t that what they’re supposed to do?

    Habeas corpus isn’t exactly a new and revolutionary idea. It used to be a point of pride, a cornerstone of democracy and a promise. But as neo said, Thank God, habeas corpus is now considered a “temptation”. As we all know, anything having to do with “temptation” most likely involves Satan so maybe we should all just stop talking about it.

  42. Bookworm Room » Watcher’s Results Says:

    [...] Supreme Court: Supreme Overreach Neo-Neocon [...]

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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