“Everyone is in favor of free speech… but some people's idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.” ― Winston Churchill
The justices of the United States Supreme Court this week became the world’s most august global warming sceptics. … Global warming is by no means a settled issue, they made clear, suggesting it would be foolhardy to assume it was.
A 5-4 split? What did the Liberals say in dissent? You’ll have to RTWT.
Posting is going to be light this week, my son is getting married on the weekend and I’ve a got a long to-do list.
Nevertheless, you should read about a lying attempt to defeat Michigan Supreme Court Chief Justice Cliff Taylor, and note that the players tried something similar when Barack Obama was on the Board of the Joyce Foundation. It further demonstrates Obama wants to confiscate guns.
The crimes are being committed by the DC government.
DC Rejects [Dick Heller’s] Handgun Application
Dick Heller is the man who brought the lawsuit against the District’s 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit.
But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.
Besides obtaining paperwork to buy new handguns, residents also can register firearms they’ve had illegally under a 180-day amnesty period.
Though residents will be allowed to begin applying for handgun permits, city officials have said the entire process could take weeks or months.
Heller’s Future in the Lower Courts
H/T Instapundit
Kenneth Anderson, law professor at the Washington College of Law, American University, is also a member of the Hoover Institution Task Force on National Security and Law. He writes about the Boumediene decision here:
Supreme Court Flexes Its Muscles in Boumediene Decision. Read the whole thing.
…Habeas at Guantanamo affirmed in principle. But developing actual standards for individual cases — what the specific rights of detainees are and how they should be weighed against real-world security concerns — was handed off to the myriad federal district courts. The Court offered no glimmer of what it thought actual, workable principles should be. It is evident that Justice Kennedy has no idea; he simply believes that district courts will be better and, perhaps, have greater legitimacy at it – particularly in the world of global judicial elites in Europe in which Justice Kennedy basks – than the American people’s elected representatives.
On June 12th, I called this SCOTUS Europhilia an example of “…the insidious weakness of Western Civilization’s leftist guilt-quest for cultural self-esteem,” contending (in the comments) that, “the motivation arises from cultural guilt parallel to the Shelby Steele model: It has far more to do with the moral redemption of the 5 Justices than with the law…” The long link above is from Professor Anderson’s original article and it links to an article in The New Yorker magazine subtitled, How Anthony Kennedy’s passion for foreign law could change the Supreme Court. It was written in 2005. It didn’t take very long to come to pass. For anyone who’s been hanging out with Ted Kaczynski for the last 40 years, I’ll mention that The New Yorker is a “progressive” magazine. They approve of Kennedy’s sycophancy.
Here’s more from Professor Anderson:
…Prior to Boumediene, I would have said that the Court’s main concern has been that the war on terror is not “war” in the traditional sense, operationally or legally, and that just because the political branches call something war does not mean it actually is war, at least not if a consequence is the executive’s ability to detain anyone — which is where the administration started out, back with Jose Padilla, a U.S. citizen — as any enemy combatant solely on its say-so. If habeas did not apply to that claim of executive power, what was it good for? It is a fair question, but one that, as the chief justice noted in his dissent, is covered not just for citizens but even for aliens, by the MCA and DTA. Why the need to go beyond those? After Boumediene, it would seem to matter only if you see this as part of a larger project to carry the Constitution abroad, insofar as American agents and military act beyond U.S. borders, and to transform warfare into a species of large-scale law enforcement. If you are required to collect and preserve evidence in order to be able to hold alien security detainees picked up in foreign war zones, after all, war has become a very different activity.
Emphasis mine, because I agree with it. As I pointed out to an anonymous Ontarian in comments to that June 12th post, “You consider that laws of the United States ought to apply to foreign nationals on foreign soil. I can’t help but remember chief CHRC [Ironically, that’s the Canadian Human Rights Commission.] investigator Dean Steacy’s comment that, “Freedom of speech is an American concept, so I don’t give it any value.””
We can’t even export the responsibilities of American law to Canada in defense of its own Charter of Rights, but “enlightened” Canadians think we should be Mirandizing Osama bin Laden (as do Barack Obama’s advisors), Disagree and it means you’d like to see the Constitution “ripped up”. Thanks, but Anthony Kennedy is already on that job.
…Justice Kennedy is a human rights universalist — habeas corpus for aliens as for citizens, contrary precedents like Eisentrager be damned. And yet Afghan and Iraqi lives apparently are at a steep discount in the Boumediene majority’s weird, morally preening settling of accounts between liberties and security; so too, eventually, are American lives.
The obvious problem with exporting American Constitutional rights to foreign nationals is that we have no way to require any of the cultural behavior expected to be associated with having those rights. I wasn’t joking about Mirandizing terrorists, it is a straight line to that from believing habeas rights are due to POWs or enemy combatants on foreign soil. The only appreciation shown by those who respect neither habeas nor free speech is likely to be glee in killing more people who disagree with them.
I understand the objection: “You can’t just lock people up forever without lawyers because George Bush says so!” And I agree, but this is not at issue. How did this case come before the Supreme Court if Lakhdar Boumediene was denied a lawyer? Answer: He wasn’t. Access to lawyers, and to the Circuit Court of the District of Columbia, was part of the procedure to which Congress and the President jointly agreed, at SCOTUS’ direction. SCOTUS then found these protections inadequate on grounds it needn’t even have considered in this case. It was, indeed, a sad day.
See also, for more links to commentary on this decision.
Here’s a prophecy I made yesterday that I’d rather have seen unfulfilled. However, if Obama’s people are saying it, who among Boumediene‘s apologists will disagree? Anybody? Anybody…?
Obama advisers say bin Laden can appeal to U.S. courts
Barack Obama’s foreign policy advisers said Tuesday that Osama bin Laden, if captured, should be allowed to appeal his case to U.S. civilian courts, a privilege opposed by John McCain.
Responding to questions from The Examiner, Sen. John Kerry and former White House counterterrorism czar Richard Clarke said bin Laden would benefit from last week’s Supreme Court decision giving terrorism suspects habeas corpus, the right to appeal their military detention to civilian courts.
“If he were to be brought back,” Clarke said of bin Laden, “the Supreme Court ruling holds on the right of habeas corpus.”
… On Monday, Obama applauded the civilian prosecution of terrorists prior to the attacks of September 11, 2001.
“In previous terrorist attacks — for example, the first attack against the World Trade Center — we were able to arrest those responsible, put them on trial,” he told ABC. “They are currently in U.S. prisons, incapacitated.”
This is really taking the idea of the United States as the world’s policeman to the next level, but we have to remember that foreign nationals who brag about committing mass murder are people too. Probably Osama’s how he is because of unresolved misogynist trauma as a child.
Well then, Obama, we’ll just wait for the third round of WTC bombers to be arrested – then they’ll be “incapacitated.” Oh wait, there’s no point.
Look, 5 years ago there were 660 guests at Gitmo. Today there are less than 270. Of the 390 released – that’s released by the US military – 30 have either suicide bombed, been recaptured or have died while attacking (mostly) non-US citizen civilians. Those are the ones we know about. A rational guess would say there are probably more. It would also say those released who are still living free are the smarter, more dangerous ones.
If “innocent until proven guilty” has any meaning, I hope other Western democracies can live up to the example of the US military. Their record, and overwhelming Congressional and Executive suport for the process they followed, has not been sufficient for our own highest court. It’s like gun-control rhetoric in Toronto.
As I said on June 12th, it was a sad day. My response to a naive comment on that post here. (#3 & 4)
SCOTUS has vastly complicated the prosecution of the war with the Miranda rights for Jihadi Boumediene decision. It has opened the door for every terrorist suspect captured on the battlefield, no matter where subsequently detained by US forces, to demand treatment with the full rights and protections of the Constitution of the United States. Following the SCOTUS majority’s logic, this would include Osama bin Laden, should the United States be foolish enough to detain him itself.
To reach this conclusion, SCOTUS had to ignore multiple precedents and the structure of the Constitution itself. Why would it do so?
Eric H. Holder Jr., currently co-chair of Barack Obama’s running mate selection committee and Deputy Attorney General during the Clinton administration (from which position he pushed for the pardon of Marc Rich) has an idea. He says the United States owes the rest of the world an apology.
Insisting it was disgraceful that the Supreme Court “had to order the president to treat detainees in accord with the Geneva Convention”* in the Boumediene decision, Holder went on to say:
“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe,” Holder told a packed room at the ACS 2008 Convention on Friday evening. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”
I have no doubt that 5 Supreme Court Justices agree. I am not alone.
Bloomberg: Guantanamo Ruling May Roil Obama, McCain With No Alternatives
…the Supreme Court said the prisoners must be treated as if they are on sovereign U.S. territory even though the prison is on Cuban soil.
The Weekly Standard: The Gitmo Nightmare
It’s hard to summarize a decision as long and complicated as the Supreme Court’s 5-4 ruling last week in Boumediene v. Bush. But we can try. Unprecedented. Reckless. Harmful. Breathtakingly condescending.
…As it happens, some of the most effective arguments against Boumediene come from the decision itself. For example, Justice Kennedy wrote that in cases involving terrorist detention, “proper deference must be accorded to the political branches.” Then he overrode them.
…In his opinion, Kennedy conceded that “before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” Inventing rights seems to be what some of today’s Supreme Court justices do best. In 1950 the Court ruled in Johnson v. Eisentrager that foreign nationals held in a military prison on foreign soil (in that case, Germany) had no habeas rights. But, without overruling Eisentrager, Kennedy said the Guantánamo detainees are different from the German prisoners 58 years ago.
Why? Kennedy wrote that Eisentrager had a unique set of “practical considerations,” and the United States did not have “de facto” sovereignty over Germany as it does over Guantánamo Bay. That territory, “while technically not part of the United States, is under the complete and total control of our Government.” But these slippery distinctions only raise more questions. Doesn’t the United States government exercise “complete and total control” over its military and intelligence facilities worldwide? If so, what’s to stop foreign combatants held in those locations from asserting their habeas rights?
USA Today: Opposing view: An inexplicable power grab
…The court said the doctrine that it was upholding is enshrined in the Constitution, even though it candidly acknowledged that it could not cite a single prior case in which an American or English court had exercised such power in a case involving aliens held overseas.
The court’s unprecedented power grab is inexplicable given the absence of substantial evidence that innocent people are being detained. Every Guantanamo Bay detainee has been afforded a hearing in front of a Combatant Status Review Tribunal; those still being held were all determined to be enemy combatants. The basic fairness of the hearings is readily apparent. Many resulted in detainees being released.
The Wall Street Journal: President Kennedy
Supreme Court Justice Anthony Kennedy isn’t known for his judicial modesty. But for sheer willfulness, yesterday’s 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.
…Justice Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.
…By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won’t now have the same right to have their appeals heard in an American court.
Townhall.com: The United States Supreme Court Versus America: Awarding “The Privilege of Habeas Corpus To Terrorists”
…Only one thing is certain: Our terrorist enemies still at large must be amazed, amused and encouraged by the continued insistence by legal elites that they be treated like petty American criminals rather than fanatical killers eager for martyrdom.
…What is more alarming than the prospect of ignorance on the part of the majority is their collective seduction by hard left elites, particularly those in the Academy. Supreme Court justices don’t get out much. When they do it is typically to the nation’s law schools and to judicial and ABA conferences, where they are no doubt surrounded by thousands of elites who have as much experience with the war as the justices, but are perhaps even less well read on the nature of the jihadists’ ideology and tactics.
The Weekly Standard: Due Process for Jihadists?
The solicitor general had a very good case. Let’s leave aside that in Johnson v. Eisentrager (1950) the Supreme Court flatly held that the Constitution does not vest foreign enemies with the right to habeas corpus–i.e., to challenge their military detention before the civilian courts. Let’s instead compare what Congress has wrought (with the 2005 Detainee Treatment Act and the 2006 Military Commissions Act) and “the base line” of 1789, when the Constitution enshrined habeas rights for Americans.
Clement recounted that in the late 18th century, alien combatants faced three insuperable hurdles in front of the courthouse door: (a) the jurisdiction of the federal courts did not extend outside U.S. territory; (b) the judicial writ was simply unavailable to belligerents because taking prisoners of war was deemed a political act of the sovereign, not a legal question for the courts; and (c) judges were required by separation-of-powers principles to accept the executive branch’s determination of combatant status.
Now, by contrast, combatants are given systematic judicial reviews in the civilian courts despite being held in a location, Guantánamo Bay, that the political branches have reaffirmed is not part of sovereign U.S. territory.
Wall Street Journal: The The Supreme Court Goes to War
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 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.
…Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge’s view on how much “proof” is needed to find that a “suspect” is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather “evidence,” which will have to be safeguarded until a court hearing, take statements from “witnesses,” and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.
Read The Whole Things
*The Geneva Convention explicitly excludes combatants who pose as civilians (i.e., without uniforms) or who target civilians. They are considered spies and terrorists respectively. They are not entitled to protection as prisoners of war. And even POW’s have never been granted habeas rights.
Blogging has been light lately for two reasons. First, I became a grandfather on Friday, June 6th. Second, as a result of storm damage in the Lansing area I’ve been without internet access since Saturday. But, onto the topic of this post’s title.
Today’s SCOTUS decision to extend Constitutional protections to enemy combatants – foreign nationals whose boots have never contacted US soil – reverses a 1950 precedent that nonresident alien enemy combatants have no right to habeas corpus. Guantanamo is now useless as a detention center for terrorist suspects. Unfortunately, the Bush administration was foolish enough to believe the precedent would protect the United States from having to reveal secret intelligence at trail before Civil courts.
Here is a small excerpt from Justice Scalia’s dissenting opinion:
…The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950) , when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.
In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.
And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) , when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:
“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.
“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).1
Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
I recommend reading the whole thing.
This is a sad day. Five SCOTUS Justices, in the name of preserving American justice, have instead demonstrated the insidious weakness of Western Civilization’s leftist guilt-quest for cultural self-esteem.
Sadly, Osama, we may indeed be the weak horse. Our Supreme Court is a pony, at best. And it’s riding us.