Sunday, June 15, 2008

More on the latest Supreme Court Stupidity 
In issuing their outrageous Bomediene decision, the Supreme Court not only trashed the legal and proper intent of both elected branches of government, which provided for the status of these prisoners, but also flew directly in the face not only of established practice, but legal precedent established, quite firmly, by the Supreme Court as well.

So much for stare decesis.

Writing in 1950, Justice Jackson rightly perceived the idiocy of granting habeas corpus rights to illegal combatants held abroad in military custody:

A basic consideration in habeas corpus practice is that the prisoner will be produced before the court. This is the crux of the statutory scheme established by the Congress; 9 indeed, it is inherent in the very term "habeas corpus." 10 And though production of the prisoner may be dispensed with where it appears on the face of the application that no cause for granting the writ exists, Walker v. Johnston, 312 U.S. 275, 284 , we have consistently adhered to and recognized the general rule. Ahrens v. Clark, 335 U.S. 188, 190 -191. To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Jackson further goes on to note exactly what I noted at first blush - that by granting the right to a writ of habeas corpus to foreign illegal combatants, we grant terrorists greater legal protection under the Constitution than to our own soldiers who are fighting and dying to defend it:

If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. American citizens conscripted into the military service are thereby stripped of their Fifth Amendment rights and as members of the military establishment are subject to its discipline, including military trials for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695 ; Wade v. Hunter, 336 U.S. 684 . Can there be any doubt that our foes would also have been excepted, but for the assumption "any person" would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. And, of course, it cannot be claimed that such shelter is due them as a matter of comity for any reciprocal rights conferred by enemy governments on American soldiers. 11 [339 U.S. 763, 784]

The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U.S. 160 . While this is preventive rather than punitive detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.

The US Supreme Court's decision was an outrage against our elected representatives, against our Executive in his role as Commander in Chief, against the wisdom of prior Supreme Courts, and against our own fighting men and women.

Splash, out


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"Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. "

You see, they were tried in China, before transport.
They got their due process.
It's not Habeas, but it was something and it kept the court at bay.
And yet this decision by the Court has invalidated the mechanism by which to try these detainees before they are transported, the mechanism that was crafted by both the President and Congress.

That argument is functionally retarded.
Absent evidence of some other crime, you don't "try" enemy combatants during a time of war, genius!
Well you do have to give them a status review hearing where they get to claim, "it wasn't me, you got the wrong guy" earlier than 6 years into their detention.

But you can see right there, it don't take a genius, it's the first paragraph in the case you cite, why this is different and the president it set does not apply to the circumstance in this case.

Had this administration had half a clue, we would not be here.
Holy jeebus, Tom,

These individuals in the Eisentrager case were suspected of having committed a war crime. That is why they were tried. Absent that crime, there never would have been a trial. There is no need for one. The existence of hostilities is all you need to lock up a nonresident alien of hostile origin.

From the Eisentrager decision:

Executive power over [***1264] enemy aliens, undelayed and
unhampered by litigation, [**942] has been deemed, throughout our history,
essential to war-time security.

Hell, there's not even a requirement in that language that the alien need be a combatant. He need simply owe a duty of allegiance to the hostile entity.

In the case of Eisentrager, the hostile entity is assumed to be a nation state. But both the Congress and the Courts have repeatedly held that a state of hostility exists between the U.S. and Al Qaeda (there are no detainees from Iraq at Guantanamo.)

There are, indeed, a number of Hamdan-inspired safeguards to guard against the possibility of mistaken identity - each detainee is taken in with two sworn statements from witnesses, capture cards and documents stating circumstances of capture. The commanding officer and a number of intermediaries each review this documentation at a number of stages. I myself have refused to accept a number of detainees where the documentation or rationale for capture was weak, and effected their release.

No court is going to do a better job than the commanders on the ground. As Justice Scalia points out, they have neither the capacity nor the competence to do so. Jackson also recognized this in Eisentrager.

You're pretending that there is no effort to review. There is. But the methods and procedures of such a review are rightly entirely the function of the executive.

At any rate, though the Administration and Congress were entirely within their leeway allowed by the Hamdan decision, it's obvious you can't trust a liberal's word on anything. They are too stupid to take seriously.
Also from the Eisentrager decision:

"It has always been recognized that actual warfare can be conducted
successfully only if those in command are left the most ample independence in
the theatre of operations. Our Constitution is not so impractical or inflexible
that it unduly restricts such necessary independence. It would be fantastic to
suggest that alien enemies could hail our military leaders into judicial
tribunals to account for their day-to-day activities on the battlefront. Active
fighting forces must be free to fight while hostilities are in progress."
I accept all of that, I don't even believe its in question in this case. But these guys were not captured by US troops, they were not captured on a battle field. How in the world were "each detainee is taken in with two sworn statements from witnesses, capture cards and documents stating circumstances of capture." in this case?

By your reasoning I could be picked up tomorrow.
There are, indeed, a number of Hamdan-inspired safeguards to guard against the possibility of mistaken identity

Just to be clear, wasn't Hamdan decided way after these peoples capture? how would these safeguards have affected their detention?
Yes, you could be picked up tomorrow, given a warrant, or probable cause. But if you are a citizen, or a resident alien, you get habeas corpus rights in a civilian court (so long as you're not an active duty member of the military. Then you're out of luck. Your recourse to appeal is with your chain of command.

But you, and the morons on the Supreme Court, have elected to grant these rights to terrorists. Sorry, that's just stupid beyond words.
How would these safeguards have affected their detention?

Because military officers, unlike libtards, can walk and chew gum at the same time. There were already a number of levels of review internal to the military prior to these detainees even reaching Guantanamo.

Again, c.f. Roberts's dissent:

First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat-
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here-
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov-
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi-
dence, call witnesses, take testimony, and render a deci-
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release.

This notion you keep bringing up - that no attempt was made to determine their status for six years and more, is simply a lie.
Well you cant have it both ways. If CSRT's are Habeas, then the liberal court did nothing that would endanger life, property, or the prosecution of the war. Which is it?

Is Roberts agreeing that detainees have a right to challenge:

They are instead a means for detainees to challenge the Government’s determination.

I think the problem the majority found with this process is that it is one sided, conducted without any input from the detainees, which of course is why it's not habeas.

I keep thinking of a hypothetical where a citizen is picked up far from a battlefield sent to detention because his identity is denied. Sort of ,"I'm madtom, a citizen". And the executive says, no, no your not your madjihdist, an alien illegal enemy combatant. You see it says so right here on this memorandum.
Well unless someone else come with another complaint, I'm out of arguments. My hypothetical are becoming so ridicules that even I cant round them out. This court as erred.
I'm not trying to have it both ways. YOU are. And the court is. After all, the Constitution's suspension clause clearly gives the executive authority to suspend habeas in times of invasion or civil insurrection. This would apply to American citizens, just as it did under Lincoln and Roosevelt.

No one disputes that authority.

What the court has created is a ridiculous construct wherein the President could, potentially, suspend habeas corpus domestically for American citizens, in time of insurrection, but be forced to comply with habeas with regard to nonresident aliens with hostile intent.

The notion is absurd on its face.

The court has also created a universe wherein an illegal combatant - a terrorist who wears no uniform and answers to no disciplined command, has greater legal privileges than an honorable uniformed enemy soldier, who can be held without review for the duration of the conflict.

Again, the notion is absurd on its face. But it's what the court hath wrought.

Are the CSRT's Habeas? Well, I don't concur that habeas need attach to combatant detainees, legal or illegal. But the court found in Hamdan that CSRTs meeting certain criteria were sufficient.

Turns out they lied.

And if you think that if the court did no damage, then you haven't a clue what the issues involved are. Scalia goes into them at some length, in his dissent. But in essence, logistics aside, the courts have dismissed the expertise of the military and executive branches and the wisdom of congress at a stroke - the subject matter experts on war on terror and the tradeoffs with classified information, classified evidence, the tradeoffs with rules of evidence vs. battlefield efficiency, and replaced them with unaccountable judges thousands of miles from the battlefield.

As Scalia asks, what competence does the court have to intrude itself in this way? Their mistakes will be legion. The courts do not have the expertise nor the bandwidth to take on the role they have created for themselves.
I've quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/06/re-more-on-latest-supreme-court.html
Gee, great, as soon as I lose an argument, it's linked across the net...
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