The Discerning Texan

All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
Friday, June 13, 2008

Law Question about Black Thursday: Can individual Justices be found Civilly Negligent for damages resulting from Extra-Constitutional rulings?

For you attorneys out there: Could a personal injury suit or even a class action suit be filed by military families against the five Justices voting to override the Constitution yesterday? Or better put: would the case have standing?

Or alternatively, could the defendant be the United States Government, period? Something along the lines of "Wrongful Death" or "Reckless Endangerment" or violation of one or more individuals' "Civil Rights"--let's say say the first time an American dies as a result of new SOP resulting from this decision? For example, if/when a soldier (or American civilian) is killed while "evidence gathering" after a live fire action abroad, which would not have happened had the court not "illegally" ruled Habeas applied to foreign combatants against the US, etc.?

Even if there is a statute/precedents to the effect that you could not bring such a suit, unless it is actually in the Constitution that you cannot, one could argue (especially after this last ruling...) that any statute forbidding such a suit was unconstitutional. After all, the Court yesterday set a new precedent that precedent itself nor the actual text of the Constitution need apply for a law to be Constitutional (or not), right?

My fuzzy memory does not recall any such prohibition being in the Constitution, and I have even less of an idea about precedents for this. Still--is this not what the attorneys for the Gitmo killers did in their suit against the government's law that the Court just tossed out: did they not in fact sue despite there being no precedence to bring such a suit? One would think that if you can sue the Executive/Legislative branches on the basis of its decisions, even if a USSC case had established a precedent against, could that not be overturned. Stare decisis and all that... If you can sue the other branches, why could you not sue the Judicial Branch? Especially for personal injury...

Is it even a possibility that you could find a District Judge that would allow such a case? No matter what the initial ruling, if the suit were well funded, it would be interesting to watch a case like that make its way up the food chain on appeal. And in the outside chance that one or more specific individual Justices were to find themselves as defendants once a Circuit Court had upheld standing for such a suit, then it would seem to me that the the five kangaroos on the Court would then be forced to recuse themselves from participation in any consideration of that suit by the Supreme Court, even the decision of whether or not to take the case. Or else we live in a Banana Republic now (a distinct possibility, after yesterday)...

As far as I am aware (and I am not a lawyer), no individual is immune from personal injury damages they cause, especially damages from negligence resulting in death. And especially if the "negligence" was arguably exercised outside the traditional, historical or constitutionally written law of the land...

Am I dreaming here? Am I showing my ignorance? Perhaps. It is late. But by all means, anyone who knows the legalities involved, please ping me or comment.
DiscerningTexan, 6/13/2008 12:43:00 AM |