The Discerning Texan

All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
Thursday, June 12, 2008


I guess some court analysts were expecting this to happen based on the oral arguments, but I frankly am STUNNED by today's ruling. The Supreme Court is creating Constitutional protections out of thin air which will require our armed forces to not simply endeavor to: win hearts and minds, fight mass-murdering jihadists, save their own comrades and other innocents' lives, battle Iranian special forces and their proxies, and/or to otherwise build structure, stability, and goodwill in areas we occupy; no that is not apparently enough to ask of them. Now the men and women who put their lives on the line every single day also must act as Police Officers, Legal Experts, and even as de-facto District Attorneys. And the enemies shooting at them are now entitled to discovery.

This decision even makes Roe v. Wade look good in comparison. And that is saying something.

From SCOTUS Blog:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

So: does this not also imply that a soldier which captures an enemy on the battlefield now must stop and Mirandize him; to read him his "Constitutional Right" to a US Trial--and presumably to an Attorney, evidence discovery, and even military secrets--all to be paid for by American taxpayers, and most likey at the cost of greater loss of life to our troops???

Under this ruling, why would not a normal soldier at war simply choose to kill a potential prisoner instead of taking him prisoner? And, if it does play out that way, what would that "unintended consequence" do to our ability to create goodwill, or otherwise to extract critical intelligence from people who want to erase our cities from the face of the earth?

If this outrage does not illustrate the importance of the Presidency and of how critical it is to elect someone that will appoint Supreme Court Justices who will interpret the rights accorded to its citizens (and only its citizens) under our existing Constitution--rather than to invent new "Constitutional Rights" for foreign combatants out of the thin air--than we might as well just not even show up at the polls. All that stuff you were taught in Civics about "co-equal" branches? Forget it: today--after the Court has rejected a law which both the President and a very partisan Democrat Congress have agreed to--we are awakened to the fact that in reality we live in a Dictatorship comprised of a 9-member judicial Politburo.

When we grew up we were taught that this is OUR country; that is: that the Government only acts "with the consent of the governed"; we were not taught that our very lives were at the whim of 9 Dictators-for-life in robes.

Both the Congress and the President have consulted and agreed on how this War should be funded and conducted, and how its prisoners should be detained. Which makes sense, since they are who We, the People elected to make those decisions.

The Constitution was written so that US Citizens would not have to live under tyranny, could defend themselves, and live freely. With this travesty, the Supreme Court justices have blatantly become the means by which to impose tyranny on us.

Taken to its logical conclusion, if today's decision is to be taken seriously, the Bill of Rights written for US Citizens now applies to every person on Planet Earth. Next we will be giving Iran and China the "Constitutional right" to vote in our elections....

The Constitution has always provided that the conduct of War (if not its funding) was the domain of our Commander in Chief, period. During brutal wars which the our country has fought throughout history to defend ourselves and our allies from tyranny, murder, and oppression, it is unprecedented to allow POW's access to American courts. German and Japanese Prisoners of War captured on the battlefield never had a right to sue for their freedom during World War II--why should they have? They were trying to kill our countrymen. So: we are supposed to take a thousand prisoners in a large battle and give them all lawyers now??

It would have been unconscionable to suggest then (or ever) that our enemies ought to have the right to tie up our own court systems while they are at war with us. Now, with this heinous decision the court is saying that mass-murdering armies of terrorists, insurgents, and proxies of foreign enemies can just fire away--knowing that their "freedoms" are guaranteed in our courts.

Should we also guarantee our enemies the "right" to counsel before we endeavor in Wartime to determine what they know? If so, then I guess the CIA can all go home now...

How can free men and women abide such a monstrous decision?

I will be surprised if the President does not try and institute some new sort of Executive Order or new law that will find its way around the ramifications of this devastating ruling. Because we cannot allow this to stand.

Here are some lengthy excerpts from Scalia's scathing and brilliant dissent, edited by me, minus most of the legal annotations (the only link I have at the moment is to the entire opinion, including the dissents). I have also added bold emphases in places--everything else is Scalia's:
I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.

On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

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].”

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. 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 waslater shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq.

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.

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. 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.

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.”
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.”

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” “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.”

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.

Further down in this magnificent dissent, Scalia addresses (as the court did not..) how blatantly the court has ignored the prior Supreme Court Eisentrager decision, without bothering to overturn it. In so doing, Scalia echoes my own World War II point:
The Court tries to reconcile Eisentrager with its holding today by pointing out that in postwar Germany, the United States was “answerable to its Allies” and did not “pla[n] a long-term occupation.” Those factors were not mentioned in Eisentrager. Worse still, it is impossible to see how they relate to the Court’s asserted purpose in creating this “functional” test—namely, to ensure a judicial inquiry into detention and prevent the political branches from acting with impunity. Can it possibly be that the Court trusts the political branches more when they are beholden to foreign powers than when they act alone?


The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U. S. soil.

The Court’s analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises “absolute and indefinite” control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court’s reasoning, those prisoners whom the military plans to try by full dress Commission at a future date may file habeas petitions and secure release before their trials take place.

There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.

The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court’s “functional” test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military.

And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia, much less an apology.

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy.

The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis. “The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them.” United States v. Raines, 362 U. S.17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803). Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme.

In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.

The “functional” test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.
Finally money quotes from Scalia's conclusion (first he concludes a rather lengthy common law argument):

In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.

What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only “in Cases of Rebellion or Invasion.” The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, “functional” considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ’s (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there.

... “[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.”

In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases.

* * *

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well).

It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.

It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today.

I dissent.
This is a dark day in our history; I think it is not fully understood by most people just how horrible this decision really is--in a way this is darker day for America than even 9/11 was. Because on that day only our buildings collapsed; today may have been the beginning of a more catastrophic collapse: that of our institutions and the of very Constitution which is after all purported to be our government's "social contract" with its citizens. And once that is gone, what else is there?

It seems to me that today the Court has declared that "social contract" null and void. We are no longer governed with our consent; we are not electing a "leader" this year, nor "representatives" who will ensure that our interests are served; we are instead resigned to the tyranny of 9 unelected Dictators.

This is not merely a Constitutional crisis; it is an American existential crisis. God help us all.
DiscerningTexan, 6/12/2008 12:16:00 PM |