Happy Habeas Day
Apparently, Anthony Kennedy understands a few things about the Constitution that many seem to have forgotten.
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
Which means the detainees in Gitmo and elsewhere will have their day in a real court, not the Show Trials put together at Gitmo with some protections.
The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
In its third rebuke of the Bush administration’s treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court’s liberal justices were in the majority.
[snip]
The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.
I’ll post running updates as I find them.
Update: I guess I’m wrong about the Show Trials:
It does not speak to whether GTMO should be closed (although it basically undermines the Administration’s principal reason for using GTMO in the first place, which was to keep the courts from reviewing the legality of the Executive’s conduct).
Nor does it affect, in any dramatic sense, possible military commission trials — with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
Update: NAL, but I’m liking the empahsis in the opinion on separation of powers, including a good smackdown of Congress for passing a blatantly unconstitutional law. And here’s a bid for the importance of the Courts.
The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not his Court, say “what the law is.”
Here’s Russ Feingold’s statement:
Today’s Supreme Court decision is yet another stinging rebuke of the Bush administration’s extreme views on executive power. Time after time, the Supreme Court has rebuffed the administration’s attempts to undermine the Constitution, from its Rasul and Hamdi decisions in 2004 to its Hamdan decision in 2006. It is a testament to our system of government that the Court has rejected the habeas-stripping provisions of the Military Commissions Act and reaffirmed that the government does not have the power to detain people indefinitely and arbitrarily without judicial review. The writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. We can and must fight terrorists without abandoning the principles on which our country was founded.
And John Conyers:
The Supreme Court has affirmed what we’ve known to be true for some time: that detainees at Guantanamo Bay have a right to challenge their imprisonment in a court. It is simply not the American way to deny that right and now as the Supreme Court has ruled, it is unconstitutional. The Court was rightly outraged that some of the parties in this case had been held for six years without being given the right to challenge their detention before an impartial court. I applaud today’s decision and look forward to the scales of justice being returned to their proper balance.
So if the CSRT’s are inadequate, does the Detainee Treatment act get vacated? I see that the opinion doesn’t address Bush’s right to hold enemy combatants, and does not provide release to any prisoners, but am wondering about the DTA’s constitutionality.
I’m slogging through opinion, but IAsoooooNAL.
I think this is just habeas rights-
they can fight their detention without charges with court review.
but if they have been charged, or have given up lawyers, I don’t see how it necessarily helps them unless the whole kangaroo kourt is disbanded. I think it more likely that they are back in Congress to somehow skirt the ruling again….
Though see Marty’s comment about legislation.
I’m guessing some people–hopefully the Uigurs, for example, will be set free. But it’s not going to make a difference for a lot of the detainees, except in terms of stalling.
Damn, what I’ve seen of the dissent is cynical and evil.
Scalia is downright scary. And since when do supreme court justices cite the WAPO in dissenting opinions? Wow, just breathtaking.
Shorter Scalia: “If we let detainees have habeus, WE”RE ALL GOING TO DIE!”
I lost whatever shred of respect I had for him when he was repeating Republican talking points on TV during the 2000 recount debacle. I knew then that Gore was fucked. How sad a spectacle. A supreme court justice spinning. Ugh. I think you can guess that my opinion has not been improved in the last 7 years. But I think he has gone off the deep end on this one.
I lost all respect for the Supreme Court during the 2000 judicial coup.
I was appalled by Scalia’s partisan hacking during that period.
Could he be removed if Obama becomes President?
I wonder whether the administration will continue to push the trial of KSM and the other four 9/11 detainees. Three of them have been allowed to drop their lawyers and some have stated explicitly a desire to be martyred.
Unless the Administration gives up and disbands the tribunals, it seems these guys may still be convicted in time for the election:
http://www.dailykos.com/story/…..372/534572
I’m fairly sure they will. If they’re dismissing their lawyers, they’re forgoing the opportunity to avail themselves of this ruling, it seems to me. They’re happy to say they were detained properly and happy to be made into recruiting fodder.
Exactly why I said the update portion was critical. If the same unethical and craven manipulation of process that has been evident to date maintains, the tribunal will read the Boumediene decision to the exclusion of the Gitmo process, and will blithely grant the pro se motions of the remaining two high value detainees from last Thursday.
And I should also add that Habeas is a writ that must be affirmatively plead by the defendant, and after the little stunt with KSM last Thursday, they will not. What do you want to bet that the news about KSM’s edicts and the acts toward martyrdom of he and the others is curiously allowed to be transmitted to every detainee in US possession, that could possibly be in a position to exercise Habeas, so that they may know what they too should do?
Also the Clinton administration, that’d be Janet Reno and Clinton DOJ struck a blow to habeas petitions creating many procedural nuances that hamstung pro se defendants in passing the Effective Death Penalty and Anti-Terrorism Act of 1996.
CLINTON AEDPA)
The main impact and intent of this law was to curtail the number of habeas petitions not from Gitmo detainees since there was no 911 and Gitmo in 1995 when this bill was crafted, but it was to crush and big foot the ocean of appeals that clog the federal appellate courts because of the stupidity of the drug laws in this country that incarcerate low level first time offenders for long periods of time. The Clinton law to curb their habeas rights has had that effect.
Even if not, they have three to convict. Back in February 6 was great, in May 5 was good, but 3 will be just fine for BushLeague Justice.
Shouldn’t there be a doctrine protecting these people who have no experience with due process in any historical context and so could be reasonably founded in the expectation to encounter arbitrary jurisprudence? I am just saying.
Becoming a martyr at the hands of bloody American hypocrites ranks high these days.
5-4 hopeful on one hand and pathetic on another.
I seem to remember that it was a Supreme Court vote of 5-4 that brought us this band of criminals called the Bush administration.
Harrumph! Good thing we got rid of those pesky lawyers a week ago eh? Glad you added the update; it was quit critical to the equation.
ACLU blog says that this is the beginning of the end for GITMO. Please let it be true.
At least the innocents will finally get a hearing.
How will this affect show trials, I wonder.
Kennedy’s opinion allows the CIA and its contractors to hold prisoners on ships or outside of US possessions, in effect, until they get around to processing the captive. In the US, if something outside of law enforcements procedures occur, to hold any detainee, including citizens, until they can amend SOP. So prisoners held on a ship can be disappeared over the side and US citizens held until the procedures are amended indicates to me that habeas corpus is not being 100% applied.
The courts have always realized that the executive branch can secretly violate the whole constitutional system. That’s what makes the state secrets privilege so scary. The courts say, in effect, just claim national security and we’ll look the other way. At least there 5 justices that won’t let them do it publically.
Unfortunately, there are indications in the Munaf decision that the SCOTUS plans to avert their eyes from our practice of dumping folks to countries that engage in torture. The next time these drugstore cowboy fascists get in power there won’t be a GITMO. They’ll be shipping U.S. citizens off to “allies” like Syria and Egypt to be tortured.
Happy Habeas Day, for sure. Awfully slim margin though.
Frightening, isn’t it?
The Canadian Supreme Court ruled 9-0 in a similar instance, can you get your Justices to come up here for a friendly chat on Democratic Law ?
Still, a win is a win …
This win is most definitely a win, but we will all have to see how much of a win this is because the devil will be in the details of this administation’s strategy, and particularly this Congress’s continuing search for any semblance of a backbone to help correct what this opinion did not do:
Marty Lederman’s early criticism/analysis of Boumediene at Balkinization:
Early Reaction to Boumediene Marty Lederman
Telling
Happy Habeus Day to you, too : ) However, I’m finding it difficult to conjure up any real happiness when I contemplate the fact that FOUR justices on the Supreme Court are so cavalier about the Constitution, to whit…
“So who has won? … Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone.” — Chief Justice Roberts (h/t Adam B at DKos).
Shorter Roberts: Legal protections are only for us and our pals, the rest of you get nuthin’.
“Jurisdictionally quirky”? “No tangible benefit to anyone”? Okey dokey, if our laws are so frivolous as to be of no benefit to anyone and not worth extending to everyone, then lets do away with them altogether, eh? Lets just get rid of the courts and the lawyers and send everyone home. We can save a lot of tax dollars eliminating an entire branch of government…
But hold the phone there Robby-boy, I bet your corporate chums won’t like that at all, not one bit, they need the courts to protect their competitive advantage what with patent-infringement lawsuits and anti-trust lawsuits, etc. etc. etc. The multinational corporations could no more survive without the legal advantages granted them by Congress and various international organizations such as the WTO than a fish can live out of water. Careful what you wish for Chief, your friends may come to resent you for it…
I wasn’t optimistic, and Mary wasn’t and oral argument is not ever a perfect predictor and it wasn’t here. But one thing I have noticed during the Bush administration and it’s egregious attacks on the Constitution and Rule of Law–when they lean on Court Primacy with respect to the constitution, the administration was in for a tough ride. SCOTUS Blog called this a stunning defeat for the Bush administration.
Here are some links to read the opinion; I’m reading it myself–I thought it had a chance to pop today and this was my first chance to “check on things.”
Court Gives Detainees Habeas Rights
http://www.nytimes.com/2008/06…..mo.html?hpJustices Rule Terror Suspects Can Appeal in Civilian Courts
High Court Sides With Guantanamo Detainees Again
Opinion: Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196)
Oral Argument and Briefs Booumediene
The distribution of justices is a direct metaphor for the damage that Bush did on this Court, and why those Hillirinista Sourgrapistas had better think a few dozen times before voting for McStupid.
Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.
The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas. That’s the traditional normal headed vs. conservative no matter what the hell split with Kennedy who wrote the opininion with his law clerk and the help of memos flying back and forth between the five “law offices at the Court” the swing vote author.
It should be noted that the defendants in this case’s fact pattern weren’t the stereotypical Gitmo AQesque type defendants.
From the NYT article:
This is one reason why many had reservations about this being an ideal case with which to overturn the MCA (Military Comissions Act).
270 men are classified enemy combatants at GITMO. No one knows what the Bush adminstration will do, because we are under Unitary Executive Rule (think King George III) and the UE is not likely to pay much attention to the Supreme Court and the continuation of his term wouldn’t either–that’d be McUnitary Executive from the kingdom of Arizona.
A number of law suits against the government have been placed “on hold” by various federal courts pending this opinion.
According to WaPo, Chief Judge of the D.C. Circuit Royce Lamberth is calling a special meeting of the Bush rubberstamps (about 18/21 judges) on the D.C. Circuit to figure out what to do in the wake of this opinion.
The opinion called the Bush military court system “inadequate” to handle Gitmo detainees or so-called enemy combatants.
If you had any doubts about what you got when SJC shoved Roberts into your legal world Roberts wrote in the dissent:
The Bush administrations current system is “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”
If that doesn’t context Roberts and Alito for you, nothing will.
From Nino (Sex in the City admirer Scalia): This country is “at war with radical Islamists” [and this decision] “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
Souter wrote a separate opinion concurring with the majority and zeroed in on the length–of time these people had been held without a trial 6 years.
It’s important to emphasize that the average AUSA present and previous personnel, would be pissing in their pants if they were locked in a closet or bathroom longer than six minutes and would have been precipitated into a psychotic break after 6 days of the current Gitmo conditions.
This is the third time that SCOTUS has ruled that Gitmo detainees can seek relief in civilian courts, and both previous times your spineless Congress has passed laws to leapfrog the previous opinions.
The trial of Salim Ahmed Hamdan, bin Ladin’s driver, is on hold now, and I’m not sure what will happen but am sure that his attorneys are going to motion in the D.C. Circuit to abort his Gitmo trial.
I’m reading this opinion to try to figure out how much of the current MCA has been impacted by it.
This is dwarfed by the greater human issues, but Scalia’s arguments also lack common sense. If Tony wants to piss away his tax dollars to rendition, torture and indefinitely incarcerate people, he now has to find another country. This is a victory for the taxpayers too.
This was like paying bounty hunters to bring back certain scalps of certain Native American tribes. Pretty soon those bounty hunters were bringing back scalps from all kinds of people, just to get paid.
So just where would Tony be moving? Saudi Arabia?
Laura Rozen has this:
A Washington lawyer comments, “The Supreme Court’s decision today on the habeas corpus rights of Gitmo detainees is extremely broad – it gives the right to anyone anywhere in the world held by U.S. authorities. That should mean the end to all of the CIA’s secret prisons.”
I’m not seeing it…
You’re right. I’m on a conference call now, will update shortly, but the reason it applies to Gitmo is bc the US is in complete control at Gitmo. The big issue, as I undersand it, is whether the US is in control of the place and the detainees.
Laura’s friend is full of it.
Scribe @26 – Problem is they are not going to file, and even if they have advisory counsel, the AC will not be in a position to do so over the detainee’s objections. Habeas is an affirmative writ; if the defendant doesn’t do it…
The original Great Writ extended as far as the sovereign’s ability to arrest and detain, whether that be London, Dublin, the Caribbean, Calcutta or Singapore. It was co-terminus with the threat to the liberty of the accused. It did not depend on the accused’s nationality or the “sovereignty” the king might claim over the place in which arrest and detention took place. It was an inherent limitation on the king’s power as much as the prisoner’s right, two sides of a coin that could not be split.
If the Court followed that line of reasoning, Habeas Corpus rights would follow the king and his prisoners to prison ships and other foreign or stateless incarcerations. As it should.
I agree that it should, but I don’t think the SCOTUS does. You have a pretty optimistic interpretation of the historical record. You might want to review Kennedy’s version in the opinion.
The Bill and Hillary Clinton attack on Habeas which has had zero impact on terror but a systemic impact on prisoner habeas petitions adding layers of procedure that jams them up:
Antiterrorism and Effective Death Penalty Act of 1996
my problem is how they phrase “the rights of prisoners“
“prisoner” notates guilt, they are not prisoners if they are not guilty and they are not guilty until they’re tried
so let’s stop calling the prisoners, rather, “those illegally imprisoned without even a crime to charge them with”
or something equally indicative of what the administration is actually doing to these people
we’ve been talking about this over at jane and cliffs’ joint and I have to repost the following, I think we need to frame this discussion with the actual ramifications rather then “habeas corpus protection”
it’s just stunning to me the issue was even in question, of course a president can’t hold innocent people, of course he can’t write new law to keep people when they commited no crime untol the president made up one in his own head just to hold that person, of course a person can show they commited no crime and of course they can know what crime the president is making believe they commited
it is insulting, the very notion that a president can gather you up, not tell you what foolishness he thinks you commited, not give you the right to show you did not commit that foolishness, and keep you there under the threat of torture
the very notion is disgusting
Of coure he and your many neighbors who are cluck clucking Republicans with no abilikt to think rubber stamping phrases like the “surge is working” and most of your TV media and even Eric Lichtblau of the NYT their terrorism reporter and your Congress have done just that. And the indifferent, drolling American public is continuing to allow him to do it at this very moment.
This case is far more important in a separation of powers sense – to my eyes the habeas and MCA/DTA issues were a clear slam-dunk from the get-go. The only question was whether there would be 5 votes to see it my way.
But, the references to Marbury and the courts stating what the law is, rather than the executive and legislative, are a big shot right in the guts of the whole Unitary Executive/judicial modesty bullcrap which the wingnuts have been peddling and working in since 2001.
Every signing statement – in which Bushie determined some laws were or were not constitutional, or in which he asserted his Article II powers allowed him to not enforce, ignore or rewrite – void.
Every Yoo memo, the ones Whitehouse has spoken about, in which the President was the sole judge of the scope of his Article II powers, and his decision was unreviewable, etc. Gone.
All the modesty which required deference to the political branches – gone.
The Court has, it seems, found it indeed has a set. And that it intends to use them.
That’s what I was seeing. Glad to hear a lawyer reinforce my opinion!
Scribe is correct that the Marbury v.Madison is a shot across the bow on the UE. I don’t think the decision here is broad enough, from what I have seen so far anyway without a couple of full readings, that it will be anything more than an indication as to a similar outcome on the other areas. The Administration will never recognize as precedent, and there will be strong attempts to distinguish as long as they are still in office. All the more reason McSenile cannot be allowed in the door.
Agree all around. My take, reading what I’ve read so far, was to say, let’s throw every UE case at SCOTUS today, let’s not waste time.
Yes. If McSenile becomes prez, Roberts and Alito will be on his Court’s liberal wing.
We can’t lose this election. We are fucked.
That, and the rest of your post, scribe, are a large part of what I have been hoping will be true of this decision. This will matter to many of the detainees, but surely (forgive me) it is a shot across the bow of the unitary executive?
I can think of one GTMO lawyer who is going to be very busy today (as he probably is most days).
And @ 18:
How can that be a Supreme Court justice, or any judge? Can you impeach judges?
Yes, you can impeach judges. And Scalia qualifies! THAT is more important than impeaching any of the war criminals. That man is actively dismantling the US Constitution. He is a threat to our foundation.
The DOJ purge didn’t just appear out of no where. (Sorry for getting so excited. He upsets me.)
But in reality it’s near impossible to impeach a Supreme Court justice. The one attempt failed in the Senate.
The only Supreme Court Justice ever to have been impeached by the House of Representatives was Samuel P. Chase, in 1804. The Senate vote failed, and he remained on the Supreme Court until his death in 1811.
All counts of impeachment against Chase had to do with his conduct (mostly statements) made while serving on lower court panels. This is rarely done now, although one Justice who still maintains an office and whose blind law clerk will actively participate on loan to active justices is Sandra Day O’Conner. She is making herself available to serve on appellate panels in every circuit, and she has already done this in several oral arguments and participated in the opinions which has the lawyers scrambling for her S. Ct. opinions to shape their arguments and anticipate her questions.
Bush v. Gore notwithstanding, overall, Sandra Day is a pretty honorable and admirable lady.
Sorry but that is hard to swallow. Bush v Gore erases “honorable and honorable” in my book and millions of others.
Somehow the consequences of that vote and the death of 4ooo American soldiers, over a million Iraqi people, who knows how many people have been injured, 4 million Iraqi refugees (seldom mentioned in our press) the undermining of our constitution a list of crimes too long to list.
Those on the Supreme Court at that time were clearly partisan and the consequences of that partisan vote have been devestating.
He gave Sarah Jessica Parker a match. He’s quite the stud when out and about in NYC or so he believes. Sex and the Nino.
Well, what gets me is that what Scalia said/wrote is politics, not law. I’m not all that comfortable with our hate-speech legislation up here, although Scalia would be putting a toe in that pool if he tried it here, so I wouldn’t even go after him on that score. But when our judges confuse law and politics or law and moralizing, we are supposed to be scandalized (and sometimes people actually wake up enough to be scandalized), and there are repercussions.
Thank you so much, this really made my
dayweek …scribe, I agree but ianal, I would love it if one of the lawyers did agree and marcy would host these positions and they were linked to far and wide
I am a lawyer.
Ironically, about 2 years ago, I was standing on a streetcorner in a historically-famous neighborhood with a distinguished appellate lawyer, whom I told that the resolution of the detainee cases would come through constitutional habeas, and that there had not been a valid suspension of the Writ. My colleague thought it funny, that it would never get to that point.
Thanks for your earlier comment that this is a shot across the bow of our sinking ship of state U.S.S. Unitary Executive. Since you are a lawyer, how do you envision that shot across the bow being turned into a stake in the heart? Who has standing to litigate against Yoo’s memos or Bush’s signing statements? What kind of a case can be brought before the SCOTUS that could be used to effectively obtain a cease and desist order against Bush’s egregious executive overreach?
This is not the kind of thing which one magic bullet of a case will undo. Remember, to get to this point on the no-holding-the-innocent-without-trial bit, it’s been 5 years, 3 Supreme Court cases and all three decided 5-4.
No, this is one where, one little bit at a time, the edifice has to be deconstructed.
“Little strokes fell great oaks”
Thanks scribe. I was afraid you would say something like that. I had hoped though with your intuition about constitutional habeus in your remarks to your friend, you might have some insight to a successful route to eradicate the extra-judicial privilege claimed by the OLC.
Like in boxing, work the body to sap the opponent’s energy and break his will. Going for the knockout blow usually winds up with your own behind hitting the canvas first.
You got to give these fuckers credit though, they have done yeoman’s work at bobbing, weaving and rope-a-doping.
I certainly would not call it Yeoman’s work.
It has been crafty, evil and successful, and certainly beyond the yeoman pay grade.
This was a run at the flag with the Stratego Marshall and General.
But they miscounted the bombs.
That’s what I get for being a former rugger, a sometimes fruitless tendency for a direct attack ; )
I hope you are in contact with your collegue scribe
I’ll get back to my colleague at a time and place and in a manner both most opportune and of my own choosing.
I learned how to break chops from one of the all-time greats – my dad. One time, just for the hell of it, he went up and started breaking chops on Chuck Bednarik. And lived.
we need to have coffee one day, on me for the stories I would love to hear
Thanks, but I’ll pass b/c I like my pseudonymity.
Oh, yeah.
Re: the kangaroo show trials. My sense of the working-together of habeas and the All Writs Act is that the right to file a petition for habeas and be heard necessarily includes within it the right that the habeas writ be effective.
Habeas would not be “effective” if, for example, the detainee was found to have been illegally detained but had been executed as a result of proceedings taking place while the habeas was pending. Similarly, habeas would not be “effective” if a trial took place in which illegally obtained (e.g., by torture, etc.) evidence was introduced, resulting in some semblence of a conviction, all of which stemmed from an illegal detention.
Thus, under the All Writs Act (the Court may issue all orders and writs as needed to protect its jurisdiction), once the habeas petition is filed, the detainee can immediately move for – and should get – an injunction against further proceedings (or, in the alternative, a writ of prohibition) in the kangaroo courts.
but we are back to square 1. It requires detainees who want to challenge their detention and a court not to be a kangaroo court.
They seem to have chosen detainees for the show trial who will not care about habeas- i.e., they want to die. 3 of them have given up counsel, so it is not clear to me that they will even hear about Boumediene, much less be able to or want to use it.
I think when Hartmann rules on the pending per se requests of Bin al Shibh and Hawsawi, we will see where this is headed= 5 or 3 convictions for Bush/McCain.
”The [C]ourt’s liberal justices were in the majority.”
Wormtongue Fred Hiatt had to make sure that his owners and most avid disciples knew that this reprehensible deed was the work of the ”liberal” justices. Once upon a time, upholding the Constitution was the work of the President and every member of Congress and the judiciary, a responsibility upon which rested freedom of the press, freedom for real newspaper editors to do their job.
Not so in Bush’s Amerika. Hiatt praises those who would pummel him and his advertisers in a heartbeat, if he weren’t so slavishly supportive of them, praises those who tear it down and abuse it daily. Chief Justice Roberts’ description the Gitmo tribunals’ procedures as ”most generous safeguards” is laughable.
In a way, this is a success for Bush. The ’show trials’ were NOT working out. They’ve only had one ’show’ and it was a carnival. This allows them to move all these trials to civilian courts. If they win the cases, then they look good. If they lose the cases, they blame the weak liberals running the Supreme Court.
I’m a little doubtful that they will obey the court’s decision anyway. They haven’t listened to any of the previous decisions, except by rephrasing their cases and sending them back.
This opinion does not in any way in fact impact future or pending military comission trials. They can still happen, and probably will unless, and it doesn’t look like this spineless Congress has any intention of doing anything about it, there is direct legislation to put them and Gitmo to bed, or the current Unitary Executive does that and basically Bush and Cheney are in their victory laps in the Birdmobile–the parade vehicle that is giving your Constitutional rights the finger.
If you read the opinion, including Souter’s concurrence and the dissents, MCA trials are still very much alive and vibrant. There is for the moment the possibility to raise habeas claims, and there is the possibility of raising claims under the Ex Post Facto clause which prohibits (theoretically) ex post facto laws in Article I Section 9 in federal court and Article 1 Section 10 in state courts.
But clinically, on the ground the Supreme Court has not interpreted the Constitution to forbid all ex post facto laws in a number of relatively recent opinions.
For example, in Smith v. Doe 538 U.S. 84 (2003), ex post facto laws passed mandating that those who are convicted as sex offenders could have their information posted on the web, be forced to register for life, and be moved out of a state if they lived in a certain proximity to a school or a church.
Now what does that really mean? It means consummate stupidity in a state like Georgia (where about 53% of the population is able to graduate high school even though many high school seniors have been promoted whocan’t read Dick and Jane, and 80% of the current students just failed a standardized exam to be promoted to the ninth grade) where a sex offender is classified as a 17 year old who has oral sex with a 14 year old (even though many of the judges who wrote that opinion had oral sex with under aged minors when they were teeny boppers. Welcome to the hypocrisy of the justice system–get used to it.
Smith was an opinion courtesy of Swing Vote Kennedy, the author with his law clerk of Boumediene. Renquist, O’Conner, Scalia and puppy dog Thomas joined.
An ex post facto law (I knew my high school and college Latin would count for somepin) means a law passed after the comission of an act to change the act’s legal consequences. In other words, these laws retroactively criminalize an act or enhance the penalty. In states like Georgia, they grow faster than kudzu on a rainy day.
“Welcome to the hypocrisy of the Justice System, get used to it”
This is what is oh so frightening that so many Americans have gotten used to it and that there seems to are so many martyrs around the world willing to die to expose that truth.
The complacency and apathy that permeates the American public seems to be due to this getting “used to it”.
Scarecrow has informed me there is a companion (sort of) case just released as well. Maybe not as much cheer on this one:
Via Atrios, more Bush torture fun and games
We are who we allow to govern us. That is meant for you, you derelict pile of dung, Nancy Pelosi.
Nancy doesn’t want to get her
Armani Suitshands dirty … I am appalled that Congress knows this admin has committed serious crimes but is holding off impeachment hearings.Pelosi really needs to get out on the streets into the small towns, bingo halls, nursing homes, V.F.W.’s etc. People are pissed off Republicans, Democrats and Independents alike.
Pelosi, Rahm, Hoyer, Reid and the rest are underestimating the anger out there. Dems could jump over to McCain based on the Democrats inability to demonstrate true grit. In a year that should be a “slam dunk” for the Democrats the numbers are close. This is insane.
Wonder what would happen if some of the Republicans started pushing for Impeachment?
Thanks for that : ) Derelict pile of dung… Here’s hoping Kucinich is true to his word to keep bringing up impeachment until the HJC actually follows up on the referrals for Cheney and Bush…
I think Wexler is going to drive this more than DK ever could, given his(Wexler’s) seat next to Conyers.
Agreed. I was simply referring to Kucinich’s 30 day time limit, then he brings it up again. And hopefully again and again and again, until we get Congress to acknowledge that laws actually mean something.
Wouldn’t it be great if other Dems had spines too ?
It would certainly be different ; )
Pete, I agree they referred it to HJC to stifle debate, not invite any real consideration, but Kucinich can quite ably continue to be a thorn in Pelosi’s side. There is broad public support for impeachment, Kucinich and Wexler should use that to embarrass Pelosi at every opportunity.
If only we had more people with Dennis Kucinich’s openness, integrity, and spine to do the right thing. Hopefully we can get some of the downticket challengers in the House and the Senate.
If you have not all ready done so think about contacting Rep Kucinich and thanking him for reading articles of IMPEACHMENT. Kucinich led the way in Ohio against an invasion of Iraq early on. Our former Ohio Congressman (now Governor) Ted Strickland had the wisdom and felt the pressure ( we sent him a petition with thousands of signatures) to follow Kucinich and vote NO on that 2002 war resolution.
Thanks to Dennis
202-225-5871
That impeachment attempt (and I fully agree with it and many many initiatives that Kusinich has not gotten near enough credit for because MSM characterizes him as quirky and he does a lot of serious very hard work) has already been imbalmed by HJC because Pelosi, Hoyer, and Emanuel among others are worried that the pragmantic effects would hurt Obama in a number of states in the general.
Kucinich is a man of integrity and the MSM does indeed make every effort to make him out to be quirky. Remember during the one debate where I forget which pathetic moderator asked him “did you see a U.F.O”?
Kucinich has put the most amazing panels together during the Iraq fiasco, including Flynt Leverett, Juan Cole, Scott Ritter, who you barely ever witness the MSM have on. Kucinich’s efforts to expose the crimes of the Bush administration are almost beyond comparison.
Jonathon Turley ripped Pelosi up the other day on Countdown
And the whole world is watching. Sick SICK SICKO
Here’s more details on what this means, practically, from a Center for COnstitutional Rights conference call.
marcy, if the lawyers agree with scribes interperatation of the ramifications, I think it would be nice to link to for the googles and teh internets
Not sure I understand–there’s no link, it was a conference call.
I note that Hiatt’s scribes, in the last line of their article on Boumoudienne, claim that both McSenile and Obama support shutting down Gitmo. Scratch the surface of McCain’s views on presidential power and the GWOT, his complete support for Bush’s policies, and I don’t think they support the WaPoo’s framing and claim that he and Obama agree on this.
Excuse me, “Boumediene”.
I don’t think we’ll lose this one. Not to McCain, anyway.
Be aware of Diebold and Rove !
Obama has the right approach in that he campaigns as if he is always 5 points down.
A little OT
Does this mean that if I go to Paris, allegedly commit some crime, get thrown into the taule, the U.S. won’t even enter a plea for me? Or is this only true in Iraq, Afghanistan, and anywhere we think we are at war?
The VeryBestPeople will be so disappointed. They craved so to re-invent the Star Chamber and rejoiced at its taking root again. Even the Signing Statement is at risk. And Wildstyle Parsing and Insane Redefinition of language has taken a hit.
A brick has fallen out of the Great Wall between the lesser classes. Are the “Middle and Poor” dimly recognizing their wealth of common interests? and common enemy?