From SCOTUSblog’s Lyle Denniston:
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an “enemy combatant.” The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions. The case was Padilla v. Hanft (05-533).
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president’s wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and—for an extended period—without a lawyer. The Court, of course, took no position on whether that was the right result, since it denied review. The Second Circuit Court, at an earlier stage of Padilla’s own case, had ruled just the opposite of the Fourth Circuit, denying the president’s power to seize him in the U.S. and hold him. That ruling, though, no longer stands as a precedent, since the Supreme Court earlier shifted Padilla’s case from the Second to the Fourth Circuit.
[…]
The most important of the two opinions issued with the order denying review was one that spoke for three Justices who did not vote to the case, but took the unusual step of issuing an opinion to justify the denial of review. They said that “there are strong prudential reasons disfavoring” Court review. Padilla is due to go on trial on criminal charges in civilian court, and “any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.”
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla “has a continuing concern that his status might be altered again.” That, however, “can be addressed if the necessity arises.”
[…] That the Kennedy opinion did not also attract the support of conservative Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas was a sign that it had gone too far to concede points in Padilla’s favor. They appeared to have silently voted against review.
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case. Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed.
[my emphasis]
As “federalist” wrote in the comments section at SCOTUSblog:
The view that the Supreme Court can have something to say about Padilla, I think, shows that some Members of the Court don’t think that this is a real war. In a real war, the judiciary should have a very limited role. I harken back to the Civil War. Thousands upon thousands of American citizens were captured by Union forces. No one would have ever thought that the judiciary would have any say in their captivity. Now, it may be argued that those prisoners were under arms and under the command of an organized military. But so what, does that mean that people who engage in warlike activities (which the gov’t alleges Padilla was going to do) get more protection than those lawfully engaging in combat. Why should Padilla get more than Johnny Reb?
The answer, I think, is that people think of the GWOT as less than a real war.
Though the analogy may not hold perfectly, the key point here is in recognizing the underlying tension—the same tension we see in arguments that FISA constrains the President’s Article II military powers by force of statute: some people continue to view the authorization of force resolution against al Qaeda and its splinter groups as the equivalent of a UN resolution: it sounds forceful, sure. But it’s not like we really meant it or anything…
Your thoughts?
(h/t Major John)
That’s an odd view of standing. You can get judgement on hypothetical harms. But its true that it can wait till the issue is more mature.
And somebody totally doesn’t get it:
The guy was captured by law enforcement and transferred from that. Whatever a ‘real war’ looks like, it isn’t fought by law enforcement and prison cells in O’Hare airport. Analogizing that to trench warfare miles from DC is just nuts.
Don’t listen to actus. Not everyone involved in open warfare wears a uniform, and what’s more, this is a war unlike any other we have ever seen so pretending that an exact analogy must be drawn from history is just stupid.
If you are going to claim that the GWoT is not a real war, then I would hope you’d grace us with a more accessable concept of what a real war is beyond ‘whatever’.
I agree its unlike any other. This one will last forever, for example. I agree that needing exact analogies is stupid. But the army picking a guy up from a jail cell on the specific orders of the president compared to grabbing thousands of members of an army force in a battlefield close to DC is simply loony. At least at the stage of whether to even have judicial review. The judicial review may just decide to make the analogy, but to rule out review on the basis of that analogy? nuts.
Actus’ comment is, of course, historically and constitutionally inaccurate as usual, as those German saboteurs involved in “Ex Parte Quirin” were captured by “law enforcement”.
I am always keen to have somebody explain what war really is…as opposed to what I was in, and still am a part of conducting.
Oof – could I have written that in any more clumsy a fashion? Ah, now I am doing it again!
And, Ex Parte Quirin was a case of, wait for it… judicial review. I’m not talking about whether Quirin makes a good analogy to the situation of the american citizen enemy combatant. I’m not talking about whether this is a real war enough for Padilla to go free. I’m talking about whether this is real war enough for there to be no judicial review, apparently due to the AUMF. It seems this is what’s gotten Jeff’s nipples all perked up.
Breaking: The Moussaoui verdict is in, and will be announced in an hour.
Some Guy in Chicago writes: If you are going to claim that the GWoT is not a real war, then I would hope you’d grace us with a more accessable concept of what a real war is beyond ‘whatever’.
You might want to ask the Attorney General, too, who in February stated this to the Senate Judiciary committee:
As for the SCOTUS decision to deny hearing Padilla’s appeal right now, I agree with Orin Kerr that this is a very weird situation –procedurally complex—and it is hard to know what to read into Kennedy’s Opinion or the absence of Scalia, Thomas and Alito. Scalia’s Hamdi dissent was the opinion most hostile to broad claims of Executive power in this context—he insisted Hamdi should have his day in federal court, war or no war— so I just don’t know what to think. It must be the procedural issues confounding them all.
But what is clear is that the Bush DoJ greatly feared how the SCOTUS would rule, and it moved heaven and Earth to get this case out of the SCOTUS, which antics just succeeded, for now. 4th Cir. Judge Michael Luttig noted a few months back in a scathing smackdown that the Admin was going to lose credibility with the courts behaving like this. That Opinion no doubt took conservative Luttig off the SCOTUS-nominee short list, where he had previously been.
Wow, Mona can understand that which befuddles Scalia and Thomas. And she can tell you why people are or are not selected for the SCOTUS. We had best sit up and listen.
Major John writes: Wow, Mona can understand that which befuddles Scalia and Thomas. And she can tell you why people are or are not selected for the SCOTUS. We had best sit up and listen.
Heck no. Antonin Scalia is literally a genius: I’m not. But I do understand his dissent in Hamdi (and love it) and the holding as well; so I understand why the Bush DoJ undertook the extraordianry antics it did to get Padilla’s appeal out of the SCOTUS. But it cost them a big slap from Michael Luttig in the 4th Cir. It doesn’t take a political genius to know that should W make a 3rd SCOTUS appt, Luttig is now unlikely to be considered.
This is an excerpt from SCOTUSblog about Luttig’s slap to the Bush Admin, my emphasis:
Clearly the Bush DoJ felt it had no choice; it would have lost in the SCOTUS, and it is very unwilling to have its “inherent authority” arguments ruled on at this time in any case pertaining to U.S. citizens, what with the NSA matter now having arisen.
I was totally blown away by Steve’s comment way back when:
That got me thinking. Why “war” and not WAR? I’d like to submit an theory to explain why the Left views us as big bad agressors. Consider the American Revolution as filtered through romanticized films like The Patriot.
Much as I’d like to believe that those of us who support the GWOT will win over the anti-war Left with our appeals to righting human rights atrocities committed by Saddam, the Taliban, etc… I think we’re doomed to lose in the realm of romantic asthetics. Guerillas will always trump law abiding uniformed troops, in the eyes of the Left.
We’re the Red Coats as portrayed in The Patriot; Antiquated, overfunded, imperialistic and easy pickings for the smart and righteous rebels.
The irony grows thick, thick, thick when those who oppose liberation of the mid-east by uniformed American soldiers cry foul when an ununiformed agent is denied his rights under the Geneva conventions.
But it makes a kind of horse sense when you consider the romanctic notion of the “scrappy underdog.” In The Patriot, Gibson’s character tricks the British with a clever ruse using straw dummies on a hilltop as “honor trade” to rescue his captured men. It works, due to Mel’s skillfull manipulation of the Red Coats’ stupid adherance to the “rules.”
The underdog, when he brings down the clumbsy, lumbering giant what with all of his outmoded “rules” hampering him, is always a crowd pleaser.
This Hollywood revolution chic, I think accounts for why certain americans don’t consider this a real war. If it were a real war, they’d might feel compelled to fight for something, rather than sit back and enjoy the show.
Don’t the redcoats burn a church full of people in this movie? I’ve seen pieces but not the whole thing. That doesn’t seem to be according to ‘the rules.’
See, that plays into the notion that there are “good” redcoats and “bad” redcoats.
The good ones are dupes, rightly exploited, because the bad ones are EVIL!
It’s not a perfect analogy, but I think it holds up.
actus writes: I’m talking about whether this is real war enough for there to be no judicial review, apparently due to the AUMF. It seems this is what’s gotten Jeff’s nipples all perked up.
Scalia would overrule Ex Parte Quirin wrt U.S. citizens. He said that decision was “not this Court’s finest hour” in his Hamdi dissent, and insisted Hamdi should be given access to federal courts and all the due process rights of citizens. And he’s right. Scalia would have ruled against Bush if the Padilla matter had been heard—as would enough of the others to form a majority.
That’s why the Bush DoJ engaged in bizarre contortions, dropping claims of terrorism against Padilla, i.e., abandoning claims they were holding him for reasons of national security, and suddenly filing a stupid and empty criminal case agasint him. All to moot and thereby get that appeal out of SCOTUS reach— thus earning the disgust of the very conservative Michael Luttig on the 4th Cir. bench.
The Bush Admin does everything to evade judicial review of its extreme claims for Executive authority, now that it has seen Opinions from Scalia and others that indicate they would lose. That includes bizarre “deal-making” with the FIS Court to avoid appeal and review of any matter pertaining to the NSA warrantless surveillance. They’d lose, they know it, and hence all this antics.
We could, of course, just accord them their due by Geneva Convention rules. Summary tribunals and executions – illegal combatants, captured out of uniform.
Some would, I’m sure, believe that “unfair.” After all, the folks on top of the WTC could choose whether to burn or jump to their deaths…
Pardon me while I don’t lose any sleep over Padilla or Hamdi.
America is still fighting in trenches? Since when have our current enemies started lining up in their own trenches?
Or are we talking about metaphorical trenches? Because if airport security at O’Hare isn’t trench warfare, I don’t know what is.
Pardon my French, K, but that’s a bunch of garbage. Yes, revolutionaries have aesthetic appeal. But no significant number of Americans are attracted to the revolutionary stylings of the Taliban or the modern Iraqi insurgency. Not even in the deepest bowels of an Atrios thread will you find people saying, wow, what a groovy, rocking, sexy bunch of rebels.
Yes, there’s a wing of the left that opposes war in all cases. And yes, we’ve all seen pictures of greasy protesters in Che shirts. But let me remind you of the sizeable support that the Afghan war had among American liberals. A commanding majority supported that war because Bin Laden (the kind of sexy revolutionary you suggest the left loves) attacked us and he was there.
The vast majority of opposition to the Iraq war springs not from some romantic love of rebels, but because that war has dragged on for three years, growing increasingly deadly and politically convoluted with no end in sight, while the mounting evidence of questionable decision-making and utterly deplorable planning (Condi Rice: “thousands” of tactical mistakes) shakes the confidence of even those who agree with the President’s big ideas.
It’s really that simple, I think.
Did I miss the declaration of war?
Among other things.
Yep Beet, I remember the howls of outrage on the Left when Mikey Moore referred to the Iraqi thugs as “minutemen.”
Maybe not that exact expression, but as was pointed out, they’ve been compared with the minutemen—“and they will win,” as Moore so memorably put it.
I have nothing to contribute to the main thrust of the comments, apart from disputing Mona’s contention about Luttig. He hadn’t a chance to begin with. I do agree the Administration’s playing some ugly ball right now, but the issues are clearly vexing to all sides.
To a leftist, that’s not such a good thing. Of course, there’s always the possibility that Moore meant they will be seen as minutemen by the Iraqis, which is also not a good thing.
Isn’t it funny we always have to be “reminded” of this?
Gee, I wonder why that is?
You’re not suggesting Moore was somehow insulting, demeaning or deprecating them by calling them “minutemen,” are you? Seriously? It’s pretty clear from context it wasn’t a putdown.
To me the context was: we may spark a popular revolution where these guys are going to be seen as the answer. Given support for attacks on americans, it seems like hte minutemen analogy is apt.
Now if Simon Cowell failed to hear Padilla’s appeal, that would be something to cry about.
Yep. And if I were President Bush I’d announce tomorrow that is the course of action we’ll be taking effective May 1, 2006, and I look forward to ignoring whatever rubbish they cobble together in Hamdan.
Forgive me if I don’t think Justice “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.â€Â
gets to define the President’s war time powers.
If you’re looking for a very balanced treatment of the history of these issues (and a remarkably quick read), see:
http://www.amazon.com/gp/product/0679767320/104-4743730-7717503?v=glance&n=283155
The tribunals we do have in gitmo are due to the lawsuits. AFAIK, The geneva conventions don’t really say much about what do to our own citizens captured on our own soil.
Ace writes: Yep. And if I were President Bush I’d announce tomorrow that is the course of action we’ll be taking effective May 1, 2006, and I look forward to ignoring whatever rubbish they cobble together in Hamdan.
Forgive me if I don’t think Justice “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.â€Â
gets to define the President’s war time powers.
Jose Padilla is a United States citizen, arrested in the United States, and claimed by the govt to be plotting to commit terrorist attacks in the United States. But you think, what, the feds should have convened a quick military trial in the O’Hare parking lot and then just shot him? Are you aware that now that they have been forced to actually charge him, they are not alleging any of this “dirty bomber” stuff?
And are you aware that moonbat Antonin Scalia disagrees with you, that he’d insist citizen Padilla is entitled to a trial unless Congress suspends the Writ of Habeas Corpus? Or that he wrote a withering dissent criticizing that language you cite from Casey (drafted by O’Connor who is no longer on the Court)? Yet, you think his rulings Bush should be free to ignore?
This devotion to George Bush is driving some of you morally and politically insane.
No.
Irrelevant.
Meaningless.
BTW, if I were President I would have had the WH Press corps film me laughing when Rasul was handed down.
Then, I would have announced “That’s nice of you to waste so much of your precious time on this” and not allowed a single petition to be filed in any court anywhere by the aliens being held there.
Gee, do you really think I don’t know O’Connor isn’t on the court Mona?
Did Kerr tell you that too?
That language is referenced by Justice Kennedy in Lawrence v. Texas, which is of course why I wrote it.
I guess I should have referred to him as Justice “The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”
It would have been more appropriate.
Thats nice. How does that work?
Ace writes: That language is referenced by Justice Kennedy in Lawrence v. Texas, which is of course why I wrote it.
I agree with the holding in Lawrence, on 14th Am grounds. Passing a law against behavior that applies only to homosexuals but not to heterosexuals who engaged in the same behavior, cannot get past even the rational basis test.
In any event, before that case O’Connor, Kennedy and Souter drafted the Opinion in Casey, altho conventional wisdom is that the offending language is O’Connor’s. In his dissent, Scalia wrote:
Rest here:
http://www4.law.cornell.edu/supct/html/91-744.ZX4.html
The whole dissent is one of the most entertaining reads ever.
Anyway, it boggles my mind that you would recommend a president simply ignore SCOTUS rulings, even if they include Scalia, Roberts, Alito and Thomas in the majority. You must believe that ruling against Bush is, by definition, impermissible judicial activism; most bizarre.
Yhe Yale administration disagrees with you.
It’s happened before, yet somehow we’re all here on an uncensored Internet.
Funny huh?
Gee, I’m sorry when I became an adult I didn’t sign up for a constitutional governance consisting of “The Supreme Courts says it and it is so”
If you think the founders intended that to be the structure of our government you are utterly clueless.
It likely is.
Go read a history book
If you actually believe there is “law” behind the Rasul ruling you’re nuts.
The branches are allegedly co-equal (however it’s arguable the founders saw the courts as equal to the other 2), and SCOTUS deciding the President must do something is governmental insanity.
stare decisis for thee but not for me!
Really? Isn’t that what happens anytime the executive branch loses a case?
Um, you are either very, very ignorant, or are being purposely obtuse.
You have mona to thank for this:
While we’re on Justice Scalia
See actus, the idea that the court is the “boss” of the other branches is not only silly, it has no basis in the founding of our country.
But you’re ok with that as you cleary have no interest or belief in the ideas on which the United States was founded.
Mona, here is a wiretapping story that brings some comic relief to the bigger issue.
I have no idea what in the hell these people in Hollywood were doing to each other…
Recently, the DC circuit told the FCC to scrap its so called ‘broadcast flag’ rule. Wasn’t that the court telling the executive branch what to do?
Really? So marbury v. Madison, wrong, silly and ‘no basis in the founding’? Talk about activism.
Also, could you provide cites / links when you quote cases. Thanks.
Good job, Actus, caught misrepresenting history, you do a quick dodge to misrepresent the case I referred to, which is about there not being judicial review in the case of the German saboteurs’ military commission trials.
Consistency is your only attribute, actus, consistent misrepresentation.
Right. They don’t review the trials. They decide that the president is authorized to use the military commissions, that the military commission is lawful, and that their detention is also lawful. Jeff’s upset that the court might hear padilla’s claim that the president doesn’t have the authority to do what he did. In Quirin, not only did the court hold a hearing, they set a special term in the summer for it.
Sorry if this was ambiguous before.
Wrong target. It’s not GWB, it’s the history of the murder of innocent human beings for political reasons that has led us here. GWB just happens to be the man in the WH while it is going down.
If we are lucky, and smart, we may yet come through this without selling our entire national soul. Then again, we may just all end up dead.
Just don’t pretend there are easy answers to the questions we face and do us all a favor and climb down from that moral high horse you think you are on.
Ace, if you reject judicial review, and think Congress and the Executive should be able to make their own determinations about what is constitutional, then you may as well toss the Bill of Rights in the trash. Those are purposely counter-majoritarian protections. Yet you think Congress may decide that certain political views or religious beliefs should be illegal, and could pass laws against them and simply declare the laws constitutional—no victim of these laws could do jack about it. There is no recourse to an impartial (to the extent humanly possible) tribunal that is charged with protecting people from majority excesses.
And if the BATF decides to just break into your home to search for guns, with no warrant, well, too bad for you. The DoJ just says the Executive reads into the 4th Am that breaking into homes to look for guns is always a reasonable search, even without warrants. Then that’s that. You have no recourse to a court.
Is that the country you want? For the sake of George Bush?
For almost 200 years we’ve accepted judicial review, and when the SCOTUS overreaches the people can amend the Constitution. But a member of a minority, unpopular religion cannot do that; in the 1920s the Klan pased many laws agasint Catholics. Oregon compelled them to send their kids to public schools—SCOTUS said no. But now we just let that all go? Oregon should have been free to tell the SCOTUS to fuck off?
Defense Guy writes:
If we are lucky, and smart, we may yet come through this without selling our entire national soul. Then again, we may just all end up dead.
Just don’t pretend there are easy answers to the questions we face and do us all a favor and climb down from that moral high horse you think you are on.
Oh, come now. We lived through the Cold War with 10,000 Soviet nuclear warheads aimed at us. Muslim terrorism is a serious matter, but unless our intelligence and Homeland Security people up and quit en masse, the jihadists could not remotely kill all or even a large proportion of us.
Islamic terrorists have been after Westerners since at least the 80s. That threat was not taken sufficiently seriously for too long, but over-reacting in the other extreme is not called for. They are not going anywhere and will be a plague for decades, and we have to deal with it. Defense Guy, we are UNITED STATES. We are bigger, smarter and better than they are, and there is no reason to get into a panic about them.
Mona
Yes, we are the United States and yes, the idea that we could even contemplate the possibility of locking up our fellow citizens without trial OR, even more worrisome, access to council, is as worrisome an idea as we as citizens of this fine land are ever likely to encounter. That said, the question still remains, how do we stop those who intend to kill us by using these facts against us?
Please remember Mona, despite every attempt to make it otherwise, this country will at the end of the day, retain it’s commitment to our individual rights due to the fact that we are ALL ARMED TO THE TEETH.
Our enemy has only a commitment to the idea that we have chosen wrongly in terms of how we would worship, and to the end of making us see the error of our ways they are willing to kill us to our last.
Something our forefathers both understood completely, and could not comprehend at all. Sadly, it seems as if we have returned to the land of burning witches both real and imagined. So by all means keep your commitment to the law, to that piece of paper which defines us, but do not think for a second that we will not do everything that goes against it to protect it, however ironic that may seem.
One last thing, if those who wish to force their vision of the divine on the world have their way, they will put you in a bag with eye slits and if you refuse, they will take you to midfield at a stadium somewhere and put a bullet in your skull. If you think this can’t happen, please find someone who has actually lived under tyranny and speak to them of what is actually possible in this world we all share.
“This devotion to George Bush is driving some of you morally and politically insane.”
More talking points from a liberal media that is trying to take down Our President with their campaign of Facts.
Real Americans know that there is only one Fact that we need to know – the FACT that George W Bush is Our President
Besides, this government is founded on the balance of powers. That means that the president is equal to Congress and, by definition, an “equal” cannot give you orders. Congress has no authority to give the president “laws”.
True Americans know that George W Bush would never abuse his authority unless is was necessary for America to win the GWOT(al) [Global War on Terrorism (and liberals)]. Only those who have done something wrong, like conspire to blow up Congress or assist the ACLU, have anything to fear.
See, the secret is that the Bush Cheerleaders aren’t hypocrites or changing – they WANT the pres to abuse his authority to lock up people they don’t like.
Many Republicans have been taken in by the meme of liberals as the American equaivilent of the communist idea “objective enemy” who, because of their deeply held beliefs, can be expected to turn against the party sonner or later.
Its amazing how we become what we hate. Bush isn’t Hitler – hes a lot more like Lenin. And the most anti-“left” “conservatives” have been the ones who most absorbed to mentality and rhetoric of the communists. JG and his ilk are like the non-bolshevik socialist toadies who applauded as the Bolsheviks massacred their non-socialist enemies, never believing that their turn would come. They will get the end they deserve.
Ace writes:
Now, now. Actus is not being silly, at least not in this thread. Scalia believes in judicial review; his disagreement is that “constitutional ideals,” whatever that might mean, are things the judiciary may impose; that is, indeed, imperial. But he emphatically does not deny that the SCOTUS has the last word on what the Constitution, as actually written, provides and demands.
If there are “ideals” the judiciary should also be insisting on, then the people may amend the Constitution to realize them. Otherwise, the Court is to apply it as law, only as it actually is.
SPQR
 “My two weapons are deceit, misrepresentation and dissimulation…”  Cardinal Actus
r4d20–
Thanks for the laugh.
But let’s test out that last bit: If I truly get what I deserve, you’ll write more of that delicious rambling nonsense that shows, in its characterizations of me, what a totally disingenuous asshole you really are.
Oh, and congrats, Mona! You now have real thinkers like r4d20 on your side!
YOU’VE COME A LONG WAY, BABY!
That last post was eloquent, Defense Guy.
Why couldn’t GW get someone to write speeches like that!?
Takes a bow.
Defense Guy writes: One last thing, if those who wish to force their vision of the divine on the world have their way, they will put you in a bag with eye slits and if you refuse, they will take you to midfield at a stadium somewhere and put a bullet in your skull. If you think this can’t happen, please find someone who has actually lived under tyranny and speak to them of what is actually possible in this world we all share.
I simply do not understand why you would make such an argument; Islamic nutjobs stand zero chance of taking over this nation. We have to defend against their terrorism enthusiasms—water supply tinkering, bioterror weapons, dirty bombs & etc— but I have not the slightest fear that they could impose sharia law in the United States. With what troops invading how?
You really think we are serious risk of becoming an Islamic theocracy?!
February 3, 1994 (Republican National Convention Annual Gala)
“Our friends in the other party will never forgive us for our success, and are doing everything in their power to rewrite history. Listening to the liberals, you’d think that the 1980s were the worst period since the Great Depression, filled with suffering and despair. I don’t know about you, but I’m getting awfully tired of the whining voices from the White House these days [Clinton, yes]. They’re claiming there was a decade of greed and neglect, but you and I know better than that. We were there.”
Jeff writes: Oh, and congrats, Mona! You now have real thinkers like r4d20 on your side!
They hate us because of our freedoms dude.
Defense guy sez:
While I agree with you as to the likely outcome, a citizenry armed to the teeth does not individual rights guarantee. Looking to just about anyplace in the middle east is enough to disprove that.
On the other hand, an unarmed mob is easy pickings, and we are anything but that.
If we’d only declare war, the legal hurdles would be immensely clarified.
Oh well.
But he emphatically does not deny that the SCOTUS has the last word on what the Constitution, as actually written, provides and demands.
But they don’t have the “last word”
They were never intended to have the “last word.”
Congress has jurisdiction over the courts, not the other way around Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
We have turned a constitutional republic into this hyper litigated “let the judges decide” warped system of governance.
Otherwise, the Court is to apply it as law, only as it actually is.
Well, yeah. But see, them deciding the what the law is, isn’t “rule of law” it’s the absence of law, lawlessness.
See, the Supreme Court does not have the authority to order the President to allow non-resident enemy combatants to file writs in federal courts.
They can say the do, they doesn’t actually make it so.
Instead of quoting propaganda like the federalist papers, why not quote something with some actual force of law?
Marbury v. Madison, 5 US 137 (1803).
Are you sure that sort of order is even directed toward the president?
You should really tell the administration of your legal theory. It would totally help out in the global war on terror, and we don’t want to end up in Defense Guy’s hell.
Ace writes: We have turned a constitutional republic into this hyper litigated “let the judges decide†warped system of governance.
But that isn’t primarily because of the Constitution and judicial review (tho it is some). It is mostly because especially beginning with FDR, the federal govt has grossly expanded and passed 10 million laws. The more laws the legislative branch passes, the more litiagtion to test the meaning and application of those laws, as well as their constitutionality.
I don’t know what they’ll decide in Hamdan. But I think you’d find it would be enormously bad PR for the GOP if the Dems and lots of Republicans and Independents could make hay out of the fact that George Bush has announced he will ignore the courts. That is not a politically viable option, and it ought not be. You’d see the Republican Party go through civil war if that happened.
Our protections under the BoR are at stake, as all kinds of ads and campaigns would immediately remind the American people.
actus writes: Instead of quoting propaganda like the federalist papers, why not quote something with some actual force of law?
There is nothing wrong in those quotes he gives. I agree with what is said therein. A lot of them he is getting from Scalia’s dissent in Casey.
Courts are not supposed to have will, but merely judgment. But judgment they do have, however, and are the last word as to our rights under the Constitution. Any other approach would render the BoR moot. At that point, by definition no law Congress passes, say, abriding speech or freedom of religion is unconstitutional, by the very fact that Congress passed it.
I simply do not understand why you would make such an argument; Islamic nutjobs stand zero chance of taking over this nation. We have to defend against their terrorism enthusiasmsâ€â€water supply tinkering, bioterror weapons, dirty bombs & etc but I have not the slightest fear that they could impose sharia law in the United States. With what troops invading how?
And I simply don’t understand how since we have been moving away from strict constitutional interpretations regarding executive power for a long time now, that we now, while at major risk from outside forces, must begin acting as if the sky is falling. My guess is that it is politics, plain and simple.
You really think we are serious risk of becoming an Islamic theocracy?!
Is this the extent of what worries you? There are no other shifts that could happen here or other places that could be of concern?
I bet they don’t hate you at all. No, you they love.
faux hipster not quite yuppie secular pinko often accused of being gay public interest lawyer? ADORE!
because of my freedoms.
Thank you for vindicating me, comrade.
Defense Guy writes: And I simply don’t understand how since we have been moving away from strict constitutional interpretations regarding executive power for a long time now, that we now, while at major risk from outside forces, must begin acting as if the sky is falling. My guess is that it is politics, plain and simple.
Of course for a great many it is politics. During the Clinton Administration, it was the right screaming about Executive abuses of civil liberties and flouting of the rule of law. Waco, Elian Gonzalez, Ruby Ridge—and Clinton’s purportedly nefarious use of the secret FISA court. Cato Inst. issued multiple long indictments of the horrors of William Jefferson Clinton.
Today, Cato is horrified at Bush, including wrt Padilla and the warrantless spying issues. They are consistent, as am I.
Suddenly, however, much of the right is all agog to see a strong Executive who gets to decide what the law is with no “interference” from the other two branches of govt. And suddenly, many liberals/leftists have a newfound appreciation for a limited govt and the rule of law. That is all politics. Principled people look past all that, at what the proper roles and powers of the various branches are regardless of who is sitting in the Oval Office.
But I don’t think we are “major” risk from outside forces, certainly not nearly as much as we were, say, during the Cuban missile crisis and the whole time we operated under Mutually Assured Destruction. Given a choice, I would infinitely prefer the problem of controlling nomadic bands of religious nuts who can horrify us with terrorist attacks, but who cannot take out all of our major cities.
You asked me to consider they would put a bullet in my head if I wouldn’t wear a burka. That isn’t going to happen in the United States. Of all the things to worry about, that just isn’t one.
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I love this.
“Propoganda”
Hilarious.
Yes, becuase one branch gets to decide it’s own powers.
You’re on record the others get to do so, correct?
Gee, I don’t know dumbass, the case was only Rasul V. Bush.
<i>You should really tell the administration of your legal theory
You should really go cure your silly ignorance about the prinicples on which our country was founded.
Oh, I forgot you have no interest or belief in them.
Sorry.
Mona
Yeah, I doubt that the burka thing is likely to come to pass. To my mind, and enemy that is not concerned with his own survival is a much greater threat than the one who could end the world but won’t knowing that you could as well.
So you are willing to live in a world where terrorism, perhaps like it exists in Israel, becomes a normal part of our life. I am less inclined to accept that outcome yet, and that being the case, am not willing to trip up those that are trying to get us off that path.
Ace writes: Yes, becuase one branch gets to decide it’s own powers.
And, Congress decided it had the power to require FISA warrants when the Executive wants to eavesdrop on the telecommunications of U.S. persons on U.S. soil, in the foreign intelligence context. The courts —including Antonin Scalia— believe they have the power to hear a case implicating that issue. The president’s Yoo theories of Executive power hold that literally anything the president decides to do, if he says it is for national security purposes, is legal.
Who decides? The Constitution doesn’t directly empower either Congress or the Executive in this area; but both Congress and the Exectuvie have long been held to be vested with shared national security powers, as Justice Thomas just noted in Hamdi. So, again, who decides?
Should the Executive simply stop allowing himself to be dragged into court, and just do as he pleases? Why use the FISA court at all? Or any federal court? He should just do as he wishes—he, after all, has the troops. And the Founders did, after all, mean to install a King in the Executive office.
an enemy, not and enemy.
I guess the question you need to ask Mona, regarding Padilla, is does his case have to do with national security issues? Is it related to the GWOT?
You seem to be worrying about a ‘we have always been at war with oceana’ situation arising from this situation. Am I wrong?
Mona, good job at changing the subject.
So the court(s), intended to be the weakest branch, gets to say they’re the most powerful one.
Lovely.
Anyway, if President Bush had claimed he had a third of the authority FDR claimed, I think a lot of you leftists may have either a)followed through with the courage of your convictions and actually moved (or tried to) to Canada b) engaged in mass suicides.
I do however, agree with you Mona that the Congress (actually all 3 branches) has a role of blame in this.
I also believe the Supreme Court hears way too many cases.
Defense Guy asks: I guess the question you need to ask Mona, regarding Padilla, is does his case have to do with national security issues? Is it related to the GWOT?
This war is a hybred of conventional and a law enforcement matter. There is no nation-state to surrender, or any bright line way to know when it ends. We will likely be having to deal with Islamic terrorists for the next 3-4 decades.
In the meantime, we have a Constitution, and it allows Congress to suspend the Writ of Habeas Corpus, but Congress has not done so. So U.S. citizens are entitled to their day in a federal court.
You seem to be worrying about a ‘we have always been at war with oceana’ situation arising from this situation. Am I wrong?
Not at all. The Patriot Act is already being used in the so-called war on drugs. It included in the last go round provisions for targeting methamphetamine production. Every heard the phrase “narco-terrorism?” There is a nexus between the drug cartels and terrorism—so, in the name of national security can the president now lock up all suspected drug traffickers as “enemy combatants” with no access to lawyers or need to bring charges against them?
Who should decide these issues? The Executive alone, or also Congress and the courts?
But the issue in Rasul v. Bush wasn’t whether the court can force the president to allow the petitions to be filed. It was wether the court has Jurisdiction to hear them. That’s not an order directed at the president, but the district court.
Ace, I agree with you that Rasul was wrongly decided. As does Scalia. I quote from his dissent, but ask you to consider my bolded language:
Congress could have expanded the rights of feoreign deatinees, according to Scalia. Thomas said much the same thing about Congress in his Hamdi dissent. Both of these men, in different but related cases have argued the courts cannot compel the president to do something in an area of his authority, but that Congress could.
The likelihood of Scalia,and probably also Thomas, declaring the Congress cannot legislate a warrant requirement for foreign intelligence surveillance of U.S. persons, on U.S. soil, is slim to none.