Some opinions in the matter of the Boumediene case
Justice Scalia and then Chief Justice Roberts, via Powerline weigh in on a decision which seems to the layman as pretty much the opposite of the thinking that went into ex parte Quirin, though we are obviously not clever enough to understand the rarefied logic of the majority of today’s Supreme Court:
Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.
And now the fine lawyers defending these men, who believe they have a religious duty to kill Americans, are preparing to ask that their clients be freed because they have been denied their constitutional right to a speedy trial. What a country.
UPDATE: Scott Johnson has some additional thoughts.
June 13th, 2008 at 7:35 am
The courts have assured that future prisoners, if they are not killed before surrender, will face immediate rendition to less hospitable allies for interrogation and detention.
Congress should remove the treatment of enemy combatants from the jurisdiction of the courts. Of course, there is no chance of that happening while Bush is president. They would rather that we lose the war.
Don’t you find it telling that our servicemen are subject to the UCMJ, but enemy combatants are given access to our courts? Outrage is too weak a word.
June 13th, 2008 at 9:50 am
Congress DID remove jurisdiction. That’s what this case says- that it’s unconstitutional for congress to do that.
I love the way Nino writes. What a country, indeed.
June 13th, 2008 at 10:55 pm
Indeed, staghounds, the ultimate impact on the Court’s legitimacy may outweigh the literal consequences of the decision. The opinion acknowledges:
Buzz off, Congress, the Court continues.
I’m not a lawyer, but I’m quite sure that the Founders did not intend SCOTUS to be a law unto itself (or a collective Commander-in-Chief).
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Hasn’t Jack edited this post? Iirc it originally ended not with “What a country” but with “How can such a country survive?”
IMO the threat to democratic government is probably greater than the threat to the country. (However, I can imagine a future presidential candidate, e.g., de facto relinquishing California to La Raza in exchange for electoral votes.) An American Caesar or Indira Gandhi remains distant and unlikely, but the Supreme Court has brought us a distinct step closer.