Ignore the Court
By Mark I Posted in detainees | Guantanamo | military tribunals | Supreme Court | terrorists | The Bush Administration | War — Comments (50) / Email this page » / Leave a comment »
Thursday’s Supreme Court ruling in the consolidated cases of Boumediene v. Bush and Al-Odah v. United States for the first time grants foreign-born enemy combatants of the United States, captured on the battlefield in the process of planning or participating in attacks against U.S. targets, the right to challenge the circumstances of their detention in federal court. It is difficult to overestimate the impact that this ruling will have on the prosecution of the war on terror and, indeed, all future armed conflicts. The specter of American troops Mirandizing enemy combatants on the battlefield, or being called back from the front to testify in civilian court about the manner that a prisoner was captured, and the practical impossibility each of those outcomes would present to the U.S. military, should trouble every American who is concerned about the nation’s safety.
President Bush, reacting almost immediately to the Court’s decision, said that his Administration, “would abide,” with the ruling, adding, “That doesn’t mean I have to agree with it.” He spoke too soon, and did not go far enough. For the reasons cited above, and others, he should ignore this decision of the Court, and continue to apply the Military Commissions Act of 2006 as duly passed into law by Congress.
Read on...
The unpleasant fact overlooked by Justice Anthony Kennedy and the four justices who signed on to his majority opinion, is that in ruling the military tribunals set up by the Military Commissions Act to be unconstitutional, the Court itself committed an unconstitutional act. Congress, acting under its Article III power to regulate the judicial branch, stripped the Supreme Court of the jurisdiction to hear habeas corpus petitions from detainees in the custody of the United States when it passed and the president signed the Military Commissions Act. The act specifically states:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005.
The Detainee Treatment Act vests the authority to hear habeas petitions in the U.S. Circuit Court of Appeals for the District of Columbia, not the Supreme Court. The very act of taking the cases constitutes a usurpation of Congress’s Constitutional powers, as well as a violation of U.S. law, by the Supreme Court. The ruling itself, of course, is a gross attempt to regulate the conduct of the Executive Branch in wartime by the Judiciary and has no basis in the Constitution.
Not since the Civil War has a president defied a ruling of the Supreme Court, when President Abraham Lincoln ignored a ruling that his suspension of the writ of habeas corpus was unconstitutional. Lincoln continued to hold persons deemed to be enemies of the Union. Like the Supreme Court, the Executive and Legislative Branches of government have a responsibility to interpret the Constitution. Lincoln, exercising his interpretation both of the needs of the war effort and the law concluded that preserving the Union necessitated the temporary suspension of the writ. President Bush can and should make the same determination.
Should the president make such a decision, he would not be going nearly as far as Lincoln did. The president would be refusing to apply habeas rights to foreign-born enemy combatants, whereas Lincoln jailed American citizens and held them without charge. The president would be on firm legal ground in making this determination. He has inherent Article II powers to direct the military as commander-in-chief of the armed forces, and he would be upholding a duly passed law against a rogue Court overstepping its authority. Furthermore, since Congress expressly authorized the D.C. Circuit to rule on the status of the detainees at Guantanamo Bay, and that court ruled that the tribunals were indeed legal, President Bush can argue that he is upholding the decision of the highest court authorized to rule on the matter.
Americans understand that the proper role of the judiciary is to interpret the laws, not make them. They also understand that in this war on terrorism, every effort must be taken to prevent those who would do America harm from realizing their plans. The president has been handed an opportunity with this wrongheaded and unconstitutional decision of the Supreme Court to act on both principles. The Administration can strike a blow against terrorists and a rogue federal judiciary by simply refusing to submit to the arbitrary will of five justices in black robes.
Cross posted at Mark on the Right.
I'm against the amnesty, prescription drug entitlement, Kennedy education, Harriet for SCOTUS, and unused veto pens you've aquired in your presidency. But none are as bad as your lack of taking the bully pulpit. It is a Republican Executive's main defensive and offensive weapon against a hostile press, and yours is barely used. Do the right thing and support the Constitution that the 5-4 SCOTUS refused to do.
Tim Schieferecke
Nearly all the dialog in all the news, including the right-news, and including right-bloggery, has focused on the decision being wrong, which it obviously is.
My hat's off to Mark I - the more fundamental and more troubling problem is that the Supreme Court did not even have the Constitutional authority to hear and rule in the case.
The 5 justices have defied the Constitution. Not only should Bush ignore the ruling, but the Congress should impeach all 5.
Unfair. Unbalanced. Unmedicated. -- IMAO
Unfair. Unbalanced. Unmedicated. -- IMAO
to the homes of Kennedy, Souter, Ginsburg, Stevens and Breyer. Using the Kelo decision to take their property for the purpose of housing the Gitmo guys. I bet they would particularly love Ginsburg, Breyer and Souter! Kennedy would pee his trousers if he got within 100 yards of those guys.
thinking of relocating them 6ft under but yours works as well!
Freedom of Religion NOT Freedom from Religion
These kinds of suggestions are not helpful or appreciated.
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Damn the Obama! Full speed ahead!
and since I am the one writing it...I should be the one pleased by them....and oh by the way I mean it!
Freedom of Religion NOT Freedom from Religion
Recommended!
-- A true evolutionist would let endangered species die off. Anyone care to change sides?
-- Can't Feed 'em? Don't Breed 'em! --
-- gotta love redstate! --
his actions and inactions will render the decision irrelevant at least until Jan 20, 2009.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
http://www.redstate.com/blogs/gamecock/2008/jun/12/anthony_kennedy_has_m...
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
I simply do not accept the fact that there is a group of individuals who cannot be held accountable in SOME WAY for their actions. These five justices are an abomination and there must be some way to reverse their decision(s). Nobody on earth is "Supreme" unless you are too lazy to find a way to affect them.
If it bothers you so, write your Congresscritters. Impeachment is your only recourse.
Well, that or hope that a later court overturns the decision.
his base is critical to his success and the success of the downticket. Red Ruth Ginsburg and Stevens can't hold out much longer. There is one cure for an out of control court...winning elections.
Tim Schieferecke
what Bork called "the political seduction of the law" in his book, The Tempting of America.
mark Levin:
On Monday’s Mark Levin Show: The Revolutionary War was fought so that Supreme Court Justices could not act the way they are. They are abusing their power and the system of government that our Founding Fathers implemented. When judges and courts can impose their will on the American people, regardless of what they desire, then the system is broken. Mark refers to the recent ruling that allows same-sex marriages in California, as well as the continuation of last weeks Habeas Corpus ruling by the Supreme Court. Further, the courts have now taken on the issue of immigration - even though the American people do not want people from other countries coming to America and telling us what their rights and demands are. Why do we have the other branches of government if they are just going to be ignored?
more later from DeVine Law
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
themselves and have since Marbury v Madison. But short of Bush doing a very much needed Andrew Jackson on their sorry keesters, the best alternative is winning and replacing two libs with 2 strict constitutionalists. Just imagine this fantasy: John McCain sees the light on drilling, cap and trade, border enforcement and shutting the piehole on excessive profit crap. He wins and prevents the downticket Rs from being routed. Ginsburg and Stevens retire and are replaced with 45 year old jurists in the mold of Roberts. We have a 6-3 majority in the Court, and many past mistakes are corrected. Tis still the best "spoils system" for winners. The winners being the American people whenever a conservative wins.
Tim Schieferecke
app ct judges, we need not fear the turncoats like kennedy and souter as much.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
I think McCain could base his entire campaign on the tyranny of lawyers and how it has depressed and depleted the nation. All McCain has to do is review each Supreme Court decision over the last Decade and argue that by Legislating from the Bench and ENTERING THE HOMES of AMERICANS with their stupid decisions the SCOTUS is an ROGUE and OUTLAW entity which is actually a bigger threat to America than the Terrorists. He might also point out the number of times per day the average American hears or thinks, "Can we be sued for that?" with the answer, no matter how silly, being the determining factor in any decision.
with your sentiment, and share your disgust at the Boumediene ruling... I don't believe the line of argument works.
The Constitution itself speaks of the Writ of Habeas Corpus in Article 1:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
It would be a strange argument to claim that Congress, by legislation, can effectively 'suspend' Habeas Corpus by preventing all courts from hearing habeas cases.
I believe also that Pres. Bush should ignore the Court, following Lincoln's precedent. The detainees at Gitmo are not prisoners awaiting a criminal trial; they are not 'perps'. We do not hold them for punishment.
We hold them to keep them off the battlefield. It would be, imho, a dereliction of the President's duty as Commander in Chief to release one or more of these combatants, only to have them kill an American soldier or civilian on yet another field of battle.
But the rationale can't be, in my view, some jurisdictional argument. It can be, imho, his oath of office to uphold the Constitution. There is nothing in the Constitution that dictates that the President must abide by the rulings of a co-equal branch of government when such rulings conflict with carrying out his Constitutional duties. The President, just like Congress, just like the Courts have an equal duty to interpret the Constitution and to uphold its requirements.
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
of Congress to restrict the jurisdiction over Habeous cases to "some" court of their choosing? And could you elaborate on your objections to the jurisdiction argument?
God bless
GC wants your thoughts.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
that Congress can restrict jurisdiction over Habeas cases, as long as such restrictions are not de jure or de facto suspension of the Writ.
Even without a law degree, the average American would see that a law that restricts jurisdiction over Habeas to American citizens to a single court in Alaska between the hours of 3:30 and 4:00 PM is likely unconstitutional.
Where the court went completely awry is in ruling MCA unconstitutional, which meant that it conferred Habeas rights to illegal combatants captured on the field of battle. That's a novel invention.
But the jurisdictional argument is not strong, IMHO, because the federal courts absolutely do have jurisdiction over federal questions, especially when they arise out of the Constitution, as this case most certainly does.
Again, to claim that the Supreme Court does not have appellate jurisdiction on a case that involves the Writ of Habeas Corpus -- a right so central to our society that it is enshrined in Article 1 of the Constitution -- because Congress wrote a law removing jurisdiction is... weak.
Under that theory of jurisdiction, Congress could theoretically remove jurisdiction to hear ALL First Amendment cases from the federal courts, thereby nullifying free speech, et. al., by legislation -- which is inferior to the Constitution.
I do NOT support the Court's ruling in Boumediene, but I do think they had jurisdiction to decide the case. They decided wrongly.
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
The clause in question (Art 3, Sct 2) states n all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
When the Congress regulates the jurisdiction of the Supreme Court, then they do so with the authority of the Constitution behind them.
The hypothetical you bring up, a law that restricts jurisdiction over Habeas to American citizens to a single court in Alaska between the hours of 3:30 and 4:00 PM, may well be unconstitutional. However, the jurisdiction of the Supreme Court is NOT limitless. They have had that issue removed from their jurisdiction, and the question of how fair or constitutionally sound a statute is, is NOT their purview.
It is just a case of tough noogies for SCOTUS.
Let's exercise our "shoe on the other foot" muscle, shall we? When the SCOTUS ruled in Kelo, and in Roe, and in Roper, they made an absolute MOCKERY of the Constitution. They ruled unconstitutionally. But they had the authority to do so, and for America it was just tough noogies.
So in the same way SCOTUS had a right to exercise their authority.
MCA placed habeas corpus outside the purview of the Supreme Court. It was done directly, specifically according to Art 3 Sct 2 of the United States Constitution.
It does not matter that the Congress may run amok in proceeding to commit all sorts of violations in the area of habeas corpus, the Supreme Court has no jurisdiction.
That is the bottom line. There is no other consideration. They had no authority to hear it, much less rule on it.
Unfair. Unbalanced. Unmedicated. -- IMAO
So let's say in 2010 that Congress passes a bill naming Obama President-for-Life, and President Obama signs said bill into law. In the same legislation, they remove all jurisdiction for this law from the federal courts, including the Supreme Court, of course.
This is clearly an unconstitutional law even to the blindest of leftists.
So it does not matter that Congress may run amok? The Court has no jurisdiction? Just tough noogies for them (and for us)?
I'm not sure I can support such an interpretation of the Constitution.
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
would obey a court. This would call for one of those periodic revolution thingys Jefferson spoke of.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
If a Constitutional amendment was enacted to make Barack President for life, then he would be President for life.
it was a Constitutional amendment, then of course.
I'm talking about when Congress simply legislates, then removes jurisdiction. With no provision for judicial review, if someone in the chain of command refuses to enforce that law making Obama President for Life, s/he is breaking the law.
Then what?
Rule of law?
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
but because it is.
Individual citizens working in the government would thwart such a plan.
The SC would have no mechanism to enforce any ruling if Congress and the President team up.
I'm not a lawyer, and I don't play one on TV. But I watch L&O, to get a glimpse of The Man Who Should Be President, and.... well, never mind.
Here's my question. In ANY kind of proceeding in ANY court, is not the first question 'Does this court have jurisdiction in this matter?' And if the matter can not be determined to fall under that court's jurisdiction, isn't that the end of it?
That is certainly how I understand the law. And if it's so, I'd be curious as to how that practice came to be -- i.e., what basis under the Constitution, common law, or whatever.
Unfair. Unbalanced. Unmedicated. -- IMAO
The answer is slightly longer when state courts (as opposed to federal) are under consideration.
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I think that question is central to the argument me and the fellas on this thread are having.
Unfair. Unbalanced. Unmedicated. -- IMAO
the Courts have the inherent and irrevocable jurisdiction to hear requires a much longer answer and will undoubtedly provoke a lengthy argument with von that I don't have either the patience or time for right now.
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But did anyway. They are a rogue court, outlaws, usurpers, criminals.
Concepts of jurisdiction (subject matter and personal - see also venue, ripeness, etc) developed under the common law of England but is mostly codified in states today. The US Const sontrols fed cts incl SCOTUS. The original jurisdiction is defined with appellate left to Congress.
von, bring it on
I'm game
cock
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
Especially if MCA and other laws vested jurisdiction for detainee hearings in the DC Circuit court. As a federal court, the DC Circuit is inferior to the Supreme Court, and therefore, appellate jurisdiction would avail in the Sup. Ct.
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
so vests.
MCA vested exclusive jurisdiction in DC.
see scalia et al
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
to the separation of powers or they would have explicitly provided for it. They certainly did deem STATE courts more than adequate, and, indeed, preferable on habeas cases.
more later
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
is that military personnel in U.S. bases in Saudi Arabia will not be able to assert their first amendment rights regarding free speech and religious expression.
Sue the U.S. government for making you cover up that crucifix.
Sue the U.S. government for not enabling you to preach the gospel.
There are ways we can use this decision to really piss of liberals.
A legal opinion obligating the U.S. military to enforce Constitutional rights over any area in which they have "control" will undoubtedly provide some interesting unintended consequences.
the executive and legislation branches. The executive detains people. Congress, not the president, decides what court hears HC cases and they decide how the SCOTUS best uses its time.
more later
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
exec and congress are one. Never forget, courts can't enforce their opinions, see OPINIONS.
more later
but I would say that I agree with you about de facto suspension of the writ and maybe even de jure
but in this instance there was none, so the jurisdiction argument is strong, i.e. the DC Circuit is not Alaska at midnight on february 29
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
due to invasion. We were invaded.
more later
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
but my brain tells me whether we were invaded or not is a matter for the finders of fact. :)
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
Pass a law specifying that the Supreme Court has original jurisdiction in all cases coming from Guantanamo. If they want to cause this mess, make them deal with it directly and personally. Maybe after the 308457628046th habeus corpus petition dealt with, perhaps Kennedy and friends might have a change of view.
---
Finrod's First Law of Bandwidth:
A picture may be worth a thousand words, but it takes the bandwidth of ten thousand.
Your analysis contains a glaring lapse. As provided in Article 1, Section 9, Clause 2 of the United States Constitution:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
This is called the suspension clause, and reflects the sole grounds set forth in the Constitution pursuant to which Congress can suspend the Great Writ. If an act of Congress does not invoke the suspension clause, the act fails to suspend the Consitutional right to the Writ of Habeas Corpus. (Even when the clause is invoked, it serves only suspends the Writ -- it does not remove the Writ. Such was the importance that the Founders placed on the Writ.)
The MCA does not mention -- much less purport to invoke -- the suspension clause. No Supreme Court Justice found that the MCA invoked the suspension clause. No commentator has argued that the MCA invoked the suspension clause. Nor did the Government make any substantial argument that the MCA met the suspension clause -- it primarily relied on other arguments regarding the territorial reach of the Writ.
Notably, your post also fails to mention the suspension clause as well. But the suspension clause is fatal to your argument. Your failure to come to grips with this fatal weakness in your argument makes your threats hollow, and this post ill-advised.
There are other arguments that you may make -- such as those advanced by Justice Roberts in dissent -- but they do not lead to your conclusion that the President should disregard the rule of law.
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
If the President elects to disregard the Court here, does that automatically constitute 'disregard the rule of law'?
I suppose the question is, Does each branch of government have an independent duty to interpret the Constitution in order to fulfill the oath to support and defend the Constitution?
Or is the Supreme Court the only legitimate interpreter of the Constitution and its duties/requirements/prohibitions?
If President Bush, reading the Suspension clause independently, honestly believes that he is not compelled by the Constitution to extend Habeas to foreign combatants captured in a war, and further believes that in order for him to fulfill his duties as CinC, he must hold prisoners taken on the field of battle NOT TO PUNISH but to prevent them from retaking the field... must he nonetheless obey the Court here in direct contradiction to what he perceives his duty to be?
If your answer is Yes, then you do not believe in separation of power. The result then, is that the Court rules above all, and we do not really live in the democracy.
-TS
"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - Ronald Reagan
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
hence, the suspension clause does not apply to this case
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice
...on an issue such as this, when they have clearly overstepped their bounds once again. But I have no hope that it will happen, as the idea of judicial supremacy is too far entrenched in the American psyche.
The fact of the matter is that the mainstream media still does matter, and it can collectively push public opinion. If an activist decision were defied, then the mainstream media would go nuts screaming that we'll sink into a pit of anarchy if we don't dutifully bow down before every Sup Court decision, no matter how awful and Constitutionally-bankrupt it is.
And if it were to work, it would probably take a popular President to pull it off, and Bush ain't exactly that.
And Bush should do it anyway.
Right is always right, and it is not Bush who would be forcing a Constitutional crisis - the Court already did that.
Unfair. Unbalanced. Unmedicated. -- IMAO
agreement that Osama is entitled to an OJ trial.
He loses that argument with McCain and the public.
He may win 12 states.
Mike DeVine’s Charlotte Observer columns
www.theminorityreportblog.com
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." - The Chief Justice