Heller Decision

[Smith]

Thank you - this is PRECISELY what the US Constitution is about - protecting those without rights from oppression from the majority.

Look, I want to blow these guys to Kingdom Come, but that's not the right thing to do - that's not what built this country. We've always been above that, allowing the laws to punish those who broke them (even unto Nuremberg).

It's how you treat those under your power that shows your character.

And no, I'm not some 'emotional liberal' - I'm just a strict constitutionalist.

Then as a strict constitutionlist you should know that the constitution is only applicable to those who submit to it. It is a mutual contract between citizen and government. Those we fight against honor neither and so are afforded no legal stature. That has always been the understanding, in fact Habeas corpus and the like has provision to be suspended in light of open rebellion. In the face of war, 1. it doesn't apply for the above reason, 2. it could be an understood (or fromal) deceleration of rebellion.

BTW - you do understand that you have equated your self with the terrorist right? They do not have the same legal rights as a citizen regardless of the state in which they were captured. That holds true for even international law. As human beings? sure, but that is not what we are talking about. If we are arguing about the state of man, the constitution is an echo of the values that exist aside from a written agreement.

[The Rabbi]

Right on NSNate.

Here is the WSJ on the subject. The Supremes actually subverted, not upheld, the Constitution. The President is in charge of establishing policies for war time, not the courts.

Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.

An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene's detention in 2004, and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his "right" – as an alien held outside the United States – to a habeas hearing before a U.S. federal judge.

Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!

Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.

To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany's surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.

By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court.

Article I, Section 9 of the Constitution contains the so-called Suspension Clause, which says: "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." Justice Kennedy makes much of the fact that we are not currently under "invasion or rebellion." But he ignores that these exceptions don't include war abroad because the Framers never contemplated that a non-citizen, captured overseas and held outside the U.S., could claim the same right.

Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil – perhaps one enabled by a terrorist released under the Kennedy rules – the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.

Justice Jackson once famously observed that the Constitution is "not a suicide pact." About Anthony Kennedy's Constitution, we're not so sure.

[G27]

Then as a strict constitutionlist you should know that the constitution is only applicable to those who submit to it. It is a mutual contract between citizen and government. Those we fight against honor neither and so are afforded no legal stature. That has always been the understanding, in fact Habeas corpus and the like has provision to be suspended in light of open rebellion. In the face of war, 1. it doesn't apply for the above reason, 2. it could be an understood (or fromal) deceleration of rebellion.

So you're suggesting that someone who renounces their US citizenship (and thereby renounces the US Constitution) isn't afforded rights under Constitutional law?

I suggest you are completely wrong, and some research on your part will show many folks who have been tried for crimes renounced their citizenship (and even the sovereignty of the US) are still allowed the full rights of the US Constitution. As are those who are here traveling, etc...

BTW - you do understand that you have equated your self with the terrorist right?

No, I have not. Nice red herring.

I hate child-molesters and wish them only the worst, but by defending their rights to treatment under the Constitution does not mean I 'equate myself' with them.

They do not have the same legal rights as a citizen regardless of the state in which they were captured. That holds true for even international law. As human beings? sure, but that is not what we are talking about. If we are arguing about the state of man, the constitution is an echo of the values that exist aside from a written agreement.

Please, if you can't research the facts behind these detainees and plainly see that they are NOT all terrorists, were not captured on the battlefield, were ALL picked up on 'suspicion' and held indefinitely, then I can't continue this discussion with you. You're letting your emotional hatred of terrorism (which I share with you) color your thoughts here.

IOW, before you damn these guys, at least look at their circumstances and understand that under the 'Patriot Act', all of us, even US citizens, are one breath away from being considered 'enemy combatants' and given ZERO rights, even though the US Constitution doesn't say ANYWHERE - in the entire document - that it only applies to US citizens.

Read the Declaration of Independence to refresh yourself on where the forefathers were when they wrote these amazing documents:

...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...

Just think about it....

[G27]

I'm going to go back and re-read the entire decision of the justices on this case - my initial reading left me to believe this was regarding non-POW detainees - like those at GTMO - and not the general POW population. This WSJ article seems to think it's about POW's in general, which I have a hard time believing considering these guys were not captured in a time of war (technically speaking, nor are they called POW's).

Regardless, if this decision is about POW's and not just 'enemy combatants', then that will change my views completely...

[Smith]

Withdrawn. I posted after the above post.

[G27]

Your insistence to view these matter from a personal "desire" perspective will color your opinion. You are mixing different laws and legalities, ie. war time prosecution with international prosecution. They have completely different jurisdictions as well as forms within the law.

You may be right - that's why I'm going to go back and re-read it.

I may be the only guy on the internet willing to admit there's a chance his opinion is wrong. hehe.

[Im Neero]

The opinion only extends to Guantanamo, and nowhere else.

[G27]

Jst read the synopsis from the SCOTUS blog. Bold added by me, I think this is what they were ruling on. Again, I haven't re-read the full judgement and the dissensions, but this blog seems to point to what I was saying - these are NOT POW's and therefore aren't afforded the treatment of a POW.

Anyway, I'd prefer being outright wrong here, I'd love to put a bullet in their heads and be done with it...

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

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

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

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

Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.†Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.â€

Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.â€

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

[G27]

The opinion only extends to Guantanamo, and nowhere else.

That's what I thought after initially reading the judgement and the SCOTUS blog, but I intend to re-read it to make sure.

Regardless of the fact we have a generally conservative SCOTUS, I'd be stunned if they were so liberal in the application of POW rights.

[Smith]

The opinion only extends to Guantanamo, and nowhere else.

and there lies many problems. SCOTUS has just become the entity that decides what formal deceleration there is. Are we at war, are these POW, are they enemy combatants? They just took that away from the President and congress (in their respective capacities) and made themselves the governing body. That is unconstitutional at the extreme.

Besides how can they only apply that to these detainees and not have overlying power in future rulings?

Also they are not generally conservative. We are getting closer but it is still 5 to 4, as evidenced in this ruling.

[Guest Abominable_Hillbilly]

I've been debating this issue on another board. All of this is very murky. Are these men being treated as POW's? I thought they were "unlawful enemy combatants". Criminals, essentially. I haven't read it for myself, but someone who's generally well-studied says that the Geneva Conventions require signatory nations to provide "fair and regular" trials to non-POW combatants who've been captured.

It seems very unAmerican to me (and downright spooky) to not afford these men a simple habeas request. The doctrine isn't anything new, nor is it uniquely American. It seems to me a basic human right to be able to have a neutral magistrate force your captors to explain their authority and reason for holding you.

[Smith]

POW's fall under the Geneva convention. Enemy combatants do not nor are they afforded any legal distinctions since they are non-conventional troops. The reasoning is that if you choose to fight guerrilla style, which is "unfair", then you can't cry when you are treated differently. We apply this same thing to our own "black op" operation's. If they are captured or compromised then they are essentially on their own. essentially there is no double standard.

Think of it this way, if you want to cheat that's fine and dandy, but if you get caught you can't cry foul after the fact.

[BryanP]

Also they are not generally conservative. We are getting closer but it is still 5 to 4, as evidenced in this ruling.

The current makeup of the court is 4 (mostly) conservative judges and 4 (mostly) liberal judges, with a single moderate swing vote. You can probably figure out who he is as he is complained about by both liberals and conservatives depending on which way the case decisions go.

[Smith]

The current makeup of the court is 4 (mostly) conservative judges and 4 (mostly) liberal judges, with a single moderate swing vote. You can probably figure out who he is as he is complained about by both liberals and conservatives depending on which way the case decisions go.

moderate is code for closet liberal!

[Guest nraforlife]

WASHINGTON (AP) - One momentous case down, another equally historic decision to go. The Supreme Court returns to the bench Monday with 17 cases still unresolved, including its first-ever comprehensive look at the Second Amendment's right to bear arms.

The guns case - including Washington, D.C.'s ban on handguns - is widely expected to be a victory for supporters of gun rights. Top officials of a national gun control organization said this week that they expect the handgun ban to be struck down, but they are hopeful other gun regulations will survive.

Last week, the court delivered the biggest opinion of the term to date with its ruling, sharply contested by the dissenting justices, that guarantees some constitutional rights to foreign terrorism detainees at Guantanamo Bay, Cuba. The 5-4 decision, which Justice Anthony Kennedy wrote for his four more liberal colleagues, was the first case this term that broke along ideological lines.

The conservative-liberal split was seen frequently last term, including in cases that limited abortion rights, reined in voluntary school desegregation plans, made it harder to sue for pay discrimination and prodded the Bush administration to combat global warming by regulating tailpipe emissions. Kennedy was the only justice in the majority in all those cases, siding with conservatives in all but the global-warming dispute.

It's hardly unusual that the cases that take until late spring to resolve are the most contentious and most likely to produce narrow majorities.

The dispute over gun rights poses several important questions. Although the Second Amendment was ratified in 1791, the court has never definitively said what it means to have a right to keep and bear arms. The justices also could indicate whether, even with a strong statement in support of gun rights, Washington's handgun ban and other gun control laws can be upheld.

Officials at the Brady Campaign to Prevent Gun Violence said recently that they expect Washington's 32-year-old handgun ban to fall but believe that background checks, limits on large-volume gun sales and prohibitions on certain categories of weapons can survive.

[Guest Abominable_Hillbilly]

Think of it this way, if you want to cheat that's fine and dandy, but if you get caught you can't cry foul after the fact.

What if some of the supposed cheaters are innocent?

[The Rabbi]

What if some of the supposed cheaters are innocent?

They aren't.

Besides, this is just a step up from getting killed on the battlefield. What if innocents get killed on the battlefield? It's collateral damage. Same here.

[Guest Abominable_Hillbilly]

They aren't.

Besides, this is just a step up from getting killed on the battlefield. What if innocents get killed on the battlefield? It's collateral damage. Same here.

So, our government intentionally and singly executing a detainee is the same as a child being randomly killed by a chunk of flying concrete during an air raid? Ok. Yeah.

And how do you know that all those detainees are guilty? Seriously. I'd like to know.

[The Rabbi]

So, our government intentionally and singly executing a detainee is the same as a child being randomly killed by a chunk of flying concrete during an air raid? Ok. Yeah.

And how do you know that all those detainees are guilty? Seriously. I'd like to know.

Who is talking about executing anyone? How many detainees have we executed so far in this war? Where do you get these ideas?

They are guilty because they were largely picked up with rifles in their hands pointing them at our troops. They didnt get there from overdue parking tickets.

[Guest Abominable_Hillbilly]

Who is talking about executing anyone? How many detainees have we executed so far in this war? Where do you get these ideas?

They are guilty because they were largely picked up with rifles in their hands pointing them at our troops. They didnt get there from overdue parking tickets.

Emphasis mine.

That's pretty vague. If they were "largely picked up with rifles in their hands," then what's the problem with the government answering a simple habeas request? Should be easy enough, though I find your claim dubious.

Executing them, or otherwise punishing them, without determining their guilt or innocence in an equitable manner was my point. Your referring to that as "collateral damage" is preposterous. One action is unintentional, and the other is quite intentional.

[The Rabbi]

Emphasis mine.

That's pretty vague. If they were "largely picked up with rifles in their hands," then what's the problem with the government answering a simple habeas request? Should be easy enough, though I find your claim dubious.

Executing them, or otherwise punishing them, without determining their guilt or innocence in an equitable manner was my point. Your referring to that as "collateral damage" is preposterous. One action is unintentional, and the other is quite intentional.

So now it's "executing them or otherwise punishing them." Who said anything about either of those things? They are not being punished. They are being held so they don't go back and do what they were doing to begin with. Are POWs being punished by being held in camps? No, I don't think so.

[Guest Abominable_Hillbilly]

So now it's "executing them or otherwise punishing them." Who said anything about either of those things? They are not being punished. They are being held so they don't go back and do what they were doing to begin with. Are POWs being punished by being held in camps? No, I don't think so.

You're the biggest dodger I've dealt with in a long time. How do you know these men are guilty, and why shouldn't the government be required to answer a habeas request?

I didn't realize these were POW's, but, yes, interfering with someone's liberty such that they aren't free to go as they wish is considered by some people to be "punishment".

[Smith]

You're the biggest dodger I've dealt with in a long time. How do you know these men are guilty, and why shouldn't the government be required to answer a habeas request?

I didn't realize these were POW's, but, yes, interfering with someone's liberty such that they aren't free to go as they wish is considered by some people to be "punishment".

How do you know they are innocent? I prefer to use the judgment of the guys picking them up. This is Vietnam mentality all over again. People thousands of miles away over ruling and making "judgment" calls not trusting our guys first hand experience and veracity.

[Guest Abominable_Hillbilly]

How do you know they are innocent? I prefer to use the judgment of the guys picking them up. This is Vietnam mentality all over again. People thousands of miles away over ruling and making "judgment" calls not trusting our guys first hand experience and veracity.

I don't know that they're innocent. I never claimed I did. For all I know, they're guilty as sin and deserve the gallows. What is known to me, though, is that you don't know that they're guilty. Some of you, however, act like that's a foregone conclusion. Again, what's so difficult about answering a habeas request if the government has a legitimate reason to be holding these men?

Your comparison to Vietnam is off base. The scale and consequences of congress mismanaging and arm-chairing the Vietnam war isn't at all comparable to me thinking that the government should do something as simple as answer this writ.

[Smith]

I don't know that they're innocent. I never claimed I did. For all I know, they're guilty as sin and deserve the gallows. What is known to me, though, is that you don't know that they're guilty. Some of you, however, act like that's a foregone conclusion. Again, what's so difficult about answering a habeas request if the government has a legitimate reason to be holding these men?

Your comparison to Vietnam is off base. The scale and consequences of congress mismanaging and arm-chairing the Vietnam war isn't at all comparable to me thinking that the government should do something as simple as answer this writ.

and just how would you go about doing that? Would the "detaining" officers testify, evidence collected and cataloged from the battle field, "crime" scene sanitized? War time is an entirely different proposition than peace time policing. Your mixing a fear of losing civil liberties based on an international war is misplaced.

Heck if we wanted to (maybe we should) we could label these as "pirates" and execute them on the spot without military tribunal or any other legal process. i don't recall the total degradation of civil liberties when these policies were imposed.