Support The Troops - By Issuing Them Laminated Miranda Cards

In a big win for the party of Civil Rights for Terrorists, the Supreme Court (134 page .pdf) opined that foreigners captured and held abroad are entitled to the protection of the US courts.  Times coverage:

WASHINGTON — Foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have constitutional rights to challenge their detention there in United States courts, the Supreme Court ruled, 5 to 4, on Thursday in a historic decision on the balance between personal liberties and national security.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the court.

In extraordinary times, and in all places, evidently.

And Chief Justice Roberts said the majority had struck down “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants,” and in doing so had left itself open to accusations of “judicial activism.”

The chief justice said the majority had gutted the Detainee Treatment Act without really giving it a chance. “And to what effect?” he wrote. “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.”

Indeed, the immediate effects of the ruling are not clear. For instance, Cmdr. Jeffrey Gordon, a Pentagon spokesman, told The Associated Press he had no information on whether a hearing at Guantánamo for Omar Khadr, a Canadian charged with killing an American soldier in Afghanistan, would go forward next week, as planned. Nor was it initially clear what effects the ruling would have beyond Guantánamo.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

FWIW, here is the Senate vote on the Military Commissions Act of 2006.  It passed by 64-35, a resoundingly bipartisan margin in other contexts but not bipartisan enough to have attracted Senators Clinton, Obama, Biden, Dodd, or Kerry.

The SCOTUS blog offers this summary of the decision:

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 Baseball Crank appraises the reactions from McCain and Obama.  McCain first:

You can tell that [McCain press rep] Goldfarb would like to go harder after the Court's decision, but the campaign and the candidate are constrained by McCain's own Gitmo-bashing, and so while McCain's response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn't really clear on what he himself would do with those detainees.

And Obama:

It's not clear what Obama means here. First, if the DTA's procedures are themselves "a legal black hole," and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he's ripping McCain for "support" of Bush's Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place. Third, if Obama means that McCain "supported" Bush's policy by voting for the DTA and the MCA, what about Obama's own vote for the DTA?

That is not the DTA Obama knew.

Comments

[sbw]

I object to reporting this as a stinging defeat for the Bush administration when the administration was simply trying to find its way in waters not navigated since WWII, and using the maps used at that time.

[bad]

I'm in favor of Cheney hunting with various supremes.

[Danube of Thought]

SBW, I don't think the waters navigated in WWII were quite the same as these. But to the extent they are the same, I would note that the Constitution hasn't changed one iota since then (except for amendments having no bearing at all on the issues presented by this case).

What we are seeing these days--and it's not exactly new--are courts telling us that the US Consstitution means things that no one reading the document itself, or the prior cases interpreting it, could ever have anticipated. In California's recent same-sex marriage case, the state supreme court did the same thing with respect to the state constitution.

When I consider that such questions are being decided by the likes of the terminally strange David Souter, I shudder--and then I come damn close to exploding. He was, you may recall, Senator Warren Rudman's precious gift to America. Rudman (a close ally of John McCain) was the prototypical moderate Republican.

[bad]

It passed by 64-35, a resoundingly bipartisan margin in other contexts but not bipartisan enough to have attracted Senators Clinton, Obama, Biden, Dodd, or Kerry.

The aforementioned senators all have a nutroots base that has to be appeased before thay can win the democrats presidential nomination. But perhaps I do them an injustice and they voted "nay" because they thought the bill conveyed too many rights to the detainees.

[Ann]

I heart Scalia. From NRO today:

Make Me President of the Scalia Fan-Club [Kathryn Jean Lopez]

From the decision today: After describing a passage from the last round of GTMO cases, where the court had said that the president has to consult with Congress on how to deal with the detainees, he writes: "Turns out they were just kidding."

[Terry Gain]

There is nothing quite so arrogant as the liberal mind.

[Terry Gain]

I object to reporting this as a stinging defeat for the Bush administration when the administration was simply trying to find its way in waters not navigated since WWII, and using the maps used at that time. sbw

Well said. It's a stinging defeat for common sense.

[BobS]

...is back. Hello all. I'm alarmed by this one and am unusually taken by Scalia's disent. We shall see.

[PeterUK]

Reciprocity?

[RichatUF]

fixed

[dking]

Can't wait for the ACLU and many other far left litigators defend terrorist rights and arguing that sentencing them to death is cruel and unusual punishment.

How many billions will Saudi Arabia will spend to defend them in court?

[Sara]

In listening to some of the TV commentary, they seem to believe this only applies to the 300 or so at Gitmo, but it is much more far reaching. At one of the legal blogs I stopped at today, when compiling a link/commentary list for Pal2Pal, one attorney said that to fail to give Miranda warnings to enemy combatants could open up the soldier to charges of unlawful detainment and kidnapping. That seems alittle extreme, but knowing the crazies on the left, I believe someone would make those charges and some lefty judge would uphold them.

[MayBee]

O/T, but this is from Jake Tapper today:

Obama said, "when I was your age, I thought life was all about me. And how do make my way in the world and how do I become successful and how do I get the things that I want. And right now life for me revolves around those two girls. And I think about what kind of a place am I leaving them."

And with that, came the able pivot.

"Michelle and I have been incredibly blessed," Obama said. "As long as God's looking over, my girls are going to be OK." They go to "great schools, will be able to afford college, are in good health and will be well cared for if they ever get sick.

But the country and the world they're living in, Obama said, needs work.

"Are they living in a county where there’s a huge gap between a few who are wealthy and a whole bunch of people who are struggling every day?" Obama asked. "Are they living in a county that is still divided by race?

"Are they living in a country where because they’re girls they don’t have as much opportunity as boys do?

"Are they living in a country where we are hated around the world because we don’t cooperate with other countries as effectively as we should?

Hated because we don't cooperate with other countries? Hated around the world?
This is the guy that wants to be our president? He sounds like he's been hanging around ex-terrorists and America-hating pastors.

[Hans Niemand]

"How many billions will Saudi Arabia will spend to defend them in court?" -dking

Well, I suppose that's one way address the trade imbalance.

Congress should just end the Court's jurisdiction over wartime activities not involving U. S. citizens.

[narciso]

I know this is repetitive; but here were the two post I did on the subject:

You know what makes this decision, even more galling; is how it ignores the law.
it cites a case involving Spanish sailors in 1779;(citizens of a recognized foreign
military force) but ignores or dismisses ex parte Merryman, Milligan, Eisentrager, Quirin; or any case this is on point. Scalia's dissent, is not only pertinent on the law, but actually cites current examples like the Kuwaiti Al Ajmi's attack in Mosul. This was someone who he points out, was cleared of CSRT; and certified by the likes of Thomas Wilner. Who had the gall to seemingly to justify the attack, by an arm he broke at Gitmo. I thought Hamdi and Hamdan were bad, but this is asperverse as Plessy v. Ferguson, it may have as great a future implications as Dred Scott, to future Domestic tranquility; certainly as much as Roe. McCarry's 'Better Angels' predicted this as well; with the Two Supreme Court justices killed by the Eye of Gaza; only in this case, Scalia and Thomas would be the likely targets for being so forthright with the facts and the law.
Posted by: narciso | June 12, 2008 at 11:53 AM

Seeing as this whole situation originated in Bosnia; just ship 'em back there. Or back to Tunisia; it doesn't make too much of a difference at this point. This doesn't solve the larger problem posed by the travesty of Boumedienne; but it is in accordance with Munaf; trial by an Iraqi court. They will likely pop up again, in Chechnya, Iraq, or if fate has anything to do with it; Washington D.C.
Posted by: narciso | June 12, 2008 at 01:52

Now since I posted these points, I saw an interview with Cully Stimson, the former Defense point man on the detainees, who was virtually blacklisted for his pointing out
how the corporate bar (Wilner, Margolis, Willett) had taken up the defense of those
who would kill their associates and their
families. He took it more in stride,
something recent precedent offers no assurances on. Som my comment might have seemed intemperate, probably too realistic.

[BobS]

Sarah: Like just about everything else, I cannot believe that McCain isn't trying to seperate himself from Obama on this. Alto say is that he would not nominate judges like Kennedy, Ginsberg et al

[clarice]

Charles Krauthammer said tonight this was the first wartime measure of this nature in which the Court had overriden the joint wisdom of the WH AND the Congress.

Of course, Congress could just set in motion the moves for a Constitutional amendment at this point.

In practical terms this may drag out resolution of these cases even longer..with luck most of these prisoners will die in Gitmo before their cases are heard...or the majority judges will die by the time the next issue about these matters comes up on a cert petition.

[dking]

I seriously need to proofread my posts. Spelling's probably going to go next.

[HoosierHoops]

great points clarice...
you're the best

[BobS]

H/T to Clarice...the conservative voice of assurance.

[BobS]

All while I am watching Kathy Griffin on BRAVO.

[Ann]

Clarice,

(Then again:)

Of course, we could have another terrorist attack which could just set in motion the moves for the American public to start screaming "connect the dots" again.

In practical terms we could all be dead before these matters come up on a cert petition.

[dking]

Lindsey Graham blasted the ruling and is calling for a Constitutional Amendment if necessary.

http://www.cbsnews.com/stories/2008/06/12/politics/politico/thecrypt/main4176821.shtml

(Sorry I slept through the class on embedding links in a post.)

I always felt Lindsey Graham was pushing for more legal rights for detainees than I cared for.

[BobS]

dking.....listening to Graham is like listening to McCain

[BobS]

Lindsey (Too clever by half) Graham

[clarice]

Good for Graham--it's a great election issue--Congress voted for this system, will they fight for what's right?

[BumperStickerist]

Philadelphia's NPR station had a program on this morning about the Articles of Bush's Impreachment submitted by Congressman Mighty Mouse.

The two guests were -- ta da !!! - both Democrats. The more extreme of the two kept mischaracterizing the recent Senate report, referred to the "Bush Cabal" repeatedly, and otherwise just used the "...c'mon ... Boooosh is guilty of *something* ..." line of reasoning.

The other guest was a law prof/author - but a self-proclaimed democrat - and while he didn't agree whole-heartedly with the other guest, the gist was "Well, yeah - but whatyagonnado?"

The host, Marti Moss-Cowain, just sort of uh-huh'ed her way through the interview.

I'm half tempted to call the next show and refer repeatedly to the Obama Junta and see if that gets any response.

-

[BobS]

Sorry, Gang. I'm not a Obamican. Just dont like the nuance of issues.

[invernessie]

Well, the Supreme 5 can look back on a job well done when the law of unintended consequences drives an increase in dead tangos and fewer detainees in the future.

Paperwork reduction! Less habeus corpus, more extreme prejudice. Why keep detainees around to cause trouble in the future. We've already seen what has happened with released detainees.

[Elliott]

Thank you, MayBee, for the Tapper story:

"Are they living in a country where because they’re girls they don’t have as much opportunity as boys do?"

Doesn't he have the judgment to answer questions like this, especially since he is not only the father of two daughters but also a quondam resident of Indonesia and opponent of Hillary Clinton? It did not appear from the Tapper report that an answer was forthcoming.

More from Tapper, "Tonight it's the Meaning of Life":

"My question is: what does life mean to you?" the young man asked.

"Oh goodness," Obama said, a bit taken aback. "What does life mean to me?"

He stammered a bit as he contemplated the enormity of the query.

"Well, uh, I, uh…"

It's nice to see our recent analysis of Obama's rhetoric so thoroughly confirmed. However, if he was going to insist on responding to that question with many of his own, he could have at least thrown in "Is life just a game where we make up the rules while searching for something to say?"

And now I eagerly await his answer to "Mr. James Joyce, now where would you put him?"

[Sue]

How is a 5-4 decision a stinging defeat? It sounds like a split decision to me.

[bad]

Are they living in a country where because they’re girls they don’t have as much opportunity as boys do?

"Are they living in a country where we are hated around the world because we don’t cooperate with other countries as effectively as we should?

Are they living in a country where they are exposed to racist hatred from my good friends pulpit because as a parent, I wasn't smart enough to shield them from such blatant bigotry.

[PaulL]

Yes, it's a huge power grab by 5/9 of the Court. But what does the MSM care? They'd like everything in the country to be decided this way.

No one in the MSM is going to call Obama on being for Detainee Treatment Act before he was against it.

[Sara]

OT, but I think this will please many here and surprise a few others:

Via Newsbusters:

Here is a study that is sure to blow some minds.

Any list of the best places to work is sure to include cool favorites like Google. The U.S. military? The sacrifices and risks required of its members seem to make it an unlikely pick. But new research suggests that it may well belong on such a list, particularly for minorities and women. The members of those two demographics in the military consistently rate their jobs as more satisfying than white males do, according to new research in this month’s American Sociological Review. Much like Manning’s military experience, the study of over 30,000 active duty personnel suggests that the armed forces‘ social hierarchy-explicitly based on rank-overrides many of the racial or gender biases in civil society, which tend to act as barriers for women and minorities in career advancement.

“Whites are far and away the least satisfied [in the military],” says Jennifer Hickes Lundquist, a sociologist at the University of Massachusetts and the study author. “Black females tend to be the most satisfied. It’s a direct opposite and complete reversal of what we know about civilian job satisfaction.”

In civilian society African-Americans generally express higher dissatisfaction with their jobs than their white counterparts and are less committed. But Lundquist’s study of 30,000 active-duty personnel found that those norms are largely flipped in the military. She looked at five measurements of career satisfaction, including overall quality of life and opportunities for advancement, and found African-American women to be the most positive and satisfied with their jobs, followed by African-American men, Latinas, Latinos and white women. White men are the least satisfied with their military careers, rating their satisfaction and overall happiness with their jobs much lower.

“It’s not that the military environment treats white males less fairly; it’s simply that, compared to their peers in civilian society, white males lose many of the advantages that they had,” Lundquist says. “There’s a relative deprivation when you compare to satisfaction of peers outside of the military.”

The same leveling effect among ethnic minorities also occurred across genders, although that was a bit more challenging to explain. A third of the women in the military say they have been sexually harassed, according to a recent Pentagon survey, and women in male-dominated specialties consistently rank their job satisfaction lower than those largely occupied by women. But female job satisfaction ratings seemed largely unaffected by these factors. Among each ethnicity that Lundquist studied, the women consistently had higher levels of job satisfaction than the males.

[Publius]

A summary of the opinion states that "If Congress, wishes to suspend habeas, it must do so only as the Constitution allows -- when the country faces rebellion or invasion."

OK, let's start a rebellion. Bush can then do what he wants to with the detainees, while we at the same time, can tell both parties we reject, and will not accept, their choices. We therefore declare all current campaign laws null and void, and demand that an atlernative candidate be placed into consideration as our minimun demand before we will enter into negotiations for a cessation of hostilities. I nominate Janice Rogers Brown as our alternative candidate. I think this choice has the best chance of garnering support from all factions.

[vnjagvet]

I think it is ridiculous that the Fab 5 believe they know more about due process for assorted terrorists, saboteurs and others bent on espionage of all kinds against our nation than did four of the Court's most renowned civil libitarians Hugo Black, William O. Douglas, Robert Jackson, Felix Frankfurter, and their colleagues, Harlan Fiske Stone, Owen J. Roberts, Wiley Rutledge, Stanley Reed and Frank Murphy.

That was the unanimous court which decided ex parte Quirin.

[Pal2Pal (Sara)]

For those of you that are Fox E.D. Hill fans, read this:

POLITICALLY CORRECT FOX NEWS FIRES E.D.HILL

Apparently they didn't like the way she described the Obamas knuckle knocking at his victory speech on her program the next day.

[Topsecretk9]

I noticed that Emptyhead said the Rule Of Law prevailed. So much for her agitations we were living in a fascist state all this time. Gotta love leftist propaganda.

[Topsecretk9]

Sara

My democrat Mom is gonna be pissed, She LOVES E.D, Hill.

[Publius]

Politically correct Fox News Fires E. D. Hill

We laughed during Operation Chaos. Now we too will feel the Clinton's pain and frustration.

[Foo Bar]

In a big win for the party of Civil Rights for Terrorists

TM, I know you think "Civil Rights for Terrorists" is hilarious, but it's just not appropriate- even for the sake of humorously mocking the opposing position- when the issue is habeas corpus and the question is about the procedures necessary to confirm whether or not the detainees really are terrorists.

I don't doubt that the majority of detainees really are enemies of the United States, but these guys were not all caught on the battlefield in the act of attacking our soldiers, and there's a good chance we've made a few mistakes. Now, if you want to argue that this Supreme Court decision was wrong, that the Constitution does not require affording the detainees access to U.S. courts, that we can't afford to provide that when our national security is at stake, etc.- fine, go right ahead; give it your best shot. "Civil Rights for Terrorists" begs the question, though, and it conveys a misleading impression about the nature of the debate.

[Pal2Pal (Sara)]

She isn't alone TSK9. Hill was one of the only on air personalities at Fox that actually has a brain and researches issues before talking about them, while looking good too. The rest make up what I call the Barbie and Ken stupid and shallow show. And they keep Shep "I'm too stupid for my suit" Smith, which adds insult to injury.

[Thomas Jackson]

Hmmm guess this means a strict enforcement of Article IV of the Geneva Conventionand that all detentions of surrendering terrorists are handled by our allies who are not bound by the Supremely Senile One's fantasies.

Its good to know Americans now are reduced to the smae level of protections as those we give to terrorists. The only thing standing between the average man and justice is the legal system.

[MayBee]

I hope that ED Hill at least wrote that line, and didn't just read it.
It was a ridiculous thing to say. I'm surprised she's fired as opposed to getting a David Schuster-esque probation, but still.
Asking if the presidential nominee and his wife did a 'terrorist fist bump' (which doesn't exist) is jut out of line.

FooBar- Civil Rights for Mostly Terrorists,
Civil Rights for Likely Terrorists,
Civil Rights for Assumed Terrorists

are any of those better?

[Sara]

I found the whole knuckle bumping thing tacky and immature and rather street thuggish to start with, so I don't think Hill could say anything to do justice to how stupid it made the the Bambis look.

[Topsecretk9]

Civil Rights for Likely Terrorists,

Would anyone have believed a dude detained in an airport because he had a office supply in his backpack made him a terrorist September 10th? Or suspect at all?

[JM Hanes]

Foo Bar:

""Civil Rights for Terrorists" begs the question, though, and it conveys a misleading impression about the nature of the debate."

Maybe you haven't read the dissents yet. As for "just not appropriate," I'd love to see the official list of mockery no-go zones. Shoot, Tom might even be persuaded to post it as a public service, because, clearly, we all need to start taking ourselves more seriously.

[DubiousD]

I second Clarice's calls for a constitutional amendment, but would we be able to scrounge up the votes?

[Topsecretk9]

JHM

What I find ironic, is this come on the heels of reports that the a-holes we've released go on to do the very thing they were detained and prevented form doing. Kill.

Democrats realize what they agitated for. That's why they voted and funded George Bush's war.

They wanted George Bush to do what they never could and remain the union people party, never-the-less they desperately wanted Saddam "off the table"

[Topsecretk9]

I have a brilliant solution for all this.

Bush should announce that he is releasing the detainees in San Francisco (DI FI and Barbara would be happy no?), so that they have full access to SF, their US courts and the 9th circus.

McCain would take California.