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Chief Justice Roberts Dissent - SCATHING!!!!!!

Mike

Well-known member
Thursday, June 12, 2008



Boumediene—Chief Justice Roberts's Dissent


I’m not going to undertake to summarize the 126 or so pages of opinions in Boumediene v. Bush. On the Volokh Conspiracy, Orin Kerr offers selected excerpts from Justice Kennedy’s 70-page majority opinion. I’ll do the same here for Chief Justice Roberts’s dissent and in a later post for Justice Scalia’s.


Various excerpts (citations omitted) from the Chief Justice’s dissent (joined by Justices Scalia, Thomas, and Alito):

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.

It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an "adequate substitute" for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.



The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

06/12 02:13 PM
 

fff

Well-known member
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.
 

kolanuraven

Well-known member
Listen...Rep's want democracy for everyone whether they want it or not...free election the whole bag.

I.E. the Palestinian elections that the US insisted upon...and the " bad guys" won and we pizz and moan about it. Majority wins!

Be careful what you wish for , you just might get it!!!



The majority rules in the court....they ruled. Whether you like or not....they ruled!!


End of Story!
 

Sandhusker

Well-known member
fff said:
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.

Where does the Constitution address foreigners that are not on US soil?
 

fff

Well-known member
Sandhusker said:
fff said:
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.

Where does the Constitution address foreigners that are not on US soil?

According to this ruling, these people being held at GitMo are on US soil. But don't forget that Bush held AMERICAN CITIZENS for years without charges or access to a lawyer.
 

Mike

Well-known member
fff said:
Sandhusker said:
fff said:
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.

Where does the Constitution address foreigners that are not on US soil?

According to this ruling, these people being held at GitMo are on US soil. But don't forget that Bush held AMERICAN CITIZENS for years without charges or access to a lawyer.

As far as AMERICAN CITIZENS are concerned with Habeas Corpus:

ARTICLE 1
SECTION 9
U.S. 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.

Don'y you think John Walker Lindh was rebellious of the U.S.sovereignty? He was caught shooting at U.S. soldiers. :roll:
 
A

Anonymous

Guest
Sandhusker said:
fff said:
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.

Where does the Constitution address foreigners that are not on US soil?

Inside the perimeter's of military bases leased from foreign countries on foreign soil have long been recognized to fall under US jurisdiction--with cases involving the military being handled by the military authorities- and cases involving civilians handled by the FBI/Justice Dept...
Usually they have some type of agreement with the host nation to handle any violations by citizens of the host country...
 

Mike

Well-known member
Oldtimer said:
Sandhusker said:
fff said:
"Scathing"? Hardly. "Who has won"? The American people have won. For the third time the Supreme Court has told George W. Bush that he's not the king and the Constitution is not just a piece of paper. Scalia says Americans will die because of this decision. He may well be right. A lot of Americans are willing to die to protect their rights. And these days, the people we most need to protect our rights from is the Bush Administration.

Where does the Constitution address foreigners that are not on US soil?

Inside the perimeter's of military bases leased from foreign countries on foreign soil have long been recognized to fall under US jurisdiction--with cases involving the military being handled by the military authorities- and cases involving civilians handled by the FBI/Justice Dept...
Usually they have some type of agreement with the host nation to handle any violations by citizens of the host country...

You still did not answer his question.

He asked "Where does the CONSTITUTION address foreigners that are not on U.S. soil".

Which article exactly? :lol:
 
A

Anonymous

Guest
Mike said:
fff said:
Sandhusker said:
Where does the Constitution address foreigners that are not on US soil?

According to this ruling, these people being held at GitMo are on US soil. But don't forget that Bush held AMERICAN CITIZENS for years without charges or access to a lawyer.

As far as AMERICAN CITIZENS are concerned with Habeas Corpus:

ARTICLE 1
SECTION 9
U.S. 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.

Don'y you think John Walker Lindh was rebellious of the U.S.sovereignty? He was caught shooting at U.S. soldiers. :roll:

You want to allow law enforcement, the military, and the justice department to go around and pick and choose which individual it wants to and which it doesn't want to allow habeas corpus to... :???:
 
A

Anonymous

Guest
Mike said:
Oldtimer said:
Sandhusker said:
Where does the Constitution address foreigners that are not on US soil?

Inside the perimeter's of military bases leased from foreign countries on foreign soil have long been recognized to fall under US jurisdiction--with cases involving the military being handled by the military authorities- and cases involving civilians handled by the FBI/Justice Dept...
Usually they have some type of agreement with the host nation to handle any violations by citizens of the host country...

You still did not answer his question.

He asked "Where does the CONSTITUTION address foreigners that are not on U.S. soil".

Which article exactly? :lol:

Its a long standing precedent under US law....Bases leased from foreign countries have been recognized as US soil....
 

Mike

Well-known member
Oldtimer said:
Mike said:
Oldtimer said:
Inside the perimeter's of military bases leased from foreign countries on foreign soil have long been recognized to fall under US jurisdiction--with cases involving the military being handled by the military authorities- and cases involving civilians handled by the FBI/Justice Dept...
Usually they have some type of agreement with the host nation to handle any violations by citizens of the host country...

You still did not answer his question.

He asked "Where does the CONSTITUTION address foreigners that are not on U.S. soil".

Which article exactly? :lol:

Its a long standing precedent under US law....Bases leased from foreign countries have been recognized as US soil....
OK, so show us in the CONSTITUTION where it addresses foreigners that are not on U.S. soil................

I've shown you where the Writ of Habeas Corpus may be waived for U.S. citizens, now it's time for you to reciprocate with your vast wealth of law and knowlege. :roll:
 
A

Anonymous

Guest
Mike said:
Oldtimer said:
Mike said:
You still did not answer his question.

He asked "Where does the CONSTITUTION address foreigners that are not on U.S. soil".

Which article exactly? :lol:

Its a long standing precedent under US law....Bases leased from foreign countries have been recognized as US soil....
OK, so show us in the CONSTITUTION where it addresses foreigners that are not on U.S. soil................

I've shown you where the Writ of Habeas Corpus may be waived for U.S. citizens, now it's time for you to reciprocate with your vast wealth of law and knowlege. :roll:

I'm not even sure it specifically does- the Constitution directly doesn't name or speak to most subjects-- its just the master plan for all the laws and precedent rulings that have evolved as time goes on...

Where in the Constitution does it say Native Americans and Tribal Government has a right to be a sovereign nation and authority withing the boundaries of the US- but don't have authority over nonIndians... :???:
It doesn't- but it came about over laws made years ago that have evolved thru treaties, legislation, court precedents and new rulings...
 
A

Anonymous

Guest
Mike- I just heard that at 2 or 2:30PM Eastern time- they will have a Constitution expert on CSPAN 2 to discuss the current ruling as it pertains to the Constitution...
 

Mike

Well-known member
PROMINENT RULINGS

The U.S. government is citing several decades-old cases to justify policies in its legal war on terrorism, particularly those that indefinitely detain foreign fighters and U.S. citizens with suspected ties to the Taliban or al-Qaeda. Among the cases:

Ex Parte Quirin (1942): In a case involving eight German saboteurs who came to America during World War II, the Supreme Court ruled that the president may establish military tribunals to try foreigners — and even U.S. citizens — accused of war crimes against the USA.

In re Territo (1946): This case involved an American-born Italian who was captured by U.S. troops while he was in Benito Mussolini's army. He later sued to get out of a POW camp in California and to have his case heard by a U.S. court. A U.S. appeals court ruled that Territo's status as a prisoner of war, not his U.S. citizenship, determined his legal path. Territo's request for release was denied; he eventually was deported.

Duncan vs. Kahanamoku (1946): After the attack on Pearl Harbor in 1941, Hawaii was placed under martial law. A military tribunal convicted a civilian ship worker of assault after the worker had brawled with Marines. The Supreme Court overturned the conviction and said that even in wartime, military tribunals should be reserved only for trying enemies or their accomplices.

In re Yamashita (1946): The case involved the Japanese commanding general in the Philippines, who was tried for atrocities committed by his troops. The Supreme Court ruled that a foreign enemy can be held and tried by a U.S. military tribunal convened abroad. Yamashita was hanged as a war criminal.

Johnson vs. Eisentrager (1950): In postwar Germany, convicted German spies sought release from an American-run prison. The Supreme Court ruled that foreign enemies held outside U.S. territory cannot sue in federal court.

Colepaugh vs. Looney (1956): A Connecticut-born spy for Germany claimed that his 1945 trial was unlawful because it was held before a military tribunal and not a federal court. A U.S. appeals court rejected his claim.
 
A

Anonymous

Guest
As you can see each of these cases appear to have been decided by the facts surrounding the individuals, locations of them and the actions they committed-- as it should...

King George actually opened himself up to Supreme Court oversight and a Ruling- and the setting of a precedent- when he tried to avoid all prior US rulings and International Law by making a new classification of "illegal enemy combatant" to subterfuge all previous law regarding "unlawful enemy combatants"....This was the first time this classification "illegal enemy combatant" has ever been used- so the courts had an obligation to look at it....

As I previously pointed out that, until now, the term "illegal enemy combatant" as used by the US administration, "appeared nowhere in U.S. criminal law, international law, or the law of war"--This NEW term "Illegal enemy combatants", allowed the critics and opposition access to the courts challenging that it was used, instead of the well precedented "unlawful enemy combatant", mainly to deny detainees basic civil rights, such as the right to a counsellor, Geneva Convention rights, a speedy trial or tribunal, and any right or method of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted.

GW's snideliness brought about this ruling....
 
A

Anonymous

Guest
Mike said:
GW's snideliness brought about this ruling....

Glad you can openly admit that the decision wasn't based on Law or the Constitution. :shock:

Since King George chose to go around accepted law- that had precedent- and set a new standard- and since he ARROGANTLY decided on the 2 previous rulings that he was above the Supreme Court- and refused or drug his feet on honoring them--- he got a ruling he deserves...
One more legacy of King Georges, that Americans have to live with- and live down to the world :roll: :(

You've all heard the saying " Its not nice to fool Mother Nature"-- well all these Federal Judges think they are on the level of or higher than Mother Nature (next to God)- and especially the US Supreme Court Justices don't like to have an arrogant politician or his lower case legal advisors- no matter the party- tell them they were wrong and not follow their legal advice....

One of the things that I have read that has also led to all the Court rulings against King George is that whats supposed to be the nations/peoples attornery (former Attorney General Ashcroft) actually argued against and opposed the law/rules as set up by GW- and that GW had to get his White House attorney (Gonzales) to write it- the same as he did with the illegal nonwarrant wiretapping of US citizens- which Ashcroft refused to authorize (same with his deputy)- which led to Ashcrofts "resignation" and the appointment of Gonzales as AG- which reeks of Nixon and the Whitewater tactics of firing Attorney Generals until he got one that agreed with him :roll: ....

These Justices, who are very prominent in Washington circles, have a lot more insight into what is happening than you think.....
 
A

Anonymous

Guest
Mike said:
You're fool OT. Eisentrager set precedence. Get your facts straight.

Was that ruling made on the Bush "illegal enemy combatant" term and its definition, or the long used, internationally recognized "unlawful enemy combatant" term and its definition.....
 

Sandhusker

Well-known member
If it came down to "illegal" or "unlawful", you're getting into horsecrap lawyer games where the meat of the case, the factors that actually matter, get overshadowed.
 
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