Author Topic: Supreme Court rules terrorist suspects have right to civilian courts  (Read 24729 times)

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sirs

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #15 on: June 13, 2008, 10:55:25 AM »
Which is all nice and (ir)rationalized......but still validates my original point to Plane, thank you very much
"The worst form of inequality is to try to make unequal things equal." -- Aristotle

Rich

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #16 on: June 13, 2008, 12:31:51 PM »
This is a terrific decision. It's going to cost thousands, perhaps hundreds of thousands of American lives and they will be laid at the feet of the democrat party. Only a liberal/democrat/communist/socialist would hope for such an outrageous decision. They'll have blood on their hands because of this, mark my words.

Won't it be fun watching Hajji in front of some leftwing court in San Francisco? He'll demand evidence and the government will have to either produce sensitive national security or refuse to do it and Hajji will be free to return to killing Americans.

If Hajji goes free, and Oblather can convince enough idiots to vote for him, it will be fun to watch the rats desert the sinking ship that will be the democrat party. They'll be stoned in the street because they actively but Americans in harms way by making life easy on terrorists.

Rich

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #17 on: June 13, 2008, 12:52:37 PM »
The Supreme Court Wins, America Loses

By Henry Mark Holzer
FrontPageMagazine.com | 6/13/2008

As the world has just learned, the Supreme Court of the United States ruled 5-4 yesterday that ?for the first time in our Nation?s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.? So summed up Justice Scalia in a stinging dissent in which he was joined by justices Roberts, Thomas, and Alito. Justices Kennedy, Stevens, Souter, Ginsburg, made up the majority Breyer.

There is much that can be said about the Boumediene v. Bush decision:

How the Court was able to review the case, in light of its long-standing practice of waiting until lower federal courts have an opportunity to rule.

How the majority torturously construed the English and American constitutional history of habeas corpus. [/li][/list]

How the majority dishonestly eviscerated its controlling precedent on habeas corpus.

How habeas corpus was never intended to apply, and never did apply, to unlawful enemy combatants captured outside the United States.
 
How the processes established by the political branches?Congress and the President?for handling unlawful enemy combatants more than satisfied the Constitution.
 
How the majority was able to invalidate the Detainee Treatment Act.
 
How the decision will severely compromise the military?s effectiveness in fighting terrorism.

How the judicial usurpation of presidential war-powers has now become nearly complete.
 
How this contra-constitutional coup has been engineered by a razor thin 5-justice majority of the Court, three of them having been appointed by Republican presidents (Stevens: Ford, Kennedy: Reagan, Souter: Bush I) and the other two by Republican bandwagoneers in the Senate (Ginsburg and Breyer).

All this and more?important as it is to our Constitution, our Nation, and our national security?will be discussed at length in the days to come, as Justice Kennedy?s majority opinion in Boumediene receives the scrutiny and obloquy that it deserves. But those discussions will have to wait, because in this election year there is a more fundamental aspect of the decision that needs to be considered.


In his dissenting opinion, Chief Justice Roberts said this about the now-unconstitutional Detainee Treatment Act (?DTA?):


"The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:


? The right to hear the bases of the charges against them, including a summary of any classified evidence.

? The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process.

? The right, before the [Combatant Status Review Tribunals], to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.

? The right to the aid of a personal representative in arranging and presenting their cases before a [Combat Status Review Tribunal].

? Before the [United States Court of Appeals for the District of Columbia Circuit], the right to employ counsel, challenge the factual record, contest the lower tribunal?s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief."


Roberts continued, as he worked toward exposing what the Supreme Court?s majority was really up to:


"In sum, the DTA satisfies the majority?s own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees?whether citizens or aliens?in our national history."


Then Roberts asked: ?So who has won??


His answer: ?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 [United States Court of Appeals for the District of Columbia 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 [of habeas corpus], 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.? (Emphasis added.)


If the detainees have not won, if Congress has not won, if the principle of habeas corpus has not won, if the rule of law has not won, if the American people have not won?and, one can add, if the Commander-in-Chief has not won?who has?


Earlier in his dissent Chief Justice Roberts suggested the answer, writing that the Boumediene decision is ?not really about the detainees at all, but about control of federal policy regarding enemy combatants,? and that ?[a]ll that today?s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.?


More specifically, in the last four words of Justice Roberts?s dissent about who has won he names names: ?unelected, politically unaccountable judges.?


Justice Scalia, too, sees the decision for what it is and surely understands who has won, writing in his dissent that:


"Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspen?sion [of habeas corpus] Clause, invoking judicially brainstormed separation?-of-powers principles to establish a manipulable ?func?tional? test for the extraterritorial reach of habeas corpus(and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misde?scribes important precedents, most conspicuously Justice Jackson?s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragi?cally, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner."


For this constitutional and national security debacle, ultimately we have to thank not only the 5-justice majority but also justice-nominating and justice-confirming Republicans in the White House and Senate.


The Boumediene decision is thus a grave cautionary lesson about what is at stake in this presidential election: nothing less than the future of the Supreme Court for another generation, and with it the security of the United States of America.


In the last sentence of his dissent Justice Scalia writes: ?The Nation will live to regret what the Court has done today.? Surely we will regret it?if the Nation lives.[/b]


--------------------------------------------------------------------------------

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative?s Perspective.

Lanya

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #18 on: June 13, 2008, 03:53:46 PM »
http://www.slate.com/id/2193468/pagenum/all/#page_start

The Enemy Within

Who are we more afraid of: enemy combatants or federal courts?
By Dahlia Lithwick
Posted Thursday, June 12, 2008, at 7:06 PM ET
Illustration by Robert Neubecker. Click image to expand.

The Supreme Court's decision Thursday in Boumediene v. Bush and Al Odah v. United States is?as all the big enemy-combatant cases have been?both enormously important and relatively insignificant. This is, after all, the third stinging setback and blistering rebuke the court has handed the Bush administration with respect to prisoner rights at Guantanamo. Yet you may have noticed that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ?a change for the detainees there. At his pretrial hearing in April, one of the detainees "lucky" enough to actually face a trial, Salim Hamdan, pointed out to the presiding judge that winning his own appeal at the Supreme Court in 2006 got him precisely nothing.

"You won. Your name is all over the law books," the military judge, Navy Capt. Keith Allred, told Hamdan that day, in an effort to persuade him that the system isn't rigged. "But the government changed the law to its advantage," Hamdan replied. Certainly the detainees at Guantanamo who don't face charges were granted some substantive constitutional rights today (although whether Hamdan himself will benefit remains to be seen). But it's a mistake to see this ruling for more than it is.

The Supreme Court, by a 5-4 margin, determined that neither the president, nor the president plus Congress, could strip detainees at Guantanamo of the ancient right to habeas corpus via the 2006 Military Commissions Act (PDF). This is pretty legal and technical, and the concrete ramifications are still baffling to just about everyone. Judging by the tone of Justice Antonin Scalia's dissent, however, you'd think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia. "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed," Scalia wrote. He concluded his dissent with this warning: "The Nation will live to regret what the Court has done today."

Scalia points to the 30 detainees released from Guantanamo?by an order of the Bush administration, not a court, it should be noted?who have allegedly "returned to the battlefield." One detonated a suicide bomb in Iraq in May. Scalia notes that this "return to the kill" happened even after "the military had concluded they were not enemy combatants" (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives. For this proposition, Scalia cites the trial of Omar Abdel Rahman in federal court in 1995, in which the names of 200 unindicted conspirators were leaked to Osama Bin Laden. Just to recap, then, everyone at Guantanamo is guilty, and the mere act of trying them will result in more American deaths. This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can't reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed.

The claim that the majority handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells is absurd on its face. As Justice Kennedy is careful to point out in his majority opinion, the court is not ordering the release of any detainees; it is restoring their fundamental right to a habeas proceeding before a neutral fact-finder. The court did not get to the question of whether the president has authority to detain these petitioners. Nor did it actually grant anyone a writ. The majority did not strike down the MCA or find the military trials the Bush administration established to be unconstitutional. The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don't substitute. Chief Justice John Roberts may insist that these tribunals represent everything a prisoner could ever wish for in the way of due process rights. But Justice Kennedy points out that the detainees' lack of a real lawyer and their inability to rebut the charges against them make for a process that is, by definition, "closed and accusatorial" and thus open to "considerable risk of error." (Not to mention that if a CSRT finds that you're NOT an enemy combatant, they can just order a do-over!) Such error may result in a lifetime of detention. The majority isn't persuaded the risk is worth it. Wrote Kennedy: "Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant too ignore."

And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of ... what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may?somewhere far down the line, and at the moment entirely hypothetically?result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.

Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials. And it's precisely that sense of time passing without consequence that so infuriates the majority. Justices Kennedy, Breyer, and Souter each observe in their opinions today that the passage of so many years while detainees waited and watched was preposterous. This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years. That's how long it's been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy. Responding to the dissenters' fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn't even started, and "the costs of delay can no longer be borne by those who are held in custody." As David Barron points out at "Convictions," the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that?for all the change on the ground at Guantanamo?might as well have been losses are not exactly a ringing endorsement of the American legal system.

Justice Scalia, meanwhile, is banking on someday cashing in the "I told you so" chit he wrote for himself today. In the event that one of the prisoners who has suffered years of abuse and mistreatment at Guantanamo is someday actually released following a federal habeas proceeding and blows something up, Scalia wants to be able to point at Justice Kennedy as the man who let him go. Or if in the course of a someday trial, a piece of evidence is leaked that somehow strengthens a terrorist group, he can blame Kennedy for his blind faith in the federal courts. The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo?among them people who were grabbed as teens and others who claim actual innocence?go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear. But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench?with decades of judicial experience and the Constitution to light their way?might now do what they are trained to do: hear cases.

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Xavier_Onassis

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #19 on: June 13, 2008, 04:24:39 PM »
In the last sentence of his dissent Justice Scalia writes: ?The Nation will live to regret what the Court has done today.? Surely we will regret it?if the Nation lives.[/b]
===================================
If the Nation lives?

So you actually think that these guys are all going to get turned loose and somehow 200 weaponless detainees are going to destroy the United States?

All they said was that these detainees have the same right to be considered innocent until proven guilty, and they must be told what they are charged with.

You, who are not even aware of the name of the Democratic Party?

"Time flies like an arrow; fruit flies like a banana."

Rich

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #20 on: June 13, 2008, 05:18:32 PM »
>>All they said was that these detainees have the same right to be considered innocent until proven guilty, and they must be told what they are charged with.<<

Ignorance is bliss.

Xavier_Onassis

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #21 on: June 13, 2008, 05:25:24 PM »
Ignorance is bliss.

You must be blissful indeed...
"Time flies like an arrow; fruit flies like a banana."

Plane

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #22 on: June 13, 2008, 05:40:36 PM »
For the first time anywhere , prisoners of war have the right to be considered innocent untill proven guilty.

This is going to clog an overburdened court system totally.


That was a good article Rich , I think it is accurate.



Americans generally respect the law and the courts , and we love the constitution. How much injury to this affection can we stand?

If the supreme court doesn't care how many americans get killed for its edicts American 's respect for the court will take another (large ) hit.

Rich

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #23 on: June 13, 2008, 05:52:36 PM »
Good comeback Gomer.

Universe Prince

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #24 on: June 13, 2008, 11:14:33 PM »

For the first time anywhere , prisoners of war have the right to be considered innocent untill proven guilty.


They are not prisoners of war, so the administration claims, which is why, so the administration claims, they are not to be treated as the Geneva Convention says prisoners of war should be treated. If they were considered prisoners of war, seems to me highly likely the case that brought about this decision would never have been presented. But they aren't and it was. All the protestations against the decision seem to me like a lot of noise because some folks don't like the consequences of having decided these detainees were not prisoners of war.
Your reality, sir, is lies and balderdash and I'm delighted to say that I have no grasp of it whatsoever.
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Plane

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #25 on: June 14, 2008, 06:36:28 AM »

For the first time anywhere , prisoners of war have the right to be considered innocent untill proven guilty.


They are not prisoners of war, so the administration claims, which is why, so the administration claims, they are not to be treated as the Geneva Convention says prisoners of war should be treated. If they were considered prisoners of war, seems to me highly likely the case that brought about this decision would never have been presented. But they aren't and it was. All the protestations against the decision seem to me like a lot of noise because some folks don't like the consequences of having decided these detainees were not prisoners of war.

I would rather have them POWs. As Criminals we are obliged to try them and never release the ones guilty of murder.
Who is this a favor to?

Xavier_Onassis

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #26 on: June 14, 2008, 07:06:11 AM »
I would rather have them POWs. As Criminals we are obliged to try them and never release the ones guilty of murder.
Who is this a favor to?

===========================================================
Well, you can't have them as POW's because they are not members of any army. Many were not fighting asnyone when captured.

They are each obliged to be tried as criminals, but it is not required that any be held for life. After they reach their 50's or 60's they are unikely to be a threat to anyone.

I fail to see why this should be a favor to anyone, other that to the US itself, which purp[orts to be a fair and just country. Favors are not the issue here, justice and security are.
"Time flies like an arrow; fruit flies like a banana."

Plane

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #27 on: June 14, 2008, 07:30:36 AM »
I would rather have them POWs. As Criminals we are obliged to try them and never release the ones guilty of murder.
Who is this a favor to?

===========================================================
Well, you can't have them as POW's because they are not members of any army. Many were not fighting asnyone when captured.

They are each obliged to be tried as criminals, but it is not required that any be held for life. After they reach their 50's or 60's they are unikely to be a threat to anyone.

I fail to see why this should be a favor to anyone, other that to the US itself, which purp[orts to be a fair and just country. Favors are not the issue here, justice and security are.

Security much more than justice. Al Quieda has how many members?
Are they all due to be tried in court or shot on the feild?

Michael Tee

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #28 on: June 14, 2008, 11:43:16 AM »
<<If the supreme court doesn't care how many americans get killed for its edicts American 's respect for the court will take another (large ) hit.>>

Americans SHOULD be willing to die for the Constitution.  Why should the Supreme Court care about the numbers?  In theory, EVERY American should be willing to give his life for the Constitution.  Hell, Bush is even willing to send Americans to die so that foreigners have the same rights.

plane is the only American I know who seems to think the Constitution is OK, but not worth Americans getting killed for.

Universe Prince

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Re: Supreme Court rules terrorist suspects have right to civilian courts
« Reply #29 on: June 14, 2008, 04:46:58 PM »

I would rather have them POWs. As Criminals we are obliged to try them and never release the ones guilty of murder.
Who is this a favor to?


You can't have them as prisoners of war, according to the Bush administration. They are, according to the Bush administration, unlawful enemy combatants. Many of the people who argued for that position are now bitching because they don't like having to allow the detainees real trials. Well, those people who are bitching get no sympathy from me on this one. Yes, I know, the detainees were going to have trials with a military tribunal, but not that long ago they were not even going to get that. If the detainees are terrorists or actual enemy combatants of some sort then prove it or let them go. The notion that treating the detainees like people with rights is going to result in hundreds of thousands of Americans dead is fearmongering rhetoric for which I have yet to see a shred of evidence.
Your reality, sir, is lies and balderdash and I'm delighted to say that I have no grasp of it whatsoever.
--Hieronymus Karl Frederick Baron von Munchausen ("The Adventures of Baron Munchausen" [1988])--