Woohoo….

The Great Writ lives!!!

By the slimmest of margins, but it lives . . .

Fantastic news.

A commenter at Kos said Scalia’s dissent is absurd…relying on Wapo articles and channeling Cheney…

Can’t wait to hear your views Christy…

Why does scalia HATE America?

Christy,
Any indication yet what the dissent is based on?

Updates to the post above. Everyone, you are going to have to give me time to read the damn thing for a few minutes, please — it just became available, so I can’t answer any specifics until I get time to read it.

It’s 134 pages altogether in the PDF, btw…eeep.

This IS a Good Morning indeed, Christy!

Thanks for the prompt news report.

Wow. Just wow. So it’s o.k. to breathe now?

Nope. Not till mid January.

You’ll just have to read faster. I’ve been on page 7 now for almost 3 minutes. Only 127 to go. *g*

Halle-f*cking-leujah!

The 5-4 decision shows just how important it is to elect Barack Obama in November.

Who will be the fastest, sharpest framers on this one?

Boo-yah, even in the darkest hours of BushCo rule, there are still pockets where democracy and rule of law stand strong. SCOTUS 5-4 becomes more important than ever.

We must assure that sanity and rule of law remain in the majority on the court when we vote in November.

Prairie Today: FOX = Racist, Misogynistic “News”

Thanks Christy. This is great news.

“The arc of the moral universe is long, but it bends towards justice.”
“Injustice anywhere is a threat to justice everywhere.”

MLK

Perfect.

Wow! I gotta say I wasn’t expecting that one! Thank heavens Bush was unable to stack the court any more. One more right wing suit on the bench and….

Is there any chance at all that people will get real trials or released, or is this just going to fall down the hole like every other decision?

linky please – was just over there and didn’t see it

Thanks A Million Christy !!!

Scalia:

“Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspension
Clause, invoking judicially brainstormed separation of-
powers principles to establish a manipulable “functional”
test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
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 tragically,
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.
The Nation will live to regret what the Court has done
today. I dissent.”

Oh…Scalia is worried about “warping” the Constitution…mwahahaha

Christy,

You have 5, FIVE minutes to read, assimilate and translate this case.

Now get crackin’!

-G

Just kidding.

Can we IMPEACH them now, can we, please?

Why does the SCOTUS hate America?

http://www.dailykos.com/story/…..374/534570

Scalia doesn’t hate America. He hates the Constitution since it gives powers and protections to those who are not members of the ruling class.

The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”

Maddog quoted this at EW’s place from the Justice Kennedy’s decision…truer words were never written…

But it only survives by a razor-thin margin. McSame would replace Stevens (likely retiree during next term) with another dictatorship-loving Roberts-Alito-Scalia-Thomas clone. He’s promised!

We are 1 feeble vote away from defacto dictatorship.

Be ready for the wingers to twist & warp this thing, in attempts to dump the dastardly libruls, folks. After all, detainees in Malkinese spells tehruhist demonistas.

Talking points please, Redd. No hurry. Heh. IANAL. Eep indeed, hon.

Check AP?

Remember stare decisis and John Roberts at his confirmation hearing? He apparently doesn’t. I wonder if Marbury v. Madison got much play in the decision because I bet that is what would really sway Kennedy.

hey there!

downstairs I included the thrust of Solicitor General Clement’s argument in his brief to the Court

Mr Clement said in his brief to the court that the US does not own Guantanamo Bay and therefore the writ of habeas corpus does not run there.

Paul Clement – Acme, Class of 98
Baby Huey Yoo is gonna be jealous !

Condi on the Supreme Court?

I can has Habeus again?

WOOT!
Sonsabitches are gonna get it now.There are going to be lawsuits from hell to breakfast.
This really throws a monkey wrench in Chimpy’s plans.

I see Mr. FanCulo and the usual suspects dissented. Tis a good day for America.

About time we had one.

Thank heavens Kennedy writes better than I…and thank gosh both MadDog and Christy are fast readers!

Bizzy just now. Here, have a popskickle to tide ya over ;->

Isn’t that America?

Scalia’s full of shite.

He’s absolutely lost it, because the Court has stepped up and asserted its position in the separation of powers. This case has a deep, deep well of authority and judicial power behind it, and likely will put a stake through the current iteration of the Executive neutering the Courts so as to get its way.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Thank you Justice Kennedy.

thanks a bunch !

habeas corpus!

repeat:

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Thank you Justice Kennedy.

Scalia is entitled to your worship because he always got straight A’s and never missed a day of school.

Oh, thank God one of Justice Kennedy’s clerks at least loves history:

This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon-
trolled power. The Framers’ inherent distrust of govern-
mental power was the driving force behind the constitu-
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ-
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar-
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi-
lege of litigating in our courts can seek to enforce separa-
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen-
sion: “The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Inva-
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme-
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In-
deed, the only mention of the term “right” in the Constitu-
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here-
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus-
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib-
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru-
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no-
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’ ” C. Rossiter ed., p. 512 (196(quoting 1 Blackstone *136, 4 at *438).

i’m skipping ahead to p.82 see what roberts has to say….

curious that roberts uses phrases like, “whatever due process rights petitioners may have.” is this the usual phrasing, or is he being careful not to admit that the petitioners have any due process rights?

Scalia:

“THE CHIEF JUSTICE’s dissent,
which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the essential
protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires”

So, he’s basically saying Habeas was never suspended; rather that it has been expanded to include aliens abroad…am I right in that interpretation of what he’s saying?

The Decider doesn’t like it when you say things like that.

Bring It!

that means someone’s gonna ask McPOW if he’s for or against habeus corpus period

and probably still very angry because he wasn’t made Chief Justice.

Excellent satire “I’m voting Republican.”

http://www.dailykos.com/storyo…..511/534449

Oh — boo yah! There we go — on page 15 of Kennedy’s opinion (p. 23 on the PDF):

In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause 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. See Hamdi, 542 U. S., at 536 (plural-
ity opinion). The Clause protects the rights of the de-
tained by affirming the duty and authority of the Judici-
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of-
powers doctrine, and the history that influenced its de-
sign, therefore must inform the reach and purpose of the
Suspension Clause.

OK..do I have this correct — Scalia’s argument is that because the US doesn’t actually “own” the land that Gitmo stands on, that Constitutional protections don’t apply there? Does that mean that any place else where the US operates where we do not ‘own’ the land that our facility stands on, that the Constitution does not apply? Like – any US consulate? Inside the building – yes, that is USof A…but I do not think the land actually belongs to the US – I may be wrong on that. Either the US stands for the Constitution or it does NOT.

Yeah! The jailer-in-Chief. The jailer President.

HA — Kennedy goes on at length on how ludicrous it is to claim that a territory under US jurisdiction is somehow a “foreign” territory solely for purposes of evading US legal analysis, but under our control in every other way. Good on him.

Bite your tongue fingers.
You! :)

How DARE he question the logic of Nino Scalio, the most brilliant bully on the planet?

-G

60 Minutes Scalia needs to tell SCOTUS Scalia to “get over it.”

Scalia. Not Scalion.

-G

The Decider knows what he can do in terms of KMA. That guy doesn’t even know what Habeas Corpus means…

we’ve been talking about this over at cliffs joint and I have to repost the following, I think we need to frame this discussion with the actual ramifications rather then “habeas corpus protection”

it’s just stunning to me the issue was even in question, of course a president can’t hold innocent people, of course he can’t write new law to keep people when they commited no crime untol the president made up one in his own head just to hold that person, of course a person can show they commited no crime and of course they can know what crime the president is making believe they commited

it is insulting, the very notion that a president can gather you up, not tell you what foolishness he thinks you commited, not give you the right to show you did not commit that foolishness, and keep you there under the threat of torture

the very notion is disgusting

I just hope that the lure of big money calls Robert’s away from the court. Not comforting knowing he’s The Chief Justice for the next forty years.

Certainly not. The preznit doesn’t need to know everything – you are just expecting too much. s/

in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib-
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).

Whoopsy!

Make that the Lawbreaker in Chief.
Can we impeach this creep now?
NOW?

Oh yeah — THIS gets into the meat of the executive power grab from the Bush/Cheney-ites (p. 62 of the PDF):

Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear-
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde-
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de-
tention and the Executive’s power to detain.

(“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”).
Yowza. I’m breathing, but, just barely. This feels like a Light At The End Of The Tunnel Moment for me.
I like hopeful stuff.

Perris – and, I would like to add that any attack on Habeas is also an attack on something that is universally accepted as the basis of how people deal with one another, the Magna Carta. We’re talking foundation of modern civilization here – how we care for one another, what is acceptable and what is not. This is a very good piece on this: http://bostonreview.net/BR28.3/linebaugh.html

What about US ships at sea–Naval vessels? These are often depicted as projecting US “presence” overseas.

We can expect these occasional fits of old-fashioned justice and respect for the rule of law (history) during the adjustment period…but soon, the change will be complete–the Empire saved from itself.

am I just twitterpated by the good news . . .or is this a long held, categorical smackdown on the part of Justice Kennedy – even as a non lawyer it looks like he didn’t leave a scintilla of room anywhere in his decision

Justice Kennedy stepped up to the plate on this one.

-G

Anybody have an opinion on how and if this will have an impact on all of the ICE detainees they’ve been gathering up in droves?

yes, yes,

The 5-4 decision shows just how important it is to elect Barack Obama in November.

The tortured logic, such as it is, that the Roberts’, Bush Admin, etc, use to argue that the Constitution doesn’t apply here or there points out an area that is screaming for a new Amendment.

We need an Amendment that states that inalienable rights are universal and apply universally and that the protections of the US Constitution apply anywhere and everywhere that the US and its agents act and hold sway. The Constitution applies on ALL military bases, ALL US embassy grounds, regardless of where they are. Any time US personnel control a piece of ground or hold prisoners, basic Constitutional protections ensue unless covered by treaties (such as Geneva, etc).

The situation must be: Prisoners taken in military operations are either POWs to be treated as POWs as per Geneva, or they are criminal detainees who get habeas corpus protections, as well as any and all other Constitutional protections. It is impossible and unacceptable for the US to be a “free” nation ONLY at home, but despots and dictators abroad. No wiggle room. POWs or criminal detainees. Pick one and deal with it.

This is a good balancing phrasing as well (p. 76 of the PDF):

Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con-
cerns. Established legal doctrine, however, must be con-
sulted for its teaching. Remote in time it may be; irrele-
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free-
dom from arbitrary and unlawful restraint and the per-
sonal liberty that is secured by adherence to the separa-
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.

ask and you shall receive – Christy answers my question at 60 above – yeppers, categorical!

THANK YOU for that excerp!

bold is my FAV, highligt and caps are mine;

These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is MORE urgent.

the man can see the change of tide, the power of the people in this great nation

My last post on Cliff’s post, but it is even more pertinent here:

I love this part, per Scotusblog:

If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

Gee, so nice to see someone following the Constitution and not legislating from the bench!

Finally, a co-equal branch exerts itself against the unitary executive!

This directly affects Chimpy’s floating prisons too.

This is an excellent way for Kennedy to end his opinion as well (p. 78 of the PDF):

The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.

How about all those extraordinarily kidnapped and rendered to torture chambers all over the world by the US?

I wonder if this also opens up the possibility of war crimes prosecutions in this country. Maybe I’m way out on an ignorant limb here.

We’re getting healthy again. We’re becoming America again. This is cause for optimism and a measure of relief. But there are FOUR Supreme Court justices who believe that America can indefinitely detain people on nothing more than the whim of one man. There is much work to be done.

This is absolutely brilliantly written. I’m planning to print it and highlight some of the writing (and savor the decision). *g*

See my comment at 19. Guess not, but we get a popkickle @ 32.

There is hope, things are looking up. Imagine the WH fury in progress right now!! he he…

Ding!

Looks like we won’t have to look to Congress to undo the damage they’ve done after all. Good thing, too, because they seem utterly incapable, paralyzed by their own fear.

Am printing this out and will do more detailed analysis on this as I can read it on the page. Looking at tiny PDF print online is not my preferred method of parsing — I like to get down and dirty with some highlighters, a few red pens and a stack of post-it notes. *g* So there will be much more to come as I dig into all of this for you guys…

But at the moment, I need some more coffee. BRB…

Yeah, come to think of it, if that weren’t true, McSame shouldn’t be able to run fer preznit. Extrapolating as a true non-lawyer-nitwit meself…. ’tis only logical.

Well, they are allowed rights under international law. I would doubt that the US constitution applies to non-citizens in jails in foreign contries like Iraq or Afghanistan or Jordan, but they are entitled by international law to not be tortured.

-G

OK..do I have this correct — Scalia’s argument is that because the US doesn’t actually “own” the land that Gitmo stands on, that Constitutional protections don’t apply there? Does that mean that any place else where the US operates where we do not ‘own’ the land that our facility stands on, that the Constitution does not apply?

Sort of. I think Scalia is arguing that anytime a US soldier captures a foreign combatant in a conflict that the military will have to expect to be second guessed by the courts at a later date. This is largely horse hockey. The military can designate the combatant a POW covered under the Geneva Conventions. It can assume that the detainee is a criminal and them over to US civil authorities and the federal courts. It could even turn them over to a legitimate civilian authority in the country where they were captured. What it can’t do is drop them into a legal blackhole.

Well said. Seriously, could the Scotus decision restoring habeas mean a new zeitgeist is upon us? or, put another way, morning in America after a long, dark night?

I don’t think you are too far out on the limb.
And, I don’t think that [people] who have fulfilled their term of duty should be immune from prosecution.

Whereas Guantanamo IS the US.

-G

One hopes the media “legal” “experts” are reading and understanding the same important excerpts you’re sharing with us, Christy. Rather than just waiting for the Heritage Foundation to send over their talking points.

Thank you for this invaluable briefing-on-the-fly. Gives so much clarity to what’s really at stake. We come for the conversation, stay for the education. Thank you!

Elect John McBu’ush. He will put an end to all this activist nonsense.

Seriously, nice to wake up to good news.

We would not be living in extraordinary time if it were not for the Bush administration. We, of course, have gotten through – not over- 9/11 and could have taken care of business without a war in Iraq. This blight on our country in entirely caused by the greed and stupidity of the neocons. History will say so.

sooo…. Scalia should tell McSame to suspend his campaign, because he’s not allowed to serve as Prez. Rools is rools!

But…”the jailer”, i.e., US citizens kidnapping people and flying them on US airplanes, have to be held accountable.

Per quote by Christy at 47:

“T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”).”

Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing.

This also means that immigrants rounded up and detained incommunicado by the ICE raids can have Habeas petitions heard by the regular courts, instead of the INS Kangaroos.

And if no one has mentioned it, this ruling totally blows up the Gitmo Stalinist show trials.

Oh, but Pickles says Bushco will have a great legacy when history gets a round tuit.

Christy STOP.

Nice deep slow breath. Another.

O.K. Back to the reading, you treasure you!

Christy is swimming in her element…oh happy day.

I tell ya, the innards of that prez library of his’n is gonna have a hollow echo like ya wouldn’t believe.

Bushco is accountable.

please to wathc teh zeitgeist movie

Hi LS.

This is more funner, eh?

Ding, ding, ding.

*G*…Much morer!

My favorite.

thanking you in anticipation. Sounds dandy!

Bush can practice his tapdancing :)

This is a good morning – we are getting there, slowly but surely. And all the good stuff is on our side.

I think that Pickles and the Decider mean that Bush himself, not necessarily the Administration, will have a great legacy. They consider Bush to be a pure, holy, and great man surrounded by thieves and scoundrels. It’s just not his fault.

5-4? I’ll put a stop to that kind of stuff.

Bush to Cheney: “ya think a signing statement will fix this?”

(ht phalamir @ tpm muckraker)

Remember, a lot of the detainees were sold into custody (like a bounty) and were not fighters at all. They’ve been sitting there for years and some tortured.

trust but verify… just in case…

be wery wery cautious.

trapped critters can be dangerous, especially if they see no way out…

Here ya go: It’s a nice version…with Chie Ayado in of the Edward Hawkings Singers….
http://www.youtube.com/watch?v=Fs31zUfvHr
Open in a new window to listen and keep reading. :)

Scalia should just “get over it”

Maybe that is the explanation as to why Pelosi and Reid are not pursuing them…they are hoping they’ll leave quietly if not provoked by things like impeachment hearings…

lol

they’ve already dumped a pretty impressive pile of, -um- steaming legacy as far as the eye can see.

where u want this, ma’am. just pour it in the door?

Christy –

thank you for bringing both the good news and your analytical rigor, even in a very short time.

We’re not out of the woods yet, but this really, really helps. It also should put “fourth branch” on notice that his hijinks with the Constitution won’t stand muster. That Kennedy & co. have found that precedent and the rule of law do mean something in a constitutional republic is a tremendous relief.

Scalia laments the requirement that

“evidence supports the confinement of each and every enemy prisoner.”
________

Well, yeah, Mr. Legend In Your Own Mind. Particularly since the Bu’ush WOT collar false positive rate has been estimated at around 90%

Fresh thread up and running for everyone — while I sit here with my highlighter and post-its, making margin notes (good lord, I’m nerdy — is it wrong to enjoy legal reading this much?!?), thought folks would want a heads up on fresh material to read…

Yeah, that was what I was thinking too.

Damn, there goes a great election year shtick for McCain.

-G

OT.

Some nitwit on MSNBC was just claiming that McCain will really appeal to Hispanic voters. Also said Obama is in trouble because only elite liberals and African-Americans are in his corner.

Also, MSNBC is running the theme that “Obama should be leading McCain by so much more” and he’s obviously in deep trouble.

Also, if anyone sees Paul Lukasiak you can tell him that his latest efforts at advancing GOP anti-Obama smears has fallen flat.

Click for Obama’s birth certificate.

-G

You Rock CHS! Go Go Go

(((((Redd))))) ;->

I don’t know about anyone else, but I’m happy that the court pointed out that the Bush Administration is not the only branch of government that has exceeded their authority. I’m glad they pointed out that the Congress cannot overturn the Constitution with impunity.

Now let’s see them take on the subject of retroactive immunity for warrantless wiretapping (and blanket warrants) for the telecoms. They should make a decision about the Bush Administrations initial actions asking the telecoms for access to all our communications and also whether they had the authority to attempt to cut the courts out of making decisions about the legality of the action as well as the Congress’ missteps in trying to cover up the illegality involved! Standing in the court notwithstanding, so to speak!

It will be fascinating to see if the MSM gives this decision the breadth and depth of coverage it deserves.

Also, how will the WH press operation try to minimize this?

Kennedy’s opinion allows the CIA and its contractors to hold prisoners on ships or outside of US possessions in effect, until they get around to process the captive. In the US, if something outside of law enforcements procedures occur, to hold any detainee, including citizens, until they can amend SOP. So prisoners held on a ship can be disappeared over the side and US citizens held until the procedures are amended indicates to me that habeas corpus is not being 100% applied.

Thanks Christy, great news.

Wonder if all the Uighurs have been released yet, or if they’re still chained to the floors of their cells.

Isn’t that affected by whether the ship is in international waters versus territorial waters?

That this was a 5-4 decision shows how important it is to have a Democrat in the White House to make sure that the 4 justice fascist core of the Supreme Court: Roberts, Alito, Scalia, and Thomas never becomes the majority.

WaPo quote:

Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

What? You’re now substituting personal utilitarian moral outcome preferences in lieu of your usual inerrant textual interpretation of the uniform views of long-dead people?

Oh, I see.

sounds like just the opposite of what Tweety was musing over with a panel last night. Don’t fret. They were actually making sense.

This stuff you heard today – not so much. Mebbe = repug talking points from a freshly opened but outdated can? Some people will be acting desperate, folks. Keep this in mind as they yammer and stammer today. Most All of them were unprepared for this. Eep. heh heh.

Gitmo would be a suitable place for his “library.”

Well, it’s a darned good thing for the rest of us that you do, Miss Redd…shall we take up a “highlighter and post-it note(tm)”collection?

WHhhhaa!?!? When did congress declare war with radical Islamists?

as someone said upthread, he’ll just have to get over it. that’s easier for some than others. Scal’s got an humungous ego to wade thru.

Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

I think that a President who lies the country into wars as well as the justices that voted that President into office in 2000 are the ones with blood on their hands.

This is a day where we can all wish Justice Scalia a happy “Va fanculo.”

Okay, I will. Thanks!

Yeah. LOL!

But, more to the point, it’s “out of his pay grade” to base a constitutional decision of personal preferences regarding imagined impact. He’s said before repeatedly that “hey, life is unfair, get over it.”

lol

Standing back, patiently waiting, quietly in the shadows……….

and a fictional grounding in reality.

If everyone could pop up and give Isaiah’s great post a read, I’d really appreciate it. I had to jump in an preempt it with the breaking SCOTUS news — and he put a lot of work into it for us.

So if you could pop up, give it a read, and thank him for the great post, I’d be very much obliged.

Christy

Thank you for everything.

For years I have read that Scalia is brilliant. Yet, it seems to me that most of his opinions, like this one, are sophomoric drivel. I wonder if his reputation as a legal scholar is another example of the Justice Has No Robe?

I have it open in another window.

racsist bigotry is all i can think of. Enough of nino for now.

Back to Kennedy!

The only suitable place, unless he can buy an iceteroid out in the Kuiper belt.

man oh man this is a sickness -

just finished listening to 16 minutes of Federalist Society prognostication of this case by one Bradford Berenson -

they were correct in that it would fall to Justice Kennedy

but I got the talking points – are ya ready ?

Justice Kennedy’s lean towards habeus would bring “a modest lost to executive’s gwot” – (um, not so modest)

and – would create “anomalous circumstance” where in terrorism detainees at Gitmo would have “superior rights to those of even traditional defendants in the civilian justice system” in that they would have both habeus and the dc circuit court provisions of MCA”

IOW – ‘Activist justices give babykillers more rights than you!’

ps – that whole listening to the Federalist thingy – I blame that Hamsher woman

So as I understand it we could have arrested Bush sent him to gitmo and he did not have the rights of …anything?

Thanks Christy, this is a great day.

The GWOT is a complete fabrication! They are basing an argument on the lie that is the Global War of Terror!

consider the source.

and aren’t you glad we’re all members in good standing in the
Redderalist Society *g*

LOL!

Redderalist Society lol

From my grad thesis:

…Scalia has taken pains to expound on the difference between “originalism” and “textualism,” planting himself squarely in the latter camp. Considered by many the intellectual leader of the Rehnquist Court, Scalia has grown weary of the insurmountable problems associated with searching for the original intent behind constitutional clauses asserted to apply to issues brought before the judiciary. Such is illustrated by his remarks before The Catholic University of America in Washington, D.C. on October 18, 1996, wherein he observes that

I belong to a school, a small but hardy school, called “textualists” or “originalists.” That used to be “constitutional orthodoxy” in the United States. The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

I do the same with statutes, by the way, which is why I don’t use legislative history. The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said that: That the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times.

So, y’see, sociopolitical impacts of decisions, estimated outcomes are irrelevant. Keeping us Safe From Terrists is not his job. He’s just gotta accurately divine what the specific words meant to the peeps alive at the time of Constitutional enactment. And, of course, such understandings were uniform.

S.H.I.T. Scalian Hypocrisy Is Transparent.

Oh, that us brilliant.

btw, “Redderalist.com” is available, LOL.

lol, Redderalist, why yes I am glad not be a Redderalist!

I fell for that for years as well – ah the yet one more coup for the Mighty Wurlitzer ! – he is a freakin’ dullard at best

courtesy Marty -

Justice Kennedy blazin’

“To hold that the political branches may switch the Constitution on and off at will would lead to a regime in which they, not this Court, say “what the law is.”

sssst! smokin’

“Purchased for a bounty” equals “Human Trafficing”.

Perhaps it’s time to make the Supreme Court Justices subject to reappointment every twenty years.

Isn’t that just the greatest sentence ! Laws being followed – imagine…..

I said I thought that Marbury had to inform Kennedy’s view of Boumediene and, in fact, there is this:

Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison

My bold. I think this was the sticking point for Kennedy that the Bush Administration with Congressional connivance wanted to say what the law was and he said, “Wait a second. That’s the Court’s job.”

there’s a huge catfight goin’ on in the comments – repleat with trolls calling it an “outlaw decision” “pathetically small fig leaf” blah, blah, blah

and then Justic Souter gets in on the act in his concurrence -

shorter Souter -

‘These guys have been locked up for 6 years, he says, so don’t give us any BS about emergency war powers and expeditious Defense Department review.’

He’s just gotta accurately divine what the specific words meant to the peeps alive at the time of Constitutional enactment. And, of course, such understandings were uniform.

I call this the “ouija boardist” school of Constitutional interpretation where you don’t need a lawyer but a medium.

Ding.

Why all the excitement? Everybody knows that the Supreme Court has no jurisdiction over the fourth branch of government. No one will be granted a hearing. Dick Cheney can keep torturing Pakistani cabdrivers with no fear.

Seriously folks – do you think the Bush administration will do one stinking thing in response to this?

The bad thing is they can’t even read the Federalist right in the first place, like taking a verse of scripture and saying nit applies to anything you wish.

digg habeas corpus and the Kennedy five

Actually, I think they will, but only because they haven’t much choice except to appear to do something.

More to the point, they only have seven months to do it and they can’t get it made up and through the courts by the end of Buush’s term.

That means that this falls to the next President to take care of. I’ll bet you wanted yet another reason to vote for Obama, didn’t you?

BC

Please don’t watch the Zeitgeist movie. At least the first 2 segments of that movie can be easily dispensed with as TOTAL BULLSHIT with a quick and easy google search.

That stupid-assed movie claims that there is no law requiring one to pay income taxes (totally ignoring the body of law that springs from the 16th Amendment.

That movie is deep into the “9/11 was a US government conspiracy and nothing else” school of non-thought.

That stupid-assed movie makes claims that Xtianity is pasted together from a bunch of pagan predecessor religions, patched together almost randomly, in fact. Now, I am no Christian (I’m an atheist) and while it is true that Christianity borrows HEAVILY from pagan religions here and there, even so, I REQUIRE objective facts for any claims about anything. The religious claims in that movie, if checked, are immediately found to be total madeup bullshit.

If you want to see a GOOD movie that disassembles Christianity based on demonstrable facts, I suggest instead the movie The God Who Wasn’t There. It isn’t further burdened by nonsense from tax resisters/deniers and 9/11 conspiracists.

Christy,

Thank you for this post. Great job!

Not to go OT but this great news but what is the latest on FISA? More calls needed after yesterday?

lol, yeah, it is heavy on the kool-aid.

Christy, proofreader is my friend…the question @172 was meant to read…

Not to go OT but this is great new; however, what is the latest news on FISA? More calls needed after yesterday?

I’m late to this celebration!

Scalia:

“THE CHIEF JUSTICE’s dissent,
which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the essential
protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires”

So, he’s basically saying Habeas was never suspended; rather that it has been expanded to include aliens abroad…am I right in that interpretation of what he’s saying?

IANAL but I have always held the view that if we as a people in the US believe that individuals are entitled to the right of habeas corpus, etc, to a certain spirit of justice if you will, even for the most egregious cannibalistic predatory serial killer then that’s what we stand for period. If we detain people in the name of the US, US justice should apply to all human beings brought into our detention.

Again, IANAL, but I was able to shut down an online argument once with a guy yelling about terrorists are guilty until proven otherwise and they have no “rights”. This is just a very dangerous position for anyone to take because what rights would this guy want if the finger were pointed at him?

We are the USA and we stand for certain things.

OMG! I’m jumping for joy, calling and emailing the best news in 5+ years.
But, who is the idgit on NPR talk of the nation who says Scalia’s comment that “people will die” is not only not “over the top,” but doesn’t go far enough!
Oh, David Rifkin, Baker & Hostetler, alum of Reagan and Bush 1 regimes.

Great news for our nation and people, tempered by the radically un-American ideas of those who are still in power.

This isn’t much different from A Gonzales’s argument, that habeas isn’t specifically provided for in the Constitution. !!!
Scalia said something similar in an interview, hairsplitting waaaaay beyond the ability of the hair to tolerate it..I’ll have to look that one up. Don’t remember what it was right now.

@144:

“For years I have read that Scalia is brilliant. Yet, it seems to me that most of his opinions, like this one, are sophomoric drivel. I wonder if his reputation as a legal scholar is another example of the Justice Has No Robe?”

To be fair (and this comes from someone that has almost 100% disagreed with the man) he USED to be pretty damn coherent and sharp. His decision in Arizona v. Hicks, for example, represented the “best” of conservative legal interpretation (short version: pigs get your hands off my stuff!), and I still quote to my Crim Justice classes. While I tore my hair out at his philosophy, his analysis was usually airtight, and moreover he could take bizzarely complex principles and summarize them in language that my 8-year old niece could understand.

Then 9/11 happened and . . .

I don’t know what the hell happened to him. Mabye the towers fell on his favorite donut shop or something, but he’s gone steadily batguano insane ever since then. Like stark raving lunatic insane.

I hate to say anything favorable about McSenile, but it appears much the same thing happened to him. Remember the Straight Talk Express? I didn’t agree with his policies in 2000, but at least he spoke clearly and honestly (well, as honest as a politican is ever likely to get). Now . . . heck, I watched his speech the other week and my jaw hit the floor. Forget the tripe nonsense he was spewing — Disney animitronics seem more lifelike.

Mabye the protesters were right — there WAS something released in the air on 9-11. Some kind of brain-eating virus/dust/radiation/whatever that sought out Repub flesh to gnaw on. Regardless, if you’re bored enough dig up some of his pre-2000 decisions and take a look. He really was, at one time, quite the jurist.

back on topic . . .

How friggin’ embarrassing is it that whether habeas is a principle we should concern ourselves with had to go all the way to the Supremes? And 4 of them didn’t understand what the fuss was?!? Kennedy cements his place in history with this one.

On the plus side, I spent the last two days working up a Powerpoint presentation for one of my classes — the history of Criminal Law in America. I was wondering how to wake them up after talking about the Justinian Codex and the Great Writ. This is bread from heaven!

“Now, I know you’re saying to yourselves, ‘why the heck should we learn about something almost 800 years old? Can’t we study something more relevant?’ Well, my little grasshoppers and grasshopperettes, let me show you WHY you need to study this boring stuff . . .”.

I just wish I could get an audio file of James Earl Jones (or mabye the movie-commercial-voiceover-guy) reading these quotes. With echo and reverb. Patrick Stewart mabye? He could give it that “voice-of-universal-basic-goddamn-truth” sonorus rumble.

IMPEACH Roberts, Scalia, Thomas, and Alito!

Just awoke. What a squeaker.

The Augean Stables.. round one for Hercules!

Did anyone see Bush’s face today after he got the news? Bah hahahahahaha! Oh gawd. It was priceless. The poor thing…bah hahahahahaha!