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.