EPU’ed but still relevant here.

OK two things re the al Marri case. First, there will be a change of Administrations before it is argued. This will affect how the case is presented if it is, in fact, ever argued. Because that’s my second point, if al Marri is switched into the regular Justice system before arguments, it is likely that the SCOTUS case will become moot as happened with Padilla.

besides al Marri and exiled Hamdi, there are a few others (Californians!)_ who one needs to think about here too: Walker Lindh, doing 20 years, apparently in the Federal supermax dungeon in Florence, CO, for being 19, stupid and in the wrong place at the wrong time. And still-at-large Pearlman/Gadahn who has the dubious distinction of being the only American indicted (by shrub) for treason in half a century.

I would suggest too that rendering the case moot might be the intention of some on the court. The grant of certiorari normally doesn’t say which justices granted it and this one doesn’t.

http://www.supremecourtus.gov/…..0508zr.pdf

If declared moot, the question would be left undecided until the next power grabbing Republican President came along.

That’s the big question, isn’t it? Change it with the internal government position enough, and the case might be mooted. Don’t change, and it’s Bush v.2

Good Afternoon Christy

Burt Neuborne of the Brennan Center – just ran across him for the first time over at TPM – and I’m already a big fan.

here’s a brief interview with him discussing some options for justice in a post-Bush world:

link

now off to re-read Scarecrow and Marty – thanks !

Sorry for the early OT but this is too much. Remember all that money that Paulson invested in banks? Well the stock he got in return has already lost $9 billion in value.

http://www.msnbc.msn.com/id/28069615/

Aloha, Christy! Altho, I’m interested in how the al-Marri case turns out, the big news I’m awaiting for from SCOTUS is whether the NJ case challenging Obama is granted cert… Politico says Thomas is spearheading it…!

Do you have a link on that – it’s a bit difficult to imagine Thomas “spearheading” it. Would like to know where Politico is getting that inference…

If declared moot, the question would be left undecided until the next power grabbing Republican President came along.

wow. don’t think i know of a more perfect test of the rachet effect.

i wonder what % of certiorari cases are actually heard in a timely fashion. ie, while it can actually do some good for the problem at hand.

Here’s the Politico link…

…this one has an interesting lineage. It was referred to the high court by Justice Clarence Thomas, the court’s only African-American justice.

Maybe Thomas is just returning the favor — putting through a case that questions whether Obama should be president, after Obama said he wouldn’t have picked Thomas for the high court.

So he was the justice who passed it through for full court consideration — that’s not really pushing it so much as green-lighting it perhaps to dispose of the question altogether. Will take a peek at the article — thanks.

Christy, Is it my imagination or is Bushco batting zero with regard to these illegal detainee cases.

are you sayin the court is slightly behind the curve? you must be a lib.

If it actually ever was argued, I would think that the Court would go in the direction of Hamdi or Rasul as a separation of powers issue, i.e. the Executive can’t put itself beyond judicial review.

From my scandals list:

Rasul: On June 28, 2004 SCOTUS in a 6-3 decision ruled that the US court system had jurisdiction over non US nationals held at Guantanamo. Rasul had been released to the UK before the ruling on March 29, 2004.

Hamdi: On June 28, 2004 SCOTUS 8-1 ruled that U.S. citizens can not be detained indefinitely as enemy combatants without due process. Hamdi was released to Saudi Arabia on October 9, 2004 on condition that he give up his US citizenship.

I think Rasul was released after the case was argued but before it was decided.

I think that’s true, too — depending, of course, on where Kennedy decided to fall on any given day…

Not your imagination at all. Which is why it will be interesting to see how a SCOTUS tailored to his specifications will rule on whether or not these powers should persist under a Democratic president.

Clarence Thomas is a very vindicative dude.

They have very rarely won a point on these, yup.

Too bad Roberts, Alito, Scalia and Thomas all seem to be healthy as horses.

his administration will have the option of changing the government’s present position in defense of the detention authority

since his failure on fisa, his failure on the bailout and his failure on liberman I am prepared to be disapointed in obama at every turn

when the republicans start liking a democrat you know they are no longer progressive

to wit;

Stuart Taylor: Obama should carry on Bush legacy of illegal wiretaps and ‘kick’ the Left ‘in the teeth.’»

he has kicked us in the teeth already, the right wing knows it and are counting on more of the same

*sulk*

He’s also vindictive. :-) (Just ask Anita Hill.)

Thomas may have spearheaded putting the case up for argument but it takes a vote of 4 Justices to make this happen. I have no idea who these might have been (Roberts, Alito, Scalia, and Thomas). *g*

That’s just ludicrous. And I don’t the orthographically-challenged rapper.

As far as the case being mooted, this is going to create a tough call for Obama. I’d like to see a High Court decision that firmly establishes that the United States Constitution says what it says: habeas corpus cannot be restricted, except in cases of invasion or insurrection.

If Obama had to play along for a few months to get that result, I’d be content. But I have no confidence that Roberts and his Gang of Four would rule that way. And if they were to rule that habeas corpus doesn’t apply, that would be a huge disaster.

another way to look at it is that thomas has had enough of the thugs. only thing that would affect him would be his legacy. it that a concern for him?

Thomas? He looks about as healthy as Cheney does.

Stuart Taylor would have written that same column if Noam Chomsky had been elected president. Don’t let the righties determine how you live your life.

yes to lib, but not to the rest – i was thinking that how the obama administration handles the case, ie will they want it to be decided or left open (for the next crazy power grab?), will be a test of the ratchet effect. if obama administration wants the decision left open, that supports the thesis of the ratchet effect. but if they want to have it decided (in favor of limits to executive war powers) that will be evidence against the ratchet effect.

here is a bit from the ratchet effect:

The American political system, since at least 1968, has been operating like a ratchet, and both parties — Republicans and Democrats — play crucial, mutually reinforcing roles in its operation.

The electoral ratchet permits movement only in the rightward direction. The Republican role is fairly clear; the Republicans apply the torque that rotates the thing rightward.

The Democrats’ role is a little less obvious. The Democrats are the pawl. They don’t resist the rightward movement — they let it happen — but whenever the rightward force slackens momentarily, for whatever reason, the Democrats click into place and keep the machine from rotating back to the left.

Here’s how it works. In every election year, the Democrats come and tell us that the country has moved to the right, and so the Democratic Party has to move right too in the name of realism and electability. Gotta keep these right-wing madmen out of the White House, no matter what it takes.

(Actually, they don’t say they’re going to move to the right; they say they’re going to move to the center. But of course it amounts to the same thing, if you’re supposed to be left of center. It’s the same direction of movement.)

So now the Democrats have moved to the “center.” But of course this has the effect of shifting the “center” farther to the right.

Now, as a consequence, the Republicans suddenly don’t seem so crazy anymore — they’re closer to the center, through no effort of their own, because the center has shifted closer to them. So they can move even further right, and still end up no farther from the “center” than they were four years ago.

In fact, the Democrats’ rightward shift not only enables the Republicans to move farther right themselves; it actually compels them to do so, if they want to maintain their identity as the angry-white-guy party par excellence. (A great part of the Republicans’ hysterical hatred of Bill Clinton arose from this cause: with Democrats like Clinton, who needs Republicans?)

Too bad Roberts, Alito, Scalia and Thomas all seem to be healthy as horses.

Well, Roberts had a seizure a year or two ago.

Perfecto. Made me laugh…

I wonder if Roberts and Alito will change their tunes at all with an Obama administration. They seems to me to be something of the type to, um, bend their wills in the general direction of those in power. I have no such hope for Scalia and Thomas, who live nit the dark side (Sith Lord and apprentice?)

But I have no confidence that Roberts and his Gang of Four would rule that way. And if they were to rule that habeas corpus doesn’t apply, that would be a huge disaster.

i’d expect them to be more likely to rule against a D president than a conservative. the question i can’t answer is will they see obama as a D or as a conservative?

wish you felt better about it. i’ll buy you a drink sometime so you can sulk in style. :)

I’m still looking for that little lever. *g*

It’s never been before. He’s always been quite willing to do whatever the Cons wanted him to do — hence the famous Emerge story and magazine cover calling him a “lawn jockey for the far right“.

Remember, he’s also decided to hear the bogus “Obama’s not a citizen!” crapola being pushed by the PUMAs and their Republican allies.

What is it with $9 billion and these people? Isn’t that the amount that disappeared on pallets in Iraq?

so. your response indicates that the exec has power over the court. how would they do that?

It will be interesting to see if there is something more definitive than a birth certificate. And if so, what that thing might be.

okay. so you say he is a tool. now. what do the thugs want from this?

The new administration could also limit further future actions by issuing an OLC opinion detailing all the reasons that this conduct does not pass constitutional muster, and an executive order preventing that sort of treatment in the future, as a start. If they decide to pull back form the BushCo position which would most likely then render the case moot at bar (meaning the underlying issues would no longer exist and, thus, they wouldn’t have need to go further on arguments.)

Yes, because hospital records and a birth certificate and photos in the hospital and…well, none of it proves anything if you are loony, I suppose. *g* Some days, you just shake your head, don’t you?

I think that Hugh @ 1 is right – odds on favorite is that they will *Padilla* this case and the Court has set scheduling so that very thing can happen.

To be honest, That might well be the best thing as I look at the things that are likely to happen. Obama won’t be in a good position, especially with his milquetoast approach to torture, to go in and change the game much other than by pulling him out of the torture detention and putting him into a normative criminal setting. Other options they might consider would be to Siddiqui him (put him into a pysch ward) – but that might open the door on Padilla’s appeal (which I assume he has – he may not) re: his mental state and inability to provide cooperation to his defense team, etc. They might also just ship him out of country – kind of an “Arar” approach, but not so much to Syria this trip.

Obama is not going to go before the Sup Ct and make a filing that says the Executive was wrong all along and doesn’t have the power to detain and torture al-Marri [and all the soldiers involved in this were therefore follwoing illegal torture orders] and even if he did, it would all end up as extraneous to the mooting of the case. Obama is not going to want to stay in the fight, in his new lycra and superman cape as “good guy” and a) be the Exec running the DOJ as they lie to the Court about how al-Marri was handled, like Clement did for GWB, or b) be telling the world that he’s just like GWB (however much he may be, in a de facto sense, on the torture detention front).

So not only will putting al-Marri into a criminal case – all with no one bearing any consequences of any kind – go along with Padilla “precedent” it will also fit in with Obama’s close GITMO plans, wherein the torture evidence just gets shifted into US courts. Between Padilla’s case and Fitzgerald’s Saleh case in IL, there is beginning to be an actual base of multi-jurisdiction precedent for trotting torture into the courts now, as “evidence”

OTOH, if the case goes on in the Sup Ct (hey – maybe a nice lil ol Roberts, who ‘reluctantly’ released the Padilla case will decide that gosh golly, they should retain this one, and they’ll put up a “win” in Obama’s column, letting him have the legacy of being the President whose DOJ won on the Presidential right to disappear and torture and use the military domestically for those purposes. Then we’ll get a lovely little noblesse oblige statement from Obama that golly, he’s a good boy and he won’t do those things anyway, even though the Sup Ct gave him the ability to.

Or, in the less likely alternative that the Court rules for al-Marri, then Obama will get to be the guy who decides what happens to all the war criminals involved in al-Marri’s treatment. Walk away from them, to foreign (and a piddle of domestic), outcry – have all kinds of renewed calls to fight any Sup Ct appointments he might make who would also “let the criminals go free” – pursue crimes only to have the bulk of the nation (the same nation, after all, that by overwhelming margins wanted Calley to walk free) in an uproar that he would “dare” to pursue actions against soldiers trying to save the nation from terrorists, etc.

If Obama had campaigned as if torture mattered, it would be one thing – but he pretty much just stuck in passing references where he needed something flowery.

Well, I’m personally vewwy wowwied about this. I’ve got a birth cert from the Territory of Hawaii. If Barack Obama isn’t a U.S. citizen by birth, then I must not be either.

thank you ma’am. sure are glad you are around.

Birth certificates issued by the state are based on certificates submitted by hospitals. The one from the hospital that I have gives more information, e.g., parents’ address, time of birth, attending MD, etc.

I owe ya a beverage of your choice, ma’am.

That doesn’t completely resolve the issue, but it does smack the crap out of Cheney and Addington’s future “this is the law” tour with anyone but kool-aid drinkers. And there is value in that, if nothing else.

Although I’m dreading that first wingnut welfare legal guru gig that Addington gets. Reading his “scholarly papers” really will be torture on so many levels. Ugh.

Well, the Hawaii State Department of Health stands firmly behind the authenticity of Obama’s Birth Certificate… Hard to refute that, eh? ;-)

I would love one — make mine high test. It’s been that sort of week…

Careful, BCT, you’re dating yourself…! At least Obama was born after statehood… ;-)

Actually, the hospitals fill out a certificate form defined by the State (or in my case, Territory) Vital Statistics Bureau. There are short form and long form certificates, but not all States make the long form certificate (laden with info like APGAR scores, etc) available to individuals.

On the NJ case, as Turley explained it, it’s not so much on the birth certificate, but rather the argument is that since his dad was a British citizen, he had dual citizenship. Not that I have much interest, but Turley did want to make the distinction.

Not me. I don’t date myself. I only date my wife.

i’ll buy you a cocktail too fer that response.

Maybe you could just read the clift notes. “g”

So basically, they’re trying to say that Obama failed to declare his American citizenship when he turned 18? Something I had to do when I turned 18, renouncing my Canadian citizenship…

lol. let me know when you find it.

Many Native Americans have dual citizenship. U.S. and their tribe which are sovereign nations. Does that mean that a native american is not a naturally born american. Hmmmmmmmmmmm

I have been wondering if Obama has other plans for FISA. Since he likely knew how the vote would go, he could also likely see that eventually the court may overrule the way it’s been handled. I’m not sure. But the case is still out there looking at the separation of powers question. Isn’t Obama a poker player?

Shhhhhhhh…you just know some wingnutty goober is out there right now thinking of a way to gin that up…just in case.

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