Supreme Court Ruling Affirms That Gitmo Detainees Have Legal Rights and That Scalia is a Nutbar
By Jesse Singal - Jun 12th, 2008 at 12:36 pmBig, welcome news, as reported by CNN:
Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.
In a 5-4 ruling, the justices said the U.S. military lacks the legal autonomy to prosecute as many as 300 prisoners.
At issue were the rights of the detainees to contest their imprisonment as well as the rules established to try them in military tribunals.
This is a huge ruling that will help roll back one of the more embarrassing human-rights gaffes in U.S. history. Perhaps more importantly, it provides waterproof empirical backing for something many of us have known for years: Antonin Scalia is out of his goddamn mind. From his dissent (via Malkin):
The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. The Nation will live to regret what the court has done today. I dissent.
That’s some levelheaded thinking you’ve got there, Antonin.
In my opinion, the real story here isn’t that Scalia is behaving true to form - he is Scalia, after all, a known commodity if there ever was one. The real story is Chief Justice Roberts’ witheringly stupid dissent, at once patronizing and insulting to the legal profession, contemptuous towards the rule of law. In form and function it is a perfect reiteration of some dozen Republican talking points - from the old activist judges standby the newer terror war talking points about the importance of allowing military and intelligence agencies to sculpt civil rights policy. Here’s a choice excerpt:
“The Implementation Memo requires only that detainees’ witnesses be “reasonably available,” App. J to Pet. for Cert. in No. 06–1196, at 155, a requirement drawn from Army Regulation 190–8, ch. 1, §1–6(e)(6), and entirely consistent with the Government’s interest in avoiding “a futile search for evidence” that might burden warmaking responsibilities, Hamdi, supra, at 532. The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas.
…
The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. Ante, at 43. It is, however, precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.
…
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. I respectfully dissent.”
For those who bought the talking points that Roberts was a different sort of conversative justice, that he was moderate, that he had the conscience and intelligence and basic respect for law and his profession to override his partisan concerns - here is your wakeup call. This is the man who will lead our jurisprudence into the 21st century, a man who holds his Constitutional responsibilities in contempt, who sees his role as a check and balance as an abrogation of some nonsensical understanding of government in which the Supreme Court is a passive fait accompli.
This is your wake up call.
June 12th, 2008 at 1:49 pmOn a very, very minor note–nutbar is the best word ever!
June 12th, 2008 at 9:59 pm