The End Result Of The SCOTUS Gitmo Decision?

Mike,

“In this case the court has exceeded it’s authority and is interfering in the political roles played by the Executive and Legislative branches.”

Please unpack that thought. You concede that the Supreme Court has the responsiblity to check the power of the Executive and Legislative branches. Why do think that in this case, this issue was beyond the proper authority of the Supreme Court and exclusively within in the authority of the other two branches performing their “political roles?”

Dave Noble, INRE your:

Why do think that in this case, this issue was beyond the proper authority of the Supreme Court and exclusively within in the authority of the other two branches performing their “political roles?”

Your question wasn’t directed to me, but I’ll have the chutzpah to give a response anyway… LOL. As you said in another thread, I have no qualms about questioning the finest legal minds, even tho I am no where near qualified to do so.

While I absolutely agree the two branches are to check each other, there are two reasons to question that the SCOTUS acted beyond their scope.

1: They rendered, in effect, DTA/MCA as void based on the assumption that they derive their jurisdiction directly from the Constitution. Yet the Constitution also provides that Congress does have exceptions to limit the court’s jurisdiction. Perhaps it would have been reasonable had the laws stripped the detainees of rights. Instead, those laws *added* rights that did not exist for a new kind of enemy who lived in a legal gray area.

Therefore, since the legislation was not flawed or detrimental to human rights, it is not abundantly clear they had the right to ignore Congressional law.

2: To ice the cake, not only did they rule in their own favor for power and jurisdiction over Congress, they then chose to reverse a prior court decision on applying Constitutional rights to detainees that did not exist. One would think that if they were to seize jurisdiction, they would at least follow precedents.

Both of these are serious flaws in the opinion, IMHO.

Unfortunately, there is no where to go to appeal. The buck has landed on the last desk. All that remains now is for the zoo to commence in the federal courts. If enough national security risks are the result of classified info coming out in trials, and military personnel being paraded as witnesses, perhaps the Congress will again attempt to tie the hands of Congress.

Allow me to add one more analysis to your reading, Aye Chi. This is from the Columbia Law Review by Steven Calabresi and Gary Lawson. This was written post Detainees Treatment Act and after Hamdan vs Rumsfeld in Mar 2006. It is all about this very subject, as addressed by Hamdan v Rumsfeld and the Supreme concurring opinion that the DTA did not strip SCOTUS jurisdiction. Scalia dissented in that case, and at that time proposed that the court was ignoring the Exception Clause.

So you see, this is not the first time the Exception Clause has been considered, and discarded by the court.

So you can follow the majority court’s opinion, this essay is a pro-concurring argument, altho also giving a HT to Scalia’s argument. But ultimately the base conclusion can be summed up as this:

Relying on textual, intratextual, and structural arguments, this Essay argues that, in the same way that the Constitution vests all of the executive power of the United States in a unitary executive department, the Constitution vests all judicial power in the federal judiciary, with the Supreme Court having supervisory power over all other inferior tribunals within
the judicial department. While the Constitution leaves Congress with the option of creating or not creating lower federal courts, it does not give Congress the option of creating or designating lower federal courts over which the Supreme Court does not, at the end of the day, have the last word.

As I said above, it’s confusing that SCOTUS blows out DTA/MCA when it adds rights. This is also addressed in this essay.

We think that the reason congressional statutes are written as affirmative grants of jurisdiction rather than as negative exceptions away from the constitutional grant of jurisdiction is because Congress enacts these statutes pursuant to its power to carry
into execution the judicial power conferred by Article III. The statutes governing the Supreme Court’s appellate jurisdiction are not exercises of some negative power conferred by the Exceptions Clause.

Again, with the founding principle that each branch is to act as a check and balance to the other, the last sentence in the conclusion is absolutely correct:

Congress can determine whether the Supreme Court will have original or appellate jurisdiction over federal cases, but it cannot determine whether the Supreme Court will have jurisdiction at all. The Constitution has already done that.

As I said in another thread, Congress does not have absolute authority to issue SCOTUS a “hands off” order. Nor is this is not a power we want them to have.

So again, neither the pros or cons are absolutely clear and un’arguable. There is merit to both presentations.

My discontent is not that the Supremes should have jurisdiction… they should, by Congressional Constitutional authority (sorry… meant that but got my big “c’s” mixed up…) The big beef is they chose to remove that jurisdiction from the DC circuit, as written by Congressional law, and instead give it to federal court system. It is in this reality where our problems lie.

INRE your idea:

The President, and Congress, have the authority to ignore the decision.

How could the Court enforce it?

The court “enforces” it when a petitioner rightfully challenges the Congress and President ignoring the decision in a federal court system. The lower federal courts will have to uphold the Supreme’s decision and the petitioners will win. If the lower federal courts choose to ignore it, they will work their way up the court chain until they’ll stand in front of the Supreme’s, who will allow the petitions to win based on this very decision.

That’s how it’s “enforced”.

An ruling which goes against the Constitution is not enforceable and can be legally ignored by the Congress and the President.

The fly in the soup is that the judicial system decides what is Constitutional, Ayi Chi. They are the interpreters of the law, not the legislators.. not the administration.

And we agree that the court has gone beyond it’s authority. We just disagree on what issues they stepped outside the boundary. Since neither of us are attorneys, we don’t get very far with our theories, eh?

But if you were going to put a class action suit together for federal courts, I’d wager that my argument for reversal would be an easier case than yours.

Position on the Exception Clause? I agree with the Columbia Law Review essay on this.

That under the clause, Congress has the right to limit appellate and original jurisdiction, but it does not have the right to remove any and all jurisdiction from the SCOTUS. Think of it… if Congress could do that, it would be allowing them the power to place whatever legislation they choose above the law, and remove any possible legal recourse for everyone.

How would you, if a victim, obtain satisfaction if Congress can pick and choose what the court is allowed to hear, and rule on?

Bad juju. I don’t care who’s in the majority.

So I sum it up in three statements:

1:ALL legislation is subject to legal review in the court system, to allow for a petitioner’s rights.

2: The Supreme Court is granted the authority in the Constitution to be the highest and final judicial authority over all courts.

3: Therefore it follows that there is no law made by Congress of which the Supreme Court will not have the final review… if it makes it that far in the court food chain.

However the Exception Clause is not applicable here because SCOTUS always had jurisdiction. Congress granted and recognized that per MCA’s language, giving exclusive jurisdiction (to those designated unlawful combatants and had no Constitutional rights) to the DC circuit, and review by the Supreme’s.

So their jurisdiction as final absolute authority isn’t in question. However their right to ignore Congressional appointed jurisdiction, and instead shift jurisdiction back to feds and incorporating habeas corpus is indeed in question. It is usurping a Congressional act that added jurisdiction and rights, not took them away.

UPDATE ADD: also, by rendering MCA as unconstitutional, it removed the step detainees were required to take first… which was challenging their CSRT status first in the DC circuit. Boumediene held that this was an “inadequate substitute” for habeas. So those lawsuits that were pending appeal can now go back into federal courts for the hearing. Also, the opinion determined they didn’t need to go thru the CSRT review prior to filing habeas. It did, however, suggest that the federal judges at least delay until there can be a CSRT determination. But that wasn’t the focus of the decision. It was to determine if the pending habeaus cases MCA threw out could be heard

I suggest that DTA/MCA was an adequate substitute for habeaus corpus and no Constitutional rights granted to an unlawful combatant. First determine if they are a lawful combatant before granting them Constitutional rights. However the court refused to comment on suggesting what an alternative to habeaus would look like.

I must to admit that I have not read the entire MCA. (Eyes begin to glaze over.)

The portion that I saw referenced SCOTUS based on appeals but I didn’t see anything concerning jurisdiction prior to tribunal conviction. Not saying it isn’t there, I just didn’t see it.

I’ve gotta take a breather from these legal docs….I’m getting a brain ache.

Boy do you miss the point, Salvage.

Unlawful combatants (not criminals…) have never, in this country’s history, had Constitutional rights prior to this. America, in it’s compassion, granted them some legal recourse rights they did not possess via DTA/MCA. The SCOTUS decided those rights weren’t equivalent to habeus corpus, as they decided to classify the Cuban base as US sovereign territory… which technically it is not.

Yet full Constitutional rights are generally only granted, historically, to genuinely sovereign foreign territory and territories. Most of the time they used the foresight of whether the territory was anticipated to become a US state, or a completely sovereign nation. i.e the colony of Puerto Rico, which has it’s own Constitution and laws, but is still US territory and has a US federal court on the island. It was here that Ruben Berrios was tried.

Puerto Rico is understandable. But to equate Cuban detainees to Puerto Rico citizens? Gitmo’s unique situation is much more akin to the Germany base in Johnson v Eisentrager than it is to Puerto Rico, who also enjoy rights to vote in US elections.

The Supreme’s have decided to ignore precedents left and right, blazing a new trail and embarking the US legally on a new path, fraught with speed bumps and pot holes. They’ve left the legal system with conflicting precedents, and little guidance on how to rule. The Supreme’s shot from the hip on this one, and now they are giving that to the lower courts to do as well. Depending on what they decide, and how the appellate process goes, they willl end up revisiting the lower courts’ decisions to see if they shot from the hip, straight between the Constitution’s eyes.

And you consider deviation from precendents, and a foggy due process, a good thing?

I am never surprised at the bizarre and simplistic thought patterns demonstrated by all too many in this country.

Aaaaaand how do you know they’re “Unlawful combatants”? Or what they are? Do you think it’s possible that some of the detainees are innocent of their charges or is detainment all you need to confirm guilt?

The U.S. is a signatory to several human rights documents, GitMo violates those treaties on several levels.

But the land of the brave is full of chickens these day who will cheerfully jettison liberty for security.

Fit fit,

It seems you are being intellectually dishonest by purposely misinterpreting my words.

Am I mistaken?