Fred Thompson smacks this one out of the park:
Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?
They could have saved us all a lot of time if they’d told us what was clearly on their minds.
They don’t trust military tribunals to deal with those accused of being enemy combatants, even if the tribunals are following guidelines established by Congress.
That the government has probably detained some prisoners at Guantanamo for longer than they should have.
And that Guantanamo should just be closed.
Though they are willing to give it lip service, they don’t really believe we are at war … at least not a “real” war.
Therefore, they should create a new right for our nation’s enemies commiserate with the displeasure that they and the rest of the “enlightened” people have with this “war,” Guantanamo and the Bush Administration.
At least this approach would have been an honest one and based upon about as much legal justification as the approach they took.
But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory
The majority had simply decided that prior courts had denied such rulings based on “practical considerations.” In other words in prior cases and prior wars it had just been too inconvenient to bestow the right of habeas corpus upon non-citizens in foreign jurisdictions.
And whats amazing is that this court somehow can see into the future. You see, we will never have a war like those in the past where tens of thousands of combatants may be taken prisoner. It would still be mighty inconvenient to give those tens of thousands the right of habeas corpus….but alas, according to the majority, this is exactly what will be bestowed upon them.
But Fred doesn’t stop there….stand by to stand by:
In reading the majority opinion I am struck by the utter waste that is involved here. No, not the waste of military resources and human life, although such a result is tragically obvious. I refer to the waste of all those years these justices spent in law school studying how adherence to legal precedent is the bedrock of the rule of law, when it turns out, all they really needed was a Pew poll, a subscription to the New York Times, and the latest edition of “How to Make War for Dummies.”
Ouch!
And so true.
Man, he would of been some kind of President…but c’est la vie.
I’ve said this in the past over and over again. I don’t agree with McCain on many issues, but on the courts and the war I believe he will be true to the conservative cause. This ruling just shows how important it is to put a conservative justice on SCOTUS.
See author page
Thanks for posting this Curt.
Fred! would have had my vote if he had been able to tough it out just a little longer.
But, as you say, c’est la vie.
I agree with you about McCain and the war, but I sure hope that you are right about the Court.
One thing is for sure. We know exactly where Obam-uhh will come down.
Oh the sadness of Fred!
fred thompson would have been my choice, i really liked him. i had heard people liken him to reagan because he was a tv star. he has his head on straight.
We need to elect John McCain so this Supreme Court can be fixed.
Oh, how easy it would be if we could just change the world to fit our perceptions, to reinforce our arguments.
Unfortunately, reality keeps intruding on our fantasy world.
Fred Thompson: “But, instead – as Justice Scalia pointed out in his dissent – they for the first time in our nation’s history, conferred a Constitutional right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war – a broader right than has been given to our own citizens. The court majority did so acknowledging that they could find no precedent to confer such a right to alien enemies not within sovereign U.S. territory”
Please read MataHarley’s careful elcuditation of the Court’s actual ruling. The linchpin of the majority’s opinion is that Guantanamo is not “abroad” in any meaninful legal sense. The court found that based on the plain language of our treaty with Cuba quoted above, Guantanamo is under the jurisdiction of the United States and within the ambit of that groundbreaking monument of jursidprudence and human freedom – the United States Constitution. For someone who is not a lawyer, MataHarley did a great job of explaining the SCOTUS opinion. Hell, she explained it better than Fred Thompson who is a lawyer.
I quote MataHarley:
“The Supreme’s reasoning for reversing has everything to do with Gitmo’s base status and the lease agreement for Gitmo with Cuba, originally struck in 1903.
‘According to the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations, as referenced in this Jan 14, 2004 Supreme opinion in Rasul vs Bush:
While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. . . .’ ”
No, Fred, we’re not on televison. This is not an episode of “Law and Order.” You’re not the ever-wise Yoda-like prosecutor. This is the real world. And if this was law school, your professor would point out to you that you got the Court’s holding wrong. The kind of mistake a first-year law student makes. Habeas corpus attaches in Guantanamo because the treaty between the US and Cuba says that the “United States shall exercise complete jurisdiction and control over and within said areas.”
Thank you for the kind words, Dave Noble. But I suspect you’ll be taking them back.
Hard to argue with the SCOTUS that Gitmo falls under US laws and jurisdiction because of the 1903 agreement. Technically, however, Thompson is absolutely correct that the US does not have sovereignty over the Gitmo base facilities. That supreme authority still lies with Cuba.
The flaws in your thought are the assumption that sovereignty and “authority and control” are the same in the eyes of the law. And that “control” translates to “jurisdiction” by all of the US judicial system. (in this case, it only applies to the District of Columbia Circuit, as per MCA)
Also, those designated as enemy combatants are also not traditionally the beneficiaries of Constitutional privileges.
Devil in the legal details….
Since the rule of law has traditionally been as congenial as a ring of WWW wrestlers, I can see where arguments on this vary from legal mind to legal mind. And trust me, in a general conversation, I’ll defer to one with legal education (as Thompson has).
In this case, Thompson only echos my thoughts. By all legal definitions, they are “enemy/alien” combatants, harbored abroad in territory that is not under US sovereignty.
Mata,
That would be shoddy to take back kind words. They stand.
However, for someone who is not a lawyer you seem to have no problem arguing the fine points of the law with the finest legal minds of the nation. Again I would note, 3 of whom are Repbublican appointees. Along that line, I would put my money on the justices over Senator Thompson. Yes, it was 5-4, but that’s the way the system works.
The simple principle of justice and rule of law involved here can be understood by someone not trained in the law. There should not be a legal black hole – where the Geneva Conventions do not apply and American jurisprudence does not apply.
More later, specifically on your key point re: combatant status and application of the Constitution .
Folks, please remember McCain being part of the gang of 14, and the havoc they created in blocking conservative judicial nominees. . . . I can almost guarantee you he’ll forget all about the promises made at CPAC, and listen to his old buddies Kennedy, Schumer, Clinton, Boxer, Lieberman, when it comes time to appoint.
If you’re wanting to make sure conservatives are going to be nominated to the Supreme Court, you better consider voting for a true Reaganite conservative that is both Prolife, a strict constitutionalist, holds dear the Declaration of Independence, etc., and that would be Alan Keyes.
Don’t bet the future of this country on a person who has shown complete disdain for true conservative principles.
Dave: “Yes, it was 5-4, but that’s the way the system works. ” I bet you felt differently when it was a 5-4 decision to overturn the Florida Supreme Court’s selective vote recount in 2000.
Chet: I personally and at length confronted John McCain over the issue of the gang of 14 and other issues upsetting to conservatives. That discussion is posted somewhere on these pages if you are interested.
McCain told me that we’ll be glad we have the filibuster if a Democrat is elected and trys to put another big lib on the court yet I doubt he and his buds in the Senate have the guts to do it.
I do believe however that McCain would at least appoint judges more conservative than those Obama would appoint.
And there is no way in hell Alan Keys will win the presidency EVER. Neither will any other third party candidate.
So, throw away your vote if you want, but there are only two choices here: Neosocialist Obama or the Moderate McCain.
Thank you Mike, rather than going with one of the “only two choices” given Americans by the media, DNC and GOP, I’ll cast a vote for this country be selecting the only true conservative candidate running.
As far as Keyes or a third party not being able to win, well, that’s not necessarily true, particularly when there are people that will work at fielding a viable candidate, a people that want to give America more choices than we’ve been given, but, stick around, this is far from over.
As I wrote on my blog, McCain could – if he goes further – win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.
Chet: Keyes is not a viable candidate. You may like him and appreciate his stand on the issues, but that’s not enough to win.
So ask yourself. Are you really that willing to see Obama elected?
Chet,
I have to agree with Mike here.
Unfortunately, Keyes will not receive the number of votes needed to defeat either McCain or Obam-uhh and ultimately every vote Keyes gets is one that McCain will not.
Remember Ross Perot? I voted for him and you see what happened. If he hadn’t been in the race, or if his voters had been smarter, we wouldn’t have had Clintoon. (By the way, don’t hassle me over the Perot vote…I was far, far to young and naive to know any better.)
I, too, like Keyes’ message. I like Barr on a lot of things as well, but neither will be the ultimate winner in November and supporting them in the voting booth will simply roll the carpet out for Obam-uhh.
I agree with most here that judicial appointments… a reality for the next POTUS… are important. I am, however, reticient to bet on either the majority candidates’ choices. And, in fact as Dave Noble is quite right. Three of the concurring justices were GOP appointees.
Uh, that helped us how? LOL
What would be a grave danger is to swing the court balance to either side too heavily. Neither should be in absolute control, as this country has always been more proficient, efficient and well represented with healthy dissent. And with either POTUS appointees, we should be screaming at our Congress to insure balanced representation of the spectrum of beliefs in this country.
Dave Nobel… the traditional approach to handling foreign detainees held outside of the US is Johnson v Eisentrager, which is linked in my “The Road to” post. Since you’re reading up on this, you may also want to read thru this Harvard Law Review article by Richard Fallon and Daniel Meltzer. Starting on pg 27 of the PDF is relevant.
Mata,
I’ve been reading off and on today, when taking a break from the heat outside, and I keep coming back to the Exception Clause as my sticking point.
The Justices seemed to have completely glossed right over that in their ruling.
To me, and to virtually all of the authors that I have read today, that clause should have stopped the Court from even hearing the case.
Have you come up with anything today?
(We may want to go back to the original thread so that this stuff is all in one place.)
With regard to combatant status (#7), those standards have been set by the Geneva Convention and the US Law of Land Warfare. ChrisG, on more than one occasion, has written on these standards and how they are applied. Those enemy combatants captured on the battlefield are not entitled to constitutional protections. And, while these enemy combatants do not wear a uniform and do not represent an enemy nation, they are not entitled to prisoner of war status. As enemy combatants, nonetheless, are treated much in the same manner as EPWs (enemy prisoner of war). In general, most enemy combatants are classified as unlawful combatants because they act outside and violate the rules of war. The impact of this decision remains to be seen in the long term, it clearly tosses aside the GC and Law of Land Warfare in favor of some unknown, undefined standard.
I like Keyes, his speeches are dynamic, but he ran an inept Senate campaign in Illinois, it was embarassing and now Obama is my Senator. It is not helpful for him to be in this race either.
I can handle voting for someone or something I believe in, even if a liberal like Obama gets into office, because I know I would have done all I can to keep him out of office. What I couldn’t handle is voting for someone or something I know is wrong for this country, which conceivably could do as much damage (if not more), than the liberal candidate.
If all McCain has going for him is that he’s promised to appoint conservative judges, and he has a proven track record of being a maverick or turning his back on those you would think he’d be supporting, a people would be doing irreparable damage to our country by placing him in a position to do just that.
No, I want a person in there that supports the Constitution, that supports the Declaration of Independence, that I know will appoint conservative judges, that will protect the unborn rather than turning it over to the states to make that decision, that will protect the family, and will do all that he possibly can to protect this nation militarily. There are no such guarantees with or in the two we’ve been handed.
The folks at Self Government have been working hard at giving this nation an alternative to no alternative. We’re working hard at presenting an alternative to the GOP, which for all practical purposes has morphed into the DNC, a place where true conservatives can group or regroup, and plan a strategy for taking back America.
#17 – Actually Missy, Keyes ran a great campaign in Illinois. He won every debate he entered. He just wasn’t given a fair shake.
No, the only one(s) to lose in Illinois, are the people of that great state where I was born.
Well Chet, I’ve lived in Illinois for almost 60 years and worked as a campaign coordinator for my very conservative Republican congressman during that election. Keyes was easily distracted by the press and they took advantage of his rambling, unfortunately, we did a lot of wincing at the time.
He’s an impressive values speaker, but lacked the discipline needed to campaign, especially in a very blue state in a three month time frame.
Never been a fan of Zorn, but much of what he wrote in this article is true:
http://blogs.chicagotribune.com/news_columnists_ezorn/2005/11/column_gone_and.html
Actually, the thought that a vote for Ambassador Alan Keyes, or any other third party or Independent candidate being a wasted vote is wrong.
It’s a grand lie repeated over and over by party political machines, but; it’s as false as a three dollar bill.
The only truly wasted vote is a vote cast by a voter for the Democratic or Republican candidate in a decidedly red or blue state where the vote obviously wont make a difference in the outcome and doesn’t really represent the voters conscience.
http://www.electoral-vote.com/
When you vote for a candidate you make a covenant bond with that person to be your representative. If you covenant with a person who doesn’t represent you in a representative form of government; you get no representation and deny the candidate that does represent you of having a voice and or mandate as your representative.
There are 6 states where the presidential race is entirely up for grabs. In those six states conservatives and pro life voters can compromise their beliefs and convictions hoping to get Senator John the Neo-Con elected and hope his newly found conservative talk doesn’t take the Republican Party so far left the Republican Party will never feel the need to seek the conservative and pro life voting base again should he actually be elected.
John McCain won’t have any coattails, will have a Democratic Party led Congress & Senate thanks to the lack of Bush Jr coattails, and if elected president will have voters hating the Republican Party in 2012. This may be a case of needing to lose a battle to win a war. If Obama wins the presidency then voters will be angry at the democratic Party for not delivering on their promises, especially the one where democratic Party candidates in 2006 said they were bringing the troops home now. According to polls, that promise is still high on the peoples minds.
Ironically; more than 50% of the conservative base decided not to vote in the Republican Primary this time around. They didn’t follow Pat Roberston to Rudy Guiliani in the compromise for judicial appointments. They didn’t follow any of the endorsers to newly declared conservative Mitt Romney. They didn’t even follow George Bush Jr to embrace Bush’s hated enemy of 2000 John McCain. They will most likely continue following Dr James Dobson who last said “I will not vote for John McCain”.
It’s not a matter of whether conservatives can be moved to vote for left leaning John the Republican’s favorite son neo-con. They won’t. Conservatives are firmly convinced in their convictions and will not waiver. It’s just a matter of whether or not they will know there are conservatives on the ballot they can vote for and that by voting Independent or third party it can give them a voice or even a mandate depending on the outcome of the vote stats.
For those who think they will get judges appointed by McCain that are conservative, pro life and will overturn Roe vs Wade; if you couldn’t get conservative, pro life, Christian President George Bush Jr with a Republican House & Senate to use an executive order to overturn Roe & Doe; what makes you think that Bush’s arch nemesis of the left will grant your three wishes with a Democratic led House & Senate as he reaches across the fence to get things done?
We all know that Roe vs Wade was nothing but a sham of lies by NARAL (as testified to by NARAL founder Dr Bernard Nathanson) and Norma McCorvey (Jane Doe). Bush could have used the signing statements he racked up more of than all the other presidents combined bypassing Constitutional checks & Balances and or an executive order to overturn Roe. McCain is far left of the Bush family.
My family and I will be voting outside the lesser of two evils. Abstaining from all appearances of evil is our motto this election year. As Ambassadors of Christ we just don’t think we can represent our Creator by covenanting with John McCain. We live in a decidedly red state anyway and want our vote to empower conservative issues and views so that we have a voice in what happens from now through the 2012 elections.
Vote your conscience. If you follow the masses its like being a sled dog. Unless you are the leader out in front; the view always remains the same.