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The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.

 
PACNWguy
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The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
The Supreme Court Goes to War
By JOHN YOO
June 17, 2008; Page A23

Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.


First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.

The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

Judicial modesty, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.

President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.

Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.

The Boumediene majority has two hopes for getting away with its brazen power grab. It assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.

Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.

Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He was an official in the Justice Department from 2001-03.

justice
OBAMA - THE FASTEST FAILED PRESIDENT IN AMERICAN HISTORY

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PACNWguy  (OP)

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06/17/2008 12:30 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
'It Will Almost Certainly Cause More Americans to Be Killed'
By Joel J. Sprayregen

The Supreme Court's 5-4 ruling last week means that terrorism detainees captured overseas have the same rights as U.S. citizens facing shoplifting trials at home. This unprecedented expansion of habeas was not a victory, as liberal media smirked, over the President. It was a judicial nullification of procedures carefulyy crafted by both elected branches of Government of procedures carefully tailored to allow review of detentions while remaining mindful of the terrorist threat.

The smallest of majorities is disregarding judicial history and pretending we live in a world where captured deadly enemies can be granted an advantage, without it affecting the likelihood of victory. I can't say it better than Justice Scalia:

“America is at war with radical Islamists. The enemy began by killing Americans abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole. On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon and 10 in Pennsylvania… It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane, to know the threat is serious… Last week, 13 of our countrymen in arms were killed.”

Scalia, the smartest justice, alone foresaw that the Special Counsel Law would lead to the embarrassment of the Clinton impeachment proceedings. In his dissent last Friday, he addressed a far more serious issue:

Congress Establishes Procedures; the Court Defines the Military’s Mission

In its 2004 Hamdi decision, the Court invited Congress to establish procedures for detainees. Laws, including the 2005 Detainee Treatment Act (DTA), provide hearings on legality of detention before a Combatant Status Review Tribunal (CSRT), followed by review in the U.S. Court of Appeals for the District of Columbia. A bi-partisan Congress (by 65 to 34 in the Senate) mandated that the 270 Guantanamo detainees are not free to avoid these procedures by filing habeas petitions in whatever federal district court they choose. Centralizing court review of life-and-death cases to achieve consistency of rulings in one Appeals Court -- rather than letting leftist lawyers seek out friendly habeas judges in 50 states before a CSRT could review the evidence -- was the heart of the law.

The Court invalidated the law because it found

"…no credible arguments that the military mission would be compromised if habeas courts had jurisdiction to hear detainees' claims."

It is difficult to fault Scalia's riposte:

"What competence does the Court have to second-guess the judgment of Congress and President on such a point?"

Scalia detailed how prisoners released from Guantanamo -- because they were not considered combatants -- had returned to murder Americans and our allies. Scalia is foreseeably correct in concluding that the decision "will almost certainly cause more Americans to be killed."

The Court is basing its decision -- disregarding two centuries of decisions holding that habeas is unavailable to aliens captured abroad -- on the fact that Gitmo is "functionally" under U.S. control. But so are U.S. bases in Afghanistan and Iraq.

Terrorists captured there are now invited immediately to compel our military to reveal its basis for detentions; this is the meaning of habeas. It gets worse. Justice Kennedy explained in invalidating the DTA -- which provides wider access to Government evidence than the Geneva Convention – that

"the detainee’s ability to rebut the Government's evidence is limited by the circumstances of his confinement and his lack of counsel at this stage."

If you do not comprehend that the ACLU and its fellow revelers are preparing petitions in blank to seek -- on behalf of every terrorist captured overseas -- to compel the Government immediately to disclose its evidence, then you understand nothing.

Chief Justice Roberts pointed out in his dissent what the Court is opening the door to:

"free access to classified information ignores the risk the prisoner may convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee."

Roberts noted that our troops are not equipped to handle subpoenas on the battlefield. Information given to defense lawyers in the first World Trade Towers trial on a restricted basis quickly appeared on al-Jazeera.

The alleged shoplifter at a suburban mall is entitled to see the prosecution's file because she needs it to defend herself. The terrorist wants his file so he can arrange to slit the throats of intelligence operatives and informants. The Court's decision undermines that result.

Our country is doing better against terrorists than against shoplifters: Commentators of varied persuasions are observing that the Islamists have been deterred form launching a second terror strike against our home front.

Jackson’s Warning: Don’t Convert the Bill of Rights into a Suicide Pact

The late Justice Robert H. Jackson -- who grew up in Frewsburg and lawyered in Jamestown -- exemplified the patriotic canniness found in rural New York since the days of Fort Ticonderoga. His worldview was shaped by experience as Chief War Crimes Prosecutor at Nuremburg. In a 1950 opinion -- tossed into the dustbin of history last week -- Jackson denied habeas to a Nazi prisoner because there had been

"no instance where a court has issued habeas corpus to an alien enemy who...has never been within its territorial jurisdiction."

Ponder Jackson's admonition in a free speech case:

"If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact."

Joel Sprayregen was General Counsel of the Illinois ACLU until the late 1960s. Today, dedicates his pro bono time to think tanks protecting our national security.
OBAMA - THE FASTEST FAILED PRESIDENT IN AMERICAN HISTORY

"I inherated and I am Great!"
Wul

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06/17/2008 12:31 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Just try them in an official court where they committed their crimes!



No, wait a minute?

They were kidnapped at gunpoint and tortured to get confessions to crimes they may not have committed.

Fascist...
Anonymous Coward
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06/17/2008 12:32 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Um, Fuck you and BUSH TOO!!
Anonymous Coward
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06/17/2008 12:33 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Bloody hell.

How do you plan to prove or disprove that someone is guilty of planning or committing "terrorist" acts if you do not hold a trial for them?????

Answer, Pacnfudge...

Because as I see it, those kind of prisoners are nothing more than concentration camps rather similar to the ones that Hitler was using.
Sinanju
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06/17/2008 12:37 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Bloody hell.

How do you plan to prove or disprove that someone is guilty of planning or committing "terrorist" acts if you do not hold a trial for them?????

Answer, Pacnfudge...

Because as I see it, those kind of prisoners are nothing more than concentration camps rather similar to the ones that Hitler was using.
 Quoting: Anonymous Coward 327403


>>Similar to the concentration camps?

Are you fucking serious?

What a bunch of mealy mouthed pansies you fucking morons are!
Sinanju
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06/17/2008 12:38 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
"But however hard he lobbies the gatekeepers of memory, he will surely be judged the worst president the United States has ever had."

>>That was said about Lincoln and Washington as well.. how did that turn out for them?

You historical perspective is calling... it misses you!
Anonymous Coward
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06/17/2008 12:39 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
John Yoo is a known war criminal and zionist sympathiser.

Be afraid.

Very afraid.

John Yoo sez BOO!
Anonymous Coward
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06/17/2008 12:40 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
How do you plan to prove or disprove that someone is guilty of planning or committing "terrorist" acts if you do not hold a trial for them?????
 Quoting: Anonymous Coward 327403


That's the essential problem that PACNazi can't seem to wrap his little mind around. By saying "The terrorists will be given the same rights as a US citizen accused of shoplifting", you can see the problem. It assumes that they are terrorists before any sort of trial.

The PACNazi needs to pick up some Kafka and read it.
Anonymous Coward
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06/17/2008 12:42 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
IF GUYS LIKE YOO ARE SO UNHAPPY WITH THE US CONSTITUTION AND THE RIGHTS OF THE CITIZENRY TO LIVE IN A NATION OF LAWS, WHY DON'T THEY POOL ALL THEIR PROFITS FROM KBR, HALLIBURTON AND EXXON AND BUY THEIR OWN DAMN COUNTRY AND DO WHATEVER THEY WANT?

IT'S CALLED HABEUS CORPUS, YOU UNGRATEFUL GOOK. LOOK IT UP.
Sinanju
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06/17/2008 12:42 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
"That's the essential problem that PACNazi can't seem to wrap his little mind around. By saying "The terrorists will be given the same rights as a US citizen accused of shoplifting", you can see the problem. It assumes that they are terrorists before any sort of trial.

The PACNazi needs to pick up some Kafka and read it."

>>The rights of US citizens should be reserved for US citizens. Try them if you like.. but use their own laws or the laws of the countries they were grabbed in... then we can bury them to their necks and stone them on TV.
PACNWguy  (OP)

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06/17/2008 12:42 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Roberts noted that "our troops are not equipped to handle subpoenas on the battlefield".

"Dont turn the bill of rights into a suicide pact."

Great quotes.
OBAMA - THE FASTEST FAILED PRESIDENT IN AMERICAN HISTORY

"I inherated and I am Great!"
Anonymous Coward
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06/17/2008 12:50 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Roberts noted that "our troops are not equipped to handle subpoenas on the battlefield".

"Dont turn the bill of rights into a suicide pact."

Great quotes.
 Quoting: PACNWguy


Do you know of any of our troops handling subpoenas on the battlefield, Mr. Fascist? No. These troops did their job. They captured the enemy. The enemy has been whisked away many thousands of miles away to a camp where they've been in legal limbo for nearly 6 years.

Your Bill of Rights quote is telling. You wouldn't fight to keep them sacred. Indeed, you obviously believe they are not rights at all. They're just statements that can be discarded from some worthless piece of paper, right?

You sicken me.
Anonymous Coward
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06/17/2008 12:52 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
The supreme court is at war with an imbecile president, more like it.

The supreme court cuts through the bullshit to protect the constitution.
Anonymous Coward
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06/17/2008 12:53 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
>>The rights of US citizens should be reserved for US citizens. Try them if you like.. but use their own laws or the laws of the countries they were grabbed in... then we can bury them to their necks and stone them on TV.
 Quoting: Sinanju 449318


The US Constitution doesn't limit the government's actions only with regard to Citizens. Indeed, when the Constitution wants to limit things only to Citizens, it specifically says as much. And it says no such thing with regard to habeas corpus.
Anonymous Coward
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06/17/2008 12:56 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Remember ya'll

Fudge packer makes 250,000 a year and was bitching about having to pay higher taxes because of it. Hell he was bitching about the fact that he can't live off of 250,000 a year. He is a true dyed in the blue selfish, snotty, wannabe rich guy. Just to put things in perspective here as long as it doesn't affect his bottom line he could care less. He is also brainwashed and believes that Emmanuel Goldstein is over there waiting to kill us. WE know where the real terrorists have been for the last 8 years.
LouisWinthorpeIII

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06/17/2008 12:57 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
wow your ignorance of the constitution is staggering.

Now you are telling me you wouldn’t have extended any rights for the NAZI’s your government brought over in the 1940’s?

LOL give me a break.
"I don't know which was scarier...the speech...or the Congress cheering it. He evoked Lincoln. Whenever a President is going to get us into serious trouble...they always use Lincoln."
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loosecannon

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06/17/2008 12:58 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
your article was hugely intellectually dishonest.

It failed to mention that the state of "war" we presently assume is one intended to be perpetual.

It also failed to account for the fact that it actually is long established precedent to afford habeas corpus to people within the jurisdiction of US territories.

It also failed to mention that the detaineees are being denied POW status which is requisite US law.

It also failed to mention that article 9 expressly forbids congress to legislate denial of habeas corpus except in cases of invasion or rebellion.
Sinanju
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06/17/2008 01:07 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
"The US Constitution doesn't limit the government's actions only with regard to Citizens. Indeed, when the Constitution wants to limit things only to Citizens, it specifically says as much. And it says no such thing with regard to habeas corpus."

>>The tenth amendment is ignored daily. But when it comes to the 'rights' of scumbag foreign nationals... you guys LOVE to trot out Habeas Corpus.

Ain't that funny!

You want to argue for enforcing the constitution and bill of rights.. start with the tenth and we can work from there. But then, you couldn't advocate killing unborn children... oh, the dilemma you must face!
Anonymous Coward
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06/17/2008 01:07 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
This is why Bush thought he had power to erase(suspend) Habeas corpus...

Kinda like Packy wished that there was no god damned piece of paper to follow, just like they all wish.


It also failed to mention that article 9 expressly forbids congress to legislate denial of habeas corpus except in cases of invasion or rebellion.
 Quoting: loosecannon
Anonymous Coward
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06/17/2008 01:10 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
is that the SAME JOHN YOO who says the president CAN TORTURE CHILDREN if he feels the need?
Anonymous Coward
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06/17/2008 01:13 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
The price of freedom is heavy Pack.

we are going to pay for our freedom through death of part of ourselves.

There is no getting away from it.

That has been going on since the time of the founding of this country, so what is the great concern NOW???

Freedom costs lives!
Anonymous Coward
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06/17/2008 01:19 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
You want to argue for enforcing the constitution and bill of rights.. start with the tenth and we can work from there. But then, you couldn't advocate killing unborn children... oh, the dilemma you must face!
 Quoting: Sinanju 449318


I don't advocate killing unborn children. I am 100% anti-abortion, even in cases of rape and incest -- as I can't see the logic in killing a child for the crimes of its father.

So stick that in your pipe and smoke it.
Anonymous Coward
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06/17/2008 01:22 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
is that the SAME JOHN YOO who says the president CAN TORTURE CHILDREN if he feels the need?
 Quoting: Anonymous Coward 453482

Yep, that's the same piece of scum.
Anonymous Coward
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06/17/2008 01:22 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
is that the SAME JOHN YOO who says the president CAN TORTURE CHILDREN if he feels the need?
 Quoting: Anonymous Coward 453482

answer op
Anonymous Coward
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06/17/2008 01:23 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
is that the SAME JOHN YOO who says the president CAN TORTURE CHILDREN if he feels the need?

Yep, that's the same piece of scum.
 Quoting: Anonymous Coward 447146

thought so thanks
Anonymous Coward
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06/17/2008 01:25 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
John Yoo is a known war criminal and zionist sympathiser.


 Quoting: Anonymous Coward 453447



+ 1
Anonymous Coward
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06/17/2008 01:28 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
Truth is that Packy would find out rather quickly why we do have or want a dictator in this country, something he roots on a daily basis.
is that the SAME JOHN YOO who says the president CAN TORTURE CHILDREN if he feels the need?

Yep, that's the same piece of scum.

thought so thanks
 Quoting: Anonymous Coward 453482
Sinanju
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06/17/2008 01:29 PM
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"I don't advocate killing unborn children. I am 100% anti-abortion, even in cases of rape and incest -- as I can't see the logic in killing a child for the crimes of its father.

So stick that in your pipe and smoke it."

>>So, I take it that you are an advocate for the tenth amendment? Even in the cases of southern segregation?
Anonymous Coward
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06/17/2008 01:31 PM
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
"I don't advocate killing unborn children. I am 100% anti-abortion, even in cases of rape and incest -- as I can't see the logic in killing a child for the crimes of its father.

So stick that in your pipe and smoke it."

>>So, I take it that you are an advocate for the tenth amendment? Even in the cases of southern segregation?
 Quoting: Sinanju 449318

I take it that you are an advocate of crushing the testicles of a small cildZ?
Anonymous Coward
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Re: The Supreme Court Goes to WAR with the US and how their decision will cause more Americans to be killed.
*child