Justice Anthony Kennedy saves America
Supreme Court upholds habeas corpus
Justice Anthony Kennedy saves America
Yup, the Senate knew what it was doing in 1987 when it blocked extremist Robert Bork from the Supreme Court and triggered the chain of events that led Ronald Reagan to appoint more sensible moderate Anthony Kennedy. Today, it was Kennedy who stepped forward to rule that the U.S. Constitution can't be shredded and tossed away in the name of a war on terror:
WASHINGTON - The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba.
Kennedy was the swing vote, wrote the majority opinion, and penned these words (PDF file) that ought to be tattooed on the forearms of Bush and Cheney when they're shown the door in January:
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
Someone alert Rush Limbaugh: Five Stalinist wackos are on the loose in the nation's capital!
Comments (110)
"The Framers also decided that habeas corpus could be suspended during times of invasion or insurrection. I guess Kennedy missed that section of the Constitution when researching his decision." ---- No, he didn't miss that section. You missed the fact that the MCA is not a proper substitute for; or a formal suspension of, habeas, as required by the Constitution (see pg 42.. you did read the ruling, right?). What's most chilling here, IMO, is Scalia's dissent. He begins with a rather odd bit about how "America is at war with radical Islamists". He also declares that Iraq is part of this battle. He then claims that the Court's decision will actually harm detainees, because they may now be transferred to facilities or countries that are not as nice as Guantanamo. To Scalia, the fact that some people released from Guantanamo (by the military, not courts) have returned to the battlefield apparently justifies setting a low bar for keeping people detained. He finishes by saying "The nation will live to regret what the Court has done today." Shorter Scalia: Because bad men exist, we should ignore our laws.— Politburo
"Thesis question du Jour: Where in the Constitution, either express or implied, is the notion that it applies to non-citizens?".........You won't find it in the Constitution. Because it's silent on that issue, you necessarily have to assume that the Framers intended to adopt habeus corpus as it existed in the English common law at the time. Habeus corpus applied to all persons detained by the crown, even foreigners, in English common law. The framers could have made an exception for foreigners if that was their intention, but they didn't.- JC, I'll answer your second question first - it saves America by preventing us from destroying the principles that differentiate us from lesser nations. See, it's not our GNP, or our natural resources, or our constituent people, or our geography or any of that which has made us the preeminent country in the world for the last 150 years. It's our governing principles, established by the founders and based upon the balancing of individual rights and freedoms against the larger group structure. And as a populace who suffered through attempted and actual oppression, both religious and political/economic, the founders rightly concluded that freedom trumps security. I'm sorry you have no problem with holding prisoners for 6 years with no recourse to the law (although if you were in their shoes you might change that point of view) in the false name of "protecting America" - I do. An America that is no better than the fascist dictatorships found in the rest of the world isn't worth protecting. But an America whose commitment to individual and inalienable rights is unwavering is worth dying for. So, leave my rights intact, and I'll gladly take my chances of another terrorist attack, or a hijacked plane. Because then I can look my killer/capturer/whatever right in the face and say "you may kill me, but you will never change our way of life" As it is now, I can't do that - the terrorists have already succeeded in making GWB and his administration turn away from our core principles - we are less of a national not because a few thousand people died on 9/11 in NYC, but because our reaction to that event was exactly what the terrorists hoped it would be.— srmzeus11
- "...in this decision, Kennedy does a 180 and says that, despite all the processes put in place by DTA, its not enough."..... Because, the prisoners, some percentage of which were captured under dubious circumstances, have been for six years and would continue to be perhaps for their entire lifetime, without yesterday's decision, held without access to a lawyer or an opportunity to refute the charges against them - even under the DTA. The decision did not grant anyone a writ - only said that constitutionally, they should have the ability to have a habeas proceeding before a neutral fact-finder. You say that the court should have been satisfied with the protections granted by the DTA - but the fact remains that the DTA has been insufficient thus far to provide protection against six years of potentially wrongful imprisonment, and since under the DTA any proceedings could have a "do-over," there is no indication that the DTA was sufficient to prevent a lifetime of wrongful imprisonment. If you're concerned about someone ignoring the Constitution - perhaps you should read Scalia's opinion. He, essentially, said that Constitutional protections could be suspended because he feels that it's a certainty that some prisoners, for whom there was currently insufficient evidence to have a finding of guilt, can be held without due process for life because some of them would, undoubtedly kill an American at some point in the undetermined future. Wow. How anyone could read that guaranteeing a prisoner due process for a determination of guilt is unconstitutional is beyond me. But even more to the point, how anyone could say that that denying a prisoner due process is an open-shut case, and that there's no way that it is of debatable constitutionally, is just ridiculous.— Talking point sleuth
- "So tell me then how it was the more liberal justices on the court that voted for Kelo" . . . . . . . Actually, they followed SCOTUS precedent dating back to 1896 in defining "public use". This wasn't such a radical decision, really. It's the same legal principle that allowed railroads to be built in this country, utilities to run wires and pipelines across private property to their customers, build dams to generate power, governments to divert water from one private property to irrigate others, and so on. In other words, it's been vital to our economic growth and success to allow eminent domain takings from one private entity to another if intended to serve a broader public purpose. Ironically, the Kelo decision is the polar opposite of what you might consider "judicial activism", i.e., substituting the Court's political judgment for that of local elected officials or lawmakers. Why did the liberals on the Court go with the majority? I think they had to, given the precedent. I think the more salient question is why the conservatives were in a minority. Was it just political posturing, feeding off all the right wing angst surrounding the case?
- Thesis question du Jour: Where in the Constitution, either express or implied, is the notion that it applies to non-citizens? On a more basic level, maybe one of you bigbrained lefty blogger types can explain to all of us hayseeds in Bitterclingyland how this decision "saves America". By way of historical comparisons, you may wish to look at Woodrow Wilson (D)'s and Franklin Delano Roosevelt (D)'s evisceration of said constitution during their respective tenures.— JC Denton
- "...I will never, ever, ever, ever believe in democracy." Talk about the Hate America Crowd.— Captain Awesome
- "only that it reflected the majority's interpretation of constitutionality. That you don't agree with the interpretation doesn't mean that the majority (read: Kennedy) disregarded the constitution. Today, and in Kelo, each justice, no matter which side they fell out on, based their vote on their interpretation of constitutionality." Read O'Connor's dissent again - and it also is relevant in this case. Kennedy is fond of decisions that are little more than musings - in Kelo, he mused that, well, there were all kinds processes in place to protect abuse here, so we can overlook the Constitutional infringement. O'Connor said that the slippery slope will guarantee that next time, the processes will not be there and all that will be left is the infrigement. In this decision, Kennedy does a 180 and says that, despite all the processes put in place by DTA, its not enough. Even though, IMO, the issues in Kelo were far more stark Constitutionally - taking for public use in Kelo was truly stretching the basic historical understanding of the purpose of eminent domain, whereas in this case, enemy combatants exist in a truly grey area of international and Constitutional law. So Kennedy had no problem subverting the much more clear Constitutional tort of the targets of eminent domain in Kelo because there was process - but Kennedy saw the process in DTA insufficient to protect a much murkier claim of Constitutional coverage for enemy combatants here. In a nutshell, that is why I find him Constitutional citiation here problematic - he subverted a much clearer and more compelling Constitutional protection claim in Kelo.— db_cooper
- "You've been screwed out of your property by elites and corporations for over 200 years. Did you think it just started with Kelo? " So tell me then how it was the more liberal justices on the court that voted for Kelo - you know, the ones we'd normally think would be the ones supporting the little guy. And it was the likes of Scalia and Thomas who voted for property rights for the little guy. The perversion I see is that the liberal court members basically are allowing monied interests to legally gain powers that in the past were only possible through corruption and intimidation - in other words, it's OK if they do this as long as some local government gets some tax revenues out of it. And that is where IMO the left has gone wrong in recent years.— db_cooper
- "db, that's an interesting dissent by Roberts. He seems to lament the fact that the independent judiciary, instead of the Executive branch via the DTA," Roberts made one other interesting point, and IMO it is quite relevant given Kennedy's position as swing vote - that Kennedy seems concerned that the Supreme Court should be supreme not just over courts, but over the other two branches of government. Which is not what the Founders intended - and especially when one man, Kennedy, now basically is the one who decides which way many critical cases go. The decision did address the Suspension Clause over habeas corpus as well as well as jurisdictional issues over Gitmo. I will not pretend to follow the complete debate over those issues, as both sides did extensive citations of precedent and I'd have to wallow through those precedents, but I do lean towards the argument that the US has de jour sovereignty over Gitmo. But those are largely technical issues in this case - the Bush Admin did not ask to suspend habeas corpus, just that it technically did not apply to Gitmo. After mulling this overnight, I think SCOTUS overstepped by basically striking down DTA - it was an act passed by Congress and signed by the President. The issue of enemy combatants is about as murky and grey as they come - and IMO since the DTA gave many legal options to combatants, SCOTUS should have waited until it was tried and then decided whether the process was lacking. I look back to the initial round of lawsuits that were dismissed after the line item veto was passed - because Clinton had not exercised the line item veto yet, not one could claim harm or impact, and therefore SCOTUS had no standing to rule. Now I am more and more seeing SCOTUS acting premptively in cases, and I don't think that's a good thing - it puts them in more of a legislative role than a judicial one.— db_cooper
- Justice Anthony Kennedy saves America? And, yup, the Senate knew what it was doing in 1987 when it blocked "extremist" Robert Bork from the Supreme Court? Nonsense. No, double nonsense. Robert Bork was doubtlessly and arguably the most able jurist to come along in the entire twentieth century. His defeat was attributable to just one thing: the left wanted to maintain and defend legal abortion to the last extremity. What a sad and sorrowful monument to the left's notion of freedom: a pair of surgical scissors jammed into the skull of a preborn baby. In conservative circles, Bork's defeat will always be a true travesty and, I daresay, the primary reason why I will never, ever, ever, ever believe in democracy.— George Tomezsko
Comment removed.- I also find Sandra Day-O's dissent in Kelo to be an implicit repudiation of trickle-down economic theory. That's deliciously ironic, coming from a Reagan appointee.
- Db, I never said I agreed with Kelo (I certainly don't politically, and don't know enough about the legal aspects to really say consitutionaly, but I generally fall out in favor of deference to legislative powers) - only that it reflected the majority's interpretation of constitutionality. That you don't agree with the interpretation doesn't mean that the majority (read: Kennedy) disregarded the constitution. Today, and in Kelo, each justice, no matter which side they fell out on, based their vote on their interpretation of constitutionality.— Talking point sleuth
- "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result." Sandra Day O'Connor, in her Kelo dissent.....................Certainly not! And the Founders didn't intend slavery to continue either, I suppose. Kelo is a wake-up call, America. You've been screwed out of your property by elites and corporations for over 200 years. Did you think it just started with Kelo? Jeez, at least New London had to compensate for it. That's more than can be said for the raping of poor West Virginians' lands - without compensation - by coal barons since the industrial revolution, all under the auspices of state and local government zoning laws and permits, and legislative foreclosure of redress.
- Coming soon to a cable channel near you: W Bunch as a time-filling talking head.— shoeshineboy
- db, that's an interesting dissent by Roberts. He seems to lament the fact that the independent judiciary, instead of the Executive branch via the DTA, will have to do address habeus relief in the future on a case by case basis. He ignores the fact that without independent judicial review of the legal basis for detention by the executive branch, the writ of habeus corpus is essentially meaningless.
- Well, TPD, maybe you'd listen to another SCOTUS justice rip into Kennedy over Kelo: "The Court also puts special emphasis on facts peculiar to this case: The NLDC’s plan is the product of a relatively careful deliberative process; it proposes to use eminent domain for a multipart, integrated plan rather than for isolated property transfer; it promises an array of incidental benefits (even aesthetic ones), not just increased tax revenue; it comes on the heels of a legislative determination that New London is a depressed municipality. See, e.g., ante, at 16 (“[A] one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case”). Justice Kennedy, too, takes great comfort in these facts. Ante, at 4 (concurring opinion). But none has legal significance to blunt the force of today’s holding. If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice Kennedy’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one… Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result." Sandra Day O'Connor, in her Kelo dissent.— db_cooper
- Robert's dissent continued: This whole approach is misguided. It is also fruitless. How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners’ detention with the undoubted need to protect the American people from the terrorist threat—precisely the challenge Congress undertook in drafting the DTA. All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. ------------ Basically, there are two key parts to this decision. Was Gitmo exempt from the reach of Constitutional protections? That is a very arcane and technical part of the decision. But the broader issue is that the majority also ruled on the provisions of the Detainee Treatment Act of 2005 without the process every having been fully or anywhere near fully utilized. And as Roberts noted, Congress has the power to pass legislation such as the DTA, and, given that Congress does have the power to suspend habeas corpus, SCOTUS should have given Congress a fair amount of leeway to decide how these cases should have been handled. So in the end, the only real rebuke of the Bush Admin that I can see is their contention that Gitmo is outside Constitutional jurisdiction. But SCOTUS also shot down a duly passed Congressional law as well.— db_cooper
- Here is the meat of Robert's dissent: The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus—its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. I nonetheless agree with JUSTICE SCALIA’s analysis of our precedents and the pertinent history of the writ, and accordingly join his dissent. The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ’s scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called “habeas” or something else. Congress entrusted that threshold question in the first instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742. But before the D. C. Circuit has addressed the issue, the Court cashiers the statute, and without answering this critical threshold question itself. The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an “adequate substitute” for habeas, ante, at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by case basis. -- continued in next post— db_cooper
- "am questioning how the likes of Kennedy can wrap the Constitution around his shoulders in this case after trampling all over it by siding with the majority in Kelo...." His job is to wrap himself in the constitution. On what basis should he make a decision if not interpretation of the constitution? Obviously, your opinion notwithstanding, he made his decision in Kelo based on his interpretation of constitutionality. So it's not like he's referring to the constitution on this case after disregarding it in Kelo. This goes back to a basic difference we have. I say that by definition, everyone interprets the constitution based on how one's life experiences shape how we interpret language and judge what the founders may or may not have intended or how they would react to events they couldn't foresee or exactly to what degree we might or might not modify constitutionality in light of subsequent developments. You, on the other hand, say that there is only one way to interpret language, founding intent, how the founders would react to unforeseen events and what might or not be modified - and that, coincidentally, it just happens to align with your interpretation and political ideology. And what I get least about that perspective is that obviously, in creating a Supreme Court, the founders recognized that their words/intent/reactions would need to be interpreted by others through a shared process of subjective experience and analysis.— Talking point sleuth
- And there is one other key problem with this ruling. The majority basically struck down the procedures set in the DTA for enemy combatants to appeal their designation and their confinement. But no enemy combatant had availed themselves of the process first and then appealed to say that the process was inadequate and therefore habeas corpus should come into play. Basically, in reading the decision, the majority pre-emptively struck down the tribunal process as inadequate before it had even been tried, which is a rather unusual approach to jurisprudence.— db_cooper
- "On the one hand, he agrees with the outcome, but on the other, seems to see it as based in a misreading of the constitution, and questions a sitting a SC justice's standing to interpret the constitution." TPD, I am questioning how the likes of Kennedy can wrap the Constitution around his shoulders in this case after trampling all over it by siding with the majority in Kelo. I also take issue with his citing the Founders over habeas corpus as something absolute when the founders put deliberate exceptions for habeas corpus in the Constitution. And third, Quirin was not the end of the Republic, and neither will be Gitmo. That is being melodramatic on both the part of Kennedy and Will.— db_cooper
- about 7 1/2 years to late...but better late than never...— yellowdog
- The Framers also decided that habeas corpus could be suspended during times of invasion or insurrection. I guess Kennedy missed that section of the Constitution when researching his decision. poste by db cooper.....9/11 was NOT an invasion or an insurrection. No country invaded us on that day... just a few cowards trying to change our way of life. Well, it's apparently working....people like OBL hate our freedoms and are rejoicing that they have been curtailed at least in a small way. Bush/Cheney played right into their hands. Mission Accomplished!— James TL
- Yeah. Now that I've looked at db's comment again, I don't see how it is cogent. On the one hand, he agrees with the outcome, but on the other, seems to see it as based in a misreading of the constitution, and questions a sitting a SC justice's standing to interpret the constitution.— Talking point sleuth
- TPS, I thought db was basically in agreement with it, but thought it had (or should have) limited scope. It wasn't clear to me why. The decision settled the issue of whether aliens have the right to seek the writ, and also the issue of whether it's applicable in Gitmo, insofar as Gitmo is not a state or territory. No one is saying that the decision alters the right to suspend the writ under the exception(s) carved out in the constitution. db did little to advance an argument that either of those exceptions are met at this time.
- I think that db has a cogent argument on the context of the decision - (although I've found that his concern about precedent and judicial activism tends to vary according to the political implications of SC decisions). But I generally have more a view of the constitution as a "living document" than he does, and as someone who works in a field related to how people interpret language differently, I don't believe that there is any such thing as "objective" interpretation of the language of the constitution. On the other hand, your 4:56 comment on the historical context for suspending habeas was very cogent - and goes a long way to explaining the merit of today's decision.— Talking point sleuth
- TPS, I've yet to see a cogent argument here that the Supreme Court was wrong today, have you? Sheesh, you'd think they'd read the dissenting opinion if they seriously cared. Oh, but that would require thinking, I guess, and the last thing fascists want is people to think. They'd rather have them constantly in fear by showing video of the 9/11 attacks twice a day.
- And MNH weighs in to tell us that Will wants all his friends and family to die at the hands of Islamic terrorists. Where would we be without such valuable insight?— Talking point sleuth
- Allah spaketh through his prophet Will The Shill Bunch and sayeth "Let my terrorists go!". Then he sent his only son, Baraq Hussein The Obama-ssiah, to save the world!— MiddleNameHussein
- More proof that history judged FDR "kindly" for suspending Habeas ..." In 1988, Congress passed and President Ronald Reagan signed legislation which apologized for the internment on behalf of the U.S. government. The legislation stated that government actions were based on "race prejudice, war hysteria, and a failure of political leadership". $1.6 billion in reparations were later disbursed by the U.S. government to surviving internees and their heirs...."— Talking point sleuth
- Srmzeus, you have hit it right on. After the Civil War the Republicans won elections for years by what was called "waving the bloody shirt", i.e. of those who died on the Union side in the Civil War, reducing a valiant effort to a campaign gimmick justifying incompetence and corruption. Now they do the same thing with 9/11 - turning a genuine tragedy into a campaign gimmick that justifies incompetence and corruption. The first time they got away with it for 20 years. This time it isn't going to last as long.— what is truth?
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- Ok now. Let's see. The Supreme Court rules the Bush administration violated the constitution? For the third time? No problem - 5/4 of the SC are Stalinists. Oh, and by the way, as further analysis of the SC decision, I forgot to mention that Obama is a Muslim. And did I mention that Obama is a Muslim? And oh yeah, some more SC analysis: Reverend Wright, Reverend Wright. Reverend Wright.— Talking point sleuth
- "The question is, why did Lincoln and FDR...and Bush, suspend Habeus Corpus?"...............Well, Lincoln suspended it based on the exception for "insurrection", duh, the Civil War. SCOTUS disagreed with Lincoln, but solely on the belief that only Congress can suspend the writ, not the President. FDR never suspended the writ. In fact, the Qirin case was decided after one of the Germans filed for, and got a habeus corpus hearing. Bush has not suspended the writ either, but with the help of Congress has tried to get around it by creating extra-constitutional limitations, which as the case today determined, are unconstitutional. Bush could try to suspend the writ by declaration, just as Lincoln did, but that would raise the whole issue of which branch of government can do so, and the last thing Bush can afford to do is risk the Supreme Court's rebuff of his expansive theory of executive power.
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- Oh, come on Talking Sleuth.....don't try and bring facts into a discussion with a fanatic like Xi Hah....you'll just confuse him... I mean, it's obvious that Bush has done as much to advance this country as Lincoln or FDR, and therefore should be accorded the same favorable historical account...for validation, just look to the rest of the world and how we are viewed compared to before GWB came to power.— srmzeus11
- History has judged Roosevelt kindly for interning innocent Japanese? Really? No bias in that interpretation of history's judgment. Nosiree. Perhaps, Xi Jah, history may have judged Roosevelt kindly because outside of some moves he made which are clearly judged unfavorably, he contributed much good to the American public. You know, like instituting sweeping and decisive policies that pulled us out of a depression, or mobilized the masses to make sacrifices in an effort to fight off an existential threat? True, Bush has implemented some sweeping and decisive policies as well - he did quit golf a while back (after playing a few extra rounds, of course).— Talking point sleuth
- Xi Jah - Why have we made such a big deal out of 9/11? Why must I now be inconvenienced at the airport every week when I fly? Why must I wonder if my phone is being listened to secretly by government intelligence? Why must I disclose personal information for unrelated purposes under the Patriot Act in order to prove I am myself? The 9/11 attack was a tragedy, without a doubt. But it resulted in the loss of life of a few thousand americans - we have blown this totally out of proportion. Thankfully, the SCOTUS did not allow Bin Laden to succeed in destroying the very foundation of what makes this country as great as it is...although it has been damaged by the actions of GWB and his administration. The civil liberties of individuals are worth more than a few thousand american lives - why would you want their deaths to be for nothing? I'd rather take my chances dying in a terrorist attack or on a hijacked plane WITH my rights intact than live a long life under the thumb of a totalitarian society that prevents me from enjoying the freedoms this country was founded on and which seperates us from most of the rest of the world. As the famous line goes "Give me liberty or give me death" - I guess you'd gladly exchange those liberties for protection - but I'm not as weak and scared as you, so I refuse to...— srmzeus11
- Speaking of activist judges, it should be noted that the Kelo decision is a perfect example of Judges deferring to legislative intent rather than substituting their own personal judgment.
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- As predicted, the sycophants weigh in to tell us how in their opinion, 5/4 of the SC aren't simply wrong in their interpretation of the constitution. No. In fact, they tell us, 5/4 of the SC are communists and terrorist sympathizers who are more concerned about minor infractions against murderous terrorists than they are about protecting Americans from harm. Nary a conservative weighs in to express concern that the judicial body empowered by the constitution to decide constitutional matters has said, for the third time, that the administration they voted into office has violated the constitution: not once, not twice, but three times.
And db, since you're so concerned about precedent being upheld, I assume that you're equally upset about the numerous times that the conservative members of the SC rule against precedent? Or, maybe, the term "activist judges" only applies to "liberals?" — Talking point sleuth - WBunch: Saving the world, one geeky blog post at a time. I am a Citizen First.— shoeshineboy
- "montani semper liberi: My point is that liberals tend to forget their own history in their rush to point fingers at the current administration and declare their moral superiority."..........................jmc, I was young at the time, but I don't recall liberals defending the war in Vietnam while millions of conservatives rioted on campuses and marched on the Pentagon against it. Try again.
- "The problem I have is with Kennedy and Will acting like this was this huge, sweeping affirmation of the Founders and the Constitution." Well, people may see it as a sweeping affirmation since many accuse the Bush administration of shredding the Constitution over the last seven-plus years. But whatever....I don't disagree with you about the Kelo decision.— Captain Awesome
AHiredGun : In the post I was responding to, McVeigh was being equated with everyone on the right, including conservatives like myself. That's the same as if I implicate all of those on the left with the crimes of Communism. I'm sorry for you loss, but your contempt is misplaced.— jmc- Comment removed.
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- "I'm firmly convinced we should open and close every day with footage of the jets knocking down the twin towers....we have amazingly short memories in this country....the attention span of 2nd graders." ...................... That's a rather elitist, American-hating comment, Xi. You want to elaborate?
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- montani semper liberi: My point is that liberals tend to forget their own history in their rush to point fingers at the current administration and declare their moral superiority. If liberals are so morally superior, how come there are 58,000 names on the Vietnam War Memorial and tens of thousands of American citizens found themselves dragged from their homes and put into internment camps? If the Constitution is so important how come FDR, JFK, and LBJ are icons of liberalism yet George Bush should be put on trial for war crimes?— jmc
- in which the unhinged Xi Jah advocates a military dictatorship. Yes, Barry, this is where the "conservative" movement has gone...— E.Plebnista
- "In the case of Quirin, weren't the Germans ultimately granted habeus corpus, although tried by a military tribunal?" My issue is really not with the end result of this decision. I do not want the executive to have the power to declare someone to be an enemy combatant and that person in turn does not have the ability to challenge the decision and the evidence behind it. The problem I have is with Kennedy and Will acting like this was this huge, sweeping affirmation of the Founders and the Constitution. First of all, the Founders themselves said habeas corpus could be suspended during time of invasion or insurrection, so they did not mean habeas corpus to be an absolute right. I happen to believe we are at war with Islamist terrorists and if Congress (not the president) voted to suspend such for enemy combatants, then that would not be an affront to the Constitution. You might disagree with the action, but it would not be Unconstitutional. Second, this country and the Constitution survived just fine after Quirin. I think SCOTUS misread the Geneva Conventions in Hamdi when they basically discarded Quirin in that matter as well - these are not uniformed military members, these are terrorists and combantants out of uniform have few rights under the Conventions. And third, Kennedy is hardly one to wrap the Constitution around his shoulders, given that he sided with the majority in Kelo, which IMO was a far more sweeping and grievous affront to the Constitution than this matter.— db_cooper
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- "that ought to be tattooed on the forearms of Bush and Cheney when they're shown the door in January:" Funny will, if the U.S. tried to tattoo anything on a terrorist, you would howl. Who was the other famous guy in the thirties and forties who tattooed people he hated?— E Plebnista
- Just think, if we hadn't revolted against the British in 1776 in support of the Enlightenment's bull---t about the rights of man and the wisdom of the people, we'd all be safe from these meddlesome civil liberties and snug as bugs under the iron grip of a dictator who we'd trust intuitively to know who's been bad or good (so be good for goodness sake), and the likes of Bunch would be locked away in the Tower forever. Ahhh, the good old days.
- Tim McVeigh was just another right-wing nut case who thought the end justified the means. It didn't. But because of his actions, I lost a couple of friends in the Murrah Bldg. that day, and could have easily been there myself that morning. I have nothing but contempt for people like JMC and Shemp who make such disgusting posts.— AHiredGun
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- DB: In the case of Quirin, weren't the Germans ultimately granted habeus corpus, although tried by a military tribunal?— Captain Awesome
- "The Framers also decided that habeas corpus could be suspended during times of invasion or insurrection. I guess Kennedy missed that section of the Constitution when researching his decision." . . . . . . That's understandable, since the Government didn't argue that. I wonder why?
- if you look in the dictionary under "unhinged" you'll see "jmc" and "xi jah" - no, really...— E.Plebnista
- Comment removed.
- This is a powerful example of how important it is to elect a Democrat as President this year. I'm less concerned about a hundred-year occupation in Iraq than I am about the prospect of John McCain replacing a couple of superannuated moderate justices with Scalia clones. This matters a lot, and I hope the Clinton voters who are threatening to defect to McCain think about this.— Rich Lampert
- "The laws and Constitution are designed to survive, and remain in force, in extraordinary times. " Funny how Kennedy had no problem putting a much greater ding in the Constitution when he sided with the majority in Kelo - a case with far graver potential impact to millions of Americans who own homes or property. It's getting really deep in Sanctimony Central.— db_cooper
- I see many comments intervened. My response was to Xi's post at 2:30.— what is truth?
- Yet, Xi, they are equally dangerous. The victims are just as dead, and the potential victims are as much targets. In fact, the "lone wolf" working from his own private hatreds can be harder to track down and stop than the organized group. I used Ok. City because it was recent. I could have used the KKK as an example. Well organized, well-funded - not sponsered by a foreign government, but certainly tolerated (at least) by political bodies in this country. And we have always had foreign governments fighting us in various places and ways. The point remains that bending the Constitution was not the way then, and it is not the way now. I may not be brilliant, but I am smart enough to see that if we don't maintain the institutions that distinguish us from our enemies, then we have lost ourselves as a people.— what is truth?
- "The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. " The Framers also decided that habeas corpus could be suspended during times of invasion or insurrection. I guess Kennedy missed that section of the Constitution when researching his decision.— db_cooper
- "Justice Anthony Kennedy saves America" Spare me the hyperbole, Will. First of all, I had serious concerns about allowing the executive to declare someone an enemy combatant without that person having the right to confront the decision and the evidence used against him, so I'm no rubber-stamp of the Bush Admin in these matters. However, this decision went against SCOTUS precent set in Quirin, where SCOTUS ruled during WWII that military tribunals were valid for judging German saboteurs. And this country and the Constitution has survived the 66 years since Quirin.— db_cooper
- Comment removed.
- Now the Islamic terrorists are "America" according to Will The Shill Bunch. This is a war - you can choose to fight or capitulate. The other side isn't surrendering to lawyers. Grab a gun or a Koran. Make your choice. History will show that people like Bunch, directly or indirectly, chose the Koran. I hope Bunch and his buddies enjoy wearing their burqas.— MiddleNameHussein
- "I have far more confidence in the current Justice Department, which treats terrorism as an act of war, than the previous version that treated it as a crime." . . . . . Then what are you afraid of? The Justice Department's lawyers should have no trouble justifying Bush's detention of any Gitmo prisoner in a habeus corpus hearing before a federal judge. All they have to show is that the prisoner committed an act of war against the US. If that proof is based on a confession, they should be able to prove that it was made freely and voluntarily. Unless, of course, they can't. That's fair, isn't it?
- Great news, guys. Now that one country's rules are in play for everyone else, I just signed up for the healthcare system in Sweden. The Swedish government has hooked me up with 3 months of vacation! I'm going to shave 8 strokes from my handicap and get a great tan to boot. Thanks Justice Kennedy!— Patrick M
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- Xi Jah, but what about American citizens who are deemed "enemy combatants"? Two American citizens were arrested in Iraq, labeled "enemy combatants", and initially denied habeus corpus. Or what about John Walker Lindh? Should he have been denied a trial because he was the "American Taliban?"— Captain Awesome
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- Most of the posters here miss the point, of course. This isn't a celebration of the rights of terrorists, or even a celebration of terrorism. Comments that suggest as such as laughable. It is a reminder from the Supreme Court that we should celebrate America - it's principles and it's ideals. Robust, strong and fair government should not be abandoned when faced with adversity - it should be cherished as something to hold on to even more strongly. Terrorism has never defeated or overturned a democracy. We run the risk of them winning as soon as we cease to become a democracy.— CrimeLord
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- Xi, you say I make no sense? OK, let me spell it out. In 1995 the country suffered a terrible terrorist attack in Oklahoma City, carried out by an American lunatic from the far-right fringe. In 2001 we suffered a terrible terrorist attack in NY and Washington carried out by foreign lunatics from the Islamic fringe. After the Oklahoma City bombing there was security consciousness, but there was no setting up of secret tribunals, endless detention, and extraordinary renditions and interrogation techniques. After 9/11 all these extraordinary measures were implemented. The people who support such measures say it is necessary to protect the security of the US and if the Constitution gets bent in the process, well too bad, it's necessary. Yet no such extra-Constitutional measures were taken after Oklahoma City, and such an attack has not reoccurred. Therefore the argument that such measures are necessary to protect the US has no empirical evidence to back it up. Is there fear of another attack? Certainly. But that possibility has always existed (go back to the anarchists circa 1900) and will always exist. It is no excuse for doing an end-around on the law of the land. We did not surrender the constitution to fear in 1995, and there is no basis for surrendering it to fear now. Thus I applaud the majority decision of the Supreme Court. You may or may not agree with me; but I do make sense.— what is truth?
- Comment removed.
- I have far more confidence in the current Justice Department, which treats terrorism as an act of war, than the previous version that treated it as a crime. Which of your rights have been reduced since 9/11? Do you have any less freedom now than at any other time? Probably not. You would have loved this city during the American Civil War, when civilians WERE locked up at Fort Mifflin for various reasons. I'll put the same question to you that I put to Will: you're the President. What do you do differently to prevent another attack on this soil?— ILikeIke
- Maybe he should have posted it in all caps, or maybe he should have typed it slower.— SteveMG
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- Will Bunch is a Communist. How can you be rejoicing over the enemies of this country, who are not citizens by the way, having rights under our Constitution? Perhaps you need to polish up your sickle and shine your red star for when Czar Obama comes to power, Will.— Bush3
- Comment removed.
- "Here's the irony: jihadists who have declared war on western civilization are now hiding behind the legal protections provided by that same society." . . . . . . . . . . LOL, don't you just love the confidence our Bush-lovers have in the competency of his Justice Dept? Ironic, indeed!!
- Comment removed.
- jmc, I'm not sure what your point is. Do you really think modern liberals applaud FDR's internment of Japanese-Americans, or hail Kennedy's or LBJ's meddling in Vietnam? Maybe I should ask you, do you support those actions?
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- Any houses for sale in your neighborhood, Will? KSM just retained a Weichert Realtor and is just "in love" with your street. Great schools, curb appeal, and a sewer system new enough to dirty bomb. Tattoo that on your arm.— Patrick M
- I really wonder how Obama would react to a major terrorist attack if elected president....makes me very nervous...— chrissmith
- Here's the irony: jihadists who have declared war on western civilization are now hiding behind the legal protections provided by that same society. These are not U.S. citizens. They do not deserve the same legal protections as U.S. citizens. Are you really arguing that our country is 'saved' because a murderer like KSM could now contest in a detention in a U.S. civilian court? How is it better? Should the government reveal all classified information in civilian court, even if it compromises other intelligence operations? That worked really well in prosecuting the animals who tried to blow up the WTC the FIRST time in 1993. For those of you popping champagne corks today, thinking our country is now 'saved,' please answer the following questions: what do you propose to do with terrorists captured in combat and suspected of planning attacks? Which is more important: the "rights" of those who seek to destroy us or preventing future terror attacks on our soil? Can you ask for a warrants when you're not sure what you're looking for or seeking patterns within mountains of electronic data? These are all critical constitutional issues and a difficult challenge to meet in our free society. Please don't assume - as most of you do - that action taken by the current administration is automatically bad because you just don't like them. Imagine, Will, if the sole responsibility was on your shoulders and your office to prevent any type of a future terrorist attack on this country. What would you do differently? Seems like the view is really good from the cheap seats.— ILikeIke
- Did you guys know that British conservative MP's were unsuccessful in blocking a move to increase from 28 to 42 days the time authorities were permitted to detain suspects without bringing them to court. Their reaction to the defeat was to say that Osama bin Laden had just won a battle over Great Britain.— SteveMG
- JMC, how are the Taliban "saved" by the SCOTUS refusing to let the current administration throw habeus corpus out the window? Yesterday, Rush Limbaugh accused Bunch of "creating the notion in as many people's minds that our country is...not worth our reputation as the world's greatest superpower." To the contrary, we are worthy of that reputation, and the rights afforded under the Constitution are a huge part of that. Even in extreme times, it is our responsibility to uphold one of the main tenants of the Constitution. Detainees should be allowed to face their accusers (and subsequently found guilty and executed, imo). (Oh, and the decision today is a rebuke on FDR's internment policy--one of the black eyes on the face of American history).— Captain Awesome
- Looks like Shemp and jmc are now aboard the "hope" express. Knew you guys would come around.— RG
- Jmc, that is a ridiculous reading of my comment. I never said anything in there that conservatives favored that attack. The comment was that you didn't need to shred the Constitution then, and you don't need to now, and that the conservative position that you need to makes no sense. Sorry, but your comment was off-the-wall silly and had nothing to do with what I wrote.— what is truth?
Let's just hope our soldiers and marines start taking less and less prisoners...- great history lesson JMC...liberal pukes conveniently forget their history when spouting their non-sense.
- "And let's hope the 13 years and almost 2 months without a right-wing, all-American terror attack (Oklahoma City) continues." Oh yeah, I remember when all of us conservatives came out in favor of that attack, since it was ordered by Newt Gingrich and funded by Rush Limbaugh and all that.— jmc
- "Lets hope the 6 years and 9 months without an Islamic terror attack on our soil continues." I agree. And let's hope the 13 years and almost 2 months without a right-wing, all-American terror attack (Oklahoma City) continues. We didn't need to shred the Constitution because the latter happened, and yet the right thinks we need to shred the Constituion because the former happened. There is no logic in this.— what is truth?
- By the way, Kennedy's decision is also a rebuke of the liberal hero Franklin Roosevelt's unlawful detention of Japanese Americans during WWII. Now you libs may not remember that since your historical perspective is basically limited to Vietnam, which by the way was started by lib icon JFK, and escalated by another prominent liberal LBJ of "great society" fame. I guess that doesn't matter either because it was all Nixon's fault. And to show I'm fair, habeas corpus was suspended by Republican Abraham Lincoln during the civil war. Don't you wish Anthony Kennedy was on the court back then so he could do all he can to preserve that great institution of slavery? Well, at least Kalid Sheikh Mohammad can now benefit from his wisdom.— jmc
- What's that, three times the SC has determined that the Bush administration was violating the constitution? No matter, the Republican sycophants will still try to justify voting a complete incompetent into office. Twice.— Talking point sleuth
- No Will, he saved Al Qaeda and Taliban terrorists. Yippie. Question: Was Kennedy a "sensible moderate" in the 2000 election? In the eyes of the left sensible means agree with liberals, and moderate means agree with liberals. Lets hope the 6 years and 9 months without an Islamic terror attack on our soil continues.— jmc
- "Kennedy was also the swing vote on Gore v. The Constitution and the American People in 2000." . . . . . . . . . . . In hindsight, even that may have saved the country. Bush's presidency has done more to reverse the Reagan revolution than Gore could have ever hoped to do in office posing as a moderate.
- Add five more targets for the hate Americans first crowd... As b.at notes, Kennedy finds the Constitution to be an important document. The man sworn to preserve, protect and defend it? Not so much... "Conservatives" are big fans of the Constitution except when, you know, they aren't...— E.Plebnista
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- This is a huge victory in the real war on terror. Take that Osama! We're still here, with our Constitution as healthy as ever.
- Notice how few cases the government has won when they are required to go to real courts? Secret tribunals, endless detention, and extraordinary renditions and interrogation techniques are the last resort of the lazy and incompetent. But that's what the Bush/Cheney apparatus is all about, from Iraq to Katrina and all points in between - incompetence and the fear of being found out just how incompetent they are.— what is truth?
- Is our country and government finally coming to their senses? God, I sure hope so!— AHiredGun
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