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Thu 29 Jun, 2006 08:05 pm
Restoring my faith in the rule of law the USSC today eviscerated George Bush's Guantánamo Tribunals, ruling broadly that the commissions were unauthorized by federal statute and violated international law.
Remember he didn't even ask Congress for authorization, if fact, he orchestrated that phony law, which the Court rightly ignored today, which supposedly removed the Supreme Court's jurisdiction of this case.
The nerve!!
Quote:"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case.
Joe(can we get back to being a beacon of freedom now?)Nation
Equally important, and disturbing, is that there were three justices who voted to back Bush's actions and a fourth (the Chief Justice) had to recuse himself because he had ruled in support of those action while sitting on a lower court. I am convinced (possibly hyper ventilating a bit here) that we a watching a coup-d'e-etat is slow motion. It will take a while but these guys are not going to give up. Ultimately there is the Andrew Jackson position. If there supreme court wants to rule that law unconstitutional (finding the Cherokee removal act illegal), than let the supreme court try to enforce it. In other words simply ignore the court.
I think you are exactly, and sadly, correct. This ruling is a reminder to the Bush Administration that there are three branches of government.
Does this mean the President of the United States is subject to US law? It seems hardly credible
.
It is certainly a start. What must happen next is the Executive and the Legislative Branch ought to come up with a mechanism, an authorization by Congress consistent with both the Constitution and applicable international law by which Bush's military tribunals could go forward. The most recent articles on this by legal scholars, and I am not by any means one, imply that such an authorization would be hard to come by given our current state of law, now if Torquemada was still around things would be easier.
My first guess is, because actual governing is hard to do, this administration will try to ignore the Court's ruling. They will delay any action, they will say they are studying the situation, they will try to find someone else to blame, they will have Tony Snow spinning like an Texas dustdevil trying to make it sound as if this ruling is somehow good news for the President, meanwhile the prisoners remain uncharged and held without benefit of bail, two conditions which helped incite the long ago troubles between ourselves and a distant island nation, the Declaration of our Independence from which are being noted this next week both in Washington and down there in Guantanamo.
Joe(and it's one, two, three, what are we fighting for?)Nation
No. THANK YOU.
I think people should read Supreme Court Decisions.
They are always less imtimidating than I thought they might be.
Joe(Where's Scalia's pathetic and undemocratic dissent??)
Me too, on both of those. I'm reading it now. I don't always understand everything I read, but I find it useful to understand the arguments that were made and the court's reasoning in their decisions. Dissents are fun to read too. I haven't gotten to this one yet.
Scalia's dissent can be read
here.
(Just kidding)
Joe Nation wrote: Joe(Where's Scalia's pathetic and undemocratic dissent??)
I have no problem with Scalia's dissent, which addresses a seriously sore spot in the majority opinion. (They found they had jurisdiction even though Congress explicitly took it away.) He was right to make an issue of that. I found justice Thomas's deference on the merits more problematic -- even if it was consistent with World War II precedents, which it may well have been.
But can congress take away the USSC ability to rule on any law?
I don't think so based on the constitution.
Quote:The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,...
I don't see how it is possible to pass a law saying the courts can't rule on a law since the constitution gives them the power to rule on all cases concerning US laws.
parados wrote:But can congress take away the USSC ability to rule on any law?
I don't think so based on the constitution.
I'd have to look up the relevant paragraphs in the majority opinion if you wish to discuss it. But as I remember Stevens' opinion, he didn't say "Congress violated the constitution by depriving us of jurisdiction." He said (and I'm paraphrasing:) "the statute, properly interpreted, does not deprive us of jurisdiction." If the first point had been easier to argue, I'm sure Stevens would have argued it.
To be honest, I didn't look up the Detainee Treatment Act to decide whether Stevens or Scalia was right. But from comparing their opinions and assuming that both justices were quoting the statute honestly, I found Scalia's opinion more persuasive on the point of jurisdiction.
parados wrote:Quote:The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,...
I don't see how it is possible to pass a law saying the courts can't rule on a law since the constitution gives them the power to rule on all cases concerning US laws.
A paragraph or two below your quote, the authors of the Constitution wrote:In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
(Emphasis added)
So, I had to read it a few times before (I think) I understood. Here's my take on the majority reasoning that the SC has jurisdiction for this case.
The Detainee Treatment Act of 2005 contains a section, e(1) which ammends an existing
law regarding the power to grant writs of habeas corpus. It is this ammendment which removes Supreme Court jurisdiction for detainee complaints. However, the ammendment doesn't address pending cases. It is later, section e(h) that states:
Quote: (2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
It doesn't say that e(1), which removes jurisdiction, applies to pending cases. It may be a bit nitpicky, and a bit of gotcha, but it's a legitimate argument.
Here's the portion of the opinion dealing with that.
FreeDuck wrote:So, I had to read it a few times before (I think) I understood. Here's my take on the majority reasoning that the SC has jurisdiction for this case.
The Detainee Treatment Act of 2005 contains a section, e(1) which ammends an existing
law regarding the power to grant writs of habeas corpus. It is this ammendment which removes Supreme Court jurisdiction for detainee complaints. However, the ammendment doesn't address pending cases. It is later, section e(h) that states:
Quote: (2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
It doesn't say that e(1), which removes jurisdiction, applies to pending cases. It may be a bit nitpicky, and a bit of gotcha, but it's a legitimate argument.
But it does say, in e(h)(1), that "IN GENERAL- This section shall take effect on the date of the enactment of this Act." In other words, effective that date, "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." Yet this is exactly what the Supreme Court was doing. Contrary to what you say, Stevens' interpretation makes nonsense of the whole section of the act:
All detainees had
habeas corpus petitions pending at the time Congress passed the law.
The problem with your argument Thomas is it would allow Congress to write any law they wanted as long as they inserted that the courts had no jurisdiction to rule on the said law.
The constitution trumps any such wording in a law. The minute the law becomes a constitutional issue it can't be kept from the courts.
I would say Stevens argument is pretty normal procedure for the court. They keep their rulings specific to a case rather than making broad statements.
There may well be instances where laws could be passed saying the courts can't rule on them and unless there is an aggrieved party the law will never get to the courts. For instance if the legislature passed a law that a foreign individual can't file suit against the US govt and no US court will hear an appeal about that suit. The foreigner would probably have no standing in US courts so couldn't challenge the constitutionality.
Certainly this case borders on that issue. Foreigners on foreign soil with no rights. I think the courts already addressed the issue of Guantanamo being under US control so access is granted to US courts.
parados wrote:The problem with your argument Thomas is it would allow Congress to write any law they wanted as long as they inserted that the courts had no jurisdiction to rule on the said law.
Take it up with the Founding Fathers, who wrote into this very constitution that Congress can make exceptions and regulations about the federal courts' jurisdiction. (FindLaw page on this clause
here) . There appear to be legal theories about the constitution that find limits to this power of Congress, but I don't see Stevens discuss these theories anywhere in his opinion.
One other important limit to the of Congress to revoke jurisdiction -- a limit that arguably applies here -- comes from the so-called
Suspension Clause: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (
Relevant precedents at FindLaw) Stevens might have argued that Congress violated that clause by shifting the power to hear
habeas petitions from the federal courts to the military commissions. But he did not make this argument.
That was my point Thomas. Stevens didn't need to discuss those theories because he found a narrow way to make the ruling based solely on the law. I think it is prudent for the court to use the law before they get to the constitutional issue. It leaves the constituional issue unresolved but that is probably a good thing.
Thomas wrote:FreeDuck wrote:So, I had to read it a few times before (I think) I understood. Here's my take on the majority reasoning that the SC has jurisdiction for this case.
The Detainee Treatment Act of 2005 contains a section, e(1) which ammends an existing
law regarding the power to grant writs of habeas corpus. It is this ammendment which removes Supreme Court jurisdiction for detainee complaints. However, the ammendment doesn't address pending cases. It is later, section e(h) that states:
Quote: (2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
It doesn't say that e(1), which removes jurisdiction, applies to pending cases. It may be a bit nitpicky, and a bit of gotcha, but it's a legitimate argument.
But it does say, in e(h)(1), that "IN GENERAL- This section shall take effect on the date of the enactment of this Act." In other words, effective that date, "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." Yet this is exactly what the Supreme Court was doing. Contrary to what you say, Stevens' interpretation makes nonsense of the whole section of the act:
All detainees had
habeas corpus petitions pending at the time Congress passed the law.
Yes, but what it doesn't say is that the ammended law affects cases already pending. I think that's the "gotcha". The Hamdan case was already pending. The only place where the Detainee Treatment Act specifically addresses pending cases, it does so only with regard to sections 2 and 3, and not 1.
parados wrote:That was my point Thomas. Stevens didn't need to discuss those theories because he found a narrow way to make the ruling based solely on the law.
And that was
my point: Stevens says he found a narrow way, but he hasn't. The statute before him said
no court -- including the Supreme Court -- had jurisdiction anymore. He could argue that the Constitution didn't allow Congress to terminate jurisdiction from the Supreme Court. Instead he argued that Congress didn't -- which strikes me as manipulative.
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