Supreme Court Rules in Favor of the Detainees in Massive Blow to Bush Administration

In a massive blow to the Bush Administration, the Supreme Court has ruled 5-4 in favor of the detainees at Guantanamo Bay, Cuba. In the opinion below, Justice Kennedy delivers the opinion of a lifetime: holding faithfully to the Constitution in a time of prolonged crisis.

Kennedy writes: “We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause.” Amen, Brother, amen.

He further adds that ““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.”

While Kennedy’s opinion was an impressive treatment of the role and history of the Great Writ, Scalia’s opinion read like a snaring rant in comparison. Some highlights:

– “America is at war with radical Islamists. … Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. . . . The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed . . . The Nation will live to regret what the Court has done today.”

It was a disappointing opinion with the same fear-mongering and sensational language that we see on late night cable programs. Roberts’ dissent was more moderate but still reflected a shocking passive and reduced role of the courts.

As much as a relief as this decision is, it is important to remember how close we can to the loss of this fundamental right. What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights. Kennedy’s opinion is an attempt to educate citizens on the centrality of the Great Writ. One can only hope that a few people in Congress will read this opinion and leave the Constitution alone. When Bush refers to the need for more legislation, the only obvious piece of legislation would be a formal vote to suspend habeas — a step that even these members should be incapable of doing.
For a copy of the opinion, click here.

71 thoughts on “Supreme Court Rules in Favor of the Detainees in Massive Blow to Bush Administration

  1. How is a 5 to 4 decision a massive blow? All it shows is the Supreme Court is as divided on protecting America as ever. Now a 9 to 0 vote would have been a “massive” blow, but not 5 to 4. However, tonight the liberal media will tout this as a “massive” blow when in fact everybody watching it with a brain will be thinking “5 to 4?, wow, sounds like it was a close decision, maybe it is better to err on the side of protecting America from these guys in Gitmo”.

  2. Yes, this is a ‘missive blow’ for George W. Bush. He LOST. You win….. Victory! You lose… Massive Blow! The real winner: the Constitution. Amen is an understatement.

  3. Badger

    It’s massive because it was the centerpiece of Bush’s bombastic, testosterone-sotted and ultimately illegal attack on the US Constitituion. Bush/Cheney contended the Presdident alone could suspend or ignore the Constitution. This decision not only restores or confirms the rights of the detainees, it reminds us that Bush/Cheney are not kings. The Constitution wins and exposes further the twisted machinations and convoluted legal theories this administration has employed.

    It’s also massive because the administration has four seats on the Supreme Court they’ve bought and paid for. Four seats would never go along with the chacanery Roberts, Alito, Scalia and Thomas would permit, so the administration’s challenge was to get Kennedy to go along. After nearly six years of legal wrangling they couldn’t convine just one more person to be complicit in their crimes.

    Perhaps our country really is about to re-emerge from the national nightmare of the Bush administration.

  4. How about this:

    Massive blow to Bush, scary news from the Supremes?

    This should have been a 9-0 opinion and I doubt I need to look to see who is on which side of the opinion.

    Maybe we are thinking of Impeachment of the wrong branch?

    Those four of the nine have the power to send us back 250 years into their “dysfunctional utopia”: dreams about how they thought the world was and should forever be.

    Can anyone say “scary jurisprudence”?

  5. Does anybody notice that the Catholics on the supreme court seem to go by some other document then the constitution. How many followers of the Antichrist do you think signed the document or for that matter even fought in the revolutionary war? That this was a split decision is an embarrassment to the country. It speaks strongly and loudly how we have evolved and degenerated maybe even morphed into a very different type of country.

  6. Time we rethink lifetime appointment.

    “Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make
    the war harder on us. It will almost certainly cause more Americans to be killed.”

    Republican talking points from a US Supreme court justice.

    Disgusting.

  7. ALSO FOR THE RECORD WHAT KIND OF JUDGE CHERYL ALEMAN MAKES A MAN LAY IN JAIL WHEN PRISON GUARD OFFICIALS SAID PLEASE U NEED TO SIGN THE RELEASE THIS MAN IS DYING HERE HE NEEDS TO BE TRANSPORTED TO A HOSPITAL IMMEDIATELY WE CANT KEEP HIM HEAR IN THIS CONDITION HE NEEDS MEDICAL ATTENTION THAT ALONE IS TOTAL (INHUMANE TREATMENT)
    TO TAKE PLACE IN THE MOST CIVILIZED COUNTRY ON THE WORLD SHAME ON THIS MEAN, RACIST AGAINST JEWISH PEOPLE, AND PEOPLE WITH AIDS IGNORED THE GUARD OFFICIALS AND REFUSED TO RELEASE HIM FOR THAT ALONE SHE SHOULD NOT BE ALLOWED TO BE A JUDGE ANYMORE “GOD IS WATCHING THAT ALL US HUMAN BEINGS DO THE RIGHT THINGS, AND GOD PUT US
    IN POSITIONS BUT US HUMANS ARE NOT “GOD” I KEPT UP ON ALL NEWPAPER ARTICLES CONCERNING THIS MATTER AND JUDGE THANK U A CONCERNED CITIZEN

  8. Professor:
    One of the dissenters said the opinion would have limited effect. SHould they have ordered the prisoners released since there is now no legal basis for Guantanamo and their detention? Why did they choose to send them back to the lower court? Is that an adequate remedy for being held illegally for years?

  9. whooliebacon wrote:

    > Time we rethink lifetime appointment.

    I’m not in favor of doing away with the lifetime appointment of federal judges, but does underline how important it is that they be closely scrutinized by the Senate.

    California, I recently learned, has an interesting approach to its state supreme court. Justices there are appointed by the governor, but must be confirmed in office by public vote during the next general election cycle, and every twelve years after that. That seems to strike a good balance between judicial independence and accountability to the people.

  10. “Nothing can bring you peace but the triumph of principles.”
    –Ralph Waldo Emerson (from “Self-Reliance”)

  11. Gitmo detainees beat Bush, and it is a triumph for the Constitution and civil liberty, at long last. The Bush Administration has ravaged the Constitution, the Bill of Rights, the Geneva Conventions, the separation of powers, the system of checks and balances, and has allowed corporate corruption and special interests to rule the roost, all to the detriment of the nation. The USA is fast becoming another inconsequential third world country. The recent performance over the past 7 years of our system of justice, up to today, was dismal, starting with the decision in Bush v. Gore. Now Scalia, Roberts, Alito & Thomas ask why these Gitmo detainees couldn’t wait for the outcome of preliminary proceedings in District Court, and yet the same idealogues issued the ruling that erroneously put Bush in the White House rather than waiting for the vote counts, recounts and Florida state courts to resolve the issue lawfully. The election process has been bastardized nationwide by Bush loyalists by inserting unreliable, perverted electronic voting machines in the process. Politics was allowed to subvert justice, freedom and the will of the people; the Dept. of Justice has become a useless appendage of the White House under a continuum of Bush co-conspirators like Ashcroft, Gonzales and Mukasey. They sacrificed the people and real justice in the name of political BS, hiring unqualified idiots from Regent University, allowing qualified people to be fired for reasons that had nothing to do with qualifications or performance, and acting as if they were counsel to the President instead the Highest Law Enforcement officer in the nation. Maybe this slap in the face to Bush will reverberate throughout the federal government so that the justices who voted against this opinion will begin to think more honestly, and government employees at every level will start to do what is right, not what works best for the Republicans. Freedom and justice in America used to be said to shine like a beacon to the rest of the world, beckoning all to come for a better life. So much for that notion! The US economy is in the tank with no hope for recovery. Gas and oil prices will achieve a redistribution of wealth on a global basis that serves no-one but the multi-national corporations and the idealogues who are their minions. Jobs, the middle class and industry in the US are being lost forever, but even if we, as a people, are left destitute, if true justice and freedom can be rejuvenated, America will survive and will return to its position of greatness like a Phoenix rising up out of the ashes. If justice and freedom are to mean anything, they must exist for all, in or out of the USA, and we better start showing it. Europe and the rest of the world have no respect for America already because of 8 years of lying, cheating and stealing by Bush and his fellow criminals. For once, someone stood up to him and his cohorts and slapped him and his dictatorial style notions down. Now if the Dems in Congress who are too timid to stand up to Bush could only find some backbone, the Gitmo detainees and the rest of us in America would stand a chance at fairness and equality under the law. No-one is above the law, especially not Bush. What was done at Gitmo, Abu Gharaib, and under the horrific rendition program subjects all Americans to a greater risk of being tortured or abused in the future, and that behavior justifies prosecuting Bush in an international tribunal for crimes against humanity. Bush makes Milosevic or Saddam Hussein look like boy scouts. As for the 4 other votes on SCOTUS, maybe now is the time for them to consider retirement or resignation; it seems that the older justices have more to offer America than the younger justices who do not seem to have an honest bone in their bodies. Hopefully the Supreme Court will use this opinion today as a jumping off point to turn the tide and stop this 7.5 year long, rampant assault on individual freedoms and justice. Sacrificing freedom in the name of security got us nothing. Good luck to us all.

  12. Sounds like the media is getting it wrong; no freedom for the Gitmo detainees as a result of this ruling. In their rush to hype the headlines they forgot to read the whole opinion.

  13. And a little civics lesson from the SCOTUS opinion for our neo-fascist friends who think that our leader on horseback got license to trample the Constitution simply because he might have gotten more votes on election day 2000:

    “The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers.”

    Montesquieu would be proud.

  14. bader:

    “How is a 5 to 4 decision a massive blow? All it shows is the Supreme Court is as divided on protecting America as ever. Now a 9 to 0 vote would have been a “massive” blow….”
    ****************

    While I usually hate responding to your drivel, I must say that by your “logic” the Patriot’s 3 point loss to the Giants in Super Bowl XLII was just a minor set back in their quest for an undefeated season. Five to four is “massive” enough for me when you start with a 3 vote handicap.

  15. Celebrating B4 reading the ruling makes for embaressing statements:

    The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba.

  16. White House reaction: “Bush said his administration will study the ruling. “We’ll do this with this in mind — to determine whether or not additional legislation might be appropriate so we can safely say to the American people, ‘We’re doing everything we can to protect you.'”

    A veiled threat?

  17. Professor:

    In a typical habeas case, is the prisoner freed immediately if the court finds the confinement is illegal?

  18. badger:

    Judging from your comments, I can tell you have not read the opinion either, but are merely mouthing news reports or most likely talking points. Read it for yourself. It is clearly a return to constitutionalism and away from the one-man rule you neo-cons are so enamored over. I can hear the unitary executive theory straining and crumbling.

  19. Kennedy read like a Justice and a poet:

    “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.”

    You nailed it, mespo. The majority (the ones who count) made no deference whatsoever to so-called unitary executive theory.

  20. An interesting conclusion to Scalia’s acidic dissent. Our resident religionist goes to great lengths to explain that the common law doesn’t apply to protect us despite over 200 years of precedent and thousands of years of custom, but gratuitously adds:

    “Today the Court warps our Constitution in a way that
    goes beyond the narrow issue of the reach of the Suspension
    Clause, invoking judicially brainstormed separation of-
    powers principles to establish a manipulable “functional”
    test for the extraterritorial reach of habeas corpus
    (and, no doubt, for the extraterritorial reach of other
    constitutional protections as well)….”
    The Nation will live to regret what the Court has done
    today. I dissent.”

    I cannot tell if this last line is cautionary or precatory.

  21. Scalia always struck me as incredibly childish. When he doesn’t get his way he pouts and embarrasses himself.

    Professor, next time you do a show, please inform the many Americans worried about a 5-4 narrow escape that the next President can stack the court and deliver us from the four horsemen of the apocalypse.

  22. far enough:

    How a judicial texualist — even with such a lumbering intellect –could spend that much time in Charlottesville and not know any better sense is beyond me. You would think just passing Monticello would teach that “come-here”* something. Sadly, the most important thing Scalia got from his tenure at Mr. Jefferson’s school was a line on a resume.

    *Scalia was a transplant New Jersey-ite. “Come-here” is our polite Virginia way of letting you know that while you may be physically present in our Commonwealth, you’ll really never be part of it. I can’t tell if its borne of elitism or pride, but it sometimes has its uses.

  23. far enough:

    ops, omit the word “sense” in line 2. I got a little carried away and didn’t hide my tracks as well as I should have.

  24. Yesterday on the BBC I heard a proponent of the British terror detention law speak glowingly of Bush’s powers to “deal with” terroist suspects. He even praised Gitmo. David Davis, shadow home secretary, resigned over the passage of the 42 day detention. I included some of his words below. I wonder if this ruling will effect the British law. I am hoping our congress does not trash the constitution again now that Bush is ready to come back for another try.

    From David Davis on the BBC website:

    In truth, 42 days is just one – perhaps the most salient example – of the insidious, surreptitious and relentless erosion of fundamental British freedoms.”

    He listed the growth of the “database state,” government “snooping” ID cards, the erosion of jury trials and other issues.

    “This cannot go on. It must be stopped and for that reason today I feel it is incumbent on me to make a stand,” said Mr Davis.

    OTHER NEWS SITES
    Warwick Courier Shadow Home Secretary to quit as MP – 1 hr ago
    Daily Express David Davis quits in stand against erosion of British f
    Telegraph David Davis stuns Westminster with resignation over 42-day terror law – 1 hr ago
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    * Requires registration

    TOP UK POLITICS STORIES
    Davis issues challenge to Labour
    No deals on 42 days, says Brown
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  25. The steady erosion of Constitutional protections under Bush has been most discouraging, so this is really great news.

  26. Readers’ Comment in NYT:

    “Any doubt about what kind of jurist Scalia is? He states in the opinion that “we are at war with radical Islamist,” but the Constitution defines when we are at war, and there has been no declaration of war by Congress, so Scalia is constitutionally wrong on that point. Then he says, the ruling “will almost certainly cause more Americans to get killed,” but there was no fact finding at the district court level, so this is mere speculation elevated to constitutional concern. Then he says, the court’s ruling leaves the system to deal with the prisoners with a “set of shapeless procedures.” How funny. Those ‘shapeless procedures’ have developed over years of constitutional litigation and go back to the abolition of the Star Chamber by the Habeas Corpus Act of 1640. Who would expect a jurist of his skill to know such things? Who knew that the Framers of our Constitution and its Amendments actually shaped those procedures by requiring due process and fundamental fairness?”

  27. another one:

    “Scalia says that this decision will cost American lives. When I told my wife of his comment, she said, “Not as many as Bush v. Gore.”

  28. 5-4 is enough to win. Scoreboard. No, it does not mean that they immediately get released, but it does mean that they cannot continue on the same track as W wants, out of sight and out of the earshot of the rest of America. This gets tried in the dirty, nasty courts of America and not in some trumped up military tribunal. No wonder that Colonel got fired, err retired, last week.

  29. far enough:

    Insightful woman, your wife. Here’s a line from the opinion that should make every one of these bullies who inhabit our current administration quiver:

    “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.”

    — Justice Kennedy

  30. Caught Turley on Countdown at the ten o’clock showing discussing the case. Erudite as ever but they really dumb it down on that show. I was hoping Olbermann would lead with that story but it got second billing. My only mild complaint was Professor Turley’s white dinner jacket for such an auspicious occasion –was it Rick Pitino redux, or just Turley, Jonathan Turley?

  31. I was delighted to see that for once (lately), the Constitution triumphed, and Bush lost. I saw JT’s and KO’s discussion, and thought it was great. I didn’t think it was dumbed down, but that’s just a non-lawyer’s perspective. :-)

  32. Far enough,
    Kudos for your wife with her insightful comparison to Bush v. Gore. Because of that unconsitutional decision, over 4,000 of our best have died with 25-30,000 maimed and upwards of 500,000 Iraqis killed because of the Supremes decision in Bush v. Gore. Scalia is a neocon hiding behind a robe. His dissent is more of a political statement than a judicial dissent.

  33. Susan:

    “Dumbed down” was a bad choice of langauge.I should have said the topic needed more time to develop. The decision was important not just for the principle reaffirming the Great Writ of Habeas Corpus (HC)by striking down Sec. 7 of the MCA*, but because of the Court’s decision to rule on whether the DTA** actually was an adequate substitute for HC, an issue which it clearly could have dodged by sending it back down to the lower court where that issue was not considered. This is extraordinary and showed me the Court is serious about sending a shot over the collective bow of those who would subvert our most basic protections.

    * Military Commissions Act of 2006
    ** Detainee Treatment Act of 2005

  34. “Nothing can bring you peace but the triumph of principles.”

    What principle empowers the Fed to predicate its expanded powers upon a non-declared war against a gerund form of a verb, tactic or state of mind?

    I remember being scolded by English teachers for expressing, in sentences, such nonsensical thoughts.

  35. far enough: ‘“Scalia says that this decision will cost American lives. When I told my wife of his comment, she said, “Not as many as Bush v. Gore.”’

    Hmmm….

    Vincent Bugliosi: “In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush’s application for the stay, wrote that “the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.” But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn’t be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor–you’re as guilty as sin. In my prosecutorial days, I’ve had some worthy opponents. You wouldn’t be one of them. Your guilt is so obvious that if I thought more of you I’d feel constrained to blush for you.”

  36. Ah Scalia…

    If only you weren’t so intellectually dishonest and morally bankrupt, you could have been the greatest legal mind of the 18th century.

  37. Bob,Esq:

    “What principle empowers the Fed to predicate its expanded powers upon a non-declared war against a gerund form of a verb, tactic or state of mind?

    I remember being scolded by English teachers for expressing, in sentences, such nonsensical thoughts.”
    ****************

    The late Harry Reasoner of ABC News used to warn about the government’s manipulation of language and hence our liberties. Funny almost none of the new corporate shills masquerading as journalists talk about that anymore. As usual, Harry was prescient. War on terror, indeed. We’ might as well have a war on poverty. Oh yeah we did that already. How’d that turn out?

  38. Mark Levin says:

    Denying foreign enemy combatants access to U.S. courts is an incident of war. Ladies and gentlemen, every single president of the United States has taken that position. Every single one. Every single president of the United States. Up until this Supreme Court, the Supreme Court understood that war was not their province, and that enemy combatants held overseas was not their business. And now we have, thanks to the Marxist left of the professoried in our law schools, the activist judges that have been breeded, placed on our courts, a totally different mentality. Treating people who would slaughter us, who would blow up our citizens, who would decapitate children if they had a shot at it, as people who are abused by us at Guantanamo Bay.

    We have lost the propaganda war, and we have to make sure we don’t lose the war. But I am telling you, these five rogue justices, who lie about the law, who lie about precedent, and who lie about what they’re up to, expose our armed forces on the battlefield to extraordinary danger. And they expose you and me to extraordinary danger. Because let us remember the reason why Guantanamo is where it is is so that when we capture these terrorists on the battlefield, we can interrogate them, and find out what they know, about their hierarchy, about their strategies, about the potential next attack, and we’ve gotten extremely useful information in many cases. And we keep them there to keep them off the battlefield.

    This is not part of the criminal justice system. We’re not interested in prosecuting them under our criminal laws. We’re interested in survival, and protecting the American soldier and the American people at a time of war. Every president has done this. Every single one. And when the reporters write “It’s a blow against George Bush or the Bush administration,” they are lying through they’re teeth. They are propagandists, spewing the talking points of the enemy. And when Supreme Court justices, who are extremely intelligent people, know better, and sit down with pen in hand, and rewrite the law, and pretend the precedent doesn’t say what it says, because they want to advance the cause of the ACLU, and the Marxist lawyers who represent these terrorists, shame on them.

    Bravo, Mark. Bravo!

  39. badger:

    Levin is just another clang in the cacophony that is conservative talk radio. Quoting his vituperative opinion on the law is like quoting Larry Craig on bathroom etiquette.

    However, I do love his breathless, nonsensical plea for survival in lieu of law, as if one could exist without the other. From a lay neo-con that might be understandable, but from a person who passed a bar somewhere, it’s positively astonishing–or maybe not, since being a Rush Limbaugh clone pays pretty well.

  40. “Caught Turley on Countdown at the ten o’clock showing discussing the case. Erudite as ever but they really dumb it down on that show. I was hoping Olbermann would lead with that story but it got second billing. My only mild complaint was Professor Turley’s white dinner jacket for such an auspicious occasion –was it Rick Pitino redux, or just Turley, Jonathan Turley?”

    ______________

    Mespo:

    “white dinner jacket”? Has labor day passed? No, I say. Besides, it was a Khaki suit suitable for the balmy environs of Virginia. I try to dress nice for all of you each night and this is what I get.

  41. From Badger:
    “This is not part of the criminal justice system. We’re not interested in prosecuting them under our criminal laws.

    The US criminal justice system has proven itself quite capable of handling sensitive cases involving terrorism both foreign (Moussari) and domestic (Tim McVeigh, Jose Padilla), thank you very much. As you noted in an earlier rant (perhaps you didn’t read it), this decision doesn’t free the folks in Guantanamo, it defines their rights. To suggest that somehow not prosecuting captured terrorists in secret USSR-esque military tribunals will cost lives on the battlefield takes the convoluted logic of the NeoCons to a new level of absurdity.

    It’s quite sad, though. You have so much fear. Boogie men are everywhere for you. You have such fear those men in caves in Pakistan. You fear a couple dozen detainees in Guantanamo. You have so little faith in America that you’re willing to endorse the subversion of the very underpinnings of our government and relinquish your own rights to quell your fears. Very sad indeed.

  42. I just read this:

    The Supreme Court’s decision on Guantanamo Bay will unleash a torrent of court filings from detainees seeking their freedom but won’t affect the military trials planned for some terrorism suspects, Attorney General Michael Mukasey said Friday.

    Can the lawyers among us please explain this and what is the likely scenario going forward?

  43. JT said: “I try to dress nice …”

    NiceLY, professor, niceLY. for shame. also, you didn’t answer my questions.

  44. JT:

    Sorry, must be my old black and white with rabbit ears giving me problems. However, you are giving away your Midwest roots. Here in balmy Virginia, it’s seersucker (jacket or pants), and only occasionally khaki suits. We do like your apparel choices, it’s just that Olbermann is such a clotheshorse. Tell him enough of those silk monotone ties though.

  45. rcambell writes: You fear a couple dozen detainees in Guantanamo.

    No, what I fear is they will be released and will return to the battlefield and kill American soldiers as others that have been released from Gitmo have done.

    I guess you don’t care about the soldiers then.

  46. rcampbell,

    I would check out the website of the Center for Constitutional Rights. They were a lead group representing the detainees (and our constitution) in this suit. This site may address your question.

    Jill

  47. badger:

    There, there, that “study” by the Congressional Republicans* and their apparachicks in the DOD has already been discredited by attorney H. Candace Gorman as simply more unsubstantiated war-mongering. I guess crying “wolf” all the time hurts anyone’s credibility. Maybe some advice for you too, badger.

    By the way, just so you know, everyone cares about our soldiers–everyone that is, except maybe those who keep them in harm’s way for no appreciable purpose other than their own political self-preservation. Wonder how our fighting forces will vote this time around?

    *Query: Does anything said by the Congressional Republicans have any credibility anymore?

  48. “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”

    Given this language in the opinion, does this mean the prisoners in black sites are out of luck?

  49. far enough, this is part of a legal anaylsis offered by the Center for Constitutional Rights. They do give a detailed anaylysis of the decision at their website.

    Jill

    In considering the extraterritorial application of the Constitution to Guantánamo, the Court adopted a practical approach it has applied in past cases. The Court strongly criticized the President and Congress’s attempt to declare that because Guantánamo was outside the sovereign territory of the United States, the Constitution did not apply. The Court firmly stated that “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’” Several factors warranted application of the Suspension Clause to Guantánamo, including (1) that the petitioners are noncitizens who dispute their status as “enemy combatants” as determined by CSRTs in an unfair proceeding, (2) the United States exercises exclusive jurisdiction and control over Guantánamo, with no other country’s laws applying, and (3) no credible arguments exist that habeas proceedings would impede any military mission at Guantánamo. The Court concluded that the individuals at Guantánamo have a right under the Suspension Clause to challenge their detention, and the pragmatic approach it took in reaching that conclusion still leaves space for similar challenges to U.S. detention facilities elsewhere in the world.

  50. This might help answer others’ questions: Also from Center for Constituion…

    We hope that the lower courts will quickly move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Already, today, the Chief Judge of the District Court for the District of Columbia has called for a meeting of the judges to determine how to proceed. Numerous lawyers filed notices and motions today in pending habeas cases to move them forward immediately. We anticipate that many of these cases will be decided swiftly because the government lacks any factual or legal basis for imprisoning the men. Without today’s decision these men might have remained in detention forever without ever having a real chance to argue for their release before an impartial court. With habeas these men – so many of whom have been officially cleared for release by the military – would never have been locked up and abused because no court was watching. We believe the majority of them will be released once the executive is forced to show up in front of a federal judge and justify their detention with hard evidence.

    The decision’s impact upon the pending military commission cases is indirect. It is likely those trials will continue to progress at their current halting pace. Today’s opinion only means that the defendants in those commissions proceedings – less than 20 men are currently charged – may commence parallel proceedings arguing that they should not have ever been detained in the first place.

  51. thanks, Jill.

    re part of your second post, JT said on Countdown that it will still take years for this litigation to be over.

    But (a) Kennedy said the detainees should not bear the burden of further delay (although some delay is necessary), and (b) how can the speedy trial guarantee ever be enforced if litigation takes this long?

  52. “The late Harry Reasoner of ABC News used to warn about the government’s manipulation of language and hence our liberties. Funny almost none of the new corporate shills masquerading as journalists talk about that anymore. As usual, Harry was prescient. War on terror, indeed.”

    Yossarian: Those bastards are trying to kill us.

    Dobbs: Who’s trying to kill you?

    Yossarian: Everyone of them.

    Dobbs: Everyone of who?

    Yossarian: Everyone of who you think.

    Dobbs: I haven’t any idea.

    Yossarian: Ah…then how do you know they aren’t?

    McWatt: What’s that called?

    Aarfy: Sophistry.

    “We’ might as well have a war on poverty. Oh yeah we did that already. How’d that turn out?”

    The war on poverty was canceled for lack of funding.

  53. For once, this modern Supreme Court struck a blow against the Republican and conservative idealogues and the Bush Administration and for freedom and liberty. As might have been expected, the Bush Administration under the lead of its mindless attack dog, Atty Gen Mukasey, plans to ignore the Court ruling and to go forward with their military tribunals and indeterminate confinements without redress. That is another not so subtle reminder to me about how mad I am at Sen. Schumer for selling out at the Judiciary confirmation hearing for Mukasey. That candidate could not have been more objectionable, but Schumer caved in, claiming Bush could pick someone worse. Well, who could be worse than an Atty Gen who shows no respect for the law and does as he damn pleases any time. Mukasey has done wrong with regard to the investigation about political AAG firings, illegal wiretapping, the Bush plea for retroactive immunity for telecoms, the issue of torture, and now, the long-awaited Gitmo decision. Mukasey is a pompous, arrogant ass who deserves to be impeached and indicted, and he has earned such punishment in a few short months. What a shame for America…and he is supposed to be our chief law enforcement officer. Instead, he is a prime offender!
    Schumer should be eating crow because he was wrong, dead wrong, and his re-election campaign in a few years will prove to him how wrong he was. We New Yorkers do not take kindly to traitors to the Constitution, the Bill of Rights, and individual freedoms of the press, religion, speech and assembly, not to mention freedom from unreasonable search and seizure and illegal wiretaps. Schumer and Mukasey will both soon be out of a government job, and I can’t wait to gloat over their downfall, but in the meantime, all Americans must voice their discontent and fight to recapture the high moral ground and freedoms achieved over more than 200 years and squandered by the Bush cabal in the past 7+ short years.

  54. McCain had this to say today:

    “We are now going to have the courts flooded with so-called … habeas corpus suits against the government, whether it be about the diet, whether it be about the reading material.

    Is this true, or is habeas used only to decide the issue of whether the government has the right to hold the prisoner? If it’s the latter, how does a prisoner challenge treatment when he/she is lawfully imprisoned.

    http://elections.foxnews.com/2008/06/13/mccain-guantanamo-ruling-one-of-the-worst-decisions-in-history/

  55. far enough:

    McCain is at his usual tomfoolery. There are 270 prisoners at Guantanamo. Even if every one of them filed it would hardly be a flood.* If I were McCain I would worry about being “across the v.” on a 1983 action along with the rest of the Bushies who apparently can’t get it that all people are “endowed by their Creator with certain inalienable rights.”

    Habeas Petitions only challenge the legality of imprisonment. It’s only been around since King John signed Magna Carta in 1215 c.e.. But to our frantic, history-challenged neo-cons, everything is new every day. Kennedy does a nice job of summarizing its history in the opinion if you are so inclined. The things McCain speaks about (food, reading material, etc) are usually civil rights cases filed by inmates. That is NOT habeas litigation, but hey it makes for a good lie to fool the public and isn’t that what these Bush-evics are really all about.

    I commend you on not accepting these people like McCain on face value.

    * For some perspective there are 45,000 cases against Merck alone in the Vioxx litigation. No one calls that a flood. The estimate of those affected by the drug negaitively is about 100,000.

  56. Jill, thank you for the information.

    The right’s shrill reaction to this ruling is quite interesting considering the myth they’ve spread like manure for years about their being the guardians of the Constutition and wanting strict interpretations only. This is strict enforcement of protecting the Constitution from manipulation by one or more of the other branches. That is precisely what the Founders intended.

    Justice Scalia’s purely partisan political “dissent” abandons all pretense of thoughtful judicial restraint in favor of brazenly exposes himself as an irrational petulant child.

  57. rcampbell,

    You’re welcome. I was dismayed to hear commentators running around saying that the courts are not supposed to “second guess” the president and/or congress. Like you,I read the constitution as having the courts rule on what is or is not constituional. I thought we had a three partite system to prevent just such a tyranny. Scalia’s threat is just irresponsible. If he really wants to get to the matter of people being killed, this ruling gives some hope that we will be less likely to be attacked. Having a working judicial system in this country takes away one of the terrorist’s greatest recruiting tools–the incredible extra legal mistreatment of detainees.

    Jill

  58. First of all I must say, JT, you look absolutely brilliant in blue and brown earth tones always and fashionably seasonal and stylish in khaki – not to worry.

    You looked really fresh on KO last week. I gather summertime has a healthy effect on you…! :)

  59. If wearing seersucker is a prerequisite for living here in Virginia, I’m glad I’m moving to Silver Spring next week!

  60. JR:

    Plebian! Thanks for raising the aggregate IQ of both states with your move. All in jest, of course!

  61. “Crooks & Liars” has an absolutely priceless exchange between British journalist, Adam Boulton, and our fearless leader over the recent Supreme Court decision on Guantanamo and habeas corpus. Here’s a highlight:

    BOULTON: But the Supreme Court have just said that — you know, ruled against what you’ve been doing down there.

    THE PRESIDENT: But the district court didn’t. And the appellate court didn’t.

    BOULTON: The Supreme Court is supreme, isn’t it?

    Sergeant Shultz, er I mean George Bush, also accused Boulton of “slander[ing]” America because Boulton asked about those little unpleasantries at Guantanamo and Abu Ghraib. Watch to see how far we’ve fallen from since “Ich bin ein Berliner.”

    Bush is certainly no JFK reincarnated, but Larry, Moe & Curley are surely back.

    http://www.crooksandliars.com/

    Scroll down about 1/3 of the page, and look for “President Bush accuses UK journalist of “slander[ing] America” for mentioning Guantanamo, Abu Ghraib abuses.”

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