I’m having a lot of trouble with getting to this site and its comments. This may be a triple post. I think you have made a good point and I have to change my mind on this.

You make a good point and I have to change my mind on this.

http://blogdredd.blogspot.com/2009/04/everybodys-got-holder-heart.html

What are they thinking?

You have a keen grasp of one clause of the Constitution, maybe you should read further. This matter has been hotly debated many times on this site and I won’t recapitulate the arguments now, but I’ll just refer you to Professor Dinh’s testimony which artfully lays out the issue and the arguments in favor of Constitutionality. While I am sure your credentials dwarf Professor Dinh’s* on the topic, maybe you will deign to at least consider his point of view, which even the most confident opponent would have to concede is a reasonable interpretation. That is, after all, the most that I was saying. Maybe you’ll learn–as most lawyers already know–that in law, nothing is ever “flagrantly unconstitutional,” until those nine gray-hairs say that it is, your considered opinion notwithstanding.

http://judiciary.house.gov/hearings/March2007/Dinh070314.pdf

*A.B., J.D., Harvard. After law school, where he was a Class Marshal and an Olin Research Fellow in Law and Economics, Professor Dinh served as a law clerk to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and to U.S. Supreme Court Justice Sandra Day O’Connor. He was Associate Special Counsel to the U.S. Senate Banking Committee for the Whitewater investigation and Special Counsel to U.S. Senator Pete V. Domenici for the impeachment trial of President Clinton. He also serves as counsel to the Special Master mediating a number of lawsuits by Holocaust victims against German and Austrian financial institutions. His representative writings include “Codetermination and Corporate Governance in a Multinational Business Enterprise” in the Journal of Corporation Law, “What is the Law in Law and Development?” in The Green Bag, and “Financial Sector Reform and Economic Development in Vietnam” in Law and Policy in International Business.

…a federal judge has ordered access to U.S. courts for three long-time detainees held at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan. Judge John D. Judge Bates writes that the case “closely parallels” the issues that led the Supreme Court, in its seminal Boumediene decision, to grant the right of habeas corpus review to the Gitmo detainees. Bates writes:

Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene — they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be “enemy combatants,” a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the “objective degree of control” asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the “practical obstacles” inherent in resolving a Bagram detainee’s entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war.

The constitution says this about habeas: 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.”

http://politics.theatlantic.com/2009/04/bushlaw_unraveling_at_bagram.php

If we assume reasonable men can disagree (say Professor Dinh with Professor Turley) why can’t the AG pick a position contrary to his staff if it’s reasonable. Ultimately the Courts will decide the matter, and if the AG is wrong on the law he will join a long and distinguished line of reasonable people who were wrong.

If we assume that reasonable lawyers (not men) can disagree on the constitutionality of this bill, we’re making quite an assumption. The bill is, as pointed out above, flagrantly unconstitutional in that it ignores Article I’s requirement that House representation be apportioned among “States” and its explicit reference (I, 17) to a “district” controlled by Congress. A “district” is not a “state”.

Politically this may be a reasonable disagreement. Legally, it isn’t.

*”We are not final because we are infallible, but infallible only because we are final.”