« "I'm not one of the last hopes of Middle Earth, but I play one on TV!" | Main | Umm... »

December 18, 2003

Comments

Some links about some local enemies.

More local enemies. Nothing was found.

The original "Second Update" contained a fairly humorous typographical error, which (sadly for the readership) has been corrected.

Back to La merde.

let me guess - "pooply" for "poorly"?

I revamped the order of the post, mostly because I like writing "Breaking News Update."

let me guess - "pooply" for "poorly"?

Nope -- I probably would have left that in (and claimed it was intentional).

Did you say the Ninth Circuit Court? Isn't that the most frequently-overturned court in the entire country? I'd wait until their decision gets addressed by a higher court before I'd place too much weight on it.

Just sayin'.

Did you say the Ninth Circuit Court? Isn't that the most frequently-overturned court in the entire country? I'd wait until their decision gets addressed by a higher court before I'd place too much weight on it.

Yup, that's true. And I'm still weighing the legal merits. (For more on this, follow the link to Professor Bainbridge's site in the Addendum.)

Good: after nearly two years of allowing the State Department to run an illegal jail with prisoners in illegal detention, it's about time that a court notified the government that it's breaking the law!

Excellent news.

It seems to me that the 9th Circuit has essentially redefined the nature of Guantanamo's sovereignty from how it is understood by the parties to the lease...Graber's defense offers an indication of this, and is well balanced in that it suggests that the best course for the court to take would be to defer to the SCOTUS, which has already agreed to hear a trial on this issue...

You s'pose Rummy will throw the judges into the shredders? Seems like a lot of folks believe that.

Wow. Who knew that State was running Guantanamo? Who knew?

Slarti, thanks for the correction. I don't know quite what I was thinking at the time I typed it - possibly just happy that a monstrous injustice - and worse than that, a very public criminal activity, is (hopefully) soon to be corrected. It can't be erased: Guantanamo Bay will forever remain as a black mark in US history, but the least a criminal can do is acknowledge that they have been breaking the law, and stop doing it.

This is just too soon after a final that touched on some of these issues, and if I read the decisions I will obsess about how I screwed up.

In the mean time, please don't ever spell K-Lo's name the way I spell my name again.

In the mean time, please don't ever spell K-Lo's name the way I spell my name again.

Huh?

It seems to me that the 9th Circuit has essentially redefined the nature of Guantanamo's sovereignty from how it is understood by the parties to the lease

At best, Clay Ranck, this argument depends on the studious elevation of form over substance. That doesn't make it wrong as a legal matter, by the by -- lots of legal decisions could be said to elevate form over substance. But the century-old lease between Cuba and the US is not a flag I'd want to waive if I were trying to defend the Government's decision here.

In point of fact, however, the Government has no other flag to waive, hence my disapproval (discussed below) of the decision to detain persons indefinitely -- without lawyer, trial, or any form of review -- on Guantanamo.

By way of background: Mr. Ranck is referencing the Government's claim that Guantanamo is not sovereign US territory, but rather it is the sovereign territory of Cuba and is only leased by the US. By this logic, a US Court does not have jurisdiction to hear any plea by a Guantanamo detainee because US Courts only have jurisdiction over sovereign U.S. territory.*

Having finally had a chance to skim the decision, I must say that I think it's legally sound. (Gross oversimplification follows.) Essentially, the Court held that the US exercises complete control over Guantanamo, has done so for 100 years, and intends to continue to do so for the indefinite future, all without regard to the dictates of the lease with Cuba. Under these facts, the Court held that the U.S. is the sole power in Guantanamo, and, because it is the sole power in Guantanamo (Cuba has no rights there), Guantanamo is under the jurisdiction of the US Courts. Actual control by the government, not the ignored dictates of an ancient lease, is the standard for jurisdiction by the Courts.

That sounds about right to these ears.

von

*The arguments are complex and not necessarily intuitive. Nonetheless, I'd recommend that everyone to read the opinion, if only to understand how technical this debate was.

I've fiddled a bit with the look of the post to cut it down to a manageable size.

von, Katherine's talking about the way you spelled her name "Katheryn" at the end of the post.

Out of curiosity, since your President is both Head of State AND C-in-C of the military, does that not automatically mean that the State is running Guantanamo? Or does Bush have a different metaphorical hat on? Serious question.

von, Katherine's talking about the way you spelled her name "Katheryn" at the end of the post.

Oh, sorry, Katherine means the typo in the third footnote. I'm correcting it now. (There's a lesson there about footnotes, I think.)

Out of curiosity, since your President is both Head of State AND C-in-C of the military, does that not automatically mean that the State is running Guantanamo? Or does Bush have a different metaphorical hat on? Serious question.

I'm not sure if I understand your question, but here's a go: The US system contains multiple, independent sovereigns and then divides those soveriegns into different, co-equal branches. In the Federal sovereigh (what I take you to call "the State"), Executive Branch (headed by the President) is in charge of the Military. As such, the President is Commander in Chief of the Military, and exercises direct control over military installations such as the one at Guantanamo. (Whether the Executive or Legislative branch actually signed the lease for Guantanamo, I have no idea.)

Hope this starts to answer your question -- if I missed something, please let me know and I'll try again.

von

From what I've read, the courts may have some authority over the Jose Padilla case, but none whatever over any captured illegal combatants interned at Guantanamo. I'd expect this to get kicked up a notch; only then would I grant it any sort of attention at all. The fact that the Ninth IS frequently overturned on decision isn't irrelevant at all, IMO. It's an indication that their judicial disposition isn't shared by the Supreme Court, or, by extension, the Constitution of the United States.

If it's not completely clear that I have no idea what I'm talking about, it ought to be.

The fact that the Ninth IS frequently overturned on decision isn't irrelevant at all, IMO.

I agree, Slartibartfast, but don't dismiss the fact that Judge Shadur voted with the 2-1 majority. Shadur is not a Ninth Circuit Justice -- he's a Nothern District of Illinois trial judge (sits in Chicago),* is extremely well respected on procedural/jurisdictional matters such as these, and is not a liberal. (Speaking from personal experience, he's also quite crotchety.)

von

*As noted in my original post, Shadur was sitting by assignment on the Ninth Circuit.

Slarti - I read that the 9th circuit is reversed at about the same rate as other courts but that it hears more cases. I haven't seen the numbers and I can't guarentee (nor remember) where I read it. I'm just allowing for the possiblity that the particular meme propagated throughout the blogsoshere might mean less than supposed.

Here's an article that rejects the statement I vaguely remembered concerning the 9th circuit court. It does discribe the problems its has trying to manage its huge caseload. Here.

I think the person (I read it somewhere) that said that the 9th circuit court is reversed at the same rate as other courts must have been refering to the total number of cases it hears, not just the ones that are reviewed by the Supremes. Here's more on that court's problems.

Didn't the 4th Circuit rule on Gitmo and hadn't SOTUS scheduled Gitmo to be on the docket for next year. (If I am wrong on either, please disregard).

BTW, why was the 9th circuit involved to begin with (the 9th doesn't traditionally handle the military and Gitmo isn't on the west coast)?

I want one. I'm just not so sure about Wilbur and how he'd take to a kitten.

The comments to this entry are closed.

Blog powered by Typepad