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June 12, 2008

Comments

Well, good for the Supreme Court. I suppose when Bush doesn't convene hearings and move the scheduled show trials to US courts, a 36th article of impeachment can be added to the list of crimes for which he can be removed from office, if Congress would grow a backbone.

damn dirty activists

Oh, thank God. Searching for opinion now. ;)

me too - i don't think it's out yet.

scotusblog is always a good resource

never mind - it's here

Heh: I just this moment found it, and came back to check and see whether anyone else had linked it already.

5-4 opinion... One more reason to vote for Obama.

The legal answer is already established to fix all of this mess. The RICO Statutes are applicable to those groups who practice a pattern of felonious behavior in the United States of America.

Individuals found to be ‘associated’ with these groups can be prosecuted under the RICO Statutes. A common sense alternative to incarceration would be a humane and respectful repatriation.

The RICO Statutes are applicable to those groups who practice a pattern of felonious behavior in the United States of America.

That's a good way to prosecute the Bush administration, BOB. But as none of the people incarcerated in Guantanamo Bay fall into the RICO category, it doesn't apply to them.

A common sense alternative to incarceration would be a humane and respectful repatriation.

With compensation for five to six years unjust and unlawful imprisonment, and redress against the senior administration officials who made the decision to imprison unlawfully and to torture unlawful prisoners.

But, at the moment, I fear the problem is simply: How does anyone in the US get the Bush administration to obey the law of the land when we all know that, short of impeachment, they won't?

Jes, you're misunderstanding BOB. It's his usual bigotry, arguing that because Islam is a criminal organization, all Muslims should be deported -- where to is not clear. Apparently he doesn't realize that there are plenty of native-born American Muslims.

The total system of Islam knows no race, so criticism of Islam is not bigotry. As a matter of fact, I’ve tried to convert my wife, but she wouldn’t go for it. Islam would be very good for Brick Oven Bill. I have a strong libido and would rather do without all of the talking and meals. I like the concept of four wives that I could shut up on demand.

But Islam is incompatible with the Constitution, and the rational thought processes that I enjoy. So I’ll take one for the team.

There are 57 recognized countries that embrace the belief system. There are plenty of places to relocate those who refuse to embrace Western values.

BOB, if people can be deported for refusing to embrace Western values (whatever you think that means), then perhaps we should deport you to some country where religious bigotry is more acceptable. The Muslim Americans I know seem to be doing fine, even if they don't agree with Imam Bill's interpretation of their religion.

Of course Publius statement that foreign combatants have Constitutional rights is preposterous. Where in the Constitution does it say it? If foreign combatants enjoyed Constitutional protections, then why did the U.S. sign the Geneva Conventions?

Never in the history of the U.S. at war have captured foreign combatants enjoyed any Constitutional rights.

Hey, thanks for that astute legal analysis, "pluseyes." I'm sure if you call the court up, they'll rescind this posthaste.

Also, if you could highlight and identify the words "foreign combatants" anywhere in publius's post, I'd appreciate it. Thanks muchly in advance.

pluseyes: If foreign combatants enjoyed Constitutional protections, then why did the U.S. sign the Geneva Conventions?

Why indeed, since Guantanamo Bay was in breach of the Geneva Conventions from the moment it came into existence?

But of course, as I'm sure you're aware, "foreign combatants" does not accurately describe the thousands of extrajudicial prisoners currently held by the US, in locations in Iraq, Afghanistan, and elsewhere, of which Guantanamo Bay is only the most visible.

I wonder how many jury members and their families will be killed by these terrorists' associates when they are convicted. Or how many jurists will be terrorized so they vote to acquit and release these same terrorists. To think this is impossible, you'd have to live in fantasyland.

pluseye:

Never in the history of the U.S. at war have captured foreign combatants enjoyed any Constitutional rights.

The decision is consistent with prior Supreme Court precedent and the Constitution. The decision is "novel" only because no U.S. administration has ever tried before to incarcerate people for life with no court review.
______________

The point is that someone detained, even if an alien, has a right to habeus corpus to test whether or not they are properly held. If an alien is in fact an enemy combatant seized in wartime, prior precedent holds that they stay incarcerated and the courts have no further role.

The new wrinkle from Bush is the assertion that only the President gets to decide whether or not someone is an enemy combatant, and the recent Congressional law (Detainee Treatment Act) denying all habeus review for people seized under that pretext. This decision struck down that law as it clearly conflicts with the plain language of the constitution concerning when habeus may be restricted.

More importantly, it affirms that habeus is a basic right that cannot be denied. The prior decision on this point had relied on statutory codification of habeus rights, but this decision makes it clear that habeus rights do not depend on a statue -- they are inherent in the constitution itself.

What is remarkable is the craven political nature of the dissents, and their plain lack of reasoning in favor of polemics.

This is an historic decision, but only because of the gross abuse for years now by the Bush administration of these basic rights. Of particular interest is Kennedy's discussion that even though the District Court did not examine the adequacy of the alternative procedures adopted and even though usual practice is to remand for further hearings in the lower court, the Supreme Court took the extraordinary step to address those questions because the detainees had been denied their rights for years. This is the judicial equivalent of a slap down -- that the Court does not trust the Bush Justice Department to act in good faith based on its decision.

This doesn't stop the military commissions show trials now underway.

It's a very good thing, but a limited good thing.

Congress must act in 2009 to rescind the MCA. What's underway now is a process of judicial murder, which has received a bit of attention at Emptywheel and Digby's but not much of anywhere else outside lawyer/hr sites.

Umm, pluseyes: in case you have missed some of the debate over the status/treatment/disposition of those prisoners held by the US at Guantanamo Bay and elsewhere over the past, oh, five years or so: the classification of these detainees as "foreign combatants" (or "not") is the main issue of controversy.

Whether or not all/some/any of the US' detainees (c. 20,000 of them?) are terrorist masterminds, terrorist hangers-on, people turned in for cash bounties, or just innocent bystanders nabbed in a dragnet ought to be, one would think, a matter of importance, if only as a principle of simple justice.

Unfortunately, the Bush Administration hasn't seen it that way: preferring to try to keep leave their arrest/detention policies as completely opaque as possible. Sort of on the grounds of "If we've arrested them, they must be guilty of something".

I wonder how many jury members and their families will be killed by these terrorists' associates when they are convicted. Or how many jurists will be terrorized so they vote to acquit and release these same terrorists. To think this is impossible, you'd have to live in fantasyland.

On the other hand, it'd be a hell of a lot easier to plant a bomb.

IOW, try using your head.

Lilneelix, since those detainees who actually are terrorists, like KSM, apparently want to be martyrs, why would their associates want to prevent their conviction? In any case, I'd be more concerned about jury intimidation going the other way, since the jurors' neighbors are more likely to be thinking "How dare you let terrorists get off!" than "Death to America!"

Somehow we manage to try all sorts of other people, many of whom have violent associates to whom jurors are much more accessible, without shipping them off to islands that are supposedly beyond the rule of law and subjecting them to kangaroo courts.

“Western values (whatever you think that means)”

“Western values” are those things codified in the United States Constitution, copied in one form or another in most modern countries. The practice of Islam is incompatible with the United States Constitution and should be countered with the RICO Statutes. You should study how the belief system has historically been spread. Again, I have great respect for the belief system. It has been the most successful system in world history. And it has a certain appeal to me.

Personally, I am not sexually attracted to nine-year olds and I find Mohammed’s ‘tastes’ to be kind of creepy. I would not take a nine-year old as a bride. But when it comes to high school cheerleaders, call me Kevin Spacey in American Beauty.

I could handle having a couple of them kittens purring around the house. The good lifting techniques I used doing concrete work paid off. I have a very strong back.

Hey Publius, Roberts and Alito both dissented on this, so I guess that takes some of the edge off that previous optimism from a few days ago.......

Worse, they joined in Scalia's dissent. If you look at the first paragraph from that, it sounds like it could have come from FreeRepublic.

I'll have to look at the opinion in detail, but my gut says that this is the right result.

The RICO Statutes are applicable to those groups who practice a pattern of felonious behavior in the United States of America.

I have some experience with the RICO statute.* I would not favor a RICO claim here, but YMMV.

von

* I took the January 2006 deposition that was labeled a "fiasco" in this Seventh Circuit case (http://vlex.com/vid/36139096), for instance. Not because of anything I did, I hasten to add: I just had some questions that I wanted an answer to, like, who are you and why are you suing my client? (Y'know, complex stuff like that.)

BOB, as has been repeatedly pointed out, your interpretation of Islam, or anything resembling it, is not the interpretation of the vast majority of Muslims, especially in the United States -- any more than John Hagee's or Fred Phelps's interpretation of Christianity means much about what American Christians in general believe.

If you think that rounding up my Muslim friends and neighbors -- some of whom used to vote Republican before Islamophobia seemingly became part of the party platform -- and deporting them (to countries they have no connection to?) will reduce hostility toward the United States and make us safer, then your detachment from reality is advanced enough that there's not much to talk about.

Habeas isn't jury triable.

Habeas and the Fifth Amendment apply to persons, not just citizens. We're long past the Dred Scott view -- these people have no rights the white man is bound to honor -- in the law.

whammer -- no optimism was expected here. they were appointed to the court for this precise reason. the question for me is how much damage they would in other non-national security areas.

it was always clear how they would rule here. as i say, that's why they got picked (never know when future war crimes trials might get appealed up)

Good point Publius, this was never really in doubt from the standpoint of those guys.

I must say, not being a fan of Scalia to begin with, that I was especially horrified by the opening of his dissent.

Quick analysis:

The majority opinion's discussion of Eisentrager seems to strike the correct balance. The strong suggestion is that the writ may not have been applicable in the presence of proper military tribunals also seems dead on. The dissents overreach in their analysis of the proper harms, and ignore the sensible distinctions between Eisentrager and the present case. Justice von would have had no problem voting with the majority here (but, then, he always did have a strong civil libertarian streak).

Although I share the dissent's concern regarding where this goes in the future, the opinion appears limited. Only Guantanamo is at issue (for now) and only those subject to undue delay. Looks like other detainees will need to go through the congressionally approved method.

What I don't get is why the court wouldn't just remand. Exhaustion is typically required in Habeas proceedings. Part of the delay here was the litigants choice to not avail themselves of the statutory procedure. Why not remand with fast track?

And the discussion of old English law by both sides makes me wonder what the common law REALLY says. No habeas if you were an English citizen in Scotland? Who would have thought. So how exactly do you get from that to non-citizens in Guantanamo?

This will just mean that the military will detain overseas, which will not end up being a "win" for detainees.

This is the judicial equivalent of a slap down -- that the Court does not trust the Bush Justice Department to act in good faith based on its decision.

I'm not clear on why you think that the district court is beholden to the administration. Letting these cases come up through the lower courts testing the statute would have been the right thing to do.


bc: this comment is relevant to the questions about Scotland, etc.

About exhausting alternatives: the Court seems very, very bothered by the fact that some of these detainees have been in prison for 6 years without having the basic question whether they are actually enemy combatants addressed.

bc: No habeas if you were an English citizen in Scotland?

"Habeus corpus" - "you must produce the body" is from English common law, not Scottish law. For various historical reasons not worth discussing at this juncture, while many Scots individually emigrated to the Colonies, the legal system you guys ended up with was the English system.

Of course, Bush & Co would be in just as much trouble if you'd got the Scottish system of law, because under that system, if you arrest someone and jail them "the trial must begin within 110 days or the accused is freed with immunity from further prosecution for the crime charged".

hilzoy:

Nice summary in your post. I think you did a good job of presenting both sides especially given your own point of view.

Still doesn't answer Scotland. The majority's attempt to distinguish is not all that convincing.

My own basic moral belief (not speaking constitutionally) is that at some point it is a basic right to have a fair determination regarding your status. I don't think that necessarily means the right of habeas needs to be extended to aliens in Guantanamo. The statutory procedure met my minimum standard.

Under normal rules of judicial restraint, the detainees should have been required to go through that statutory procedure to see if they got released before burdening the courts and the executive with habeas proceedings. I'm not so sure the detainees will ultimately be happy with the ruling. I'm not sure it will be more expeditious. The court could have remanded with a "forthwith and at all possible speed" order and it might actually have been done quicker. We'll see.

What I think a lot of people don't understand is that habeas has a geographic/jurisdictional limitation. Your post was helpful on that point. Guantanamo is a quirky place. Frex, what about temporary bases overseas? Without 100+ year leases etc. habeas wouldn't apply. And this would have nothing to do with the Executive overstepping its power.

jes: Of course, Bush & Co would be in just as much trouble if you'd got the Scottish system of law, because under that system, if you arrest someone and jail them "the trial must begin within 110 days or the accused is freed with immunity from further prosecution for the crime charged".

But did this apply to aliens detained off Scottish soil? We'll never know because (I think) the Scots never had such a situation (or did they?).

bc: But did this apply to aliens detained off Scottish soil?

Yes. As I was warned by official letter when I got tapped for jury service a few years ago, in theory, a Scottish juror could end up anywhere, if Scots law is invoked.

We'll never know because (I think) the Scots never had such a situation (or did they?).

To the best of my knowledge and belief, no Scottish government ever kidnapped thousands of foreign nationals and held them in detention centers without any legal process for years at a time, no.

Individual Scottish lairds undoubtedly did kidnap and imprison people for years - though not on quite the scale as the US government has done: that's where the word "oubliette" comes from. And indeed, the cause for the laws in both Scotland and England specifying that powerful individuals were not in fact entitled to circumvent due process - as Bush & Co have done. Bush says he has a right to circumvent all due process for even US citizens on American soil, let alone non-citizens on US military bases and detention centres. It's very much The Old Issue.

He shall break his judges if they cross his word;
He shall rule above the Law calling on the Lord.

He shall peep and mutter; and the night shall bring
Watchers ’neath our window, lest we mock the King—

Hate and all division; hosts of hurrying spies;
Money poured in secret, carrion breeding flies.

Strangers of his counsel, hirelings of his pay,
These shall deal our Justice: sell—deny—delay.

We shall drink dishonour, we shall eat abuse
For the Land we look to—for the Tongue we use.

KCinDC: How do you know?

Gerald Hyland explains why he is concerned about an Islamic school in Virginia:

“I would be less than frank if I didn't tell you that the curriculum does contain references to the Quran, which, if taken out of context and read literally, would cause come concern,"

So reading the Qur’an literally is now ‘taking it out of context’. Interesting.

I disclose that I am an engineer and not a lawyer. But my understanding of RICO is that a pattern of ‘racketeering activity’ needs to be established. Racketeering activity can include extortion:

9:29: Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued.

Or murder:

5:33: The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter;

Or obstruction of justice:

2:225: Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.

There is a 1400-year pattern of this activity. We can observe it many parts of the world today. That is why I think the RICO Statutes are an appropriate method to deal with the threat of Islam to the United States’ Constitution. But I’m OK either way.

If KCinDC’s friends disagree with the teachings of the Qur’an, then why are they Muslims?

bc: Guantanamo is a quirky place.

Well, quite. If Bush & Co want to argue that it's not really American and Cuban law runs there, I'm sure the Cuban government would be glad to kick out their unwanted "tenants" at last.

McLEGS: Tonight we march north to England!

SECOMBE: But England's south

McLEGS: Aye, we're going to march right round the world and sneak up on them from behind! Forward the clan MacReekie!!!!!

I think that the question of how this applies to prisoners in Iraq is an interesting one. The US is claiming the authority to arrest whomever it wants to in Iraq, keep them in camps that the US military controls completely, and under conditions that prevent the detainees from coming uunder Iraqi law.

BOB, how do I know that you're not plotting against the government, especially if it's too pro-Muslim for you? There's a history of violence from Islamophobes, you know. Or maybe you're one of those reptilian aliens trying to foment unrest within the human population.

If hundreds of millions of Christians disagree with some anti-Christian bigot's interpretation of what the Bible says and what "true" Christian therefore is, then why are they Christians?

That's the last from me until you give some explanation of why your idea that that Qur'an must be taken literally (especially those passages that BOB views as significant) while the same doesn't apply to the Bible, and why your views on what Muslims believe should be taken more seriously than what actual Muslims say about it and how they behave. I don't expect you'll provide one, seeing that you've been asked repeatedly in the past.

I disclose that I am an engineer and not a lawyer.

Shoulda stopped there.

So reading the Qur’an literally is now ‘taking it out of context’

Reading Comprehension 101: The quoted sentence said, "If taken out of context AND read literally," not that reading literally was equivalent to taking out of context. And you claim to be an engineer? God help us all.

The plain meaning of the use of the conjunction "and," to those for whom English is their first language, refers to two separate but related things, not an equivalency between two things.

As such, the speaker -- and again, who the eff is he and why do I care about his opinion about some Islamic school or anything else -- is referring BOTH to passages which are meant to be read metaphorically instead being read literally, and to passages being moved from their surrounding context.

(Note my use of the word "and" there, lest you become confused and believe that reading something literally rather than metaphorically is the same as removing it from its surrounding context.)

The rest of your comment is the same xenophobic, bigoted nonsense I've come to expect from you, so whatever.


I disclose that I am an engineer and not a lawyer.

Shoulda stopped there.

Now, to be fair, most engineers are not like Bill. Engineering is a very diverse profession and I think that engineers have a number of useful contributions that the legal community would be well advised to consider.

Nevertheless, I'd like to apologize to, um, everyone, for Bill's behavior on behalf of all engineers. He shames us all.

Now, to be fair, most engineers are not like Bill. Engineering is a very diverse profession and I think that engineers have a number of useful contributions that the legal community would be well advised to consider.

Well, I AM reminded somehow of the the Salem hypothesis by that sort of non-disclaimer, but perhaps that's just me....

Too late, Turbulence, I'm already working on legislation to deport all engineers wpto L5. They're obviously unable to integrate into Earthling society.

Wow gwangung, never heard of the Salem hypothesis, interesting.

And I do have an engineering degree.... ;-)

Oh, and an MBA, which might be even worse. I believe I actually went to school with Hilzoy's brother.....

I thought it was going to be about how most women are not witches.

Too late, Turbulence, I'm already working on legislation to deport all engineers wpto L5. They're obviously unable to integrate into Earthling society.

plagarist!

:->

Actually, I think creationists pretty much have formed the blueprint for right wing ideological attacks for the past decade or so. You recognize the sloppy logic, the quote mining and the baldfaced lies fairly quickly.

Actually, I think creationists pretty much have formed the blueprint for right wing ideological attacks for the past decade or so. You recognize the sloppy logic, the quote mining and the baldfaced lies fairly quickly.

There is a more sophisticated version running around as well, which is what you get when you combine Xtian fanaticism with post-modernist ideas about truth, power and discourse.

One thing I always have wondered is whether there's a correlation amongst those engineers between their creationism and being a lousy engineer. I indulge myself in hoping so.

I have an MSE, so I can say these things.

I almost wrote "L5-itmo", but I didn't want the other thread to be required reading for this one.

I'd like to take a closer look at BOB's quotes:

9:29: Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued.

The Jizya was a special tax assessed on non-Muslims. (IIRC in some areas Islamic rulers stopped conversion efforts, because their success made too large a dent in revenues, but that's another story.) While that's a terrible idea, certainly, it is less than pure evil. It's also hardly unique to Islam. For many centuries non-Christians (read: Jews) in many Christian countries paid substantially higher taxes than Christians.

5:33: The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter;

A harsh code of criminal punishment, no doubt, but is it worse than what prevailed more broadly at the time the Koran was written, or for centuries thereafter?

2:225: Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.

I fail to see the objection to this passage.

Hey, Romans 14:11 says: For it is written, As I live, saith the Lord, every knee shall bow to me, and every tongue shall confess to God. That sounds pretty coercive to me, and leaves no room for disagreement. Can we start prosecuting Christians under RICO and deporting them?

@BOB, comme d'hab:
The total system of Islam knows no race, so criticism of Islam is not bigotry.

bigot: a person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance

So reading the Qur’an literally is now ‘taking it out of context’. Interesting.

I disclose that I am an engineer and not a lawyer.

I disclose that I not an engineer nor a lawyer. Nor even quite a linguist, but I've enough formation in this regard to recoil from your above statement, especially given my understanding of the Qur'an and its translations. How exactly are you reading this "literally"? You're reading a translation. English translations of the Qur'an are interpretions... as are all translations, natch, but these'uns tend to be good and contentious depending on who did the translation. They're not the same, ya know. And they're not all equally credible.

Which reminds me, it's been a week or so since I asked what translation you're using. At least this time you seem to be quoting rather than paraphrasing, but I still would like to know what context you're "literally interpreting". But which translation would this be, hmm?

...specific surrahs...

Bernard hit these well enough. I'll pitch in concurrence regarding 2:225; even trying to take a hostile PoV, what am I supposed to be objecting to therein?

I am a lousy engineer but I am not a creationist. On the other hand, I am not a US citizen or denizen, so other rules may apply here.

lilneelix: This doesn't prevent us from having criminal jury trials in the United States. Why should the case of terrorists be any different?

Y'all should recognize that Imam BOB is pulling your legs.

And he's really enjoying himself doing it too.

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