One of the classic introductions to law and to the study of law is The Bramble Bush by Karl N. Llewellyn. After forty-five years, I no longer have a copy. However, the preface contains a little ditty, which as best I remember it goes something like this:
I leapt into a bramble bush and scratched out both my eyes.
When I saw what I had done, with all my might and main,
I leapt back in the bramble bush and scratched them in again.
Somehow, that seems pertinent here.
According to Senator McCain, the Supreme Court's 12 June 2008 decision granting habeas corpus rights to enemy combatant detainees at Guantanamo was “one of the worst decisions in the history of this country,” even though he had not had an opportunity actually to read it. Senator Obama, on the other hand, said it was just peachy because it was all President Bush's fault anyway. Most likely, he hadn't had an opportunity to read it either, even though he is apparently a constitutional scholar of some renown.
Meanwhile, the Chief Judge of the 9th U.S. Circuit Court, sitting as a trial judge (rather than in his normal role as an appellate judge), granted a mistrial in an obscenity case over which he was presiding because he himself had posted rather nasty bestiality porn on his own official website. As we all know, the Ninth Circuit Court of Appeals has only the best and brightest jurists; it may well be one of the sources from which Senator Obama, should he become the President of the United States, will pick his new Supreme Court justices. Having read the Guantanamo Decision, that could be an improvement over the justices in the majority there.
Although I am a recovering attorney, and religiously attend Attorneys Anonymous meetings, I am not now, nor have I ever been, a constitutional scholar. Perhaps that is why I found the majority opinion in Boumediene et al v. Bush, President of the United States hopelessly confusing and, with all due respect, silly.
The Court, in the majority opinion authored by Mr. Justice Kennedy, found no basis in precedent for its decision. A dissenting opinion, authored by Mr. Chief Justice Roberts, in which Justices Scalia, Thomas and Alito joined, as well as a separate dissenting opinion authored by Mr. Justice Scalia in which the other dissenters joined, pointed this out forcefully. As Mr. Chief Justice Roberts notes,
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. . . . [T]he habeas process the Court mandates will most likely end up looking a lot like the . . . [Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742.] system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat--precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary (emphasis added)
Translated into normal English, the majority has made a pig's breakfast of the whole matter, and it is impossible accurately to predict what will happen next, other than that inordinate delay in adjudicating the rights of the detainees will result.
Article comments
— go to most recent comments1 - Steve Real
Magna Carta Libertatum
The Great Charter of Freedoms
1. FIRST
We have granted to God,
and by this our present Charter have confirmed for US
and our heirs forever,
that the Church of England shall be free.
She shall have all her whole Rights
and Liberties inviolable.
We have granted also,
and given to all the Freemen of our Realm,
for US and our heirs Forever,
these Liberties under-written,
to have and to hold to them
and their heirs of US
and our heirs forever.
29.
No Freeman shall be taken or imprisoned,
or be disseised of his Freehold,
or Liberties, or free Customs, or be outlawed, or exiled,
or any other wise destroyed;
nor will We not pass upon him,
nor condemn him,
but by lawful judgment of his peers,
or by the Law of the Land.
We will sell to no man,
we will not deny or defer to any man
either Justice or Right.
Habeas Corpus Ad Subjiciendum
(We command that you have the body)
We command you, that the body of A.B.
in Our prison under your custody detained,
as it is said,
together with the day
and cause of his taking and detention,
by whatsoever name the said A.B.
may be known therein,
you have at our Court ...
to undergo and to receive that which
our Court shall then and there consider
and order in that behalf.
Hereof in no way fail, at your peril.
And have you then there this writ.
(Magna Carta - signed June 15, 1215 A.D.)
These men who wrote and enforced the Magna Carta were heroic! I see no shame in defending liberty!
Come on fellas "Stand Up!"
2 - Dan Miller
Standing up for liberty is very important, and so is the Magna Carta. However, so is sitting down and reading a bit. There is a fairly decent albeit short history of the Magna Carta in the Court's decision, cited in the article, which might be informative.
Dan
3 - bliffle
Putting aside, for the moment, the arguments of legal and political historical intent and precedent, IMO one must consider the intent and purpose of Habeus, Bill Of Rights and Magna Carta and other prominent proclamations. In fact, one must examine what one wants the law to effect.
For many years I have held that 'foreigners', those who are not 'freemen' or citizens, either by fortune of birth or by struggle for citizenship, are not fully entitled to the protections and privileges of modern Western justice. They were not indoctrinated into our system, they have not voluntarily assumed the responsibilities of our society and are thus not entitled to all the privileges and protections.
But I'm changing my mind, for 2 reasons: (1) we vociferously instruct other governments to embrace our notions of Human Rights, and (2) relaxing our principles with foreigners cannot help but dilute the protections of our own citizens.
If we seriously intend to tell other people how to conduct their business (and the very invasion of Iraq exemplifies that) we must follow those same rules even if it is uncomfortable. Otherwise our arguments are easily defeated by charges of hypocrisy.
If we introduce legal anomalies like torture and hearsay evidence, we can't help but to undermine our own internal legal protections. After all, the people who go back into civilian life after the war will take with them the skills and attitudes they acquired while dealing with foreigners. We can only imagine the bad effect of promoted officers whose expertise is in torture and coercion returning to civil society as judges and prosecutors.
4 - Zedd
In this situation, one cant be declared an enemy combatant if it is not proven that he is one. Being accused by some guy down the street who got paid to do so, in the comfort of your own country does not make you an enemy combatant.
Most of these guys were kidnapped or sold into imprisonment by greedy neighbors or sometimes relatives (in laws). We were paying extremely poor people several times their annual income, to provide us with enemy combatants. We got them.
They weren't told what they were charged with, who made the charge and where or when they performed the infraction.
Dan, not sure what is confusing about the notion that this is simply wrong AND will eventually bite is in the tush. We simply cant conduct business like that.
5 - Baritone
I have no legal background. I cannot cite legal precedent. I do understand at least some of the risks involved regarding this decision. BUT! I must agree with bliffle above.
The decisions made by the Bush administration and the military under its mandate regarding the disposition of the detainees at Gitmo and other places, the use of at best very questionable interrogation techniques constitute an egregious hypocracy and a serious embarrassment for this country.
Owing largely to convenience most of the Gitmo and other detainees have been denied essentially any legal rights with no idea of how long they may be detained, under what conditions, and when or if they may be afforded an opportunity to face their accusers before any manner of tribunal.
As bliffle stated, we have via the Iraq and Afghanistan invasions and other means forced our selves into other sovereign (if wholly despicable) nations in the supposed task of introducing them to democracy.
Concomitantly, and over the past many years, we have insisted upon humane treatment of our "detainees" via the Geneva Conventions. That we choose to ignore those conventions and/or cherry pick those that work for us and ignore those that present an inconvenience, or yes, even perhaps an added danger, is hypocritical at best.
Judge Scalia, who IMO is perhaps the closest to being an idiot amongst all of the current and past members of the Supreme Court, in his dissenting opinion states that more Americans will die owing to this decision, which is highly inflammatory and the truth of it hardly likely.
If it can be said that we once legitimately wore the white hats of the good guys, kept in place by our supposed righteousness, they now remain precariously atop our enlarged heads via barbed wire and duct tape.
6 - Michael J. West
Judge Scalia, who IMO is perhaps the closest to being an idiot amongst all of the current and past members of the Supreme Court, in his dissenting opinion states that more Americans will die owing to this decision, which is highly inflammatory and the truth of it hardly likely.
It's certainly highly inflammatory, as is Scalia's way. I don't know if it's true or not that this decision will cause more Americans to die. But I do know this:
I'm much more wililng to die for a country that affirms Guantanamo detainees' habeas corpus rights, than I am for one that doesn't.
7 - Baritone
Yeah, we must remember that democracy is a risky business. The government and military can't have it both ways and expect the rest of the world or our own citizens to ignore the inconsistency and hypocracy. We lose all credibility.
B-tone
8 - Dan Miller
I am in substantial agreement with the comments above, with one caveat. Biffle says,
The right to habeas corpus is a highly important part of our Constitutional heritage, but so is the notion of separation of powers.The Supreme Court is one of the three more or less co-equal branches of Government. Finding a duly adopted Congressional enactment unconstitutional is a big step, and one which the Court very rarely takes -- particularly where, as here, the law was specifically tailored to comply with the Court's previous articulations of the law. The difficulty is compounded where, as here, the Court gives precious little guidance to the lower courts on how to proceed, and just dumps the matter into their laps.
As to whether "one must examine what one wants the law to effect" the answer is obvious: Of course. However, the legislative branch is charged with that duty, not the judicial branch. We may not like what the legislative branch (or the executive branch, for that matter) does, but the folks in those branches are at risk of not being reelected. That is not true of the members of the Supreme Court.
Had the Court declared the legislation unconstitutional as applied and offered guidance on how it could be applied in a constitutional manner, that would have been far better. Even if the Court found it necessary to declare the legislation unconstitutional on its face, it should have given at least modest guidance to the lower courts on how to proceed. It did neither. The result of the decision, I think, will be to keep the detainees in limbo for very long time.
The Supreme Court reviews laws in light of Congressional intent and the Constitution. It should not substitute its judgment for that of the Congress on what it wants the law to achieve.
Although there will be substantial practical difficulties to granting habeas corpus to Gitmo detainees that seems, to me, to be only a minor problem. The greatest flaw is that the majority opinion is, to me at least, incomprehensible. I have no difficulty at all in understanding Mr. Chief Justice Robert's dissent. A judicial decision which is poorly written and therefore unclear is dangerous, and can easily lead to unintended and unforeseen consequences. And that is what is very likely to happen here, to a perhaps greater extent than was the case with the recent California Supreme Court decision overturning as unconstitutional the California law dealing with same sex marriage.
It is axiomatic that good cases often make bad law. In my opinion, that is true of both decisions.
Dan
9 - Jet in Columbus
Re: the title... Uh George Bush appointed the Chief Justice, any other questions? Duh!
10 - Dan Miller
Jet,
Yes, President Bush appointed Mr. Chief Justice Roberts, who dissented from the majority decision. Mr. Justice Kennedy was appointed by President Reagan. The title of the article was directed to Mr. Justice Kennedy's majority opinion.
Dan
11 - Jet in Columbus
Be that as it may, the supreme court is the last stop, and even congress can't override them on this one.
It's comical, but expected. if they agree with the liberal side, they're "legislating from the bench" agree with the right, and they're the most knowledgable people on the face of the earth.
12 - bliffle
It's true that each of the 3 branches has to apply it's proper function to the law. Congress passes law, Supremes judge consistency with Constitution, and executive carries out the law.
While they each have roughly equal power they have different functions.
But for us ordinary citizens we have to consider all 3 functions in our personal deliberations because we elect the congressmen who pass the laws an we elect the president who appoints justices as necessary. In fact, possible Supremes appointees is a significant part of our considerations for our presidential choices.
While the power of the 3 branches is roughly equal, they serve different purposes: (1) reflecting the will of the electorate, (2) determining consistency with Constitution (and previous law), and (3) executing the law.
The Supremes cannot initiate new law. But they can judge consistency of law. They only have a negative power. For example, when the SCOTUS said that "separate is inherently unequal" they were NOT initiating new law but rather pointing out that the "separate but equal" contrivance was simply a logical inconsistency. It was a failure of legal syllogism. They were NOT saying that it was morally wrong, or that it was unAmerican. they were saying that no logical legal system that abides a contradiction can survive. This is an old and honored principle of logic: any system that can encompass a proposition AND it's contradiction is a system in which nothing can be proven and everything can be proven and is thus gibberish.
Furthermore, there is not even proposed by the congress (acting as proxy for the executive) an alternative section of the Constitution that deals with non-citizens, i.e., foreigners.
Sigh. The burdens of idealism are heavy indeed. But that is what we have embraced in our Constitution, Declaration Of Independence, Bill Of Rights and other re-affirmations.
In fact, we have asserted that international treaties that we sign are as binding as our own laws, not merely suggestions that we may or may not observe.
Thus, if we look back to, say, 1944 when we had some 200,000 German POWs incarcerated (in New Mexico and Arizona, primarily) we felt ourselves bound by Geneva Conventions and rules of war to treat those soldiers to the same living condition as our own soldiers and officers.
Gasp! This was a big sacrifice because USA citizens were undergoing severe rationing to make sure that our Army and Navy lads had the best food and the best support circumstances we could possibly afford. Now we were required to provide those same conditions to The Hated Enemy!
We citizens were undergoing meatless days, milkless meals, etc., while German POWs were eating high on the hog! It was so good for the POWs that only one ever tried to escape (he was easily apprehended wandering around in Alberquerque). There were plenty of well-organized protests by angry USA citizens, too.
We even had to provide movies and other entertainment facilities so that they might not even notice they were prisoners. As well as military-quality medical facilities (much better than civilian facilities in those days).
But we saw our duty and we did it.
Are we less men than the Americans of 64 years ago?
13 - Clavos
"Are we less men than the Americans of 64 years ago?"
Yup. Much less of a country, too.
For proof, just look around you: at the media, the fashions, the "lifestyles" (a word that didn't even exist 64 years ago), the schools, the prisons, the hospitals, the congress, the executive, the values - pretty much everything.
Sic transit gloria...
14 - Baritone
If the majority decision was written badly as Dan suggests, that may well bring about unintended problems which is unfortunate. But to accept the status quo would have been worse.
One must remember that if the courts are overstepping their mandate, the same can surely be said of the executive branch as well under GW. And for much of the last 7+ years, the legislative branch has been the puppet of the executive, therefore effectively reducing its prominence in the whole process. Congress has become the weak sister of the 3 branches, while the courts have attempted to fill that void in an effort to clamp down on Bush and company. Is it all right and proper? Is it what the founding fathers intended? It's doubtful.
It just seems to me that if you view the so called "balance of powers as an equilateral triangle with the respective branches situated at each point, presently the executive, and perhaps the judicial points are greatly extended and the legislative point is but a nearly invisible bump on the horizon. One hopes that with the next administration, this divergence from the norm, or from the ideal, will be lessened, returning the image to more equal and "balanced" proportions.
And Zedd makes an excellent point as well. None of us have so much as mentioned the detainees themselves, many of whom may well be absolutely innocent. And even those who are in fact guilty should have a right to a proper hearing and adjudication of their cases.
Again, Dan may be correct. This decision may in fact muddy the waters to such an extent that nothing much will be accomplished for years to come. But, it was obvious that a majority of detainees had little or no hope of ever seeing their plight advanced while their lives wither away in the heat of the Cuban sun. They are, after all, human beings.
B-tone
15 - Glenn Contrarian
During the Cold War, we helped the world stand fast against the rise of a country that used torture, arrested even its own citizens and imprisoned them for years without trial or even evidence, and held its highest government officials to be above the law.
That was for most of my military career. Now it's MY government, my AMERICA that does the same.
Read Bush's Executive Order 51, wherein he allows himself to take on dictatorial powers in the case of a national emergency. And then remember Bush's quote: "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator."
It seems that it's now a crime against patriotism to think of any non-U.S. citizen as being deserving of justice in the sight of God. My heart aches for what my country is on the verge of becoming.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
That's "ALL MEN" - not 'all citizens'.
Can the Founding Fathers have been so wrong?
16 - Dan Miller
Jett,
I guess its all a matter of perception and whether one is a "liberal" or a "conservative". Supreme Court decisions should reflect neither bias. I certainly care what the Supreme Court does substantively, but at the end of the day a clearly written, coherent and understandable decision is usually better regardless of the substantive content than a poorly written and unclear decision of which I might approve substantively.You say,
The Supreme Court can declare laws enacted by the Congress constitutional or unconstitutional. What it cannot do is to overrule the law of unintended consequences. That law is beyond its reach and has the status of a law of physics.
Dan
17 - Dan Miller
Biffle and Baritone,
I tried to post comments responsive to yours, but the system apparently was screwed up. I will try again tomorrow. Sorry about that.
Dan
18 - Dan Miller
Biffle,
Actually, in Brown v. Board of Education the Supreme Court did make new law, by overturning years of Supreme Court precedent. I happen to agree with that decision, which was rather clear, and the Court does have the power to decide that what it said in the past was wrong or at least inconsistent with the situation in the United States at the time of the decision. It had done so previously (look, if you will, at the decisions which first construed the Commerce Clause strictly and then later expanded it dramatically), and will doubtless continue to do so in the future. That is not what the Court did in the instant case.You say,
I agree completely that we, as citizens, have a duty to do a far better job than we have in electing our representatives. They are the ones who appoint members of the Federal courts, and they should be held accountable if they do a rotten job of it. We need to examine very carefully the type of judges and justices Senators McCain and Obama are likely to select, and to the type which our Senate is likely to approve or disapprove. It is very difficult to discern these things, but they are extremely important.
As to the German POWs, the U.S. and Germany were both parties to the Geneva Convention, and both countries did a very good job of abiding by its terms vis a vis POWs. Japan (as I recall) was not a party to the convention, and did not behave as though it were. POWs held in Germany generally received pretty good treatment, soldiers captured by the Japanese did not. Our so called ally, the Soviet Union, was little better than the Japanese. The whole idea was reciprocity.
Yes, as a nation which claims to be civilized we have certain obligations. It would be very unfortunate were the U.S. to treat un-uniformed irregular soldiers of a non-nation as they treat our captured soldiers. Unfortunately, it does not seem to matter how well we treat them, they don't treat our captured soldiers as we treat theirs.
As to whether the U.S. is a better country now than it was during WWII, I think that Clavos is dead on. But then, I am an old fart too.
Dan
19 - Dan Miller
Baritone,
Let's see if the system is working.
In your comment, you say,
The problem is, with the the law of unintended consequences the consequences are not only unintended but generally unforeseeable. If that is the case here, it is impossible to know whether the status quo would be be better or worse. My guess is that the situation produced by the Court is likely to be worse, but that's only my guess. You may be dead on.
Dan
20 - Zedd
Clav,
"For proof, just look around you: at the media, the fashions, the "lifestyles" (a word that didn't even exist 64 years ago), the schools, the prisons, the hospitals, the congress, the executive, the values - pretty much everything."
No matter how great the urge, don't do this again Clav. You are letting your inner geezer show.
On the other hand, look at technology and civil rights. I am Black and female. I think I have a better chance at self actualization today than the women of the past.
21 - STM
A statute of King Edward III amended the Great Charter (Magna Carta) in 1354 to read thus:
"No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law."
You will notice that the wording is very similar to the due process amendment in the United States constitution.
Theoretically, US law can go as far back as far as it needs in reference to the English law that formed the basis of law in the colony prior to the declaration of independence, provided it's pertinent and despite the fact many US lawmakers have a differing oponion on whether that should be the case.
Whatever the case, due process and habeus corpus form the cornerstones of the law that you (and I) have inherited and which has served us all so well for the best part of 1000 years.
The US government has a big problem with this, because no one's actually declared war - in a legal sense, and Guantanamo to all intents and purposes is US territory. It's only NOT regarded as such in a bizarre technicality dreamed up by bushco.
Which means that its jailing of enemy combatants on US territory means a) they are not PoWs (but criminals) and b) they have therefore been brought onto US territory under provisions of US criminal law that allows this.
All of which means they are theoretically entitled to the same treatment any foreign national would get say if they were sent for trial in New York, Smallville or San Antonio.
Therefore, the provisions of US criminal must apply:
Those provisions include: the right to a swift and fair trial by a jury of your peers.
The writ of Habeus Corpus to ensure that is the case.
Due process.
You can't hold people in custody indefinitely in defiance of the provisions both of US law and international law, while trying to sell American democracy and justice to the rest of the world.
The two things are mutually exclusive, and therein lies the problem not just for US lawmakers but also for everything the US is meant to stand for.
I agree tough times call for tough measures, but let's not push these measures to way outside the boundaries of what has worked for 1000 years, and what marks the point of difference between US and THEM.
22 - bliffle
Dan,
this statement is simply wrong:
"...What it cannot do is to overrule the law of unintended consequences. That law is beyond its reach and has the status of a law of physics."
Nonsense. You are guilty of gross hyperbole. Whatever "the law of unintended consequences" is, it is not a Law Of Physics.
23 - bliffle
Dan,
This is not new law but a judgement on old law and old custom.
"Actually, in Brown v. Board of Education the Supreme Court did make new law, by overturning years of Supreme Court precedent."
24 - Dan Miller
Biffle,
No, the law of unintended consequences is not a law of physics. It has the status of a law of physics, because it can't be changed. It can only be avoided. Physics suggests that if I drop a fifty pound weight it will fall down (assuming that gravity exists). If my toe is immediately beneath it, injury to my toe will probably result. Assuming that I did not wish to hurt my toe, that is an unintended consequence. This unintended consequence could have been avoided by looking where I was about to drop the weight.
Dan
25 - shane scheid
Question from the layman-
Why exactly are we even having this discussion? It seems to me (emphasis on "SEEMS") that by making use of Habeas Corpus in ANY type of proceeding, one lends that much more credibility to the outcome of those proceedings. To condemn any man of any nationality for any reason, without telling him why he is condemned, let alone the evidence supporting such condemnation, renders our nation, IMO, not worthy of my (or anyone else's)life, fortune or sacred honor.