61 Comments

1. John N. Frary:

K, B, G, S and S might say that it is worth the sacrifice of thousands of American lives in order to preserve the libery of the survivors, but I doubt they will have the courage to be so explicit.

The reality is that if the US is hit by a WMD on a massive scale, the public’s devotion to the Bill of Rights may diminish to the point of real danger to our rights.

Jun 13, 2008 - 2:42 am 2. Claudio Veliz, AIA:

Ideally? Illuminate the full potential of strength that the nation is capable of by doing both: maintain the prerogative writ habeas corpus ad subjiciendum; place the content of charges on public view to confirm – or vacate – the attrocities these terrorists were intent upon. If the former, the Administration’s policies will be vindicated without the need to see downtown Manhattan dissapear. Simultaneously, protect the borders. Are these undertakings mutually exclusive?

Jun 13, 2008 - 6:09 am 3. william:

The tyranny of unelected judges must stop. Year after year decision after decision these unelected “elites” rob our liberty. Now they are putting lives in danger.
Instead of sitting around stewing ,I hope this is a wake up call for citizens to put pressure on elected officials to fix this.

Jun 13, 2008 - 6:50 am 4. Pajamas Media » Guantamano Ruling Makes U.S. Constitution a Suicide Pact:

[...] Read the post here… [...]

Jun 13, 2008 - 7:34 am 5. RE:

Some of the founding fathers recognized that the Judical Branch of Goverment could very well prove to be the Achille’s Heel of the model they created.

Prescient, those dead white men were!

Jun 13, 2008 - 8:10 am 6. David Thomson:

Barack “Barry” Obama has every intention of appointing more left-wing judges to the U.S. Supreme Court. Do you love your family? If so, you must vote for the less than perfect John McCain—before it’s too late.

Jun 13, 2008 - 8:22 am 7. CosmicPolicy:

Guantanamo was simply another one of Bush’s means of manipulating and controlling the minds of the American People. And I can see, many are still controlled.

We were to believe these terrible, evil people being held in confinement for the deaths of our American soldiers and innocent Iraqi citizens. But are they. I’ve seen videos depicting Iraqi men who were forcibly snatched from their homes, to be later placed in Bush’s awaiting prison for terrorists.

The Supreme court decision was justice too long in coming.

Jun 13, 2008 - 8:54 am 8. Whitehall:

I think it is well past time to show that the people are the masters and not the slaves of the judicial branch. Unfortunately, the only weapon we have, through our elected officials, is the act of impeachment. I think this could be a winning campaign promise in some congressional districts.

Wouldn’t the country be different if all those “Impeach Earl Warren” advocates had prevailed?

Here in California, we can recall judges, and have, but no such remedy exists on the federal level.

Jun 13, 2008 - 9:12 am 9. Roy M:

An opening sentence describing the issue. Then three paragraphs about planned parenthood and homosexuality. Then a paragraph about ‘your’ book.

Then half. way. in. we are back to the issue and things seem to be getting on track and…..

WHAT ON EARTH was that Obomamaniac thing. It LOOKS like an attempted pun on the presidential candidates name and bombing maniac combined with something about Democrats et al WANTING America to be attacked.

….more stuff about something else (Obama being a big spender PC type of guy) with French.

Then back to the issue for the final sentence.

Words fail me.

Jun 13, 2008 - 9:15 am 10. Roy M:

…but that didn’t stop you so I won’t let it stop me.

You’re a smart guy: you have a publishing company, you wear a bow-tie so I can only assume that that display of mental dégringolade (I had to look it up. I have no bow-tie.) was due to sleep deprevation or the result of realising you had nothing to say about the subject but had promised 800 words.

Anyway.

Terrorists cannot destroy our way of life or take away our freedoms. We are too strong for them to even come close. There are only two kinds of people who can take away our freedoms and destroy our way of life if we let them: they are The Executive and The Legislature. We can add the Judiciary to these potential villians if they fail in their absolute duty to stop it happening.

Today they did not fail.

Jun 13, 2008 - 9:42 am 11. Georg Felis:

Ok, correct me if I’m wrong.

The primary effect of this decision will be to cripple the collection of human intelligence (Bob the Terrorist is unlikely to rat his buddies out if he knows they will find out), cripple the application of intelligence (you cant capture a terrorist leader if he will be able to find out just how you located him, and who ratted him out), and travel backwards in time to affect things that have already happened (such as the widows of a dead terrorist leader suing in US court for wrongful death and seeking discovery into classified reports)

And in addition, this decision allows not only detained Illegal Combatants full and unfettered access to the US Court System to challenge their detainment, but also permits Prisoners of War as defined by the Geneva Convention (Agents of a State, carry arms openly, wear a uniform, conduct themselves according to the rules of law) the same access. i.e. The next war we conduct such as Operation Desert Storm, every individual POW (however many thousands of them) will be permitted to seek their release thru the DC court of appeals. And claiming to be unable to afford legal representation, the US will be forced to pay for a lawyer for each and every one of them.

So what has this done to the incentive to take prisoners?

Jun 13, 2008 - 9:48 am 12. Cal:

Like a good leftist, Cosmic is always looking for a way to understand the enemy and castigate her great nation. Go vote for Obama. Call me when he does something for America. What a joke this election is. Yes, if you want to keep America safe and prosperous, vote for the man who has never accomplished a thing in his life, has a racist, America-hating wife and far left politics over the war hero.

Jun 13, 2008 - 9:50 am 13. mishu:

Terrorists cannot destroy our way of life or take away our freedoms.

They can certainly take away our lives.

Jun 13, 2008 - 10:05 am 14. josef krystof:

Dear Mr. Kimball,

Almost everything you’ve written is wrong.

You say: “The point of the Constitution is to preserve liberty, not to play word games that make liberty vulnerable to its enemies.”

If the President can unilaterally detain anyone, citizen or not, for an indefinite period of time and leave that person with no legal recourse, liberty is being shat on, not preserved (and don’t even bring up the Combatant Status Review Tribunals it’s not a fair trial when one side can’t even see the evidence.)

You quote Justice Jackson on free speech, but on the issue of executive detainment Justice Jackson in Brown v. Allen (1953),
“Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.”

You say about the American people: “They object to the erosion of individual liberty in the name of political correctness.”

I’ll correct you: we object to the erosion of individual liberty in the name of fear and security.You have some gall, to talk about Democrats lessening liberty when it has been the current administration, through the “unitary executive” theory, that lessens the ability of the people to exercise their will through the duly elected representatives tasked with making laws on their behalf. Why bother with a congress if the president will simply ignore laws when he dislikes them? It is the current administration that seeks to spy on its citizens, record their transactions, and prevent their 1st amendment right to assemble. Each time they say, ‘only evildoers need fear,” but in reality it is our lives as private citizens to be secure from the state’s monopoly on the use of force that we all must fear.

You claim to want a smaller government, except when it involves our civil liberties, and then you’d rather be safe than free. You say our Supreme Court’s justices “have just made you, your family, and your country more vulnerable to attack by theocratic fanatics bent on the destruction of Western civilization.”

This is wrong on two count. First, the terrorists are not “bent on the destruction of Western civilization”, they have geopolitical goals ust like we do, but their are that the US stop supporting dictatorial regimes in their territory (Pakistan under Musharraf, Egypt, Saudi Arabia). More importantly, I rebut your concern abot safety with Patrick Henry (June 5, 1788): “Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take everything else! . . . Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.” And with former British Prime Minister John Major “No one can rule out the possibility of another atrocity — but a free and open society is worth a certain amount of risk. A siege society is alien to our core instincts and — once in place – will be difficult to dismantle. It is a road down which we should not go.”

I’d rather be blown up by a radical because I live in a free society than be “safe” in a totalitarian police state. It seems you are a pansy who would rather discard the principles that make America worth fighting for than risk a small chance of personal harm. I have nothing but contempt for you, and your like-minded commenters.

Sincerely,

Josef Krystof

Jun 13, 2008 - 10:17 am 15. view from afar:

ok dégringolade apart what color is the sky in your world Roy M? Terrorists can destroy all of the American way of life…think about you seem intelligent enough to do so, since you can so decisively argue,while totally missing the point, anyway I’ll guess it’s because your morning coffee wasn’t ready yet. Sorry I am horrorified by the arguements of this judge and he too must live in your world roy m…live in europe for a while owning your own small business of course, then we’ll talk…
oh as for continuity, you must have missed quite a few lines in the 800 words

Jun 13, 2008 - 11:13 am 16. Fat Man:

Impeach them.

Jun 13, 2008 - 11:47 am 17. jerry:

It is fairly clear that those posting support for the Courts decision are ignorant of both the US Constitution and the Geneva Convention on the treatment of POWS.

First, POWs cannot be turned over to civil authorities for any reason even if they so desire. Allowing a It is fairly clear that those posting support for the Courts decision are ignorant of both the US Constitution and the Geneva Convention on the treatment of POWS.

First, POWs cannot be turned over to civil authorities for any reason even if they so desire. Allowing a lawful combatant to have the civil court system is a violation of the treaty and therefore a war crime. Lawful combatants fall under military juris prudence system. Unlawful combatants may be summarily shot under accepted international law and custom. The decision gives unlawful combatants and pirates more rights and protection then a lawful combatant.

The larger point is that this decision grants constitutional rights to non-citizens who commit acts outside the jurisdiction of the United States. The last time I checked the Constitution only applies to US Citizens and not foreigners. Supporters of terrorist rights (and that is what they are) bring up the red herring that somehow detaining unlawful combatants without trial or judicial rights endangers American civil liberties is simple nonsense. The President cannot authorize your detention without judicial review and oversight unless he declares martial law under the Insurrection Act of 1807 or if Congress declares war and authorizes the suspension of Habeas Corpus. The only thing this decision does legitimatize terrorism as an accepted method of warfare and endows the terrorist with special rights not afforded to regular soldiers who operate under the customs of international law.

The only remedy, and I would support such an initiative, is to amend the Uniform Code of Military Justice to allow battlefield commanders the option of applying accepted international law when an armed individual who does not fit the Geneva Convention definition of a lawful combatant is captured on the battlefield.
lawful combatant to have the civil court system is a violation of the treaty and therefore a war crime. Lawful combatants fall under military juris prudence system. Unlawful combatants may be summarily shot under accepted international law and custom. The decision give unlawful combatants and pirates more rights and protection then a lawful combatant.

The larger point is that this decision grants constitutional rights to non-citizens who commit acts outside the jurisdiction of the United States. Supporters of terrorist rights (and that is what they are) bring up the red herring that somehow detaining unlawful combatants with out trial or judical rights endangers American civil liberites is simple nonsense. The President cannot autorize the your detention without a declaration of the Insurrection Act of 1861

Jun 13, 2008 - 11:51 am 18. Peter G:

This is perhaps the most depressing and frightening decision I have ever seen from the Supreme Court, and totally unheard of in Common Law jurisprudence that covers dozens of countries and centuries of Common Law history.

How bitterly sad that some judges and their allies seem intent on mainstreaming and sanitizing terrorists and unlawful combatants, undermining therein the strict classifications of the Geneva Conventions. Not only that, it has opened up unlimited Federal lower court wrangling over possible extensions of this ruling, that could conceivably cover every soldier or terrorist that ever takes up arms against the USA!

As for Mr. Josef Krystof, he seems not to notice that we are at war at present, and that in previous wars it has been considered possible to suspend even habeus corpus for US citizens, let alone foreign terrorists and unlawful combatants. The perpetrator was lincoln.

Mr. Krystof, you are hopefully not a shill for the “geopolitical” ambitions of terrorists you claim are not bent on destroying “Western Civilizations”? As you put it. Despite their stated open aims, repeated with terrorist actions over more than a decade, we are not to believe them but you. What vile dissembling, sir. Your misunderstanding of the US Constitution gives me to wonder if you are American at all.

Jun 13, 2008 - 12:21 pm 19. George Clarke:

As a lawyer, it has always intrigued me to ponder the outcome if someone in the Executive (or Legistlative) Branch took Justice Marshall (from Marbury v. Madison) at his word that one’s constitutional oath compelled one to weigh the laws and rulings emanating from another separate and equal branch against the constitutional requirements of our founding document. Under contracts law, what we call the mutuality doctrine (basically, what’s good for the goose is good for the gander — any rights assigned to any contractual party must for parity’s sake be extended equally or reciprocally to all other parties) if extended to Marbury v. Madison means that rock, paper, scissors applies to the constitutionality of any branch’s acts.

If the lame duck Bush White House wanted to make the liberals howl as to Boumediene, it could simply extend Marshall’s Marbury logic, that emerged only as an unwritten emanation from the Constitution’s penumbra, to the other two branches as well, and invoke the inherent power of any branch to declare the rulings of any other branch as unconstitutional, insofar as they encroached on the affected branch’s written constitutional powers. (Here the president’s powers as Commander in Chief controlling the battlefield under emergency conditions in wartime, and to protect the lives of our men and women in uniform, could be said to be affected by 5 of the 9 Supremes seeking to assume the C in C role as to our enemies). But Bush could add another codicil. To avoid any Mexican or daisy chain standoffs, he would refer the Constitutionality issue as to the 5-4 Boumoudiene decision to Congress for an up or down vote. Congress would either support the Supreme Court, or the President. Then people should accept that

a. Any branch might at any time stub its toe on the Constitution based, mostly, on ideological failings.

b. If two branches agreed the third was wrong, the third, outnumbered, would defer.

c. Absent any challenge to a Supreme Court ruling by another branch, the Supreme Court interpretations would continue to be sacrosanct, but with an additional safety valve (further proof of checks and balances). True, it would only be there to be used rarely, but the Supremes could not then proceed with the false delusion that they could never be chastened by any wiser (elected) heads.

As to Boumediene, if all it historically means is that people picked up by our uniformed troops who are not in uniform have a legal means, outside the military, to prove they are not enemy combatants (something a soldier in uniform could never assert, much less prove) I really do not have a problem with it. Uniformed troops are protected by Geneva, while the fellow in mufti are not, and the fact that the governments who put the troops in uniform can end the war at any time by Armistice or Surrender, further puts a perceived cap on any uniformed prisoner’s captivity. Ununiformed terrorists groups have no such luxury, so what is the ununiformed apostate to do? As far as we know a terrorist war can never end, any more than the laws against murder will suddenly be respected by everybody, though never at any time before. So if this is the limited interpretation of Boumediene (the legal applicant must prove he is not an enemy combatant — burden on the applicant) then uniformed troops have no access to Boumediene. (Courts would be concerned anyway about “floodgates of litigation” after a surrender of 300,000 troops). If this is what it means then the precedential value of Boumediene is far less than most folks are saying.

But if this is what it means, it certainly favors terrorists in mufti (formerly exposed to immediate execution as spies) over uniformed troops, so no enemy of the US would ever be foolish enough to ever again issue uniforms. Net effect? The 5 liberals on the Court just made it alot tougher and more dangerous to be an American soldier protecting our country against terrorism, and once again handed the terrorists an easy legal handbook on how to beat America. Sad day for justice and sad day for the American Military.

Hey, Mr. Bush. Go back and reread Marbury v. Madison. No reason those rules don’t apply to the President backed up by Congress.

Jun 13, 2008 - 12:48 pm 20. vb:

About 400 prisoners in Khandahar escaped after the Taliban attacked the prison. Many Taliban fighters were among the prisoners. I hope that all who assume that Bush established Guantanamo only to deny rights to POWs will finally realize that there were military reasons behind his decision.

Jun 13, 2008 - 2:05 pm 21. rotwang:

Liberals! Lawyers in robes! PC! “Obomba”! Terrorists who are sworn to destroy us! Higher taxes! Death on a massive scale!

Wow. Roger crammed everything into this one except rape rooms, plastic shredders, Jane Fonda and the teturn of the Fairness Act. Oh, and a point. He forgot to make a point.

While he was channel-surfing from one conservative Pavlov-bell to another and amortizing the cost of his Oxford Shorter Dictionary, he lost sight of his own argument and dead-sticked into a final paragraph that reeks of a desperate writer on a deadline looking for the exit.

I mean, I “get” that he’s a frightened man whose appreciation of America’s ideals stops just short of the point where he, personally, might have to accept some level of risk in order to preserve them. But he didn’t need a whole column to say it.

Jun 13, 2008 - 2:38 pm 22. Chris:

I agree with the general sentiment of the article. The problem is that the war on terror has no limited duration.

In a war of limited duration (WWI, WWII, …) it is absolutely reasonable that captured enemy combatants who are not US citizens do NOT have access to the US civil courts. They are not US citizens and do not have rights under the US constitution, only under the Geneva Convention. They are simply released after the war is over unless convicted of war crimes.

The problem is that we are fighting a war with that could go on for another 50 years. It is unjust to hold a prisoner of war, uniformed or not, indefinitely, without a presentation of real evidence to a an objective party in a war with no clear endpoint, especially when at least one or two of the prisoners could have been snatched by accident.

Fortunately, the court made it clear that their ruling only applies to detainees Guantanamo. If this ruling were to apply to all POWs in any kind of war, the results would be very very bad if we every fought another conventional war.

Jun 13, 2008 - 3:13 pm 23. william:

I don’t think Josef Krystof had his meds today, or maybe he’s a just an angry college professor? Well Roger you certainly seem to have hit a home room with this piece you wrote. The very uninformed , anti-American ,disturbed, angry, bitter, defensive lefties are coming out of the woodwork today.
As for me, I am going to make sure everyone I know, and can possibly reach, know who the 5 supreme court justices are that declared war on America yesterday.
http://www.strongerthandeath.net

Jun 13, 2008 - 3:44 pm 24. Xanthippe:

Does this mean we close Guantanamo and get out of the business of imprisoning enemy combatants, so they instead end up in a foreign prison? Or do they just end up shot?

I fail to understand how our Constitutional rights extend to non-citizens, who are not part of our country – but rather may well be people dedicated to destroying our country.

Jun 13, 2008 - 3:48 pm 25. cthulhu:

Let’s see, according to http://www.globalsecurity.org/military/facility/guantanamo-bay_detainees.htm there should be about 270 detainees left at Guantanamo, and a total of three have been waterboarded.

In the meantime, at least 30 of those released from Guantanamo have taken up arms against allied forces — http://www.theage.com.au/news/world/freed-guantanamo-inmates-take-up-arms/2007/07/27/1185339258055.html — as of a year ago.

According to Wikipedia, there had been 759 detainees at Guantanamo as of 5/15/06.

It seems not at all unreasonable to suppose that: (a) there are far more than 270 people who would be willing and able to kill Americans and allies; (b) since the government has released almost 2/3 of those originally detained, they are doing their best to process them expeditiously and retain only those who are a threat; and (c) that there have been mistakes in this process — as witnessed by the 30 murderers erroneously included within the 490 that were released.

The amount of second-guessing, back-seat-driving, finger-pointing, and grandstanding that has accompanied this issue is a national disgrace. Modern rules of warfare indicate that due care should be used to minimize collateral damage — but not eliminate it. Any remaining non-terrorists within Gitmo — if there are any — are the lightest sort of collateral damage.

Jun 13, 2008 - 5:58 pm 26. Angie:

Josef Krystof wrote: “It seems you are a pansy who would rather discard the principles that make America worth fighting for than risk a small chance of personal harm.”

Sir, have you done anything to “fight” for these principles?

Jun 13, 2008 - 7:21 pm 27. LSD:

For those who are happy with this decision, the question remains; how do you respond?

The left has criticized the President for going into Iraq and distracting our military from the “real target” in Afghanistan. While it may be true that Bin Laden has taken credit for the attack on New York, an admission of guilt is not sufficient to convict in criminal court. It seems he would have to be proven guilty of direct involvement in the crime (which may not have been the case at all.) While the gears of justice turn slowly and deliberately, the next bunch of Bin Ladens would be free to study the proceedings, or take their chances and make their mark.

Neither the Geneva Conventions nor the American criminal court are tools fit for this problem and military history repeatedly tells the story of powers that could not recognize new threats.

Also, when you are defending the world from evil America, don’t forget that Guantanamo has a better record than any other Cuban prison you care to name.

Jun 13, 2008 - 8:18 pm 28. John Moore:

The last couple of years, SCOTUS has really left the rails of constitutional logic and driven into the weeds of outcome-based reasoning.

As others have said, it’s time to put a leash on these arrogant bastards. We need to impeach one or two, or have Congress declare Guantanamo outside the scope of the court’s jurisdiction (a power Congress has).

I have no problem requiring Habeus Corpus for American citizens detained anywhere in the world. But unlawful combatants who have never set foot on American soil? That is so absurd as to be laughable if it weren’t so dangerous.

What the lefties responding to this post miss is four critical points:

1) This forces the government to choose between releasing dangerous men or disclosing, to them, sensitive intelligence. This choice will get Americans killed.

2) This is judicial expansionism in full flower. It is rule by judges. How would these folks feel if Conservative judges were to gain ascendancy and decide to rule however they wanted – Constitution, the Executive branch and Congress be damned?

3) The military will have every reason to kill rather than capture suspected terrorists, unless the intelligence value is high. Instead of a military tribunal, the terrorists will be judged by tired intelligence operators looking at live UAV video, and the sentence will be carried out within seconds by a missile or bomb.

4) You can’t protect civil liberties if you don’t protect the society in which those liberties are exercised. The terrorists do have the power (in spite of the state of denial exhibited by the left) to greatly damage out civil rights (in addition to our lives and economy).

How? After the first smuggled nuke goes off in a US city, how many people will be willing to even give the time of day to an ACLU member? Or how about after a nice epidemic of a weaponized pathogen, released in the US by unknown malfactors.

Hell, the civil libertarians would be run out of town on rails, tarred and feathered, along with the majority on this court.

The cries that what we see today is merely fear manifested by the right will seem trivial when, in the future, the whole population is jittery enough to shoot at first suspicion.

Jun 13, 2008 - 9:50 pm 29. KYJurisDoctor:

While I AGREE with today’s majority opinion that “all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises ‘absolute and indefinite’ control, may seek a writ of habeas corpus in federal court,” I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, “as the Constitution surely allows Congress to [wield].”

I guess one can REASONABLY conclude that the Court’s Majority knew where they wanted to end up, and proceeded to get there, however s-l-o-w-l-y they weaved their way through precedential minefield!

OsiSpeaks.com

Jun 13, 2008 - 10:14 pm 30. Evan Cowart:

I do not have the same faith in my fellow Americans, I don’t think they are smart enough to recognize the threat that a racist black marxist that hates America poses to this nation and their freedoms. I hope time and the election prove me wrong.

Jun 13, 2008 - 11:37 pm 31. Mark Yungbluth:

Terror, terror, terror, fear, fear, fear, boogah, boogah boogah! Does anyone see the total PARANOIA most of these comments present? This Cowart guy doesn’t even comment on the ISSUE of the article – he’s all worried about the “racist black marxist” in the election. He doesn’t even know that McCain is WHITE! Remember, this is Bush’s judiciary now. If normal, non-political intelligent judges filled the court, the verdict would have been 9-0 to restore habeas corpus! As it is, sanity prevailed by only a hair’s breadth. Who was it that said – could it have been a founding father – that those who give up their liberties for security deserve neither. Duh! What was the guy – some kind of elite LIBERAL?! Don’t you think we’ve had stupid people run this so-called government long enough? You paranoids are pathetic!

Jun 14, 2008 - 8:58 am 32. Mark Yungbluth:

Oh, and by the way, neither the article nor the comments explain just exactly HOW restoring Habeas Corpus is going to get Americans killed. Please explain in detail HOW that works. (We should get some real “creative” stuff now.)

Jun 14, 2008 - 9:02 am 33. Harold Weinstein:

Take no prisoners.

Jun 14, 2008 - 11:08 am 34. Orbiting the blogosphere | Daily Newscaster:

[...] Kimball at Pajamasmedia calls The Constitution a suicide [...]

Jun 14, 2008 - 1:02 pm 35. “It will almost certainly cause more Americans to be killed”: Is the U.S. Constitution a suicide pact? « Tizona’s Weblog:

[...] Pajamas Media [...]

Jun 14, 2008 - 1:34 pm 36. Sweating Through Fog:

As I wrote on my blog, McCain could – if he goes further – win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision. He could use the spectre of Osama Bin Laden and his lawyers in Federal courts to beat Obama like a rented mule.

But McCain won’t do that. He’d rather lose than upset his liberal friends.

Jun 14, 2008 - 1:42 pm 37. Angie:

Mark Yungbluth:
You paranoids are pathetic!

Mr. Yungbluth, could you please clarify your remark? Specifically, I would like to know 1.) Who here is paranoid? and 2.) Why are they paranoid?

Thanks

Jun 14, 2008 - 2:31 pm 38. Mark Ducharme:

We’re ALL paranoid. Why you ask? Because we believe, just because the teacher put the school bully in charge -while she goes to accept her “Teacher of the Year” award- that somehow, the class is at risk while she’s away. We’re all beyond paranoia for, as we all know, he takes our lunch under her “supervision” all the time.

This nation is headed for a very bad place, and I don’t think there are enough veal calves out here to prevent a potential upheaval. There is at least 25 -30 percent of us who won’t take much more of this.

signed: Loaded and Locked in Sacto

Jun 14, 2008 - 4:56 pm 39. Mike K:

It all boils down to an analysis of what happened on Sept 11, 2001 (for that matter, USS Cole bombing, Khobar towers, WTC 1993, Marine barracks in Beirut): was it:

a/ A spike in the murder rate in NYC or
b/An Act of War.

There can be no other possible explanation to those events. If you wish to treat them as criminals, giving habeas corpus, due process etc, then they are due court proceedings. If you agree with me that those were acts of war, then only the Geneva Conventions can apply and, as the combatants involved did NOT comply with Geneva Conventions acting as lawful combatants sent by a State, they deserve summary execution. We voluntarily to spared their lives and are reaping the whirlwind.

Now our choice are send them home to countries which will torture and execute them or hold them until Islamic terror ends and the war is concluded. If this means forever, well there are worse climates. 36 have already reentered combat which is THE point of being held captive during wartime.

Jun 14, 2008 - 5:24 pm 40. sixfingers:

I would like to know why these people have more rights than US citizens who have been arrested by the cop?
Everyday people are denied there right by the cops.

Jun 14, 2008 - 6:00 pm 41. schnargley:

The Supreme Court today boldly reafirmed who we really are as Americans. We believe in equality for all as the linchpin for our entire concept of government and law. We are a people that does not distinguish between aristocracy or worker, black or white, male or female, homosexual or heterosexual. Why should we distinguish between a foreign so-called “terrorist” (uh…hello? Anybody ever heard of a little thing called “innocent until proven guilty?”) and an average Joe Blow American civilian then? All you rightwingnut paranoid knuckledraggers out there would destroy the Constitution, rule of law, our very society just so you can exact vengeance on your little boogeyman fantasy of supposed terrorists out there with weapons of mass destruction ready to attack NYC. Never will happen. And even if it did by some unlikely scenario, I would rather with my family and nation, along with the rest of the wolrd for that matter, get blown up in a nuclear holocaust a million times rather than not allow another human the same rights I am accorded. It is simply impossible to reason with you people.

Jun 14, 2008 - 9:29 pm 42. Mark Ducharme:

Hey schnargs,

You are one funny bloke. I mean dude..This hear that follows is a pure classic:

I would rather with my family and nation, along with the rest of the wolrd for that matter, get blown up in a nuclear holocaust a million times rather than not allow another human the same rights I am accorded. It is simply impossible to reason with you people.

That may be the single greatest illustration of a dichotomy ever concieved. I mean, after of course the ever reliable, “I support the troops,I just hope they fail in their mission” or, “We can’t solve our lack of oil by drilling for more oil. That is simply insane!!!” Seriously, you’d give ol’ San Fran Grammy herself a run for her annual, “1st in Sedition” trophy, but I’m on to you. I know you are really a deep undercover,double-reverse,super-subversive,counter-retaliatory,anti-pro covert agent for the neo-retentive,anal-underground.

Nice try just though.Consider yourself to be on a secret probation(of a duplicative nature).

Jun 14, 2008 - 10:58 pm 43. MBW:

Mark Yungbluth:

“the verdict would have been 9-0 to restore habeas corpus”

This type of ignorant and uneducated statement proliferates on the left side of the aisle. Let me give you a quick history lesson.

First, its helpful to point out that never in the history of ANY common law nation (i.e. our system of justice) has a foreign alien, who is held on foreign soil, been afforded habeas rights.

Second, for how much the liberals on the Court love to scream “stare decisis” (”precedent”) when upholding Roe v. Wade and abortion, the Court ran rough-shod over centuries of precedent with this ruling. Just fifty years ago, a UNANIMOUS Court ruled that habeas would never be extended to aliens (see Eisentrager).

So, please, could someone who agrees with this opinion please explain to me how this decision “restores” habeas?

Jun 14, 2008 - 11:00 pm 44. Lefroy:

By far the silliest contribution to the debate so far (Mr Kristof):

First, the terrorists are not “bent on the destruction of Western civilization”, they have geopolitical goals ust like we do, but their are that the US stop supporting dictatorial regimes in their territory (Pakistan under Musharraf, Egypt, Saudi Arabia).

It’s difficult to know whether this observation is the result of complacent stupidity or just plain malice. Osama Bin Laden, igniting not infidels but the torch of liberty? He wants to replace your dictatorial regimes – and Palistan, depsite Musharraf’s excesses, is well down the league tables in that contest – with the joyless, miserable, brutal, corrupt, stupid and primitive theocracy exemplified in the delightful taliban rule of Afghanistan, where little children starved because their widowed mothers were not allowed to go out and work.

I agree there is a kind of scary edge to this debate: what exactly does the lynch mob want to do with these judges who hand down decisions they don’t like? But really, Mr Krystof, what claptrap are you being fed?

Jun 15, 2008 - 3:49 pm 45. mike:

The 5 black robed morons who voted in favor of this farse should be arrested and tried for TREASON.

Jun 15, 2008 - 11:20 pm 46. Gavel Grab » links for 2008-06-16:

[...] Roger’s Rules » “It will almost certainly cause more Americans to be killed”: Is the U.S. Con… [...]

Jun 16, 2008 - 5:32 am 47. John Samford:

Ok, correct me if I’m wrong.

Ok George, here goes.
While you are correct that this edict from the black robed tyrants (hereafter BRT) will sharply curtain intelligence collection, that won’t be the worst effect it has.
The worst effect will come when people remember that “The law does not go where enforcement cannot reach”. 9 Tyrants in black robes cannot be in more the 9 places at any one time. So a few hundred thousand non-tyrants would have no problem keeping as many “Illegal oombatants” as they want out of the reach of the BRT’s.
While not nearly as clever as they think they are, the BRT’s are not stoooopid. They will hire people to act in their stead. So now we have two groups of people acting against each other. Give them guns and -TA DA- we will have a civil war.
Vermont and Montana are already publicly wanting to succeed from the Union. How many States are toying with the notion in private?
How long before we go from red state/ blue state to Red country / Blue country?
So there is more at stake here then a few mangy curs barking at the wire. By the time a prisoner has been at git-mo for 6 months, they don’t know anything worth knowing anymore. Their main purpose is giving the torturers someone to practice on until a new batch gets caught.
The best way to use the “Illegal combatants” is a recruiting aids. Amputate their left foot and right hand, then send them home. Let them sit in front of the mosque with their begging bowl. Give those teenage Muslim boys something to think about on their way to the recruiting station.
The BRT’s and the Liberals are due a warning shot ( not the Soviet kind where they shoot the guy standing next to you). President Bush should withdraw from the GCIV. Without the GCIV, this administration and the next administration can do what ever they want with any NON-American citizens. The BRT’s need to be reminded that they DO NOT have jurisdiction over the Administrative or Congressional branches of government. Period. If the BRT’s keep reading that in the Constitution, then co-equal becomes a joke, at which point the side with the most guns wins. If the BRT’s can’t grasp that, remind them.

Jun 16, 2008 - 5:57 am 48. Angie:

“I would rather with my family and nation, along with the rest of the wolrd for that matter, get blown up in a nuclear holocaust a million times rather than not allow another human the same rights I am accorded.” — schnargley

It’s precisely because of statements like this that I — who have never voted for a Republican, who this fall had decided to support Obama, who on a good day could be described as militantly agnostic — in a few short months have been thanking God that I have come to my senses and realized the glories of knuckle dragging and the beauty of being able to change my mind and vote for McCain in November.

Having until recently aligned myself with the political party that is home to liberals like yourself, I know for a fact that people like you also are impossible to reason with. Before too long you’ll be claiming anyone who locks their doors at night is paranoid.

By the way, are either Mr. Krystof and Mr. Yungbluth going to man up and answer my overly simplistic questions?

Jun 16, 2008 - 6:16 am 49. Angie:

For the record, I want to clearly state my opinion on the Supreme Court’s ruling. I do not doubt that some of the people being held at Guantanamo are innocent. If the High Court wants to step in and force the Bush administration to speed up the military tribunals, I have no problem with that. I’m not entirely comfortable with many of these people not even having charges brought against them after six years. What I have a problem with is extending the rights of U.S. citizens to non-citizens who were picked up in the field of battle. I simply cannot connect those dots.

Jun 16, 2008 - 6:32 am 50. Evan Feinman:

I am frankly baffled over the upset this decision has caused. Obviously this “war” is not a traditional armed conflict. Where before it made sense to just keep POWs locked up till things quieted down, it’s unlikely we’ll be declaring victory or sitting down across a treaty table with OBL any time soon. Why is it so controversial (or dangerous) to allow people we’re imprisoning an opportunity to prove in front of an impartial judge that they actually belong there?

No one was freed on Friday, likely few will be, but do we honestly want to be a nation that holds people indefinitely without trial? Last I checked we frowned on King George’s star chamber.

Jun 16, 2008 - 7:20 am 51. Mike:

schnargley wrote:

‘… I would rather with my family and nation, along with the rest of the wolrd [sic] for that matter, get blown up in a nuclear holocaust a million times rather than not allow another human the same rights I am accorded. It is simply impossible to reason with you people.’

I’m going out on a limb here, but I think you’re lying.

I think that if someone ever actually threatened you – not with being blown up a million times in a nuclear holocaust, not even with being blown up just the once – but with, say, a swift and painless death unless you voted Republican, you would beg for your life and scramble for the nearest voting booth.

You would run down your street wearing nothing but an ‘I love George Bush’ T-shirt rather than fight for anything.

You would lick Dick Cheney’s boots in order to avoid mild discomfort.

You and your leftist friends try to assert your moral superiority by proposing outlandish hypotheticals which will almost certainly never come to pass. You would rather others died so that you can continue to spout your lies in safety and comfort.

And don’t pretend you’ve ever been interested in reasoning with anyone.

Jun 16, 2008 - 11:33 am 52. Geoff:

Wow, this article has certainly brought out the extremes on both sides… Like Evan, I’m a bit surprised at the vitriolic opposition to the SC’s decision. They were simply responding to the Bush admin’s actions, and said that the executive branch has overstepped its bounds. We can debate whether or not that is the right decision, but it’s amazing how quickly people jump straight to the ad hominems and, yes, paranoid statements.

Angie, I won’t speak for anyone but myself – - but I think that the number of people, including the author of this article, who are jumping straight from this SC decision to the possibility of terrorists with nuclear weapons, indicates a fair level of paranoia. Should we be concerned about terrorism? Of course. But does that mean we simply allow our commander-in-chief to do whatever it takes to keep us safe from all supposed threats? Is that really the best approach for a country founded on ideas of limited government and individual freedoms? The impression I get is that a lot of people posting here would answer “yes.” I would say “no.”

And really, what does the argument that this decision will “cause more Americans to be killed” even mean? If we want to use that line of reasoning, we should never have gone to war with Iraq in the first place, because it will “cause more Americans to be killed.” The response, I’m sure, will be that it was worth it for some Americans to die for the sake of Iraq’s freedom. I personally never thought it was worth it.

So, what IS worth American lives? At the heart of it, I think that’s the question. And that is no simple question. I would only submit that sacrificing American lives in the hopes of creating a world free of fear is a tragedy based upon false hope. The antidote to fear is not finding complete safety, it is finding courage in the midst of danger.

Jun 16, 2008 - 5:29 pm 53. Dad:

Evan Feinman says:

No one was freed on Friday, likely few will be, but do we honestly want to be a nation that holds people indefinitely without trial? Last I checked we frowned on King George’s star chamber.

What rubbish !

The system that was set up provided that any decision against the incarcerated could be reviewed by the D.C. Court of Appeals. It’s only been 6 years that some of these people have been held without being processed – I’m sure if they shouldn’t be held, the D.C. Court of Appeals might let them go once they get before that tribunal; and if they don’t ever get processed and have no independent review and die in captivity — to quote Cheney — “So?” The Supreme Court now says that when the government imprisons anyone the government has to tell them why they are being charged and they get to try to show why the government is wrong. Why shouldn’t the government get to imprison anyone they want? They won’t come after me or my family, only those enemies of the state (well they might come after me when a different leader is in power, but I won’t think about that).

Why shouldn’t we be able to imprison anyone anytime based on the fact that the military or the President says he or she an enemy combatant. If our leaders say they are enemy combatants why should they be able to challenge that classification? Can anyone think of even one time when Bush or Cheney or Scooter Libby ever lied or misled the American people? They are our leaders and will only do what is best for us, and they would never mislead us, even if we can never check up on what they say.

So what if we have found out already that about a third of those imprisoned hadn’t done anything wrong. We are the land of free — everyone in the world looks up to us as the champions of freedom. Locking people up without charges, based on secret evidence they can’t see or challenge, paying $5000 or so to those who turn them in, and holding them in isolation (with maybe a little torture here and there)is the example we set when challenged by a few thousand followers of OSB.

We are a great country and anyone who criticizes what we do is a traitor. Anyone who can’t understand that this is how a great nation acts is a liberal.

Those wimps should be happy we haven’t just shot them. I mean, if they don’t have any rights, we can just shoot them right? But we didn’t do that (maybe we killed a few of them in custody) — we just are imprisoning them for a long long time with no hope of ever being released. We could have just lined the up and shot them since they are US citizens. I think McCain and others have noted that we’ve never given foreigners the rights of US citizens so it seems to me we could just shoot them, or torture their children until they confess to whatever crimes decide they are guilty of.

This decision to let them present their evidence and testimony before an impartial court is a travesty of justice. If we really have evidence that they are legitimately incarcerated then the Judges will keep them in jail. But if they can show that they are “enemy combatants” or don’t belong in jail, the Court might set them free! Why should they get to go free when the President or some Afghan warlord said they were Taliban just because they could prove they weren’t. Letting them have the chance to prove this to a court will threaten the very existence of our country.

I just wish someone else could state my arguments better, when I go back and look at them, everything doesn’t seem so clear. This is sort of complicated stuff and my first reaction seems like it might not be quite right. Won’t someone help me and state a little more clearly why our government should be able to lock up anyone just on the word of whoever turns them in, and why they shouldn’t get to prove they are innocent. Please this is really important if I am going to get to continue to say the Supreme Court was wrong.

Thanks

Dad

Jun 16, 2008 - 7:04 pm 54. richard ponce:

given that the government in the person of the irs can take your property and assets purely on their say so, i would rather take my chances as an enemy combatant than your average tax-payer in tax court.

Jun 17, 2008 - 7:08 am 55. punditius:

I fail to see how any person who is not legally present in the United States or its possessions has any Constitutional rights beyond those established by treaty or a law passed by the Congress and signed by the president. And I don’t see any basis for concluding that seizing and confining such a person on a military base should change that.

Bush should direct the Attorney General to advise any court attempting to direct him in the control of such prisoners that the court lacks jurisdiction (in the absence of law or treaty) and that any orders it issues will not be enforced by the executive.

When the judges do not respect the law, there is no law.

Jun 17, 2008 - 6:41 pm 56. Sweating Through Fog:

punditius – I think you have it exactly right. I said on my blog that if McCain had the guts to say he will not enforce any court orders on foreign detainees he would win the election. He’d beat Obama like a rented mule.

But he’d rather lose than do that.

Jun 18, 2008 - 4:45 pm 57. Mark Ducharme:

re; Dads’ post

Why are lefties so dishonest? Because leftism IS a lie, that’s why(Utopia on Earth is possible/Equality of outcome is desireable/People who do evil things are a “product of society”/It is destuctive to keep score at little league games). I’m glad nobody was dumb enough to respond to that kind of misleading pap. Well, there was this guy named Mark Du-something-or-other…

Jun 18, 2008 - 9:11 pm 58. David:

This is one of those questions that’s a very tough nut to crack. Critics of the Bush administration cite numerous cases of people (typically men) who wound up in Guantanamo without trial and turned out not to be terrorists, victims of mistaken identity or some other mistake. On the other hand, there are people incarcerated there (and in other prisons) who are dangerous, and some of those prisoners who’ve been released from Guantanamo wound up as suicide bombers in Iraq. Some would point out that the prison might have made them into terrorists, when they wouldn’t have otherwise been peaceful. Not every suicide bomber was in Guantanamo, though.

There’s a larger issue, though. In the past, wars were fought between nations. Armies fought and captured prisoners from their enemies, and in many cases exchanged those they captured with each other. Typically, at the end of the war the prisoners were released and repatriated home to help rebuild their countries. Those who fought on behalf of a non-national entity, or as part of an organization which wasn’t really an organized army, were executed summarily. Up through the end of the Second World War, all nations killed such people without thinking about it much. All they got was what was called a “drumhead court-martial”, so called because in earlier times a drum was used by the ersatz judge as a desk.

Now, everything has changed. Our wars aren’t against nations any more. The individuals we fight (I refuse to call them soldiers, and was periodically dismayed by Rumsfeld’s ruminations as to what they should be called) aren’t part of any organized military grouping. We can’t invade their country and overrun it because it doesn’t exist. As a result, there’s nowhere to send these people. The countries from which they originated don’t want them back, because they’re violent terrorists. If they were captured on the battlefield, somewhere in Afghanistan or elsewhere, we probably don’t have any evidence that they were doing anything violent or wrong. This leaves us with two difficulties: 1) What do we do with those we have incarcerated now? and 2) What do we do in the future?

Question 1 is rather obvious. We’re going to have to let some of these individuals go, and we’re probably going to hear about them in the future. I hope it’s not the case. I’d really prefer it if Justice Scalia was wrong (I suspect he’d like to be wrong himself, but fears he’s correct) but I’m with him: we’re going to feel this and it’s going to be painful. The second question is murkier. How, in the future, do we fight the individuals that are opposing us, in Afghanistan and Iraq. When we catch a Taliban type in Afghanistan, apparently we are going to have to provide evidence and testimony as if he was a criminal whose been arrested in Des Moines or someplace. One has a vision of 5,000 US Army Rangers landing somewhere, followed by 15,000 lawyers, 15,000 crime scene investigators, and 3,000 or so military judges. The idea is of course silly, and I can’t imagine this is going to work very well for very long. Things are going to be ignored, or alternatively, changed.

You have to wonder about judges like this. I’m all in favor of judicial integrity and don’t think they should be influenced or accessible to the population, because they need to be separate to make judgments free from the vagaries of popular culture and the transitory fads of the current generation. That being said, there’s also something to the idea that these people should have some experience of the world outside, and have some stake in how things work out. I for one am not willing to sacrifice lives for a principle, especially given how many people we lost the last time we were stupid.

Jun 19, 2008 - 12:21 am 59. Norm:

CosmicPolicy Ref: “I’ve seen videos depicting Iraqi men who were forcibly snatched from their homes, to be later placed in Bush’s awaiting prison for terrorists.”

SHOW ME !

I bet you can’t!

Better come up withj some proof before you go on making outlandish statements.

Like I said, “SHOW ME the videos.”

Jun 20, 2008 - 8:58 am 60. Mark Ducharme:

David said: “I for one am not willing to sacrifice lives for a principle,”

What principle? That’s the point here isn’t it? Leftism is a principle free philosophy. If humping mud feels good, then hump mud. Likewise, if kneeling down prostrate before your “supposed” enemy makes you think he will respect you,or forgive you,or even love you, then by all means do that.

Let’s face it, we have TWO candidates for POTUS who believe in some form of the above so, why should the SCOTUS behave any differently?

Jun 21, 2008 - 1:53 pm 61. Roger’s Rules » McCarthy to the Rescue, or: How to Deal With Judicial Oligarchy:

[...] answer might well be: porbably not. I am thinking, of course, of the Supreme Court’s latest suicide pact, aka, Boumediene, the June 12 ruling brought to you by the most powerful man in America, Justice [...]

Jul 23, 2008 - 6:15 am

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