The Scalia Dissent
More Americans will be Killed
As I’ve written here too many times to count, and as the johnny-come-lately media will now start to parrot, the President’s power to nominate U.S. Supreme Court Justices is the President’s second most important power.
Presidential elections matter; boy, do they ever.
As anyone who reads this blog already knows, the United States Supreme Court (USSC) decided this week that the United States Constitution does not just protect United States citizens, it also protects non-citizen terrorists who would kill us all if they could.
What I’m going to try to do with this post is pull the highlights from Justice Antonin Scalia’s dissent in Boumediene v. Bush coupled with my commentary. The opinion is 25 pages as the USSC publishes it but probably more like 12 pages narrative as we would format it; still too long to ask you to read, especially if you consider my commentary.
Justice Scalia begins with a very short history lesson:
“America is at war with radical Islamists. The enemy began killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.”
The passage above is strikingly similar to my post of March 28, 2008; maybe Chief Justice Roberts, who has paraphrased me in the past, suggested Justice Scalia should visit ZACKlyRight.
Justice Scalia continues:
“The game of bait-and-switch that today’s opinion plays on the Nation’s Commander-in-Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”
It will most certainly cause more Americans to be killed.
Justice Scalia continues:
“In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of (terrorists) that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo have returned to the battlefield . . . These mind you, were (terrorists) whom the military had concluded were not (terrorists).”
The ruling pretends to only cover those 260 terrorists remaining at Guantanamo. In the long term, Justice Scalia is arguing that terrorist captured on the battlefield will not be imprisoned closer to the theater of war, most definitely in conditions less comfortable than Guantanamo, recall the terrorists at Guantanmo are afforded all kinds of comforts, they’ve even had a book of poetry published since their capture. The short term impact cannot be ignored. Prisoners deemed to be non-terrorists returned to the battlefield to kill. What can be expected of the 260?
In addressing that two co-equal branches of our Federal government, the Executive and Legislative, heard prior Third Branch concerns over the imprisonment of terrorists at Guantanamo (“Nothing prevents the President from returning to Congress to seek authority he believes necessary”), the Executive and Legislative Branches enacted the Detainee Treatment Act (2005) and the Military Commissions Act (2006), 12 Senate Democrats joining all but one Senate Republican to pass the latter:
“Turns out they (the four Justices who suggested the President return to Congress seeking authority who now believe non-citizen terrorists are now protected by our Constitution) were just kidding.”
The footnote related to the quote immediately above is worth reproducing in its entirety:
“1 Even today, the Court cannot resist striking a pose of faux deference to Congress and the President. Citing the above quoted passage, the Court says, “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how to best preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.”
Justice Scalia continues:
“We (the USSC) have frequently stated that we owe a great deference to Congress’s view that a law it has passed is constitutional.”
I cannot discuss Scalia’s dissent and not mention Johnson v. Eisentrager. This World War II era case is widely recognized as the precedent setting case for the terrorists at Guantanamo and Justice Scalia spends quite a bit of time discussing it in his dissent. I reproduce Justice Jackson’s words from his Eisentrager opinion that Justice Scalia used in his dissent:
“We are cited to [sic] no instance where a court, in this or any other country where the writ (of habeas corpus) is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity has been within its (this or any other country’s) territorial jurisdiction. NOTHING (Blogger’s Note: all caps for emphasis is mine) in the text of the Constitution extends such a right, nor does anything in our statutes.”
Justice Scalia continues:
“Eisentrager thus held – held beyond any doubt – that the Constitution does not ensure habeas aliens held by the United States in areas over which our Government is not sovereign (read: Cuba).”
Justice Scalia concludes:
“And, most tragically, it (the opinion) sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.”
Eighty-eight year-old Justice John Paul Stevens sided with those who think the non-citizen terrorists at Guantanamo should be protected by the Global Constitution.
A post on liberal extremist Sen. Barack Obama’s politically expedient view of stare decisis is forthcoming.
Elections matter. Boy, do they ever.
More Americans will be Killed
As I’ve written here too many times to count, and as the johnny-come-lately media will now start to parrot, the President’s power to nominate U.S. Supreme Court Justices is the President’s second most important power.
Presidential elections matter; boy, do they ever.
As anyone who reads this blog already knows, the United States Supreme Court (USSC) decided this week that the United States Constitution does not just protect United States citizens, it also protects non-citizen terrorists who would kill us all if they could.
What I’m going to try to do with this post is pull the highlights from Justice Antonin Scalia’s dissent in Boumediene v. Bush coupled with my commentary. The opinion is 25 pages as the USSC publishes it but probably more like 12 pages narrative as we would format it; still too long to ask you to read, especially if you consider my commentary.
Justice Scalia begins with a very short history lesson:
“America is at war with radical Islamists. The enemy began killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.”
The passage above is strikingly similar to my post of March 28, 2008; maybe Chief Justice Roberts, who has paraphrased me in the past, suggested Justice Scalia should visit ZACKlyRight.
Justice Scalia continues:
“The game of bait-and-switch that today’s opinion plays on the Nation’s Commander-in-Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”
It will most certainly cause more Americans to be killed.
Justice Scalia continues:
“In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of (terrorists) that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo have returned to the battlefield . . . These mind you, were (terrorists) whom the military had concluded were not (terrorists).”
The ruling pretends to only cover those 260 terrorists remaining at Guantanamo. In the long term, Justice Scalia is arguing that terrorist captured on the battlefield will not be imprisoned closer to the theater of war, most definitely in conditions less comfortable than Guantanamo, recall the terrorists at Guantanmo are afforded all kinds of comforts, they’ve even had a book of poetry published since their capture. The short term impact cannot be ignored. Prisoners deemed to be non-terrorists returned to the battlefield to kill. What can be expected of the 260?
In addressing that two co-equal branches of our Federal government, the Executive and Legislative, heard prior Third Branch concerns over the imprisonment of terrorists at Guantanamo (“Nothing prevents the President from returning to Congress to seek authority he believes necessary”), the Executive and Legislative Branches enacted the Detainee Treatment Act (2005) and the Military Commissions Act (2006), 12 Senate Democrats joining all but one Senate Republican to pass the latter:
“Turns out they (the four Justices who suggested the President return to Congress seeking authority who now believe non-citizen terrorists are now protected by our Constitution) were just kidding.”
The footnote related to the quote immediately above is worth reproducing in its entirety:
“1 Even today, the Court cannot resist striking a pose of faux deference to Congress and the President. Citing the above quoted passage, the Court says, “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how to best preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.”
Justice Scalia continues:
“We (the USSC) have frequently stated that we owe a great deference to Congress’s view that a law it has passed is constitutional.”
I cannot discuss Scalia’s dissent and not mention Johnson v. Eisentrager. This World War II era case is widely recognized as the precedent setting case for the terrorists at Guantanamo and Justice Scalia spends quite a bit of time discussing it in his dissent. I reproduce Justice Jackson’s words from his Eisentrager opinion that Justice Scalia used in his dissent:
“We are cited to [sic] no instance where a court, in this or any other country where the writ (of habeas corpus) is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity has been within its (this or any other country’s) territorial jurisdiction. NOTHING (Blogger’s Note: all caps for emphasis is mine) in the text of the Constitution extends such a right, nor does anything in our statutes.”
Justice Scalia continues:
“Eisentrager thus held – held beyond any doubt – that the Constitution does not ensure habeas aliens held by the United States in areas over which our Government is not sovereign (read: Cuba).”
Justice Scalia concludes:
“And, most tragically, it (the opinion) sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent.”
Eighty-eight year-old Justice John Paul Stevens sided with those who think the non-citizen terrorists at Guantanamo should be protected by the Global Constitution.
A post on liberal extremist Sen. Barack Obama’s politically expedient view of stare decisis is forthcoming.
Elections matter. Boy, do they ever.
posted by Zack at 7:52 AM
2 Comments:
Conscience, anything to say?
Anonymous,
Anything to say?
You must have thoughts. What do you think of Thomas Jefferson's Global Constitution?
Can we collect taxes from the terrorists? From everyone in the entire world?
I don't think the Chinese government is going to be to happy when we start sending Federal tax bills to its citizens.
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