Friday, June 13, 2008

Boumediene v. Bush

Some quotes from the dissents in Boumediene v. Bush (pdf), the case extending Habeas Corpus to Guantanamo prisoners. First, Roberts’ dissent:

“The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas.”

“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.”

“So who has won? ... Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost... Not the rule of law, unless by that is meant the rule of lawyers... And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.” It’s true, I feel so much less in control over the conduct of this nation’s foreign policy now.

(Addendum: Roberts describes current rules as “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” The word “generous” is telling, indicating that he does not believe that the detainees have rights that must be respected, that whatever version of due process they get is entire within our gift, subject only to our “generosity,” to grant or not, according to our whim.)

From Scalia’s dissent: “America is at war with radical Islamists.” So Scalia is signing on to Bush’s hazy and ill-defined definition of The War Against Terror (TWAT). He goes on to use that definition to argue that Guantanamo detainees should have no more rights than POWs seized on the battlefield during armed conflict between nations.

More, he cites reactions to a perceived threat as if they were logical proof of the seriousness of that threat: “one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one.”

He says the majority decision “will almost certainly cause more Americans to be killed.” He then cites the cases of released detainees who have subsequently done bad things. When a judge argues for locking people up based on what they might do in the future, you gotta wonder.

Like Roberts, Scalia insists that the majority is not really interested in habeas corpus rights or in any principle, but is making a raw, naked power grab: “What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. ... The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.” And if there’s one thing Scalia hates, it’s an abuse of power like that.

He concludes, “The Nation will live to regret what the Court has done today.”

And today, John McCain added his voice, calling the ruling “one of the worst decisions in the history of this country”, which will subject us to “so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases.” Hey, stupid, the whole point of Habeas Corpus is to require that these cases be adjudicated.
Then he announced that in order to be consistent, he will be returning to Vietnam to spend the rest of his life in a tiger cage.

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