Friday, June 13, 2008


Justice Scalia, writing in dissent, was blunt:

America is at war with radical Islamists. The enemy began by 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. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; 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. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

He also noted: Justice Scalia notes in his dissent that the Court's decision is difficult to reconcile with American history as well as its own precedent:: "The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court—and that despite the fact that they were present on U. S. soil."

Another Example that I am not alone in my opinion is here.

Opposing view: An inexplicable power grab

By Richard Samp

Throughout our nation's history, the courts have usually deferred to our elected branches of government — Congress and the president — on foreign affairs and national security issues. And with good reason. The courts simply lack the expertise and resources to justify second-guessing military experts on such issues.

In Thursday's sharply divided 5-to-4 decision, the Supreme Court decided to abandon that long history of deference. It decreed that henceforth, it will be the job of federal courts to decide on their own whether aliens captured on foreign battlefields are really "enemy combatants."

The court said the doctrine that it was upholding is enshrined in the Constitution, even though it candidly acknowledged that it could not cite a single prior case in which an American or English court had exercised such power in a case involving aliens held overseas.

There are a ton of examples of people that agree with my point of view.

In setting up the detention facility at Guantanamo, the Bush administration reasonably relied on the Court's decision in Johnson v. Eisentrager. In Eisentrager the Court held that nonresident enemy aliens have no right to seek relief in the federal courts in wartime. The Court does not expressly overrule Eisentrager in Boumediene, but Boumediene cannot fairly be reconciled with Eisentrager. The distinctions drawn by the majority between Eisentrager and Boumediene in part IV of Justice Kennedy's opinion are remarkably unpersuasive. The unpersuasiveness of this crucial part of the opinion shows the Court, rather than the Bush administration, to be acting arbitrarily.

Justice Kennedy concedes: "It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the case before us lacks any hisotorical parallel."

Boumediene works a vast expansion of the wartime power of the federal courts and, ultimately, of five members of the Supreme Court. By the same token, it contracts the power of the elected branches of government to provide for the common defense. With respect to the executive in particular, Hamilton's comments in Federalist 69 are suggestive in this context: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority." We will have occasion to regret the Court's handiwork in Boumediene for years to come.

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