"ALL CAPS IN DEFENSE OF LIBERTY IS NO VICE."
Saturday, June 14, 2008
As an avid supporter of Hillary Rodham Clinton in the Democratic primaries, Debra Bartoshevich is not alone in her frustration over Clinton's defeat.
She’s not alone in refusing to support Barack Obama.
And she’s not entirely alone in saying she’ll vote this fall for Republican John McCain instead.
But what makes her unusual is that she holds these views as an elected delegate to the Democratic National Convention in Denver this summer. . . .
Many Hillary supporters say now that they will vote McCaini n November if Obama wins the Dem nomination.
As many as 40% in some polls.
MY QUESTION IS:
How many of the CLINTON SUPER-DELEGATES will vote McCain in November?
It is a secret ballot, after all.
That's why I think a lot will!
OBAMA WILL LOSE BY AT LEAST 100 ELECTORAL VOTES. MAYBE 220!
Look at this impromptu bit:
The first thought that comes to his mind, when an elderly gentleman presents him with a lovely hand-carved walking stick, is that he is going to use it to "whup" his colleagues in Congress.
That is just sick.
And then consider his comments regarding Senator McCain's suggestion that the candidates appear in a series of town hall meetings:
Obama has tried to justify his anger as a reaction to what he learned to see as the pervasive racism of American society.
"If they bring a knife to the fight, we bring a gun," Obama said at a fundraiser in Philadelphia Friday, according to pool reports.
"We don't have a choice but to win," Obama said, joking that he has heard "folks in Philly like a good brawl. I've seen Eagles games."
He chose as spiritual mentor a man who made a career out of theatrical expressions of righteous anger. The Reverend Jeremiah Wright expressed openly the emotion that Obama had worked diligently to control and conceal.
However, knowing that (after early childhood years in Indonesia, where obviously he could not have experienced American racism) Obama grew up in a decidedly non-racist environment in Hawaii, I think his anger does not come from American society's racist organization.
The major pain and conflict in Obama's life stems from his father's abandonment of him, when Obama was an infant. His first book was a long meditation on the search for his father, his attempt to come to terms with his father. But since his father is long dead, he can never reconcile with his father face-to-face.
And he would rather attribute the underlying anger of his life to American racism than to the desertion of an alcoholic, communist father.
Analogously, he must have perceived himself to have been abandoned by his communistic mother, when she chose to have her parents raise him in Hawaii, so she could continue her anthropologist's life in Indonesia. And as she is also dead, he cannot reconcile himself with her face-to-face, either.
The humble, self-effacing mask that Obama wears conceals a very different personality. And as he thinks he is getting closer to the Presidency, the ego rush will eventually generate enough psychical energy to overwhelm the mask, and we will see more and more of the real Obama emerge.
It won't be pretty.
RUSSIA AND IRAQ TORE DOWN THEIR STATUES OF THEIR TYRANTS AND MASS MURDERERS - LENIN, STALIN AND SADDAM...
BUT ARGENTINA IS JUST UNVEILING A NEW ONE!
A bronze statue of Ernesto "Che" Guevara was unveiled on Saturday in the Argentine city where he was born exactly 80 years ago, the first such monument to the revolutionary in his homeland.NEW STATESMAN:
Thousands of students, leftist activists and residents marched through Rosario to pay homage to the long-haired guerrilla fighter, who left his country as a young man to lead armed struggles including Cuba's 1959 revolution alongside Fidel Castro.
"I believe in the revolution, that's why I love Che," said Monica Nielson, 49, wearing a soldier's beret with a single star like that worn by Guevara in a photo that turned him into a 20th Century icon.
"El Che," a national hero in Communist Cuba, is one of Argentina's most famous sons. But he has been slow to get recognition as a national figure at home.
For years after CIA-backed troops executed him in the Bolivian jungle in 1967, he was still too controversial for public recognition in Argentina.
... thanks to the donations of more than 14,000 people, among them poets, musicians and scientists, this is about to change with the unveiling of Argentina's first major monument to the popular revolutionary. On 14 June, Guevara's official birth date, a four-metre bronze statue, sculpted by Andres Zerneri, will be unveiled in Rosario, Guevara's birthplace.I THINK THIS IS MORE PROOF THAT LEFTISTS ARE INSANE.
CHE WAS A BUTCHER WHO PERSONALLY EXECUTED HUNDREDS OF INNOCENT PEOPLE.
HIS CONTINUED POPULARITY IS A SIGN OF LEFTIST MASS HYSTERIA - LIKE OBAMAMANIA.
BBC WEIGHS IN HERE.
MORE ON INSANE OBAMAMANIA AND CHE-MANIA HERE.
OBAMA PUT IN FOR $740 MILLION IN EARMARKS IN JUST 3 THREE YEARS IN THE SENATE.
MCCAIN: NOT ONE CENT, (UNLESS YOU BELIEVE THE LEFTIES AT THINK PROGRESS, THEY CLAIM THEY FOUND ABOUT $25 MILLION - OVER MCCAIN'S 26 YEARS IN THE CONGRESS!).
IN FACT, MCCAIN HAS BEEN TRYING TO GET RID OF EARMARKS FOR YEARS!
AND THEIR TENACITY UNDER DIFFICULT CONDITIONS:
- MCCAIN WITHSTOOD FIVE YEARS OF ENEMY TORTURE AND REMAINED TRUE TO HIS CORE BELIEFS.
- OBAMA FOLDED IN WEEKS - TOSSING HIS TYPICAL WHITE GRANDMOTHER, WRIGHT, HIS CHURCH, AND PFLEGER UNDER THE BUS TO SAVE HIS POLITICAL VIABILITY.
- MCCAIN IS A VETERAN OF WAR WHOSE FATHER, GRANDFATHER, AND SON ALSO SERVED IN WAR-TIME.
- NOT ONLY HAS OBAMA NEVER WORN THE UNIFORM, OBAMA DOESN'T EVEN VOTE FOR DEFENSE BUDGETS.
- MCCAIN IS A VETERAN OF THE CONGRESS, HAVING SERVED SEVERAL TERMS IN BOTH THE HOUSE AND SENATE - AND HE HAS SEVERAL MAJOR BI-PARTISAN LAWS NAMED FOR HIM.
- OBAMA HAS BUPKUSS.
Ohio's lethal injection process is unconstitutional because it could cause pain and the state mandates that an inmate's death be painless, Lorain County Common Pleas Judge James Burge ruled Tuesday.
He ordered the Ohio Department of Rehabilitation and Correction to stop using the drugs that paralyze muscles and stop the heart and simply administer a lethal dose of an anesthetic.
Here's a photograph of Judge James M. Burge in his chambers:
's La Cabana fortress was converted into Havana 's Lubianka. He was a true Chekist: "Always interrogate your prisoners at night," Che commanded his prosecutorial goons, "a man is easier to cow at night, his mental resistance is always lower."  Cuba
A Cuban prosecutor of the time who quickly defected in horror and disgust named Jose Vilasuso estimates that Che signed 400 death warrants the first few months of his command in La Cabana. A Basque priest named Iaki de Aspiazu, who was often on hand to perform confessions and last rites, says Che personally ordered 700 executions by firing squad during the period. Cuban journalist Luis Ortega, who knew Che as early as 1954, writes in his book Yo Soy El Che! that Guevara sent 1,897 men to the firing squad.
In his book Che Guevara: A Biography, Daniel James writes that Che himself admitted to ordering "several thousand" executions during the first year of the Castro regime. Felix Rodriguez, the Cuban-American CIA operative who helped track him down in Bolivia and was the last person to question him, says that Che during his final talk, admitted to "a couple thousand" executions. But he shrugged them off as all being of "imperialist spies and CIA agents."
Alvaro Vargas Llosa described Che in an article in the New Republic as a "killing machine:"
Guevara might have been enamored of his own death, but he was much more enamored of other people’s deaths. In April 1967, speaking from experience, he summed up his homicidal idea of justice in his “Message to the Tricontinental”: “hatred as an element of struggle; unbending hatred for the enemy, which pushes a human being beyond his natural limitations, making him into an effective, violent, selective, and cold-blooded killing machine.” His earlier writings are also peppered with this rhetorical and ideological violence. Although his former girlfriend Chichina Ferreyra doubts that the original version of the diaries of his motorcycle trip contains the observation that “I feel my nostrils dilate savoring the acrid smell of gunpowder and blood of the enemy,” Guevara did share with Granado at that very young age this exclamation: “Revolution without firing a shot? You’re crazy.” At other times the young bohemian seemed unable to distinguish between the levity of death as a spectacle and the tragedy of a revolution’s victims. In a letter to his mother in 1954, written in Guatemala, where he witnessed the overthrow of the revolutionary government of Jacobo Arbenz, he wrote: “It was all a lot of fun, what with the bombs, speeches, and other distractions to break the monotony I was living in.”
Guevara’s disposition when he traveled with Castro from Mexico to Cuba aboard the Granma is captured in a phrase in a letter to his wife that he penned on January 28, 1957, not long after disembarking, which was published in her book Ernesto: A Memoir of Che Guevara in Sierra Maestra: “Here in the Cuban jungle, alive and bloodthirsty.” This mentality had been reinforced by his conviction that Arbenz had lost power because he had failed to execute his potential enemies. An earlier letter to his former girlfriend Tita Infante had observed that “if there had been some executions, the government would have maintained the capacity to return the blows.” It is hardly a surprise that during the armed struggle against Batista, and then after the triumphant entry into Havana, Guevara murdered or oversaw the executions in summary trials of scores of people—proven enemies, suspected enemies, and those who happened to be in the wrong place at the wrong time.
In January 1957, as his diary from the Sierra Maestra indicates, Guevara shot Eutimio Guerra because he suspected him of passing on information: “I ended the problem with a .32 caliber pistol, in the right side of his brain.... His belongings were now mine.” Later he shot Aristidio, a peasant who expressed the desire to leave whenever the rebels moved on. While he wondered whether this particular victim “was really guilty enough to deserve death,” he had no qualms about ordering the death of Echevarría, a brother of one of his comrades, because of unspecified crimes: “He had to pay the price.” At other times he would simulate executions without carrying them out, as a method of psychological torture.
Luis Guardia and Pedro Corzo, two researchers in Florida who are working on a documentary about Guevara, have obtained the testimony of Jaime Costa Vázquez, a former commander in the revolutionary army known as “El Catalán,” who maintains that many of the executions attributed to Ramiro Valdés, a future interior minister of Cuba, were Guevara’s direct responsibility, because Valdés was under his orders in the mountains. “If in doubt, kill him” were Che’s instructions. On the eve of victory, according to Costa, Che ordered the execution of a couple dozen people in Santa Clara, in central Cuba, where his column had gone as part of a final assault on the island. Some of them were shot in a hotel, as Marcelo Fernándes-Zayas, another former revolutionary who later became a journalist, has written—adding that among those executed, known as casquitos, were peasants who had joined the army simply to escape unemployment.
What could be more disgusting than that?
He described himself in his campaign materials this way:
I offer my academic credentials, my training and my experience in the practice of law as my campaign platform. I have spent thirty years trying both civil and criminal cases in the Common Pleas Court of Lorain County and in other courts around the state. I have tried cases successfully and also unsuccessfully, and I have learned and matured from each experience, both on a personal and professional level.His term runs until 2013.
Here's hoping that the good voters of Lorain County will desire a change, and return to the private life he so richly deserves, this admirer of a man who murdered thousands without compunction.
I have no comment on the other poster in Judge Burge's Chambers. I think that by decorating his official Chambers with a partisan campaign poster, he may be trespassing the limits of ethical judicial behavior. But perhaps in Lorain County they do things the Chicago way.
In a brazen attack, Taliban fighters assaulted the main prison in the southern Afghan city of Kandahar on Friday night, blowing up the mud walls, killing 15 guards and freeing around 1,200 inmates. Among the escapees were about 350 Taliban members, including commanders, would-be suicide bombers and assassins, said Ahmed Wali Karzai, the head of Kandahar’s provincial council and a brother of President Hamid Karzai.
“It is very dangerous for security. They are the most experienced killers and they all managed to escape,” he said by telephone from Kandahar.
A Taliban spokesman, Qari Yousuf Ahmadi, said that the attack was carried out by 30 insurgents on motorbikes and two suicide bombers, and that they had freed about 400 Taliban members, The Associated Press reported.
- THIS WOULD HAVE BEEN IMPOSSIBLE IF THESE 350 TALIBAN WERE HELD IN REMOTE EXTERNAL PRISONS LIKE GITMO.
- WE SHOULDN'T CLOSE GITMO DOWN: WE NEED MORE GITMOS.
- AND WE NEED TO KEEP THE ACLU OUT OF THESE PRISONS.
- UNLESS THEY'RE ALSO SERVING TIME!
Following the crude oil price crisis around the world, Saudi Arabia has agreed to increase its production by half a million barrels per day, Army Radio reported Saturday. Riyadh had agreed to increase production following pressures by the United States and several European countries, the station reported. The report stated that the increase in production, slated to begin next month, may not only halt the spiraling hike in prices, but even might lower oil prices.
Citing analysts and oil traders briefed by Saudi officials, the US daily said on Saturday that the plans by the world's largest oil exporter had been privately disclosed recently by Saudi officials. ... The increase, which the Times said may be made public early next week, could put the Saudis' output at 10 million barrels a day, which would be its highest-ever output if sustained. The current level is 9.45 million barrels daily.MORE HERE.
- THE BUBBLE WILL SOON BURST.
- THE ECONOMY WILL IMPROVE.
- THE STOCK MARKETS, TOO.
- THIS - AND AN IRAQ WHICH IS DAILY IMPROVING - HELP MCCAIN.
- OBAMA AND THE DEMS WILL HAVE NEXT TO NOTHING TO RUN ON COME THIS FALL - BESIDES SOCIALIZED HEALTHCARE AND REDISTRIBUTION OF INCOME.
- OBAMA WILL LOSE... BIGTIME.
Evidence for Upwelling of Corrosive "Acidified" Water onto the Continental Shelf
Richard A. Feely et al.
The absorption of atmospheric carbon dioxide (CO2) into the ocean lowers the pH of the waters. This so-called ocean acidification could have important consequences for marine ecosystems. To better understand the extent of this ocean acidification in coastal waters, we conducted hydrographic surveys along the continental shelf of western North America from central Canada to northern Mexico. We observed seawater that is undersaturated with respect to aragonite upwelling onto large portions of the continental shelf, reaching depths of ~40 to 120 meters along most transect lines and all the way to the surface on one transect off northern California. Although seasonal upwelling of the undersaturated waters onto the shelf is a natural phenomenon in this region, the ocean uptake of anthropogenic CO2 has increased the areal extent of the affected area.
Science 13 June 2008: Vol. 320. no. 5882, pp. 1490 - 1492
Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. For a daily survey of Australian politics, see AUSTRALIAN POLITICS Also, don't forget your roundup of Obama news and commentary at OBAMA WATCH
The Leftist book concerned (by novelist Nicholson Baker) is reviewed here and the conservative book (by Pat Buchanan) is reviewed here. I will confine myself to mentioning what I think are the important points that the reviews pass over.
The Baker book seems to center strongly on the flaws in Churchill's actions -- in keeping with the usual Leftist ad hominem style of argument. There is of course no doubt that Churchill was a flawed human being and there are acts by Churchill that I deplore too (the fire bombings, the "repatriation" of the Cossacks etc). Baker however in essence claims that it was only the character faults of Churchill and FDR that caused them to make war on Hitler. He seems to think we would all have been fine if the British and American bombers had stayed home.
That is all deeply unserious, however. You have to look at the political and strategic realities behind the declarations of war if you are to evaluate them intelligently. Blaming everything on the conspiracies of bad men is very Leftist but it betrays no real effort at understanding at all. All it tells us is that the speaker/writer is steamed up about something and is too stupid or lazy to investigate how it really came about. Baker seems to think that a pacifist response to Hitler would have worked in some way. The generally passive response of the German Jews to their persecution should have told Baker how well that worked with Hitler.
So on to the Buchanan book. Sadly, the reviewer there also seems inclined to play the man and not the ball. He is very abusive about Buchanan and is less than fair in evaluating Buchanan's arguments. I think that Buchanan is wrong in his conclusions but he is not so far wrong as to be completely dismissed.
The critic completely dismisses Buchanan's argument that Hitler had no designs on Britain and in fact regarded them as racial comrades -- so Britain had nothing to fear and no reason to go to war. There is no doubt that Hitler himself argued exactly that way. I have myself heard a recording of one of his speeches to that effect. So dismissing the argument out of hand is pretty slapdash history.
I myself think that the jury will always be out on that one. It seems strange that I have to stress it but Hitler WAS a racist and there is no doubt that the Britrish and the Germans are essentially the same race. So the idea that Hitler might have given very favourable consideration to the racial identity of the British is hardly far-fetched. The remarkably benign German occupation of Denmark is even a test-case of sorts.
But, as a good conservative, Churchill was cautious and there was no doubt in his mind that Hitler was an example of that most-disapproved type of person in a British value-system of the time: A man who "goes too far". Churchill saw that Hitler recognized no constraints on his actions and that Hitler's rhetoric was full of anger and hate. And Churchill could not entrust the world to such a man. So Churchill swung British foreign policy into its traditional "balance of power" role and ensured that NOBODY would ever come to dominate the whole of Europe. With what we now know about Hitler, I think we can be glad that Britain found a man who at the last moment activated that traditional British policy.
Note that it was actually Chamberlain who declared war on Germany. But it is Churchill who made it stick.
(For more postings from me, see TONGUE-TIED, DISSECTING LEFTISM, GREENIE WATCH, OBAMA WATCH, POLITICAL CORRECTNESS WATCH, GUN WATCH, EDUCATION WATCH INTERNATIONAL, IMMIGRATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, SOCIALIZED MEDICINE, AUSTRALIAN POLITICS and EYE ON BRITAIN. My Home Pages are here or here or here. Email me (John Ray) here.)
Friday, June 13, 2008
John McCain continued his push for regular town hall-style debates with rival Barack Obama, raising the challenge again Tuesday as his campaign calls for as many as 10 face-offs this summer. “As you know it has begun in earnest as you may have heard, Senator Obama and I might well be meeting soon in a series of town hall discussions,” McCain told business leaders gathered in the nation’s capital for the National Small Business Summit.NEWSDAY:
“Just the two of us, in direct conversation with voters. No need to turn it into a big media-run production with process questions from reporters, a spin room, and all the rest of it.
Just to keep things friendly, I also suggested that my opponent and I travel to these town hall meetings together in the same plane. I promise not to try and fly it,” joked the Arizona senator.
McCain, a naval aviator during the Vietnam War, was shot down and held captive for years. “…We need the town hall meeting,” he added. “Let’s stop yelling at each other and let’s stop having sound bites and process questions and those things. The American people want a respectful and civilized discussion.”
More intimate than the rallies that campaigns often hold inside gymnasiums or arenas, town-hall-style meetings allow candidates to speak at length and respond to questions proffered by voters rather than media personalities. McCain considers the format to be one of this strong suits and the Arizona senator held more than 100 of them in the run-up to the New Hampshire primary.ROUND UP AT MEMEORANDUM.
RED STATE AGREES.
OBAMA IS AVOIDING MCCAIN FOR GOOD REASON: IS AN ORATOR, NOT A TALKER; HE'S A SWEET-TALKING SMOOTHIE WITH A TELEPROMPTER AND A PREPARED TEXT OF PLATITUDES AND PODIUM, BUT NOT VERY GOOD AT ANSWERING QUESTIONS EXTEMPORANEOUSLY.
IN SHORT: OBAMA IS A PHONY AND A COWARD.
Levin does not disappoint: he absolutely blistered the court as only Levin can, and he laid out exactly what happened yesterday and its momentous ramifications in terms any non-lawyer can understand. (note--keep listening to at least the first few segments)
For me: it was very cathartic to listen to this, and to understand that someone else is as furious about this as I am. Levin spends the first half of his show on laying it all out (actual time about 35 minutes--you won't want to miss it). Actually the whole show kept going back to the subject. A must-listen.
(For those not familiar with Levin, he is the President of the non-profit Landmark Legal Foundation in Washington D.C., which litigates on behalf of Conservative causes for critical legal cases to the continuation of our liberties. He is a former member of the Reagan Justice Department. He is the author of the 2006 Men in Black: How the Supreme Court is Destroying America, in which he predicted this push to make POW's pseudo-citizens to mollify the trial lawyer lobby. I highly recommend this book. And his talk show is sensational.)
Other links (and excerpts) on Black Thursday:
Levin's post at NRO's The Corner:
I would add to that that McCain is nevertheless far more likely to not appoint another activist Dictator to the court than is the Obam-munist. For whatever that is worth...While I am still reviewing the 5-4 decision written by Anthony Kennedy, apparently giving GITMO detainees access to our civilian courts, at the outset I am left to wonder whether all POWs will now have access to our civilian courts? After all, you would think lawful enemy combatants have a better claim in this regard than unlawful enemy combatants. And if POWs have access to our civilian courts, how do our courts plan to handle the thousands, if not tens of thousands of cases, that will be brought to them in future conflicts?It has been the objective of the left-wing bar to fight aspects of this war in our courtrooms, where it knew it would have a decent chance at victory. So complete is the Court's disregard for the Constitution and even its own precedent now that anything is possible. And what was once considered inconceivable is now compelled by the Constitution, or so five justices have ruled. I fear for my country. I really do. And AP, among others, reports this story as a defeat for "the Bush administration." Really? I see it as a defeat for the nation.
UPDATE: The 5-4 GITMO decision brings to the front, yet again, John McCain's position on judges versus his own policies. McCain undoubtedly supports the 5-4 decision, yet the justices who voted against it, and argued strenuously against it, are of the kind McCain claims to want on the bench. We have seen the same issue arise respecting campaign finance. This is not to say that McCain won't nominate originalists to the bench. But if he does, he will be nominating to the Court individuals who are better adherents to the Constitution than he is.
Hugh Hewitt has also weighs in:
From my interview with Senator Jon Kyl today (transcript here):You can listen to the first hour of Hewitt's show yesterday here (actual time--36:30), all devoted to the decision (more good audio about this Court's ruling, its repercussions, and five the Justices who have now opined that the Constitutional separation of powers no longer applies to them).
JK: I’m stunned. And in one sense, I mean, I knew there were four justices who were prepared to do this, I can’t believe Justice Kennedy did it, and I can’t…it’s just a stunningly bad decision with enormously negative consequences.
HH: Now Justice Scalia wrote this, “America is at war with radical Islamists. The enmity began by killing Americans and allies abroad, 241 at the Marine barracks in Lebanon.” He goes through and walks through all the attacks on us. He concludes, “Our armed forces are now in the field against the enemy in Afghanistan and Iraq. Last week, thirteen of our countrymen in arms were killed. In a 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.” Do you agree, Senator Kyl?
JK :Absolutely correct. And you know, the irony here is the Court has given us a little bit, us meaning Congress, some direction. They basically challenged us to write the procedures for dealing with these detainees. We did. And then a case came along, and they said we don’t think you have it exactly right. So we went back and we made revisions. And they are, by the description of the dissenters, the most generous set of procedural protections ever afforded aliens detained by any country as enemy combatants. And yet, the Court, after inviting us to develop these procedures, and they are the most generous ever, anywhere, now strikes them down as inadequate. And as Justice Roberts said, it’s really hard to figure out why they’re inadequate based upon the test that the majority created.
HH: Now Senator Kyl, it leaves us in limbo again. It doesn’t release any terrorists, though I think we’re coming close to the day that a district court somewhere tells a killer he gets to go free from Gitmo, I don’t know where, to South Florida. But what do you do now?
JK: Well, let me just quote a little bit here from Justice Roberts. He says, “So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit, where they could have started, had they invoked the DTA procedure. That’s the procedure that Congress created. This thing is now, I mean, there aren’t any guidelines, there’s no decision by the Court that clearly spells out what needs to be done here, so it’s basically a free-for-all. Every one of these people that are detained will file a habeas corpus writ. A federal district judge is going to have to resolve them. He’ll get all kinds of different confliction decisions. The questions of what kind of evidence is permissible, and looking at classified, and the standard for review, and what kind of new evidence, if any, can be educed on review, and all of these things are brand new because these people have never had habeas rights before. So you’re literally making the law as you go along. And nobody can even begin to predict where it’s all going to end up.
Read the whole thing.
From my interview with Assistant to the President and Deputy Chief of Staff Joel Kaplan (transcript here):
HH: You know, I’ve read through the 70 pages, Mr. Kaplan, and I get to the end, and it seems like Anthony Kennedy’s apologizing for the havoc he has thrown us into, suggesting that one district court might manage all the habeas petitions, suggesting that intelligence has to be preserved, et cetera. But all I can see here is hundreds of lawsuits going on dozens and scores of years, compromising our security and encouraging our enemies. I mean, what happens next?
JK: Well, that’s a great question, and you know, I think you’re right that it’s not clear that the five justices in the majority here understand what the implications of this are going to be, or maybe they began to understand at the end of the opinion. But look, the bottom line, I think, was expressed by Justice Scalia in his dissent, where he said this decision, “will almost certainly cause more Americans to be killed.” And I don’t think, you can’t really get any more direct or explicit than that. There’s going to be literally hundreds of lawsuits brought in potentially district courts all over the country. And the Court made clear that the remedy that these district courts need to be able to apply is to release the detainees. I mean, imagine, imagine what the effect of that will be – individual district court judges around the country are going to get to decide that some member of al Qaeda, who today is safely imprisoned on Guantanamo Bay, can be released. It’s just a stunning, stunning decision by five justices of the Supreme Court.
HH: There is one line in the opinion, Joel Kaplan, that jumped out at me. It’s at the end, Justice Kennedy writes, “unlike the President and some designated members of Congress, neither the members of Court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people.” Actually, they do describe every single day, not only serious threats but imminent threats. And it seems to me that Justice Kennedy was admitting here at the end, he doesn’t know what he’s talking about when it comes to the war.
JK: Well, and you know, it didn’t stop them from basically turning the Constitution on its head. There are two branches, two elected, accountable branches, the Congress and the executive, who have these responsibilities of national security. And not only do they have the responsibilities, they have the authorities, they have the tools, they have the information necessary to protect the American people. And the Court admits that it doesn’t have it, but nonetheless, usurps that authority for itself. It’s just a terrible display of judicial activism, and one with real consequences for the safety and security of the American people.
Read the whole thing.
Representatives of the two co-equal branches of government are both candidly stating the obvious truth: This is a terrible decision rendered by five justices --and a raft of 25 year old clerks-- unable to understand or unwilling to admit that they have no idea what the jihadists are doing or how this greatly complicates the war effort.
The only redeeming aspect of this decision is the clarity it brings to the choice between Obama --who would appoint justices like those in the majority-- and McCain, who would appoint justices like those who dissented. With a McCain victory and one or two retirements, the stage will be set for the reversal of this deeply dangerous decision.
Still more good links:
- The legal minds of Power Line, here and here.
- Tom McGuire: Support our Troops - By Issuing Them Laminate Miranda Cards
In America, we have freedom of religion, so the element of personal choice is crucial to the definition of who is and is not a Muslim.
The Islamic definition of a Muslim is, "a person who is born of a Muslim father." In Islam, there is no freedom of religion. A person who is a Muslim who chooses not to be a Muslim anymore is deemed an apostate and is subject to death.
Barack Obama was born of a Muslim father. Therefore, according to Islam, he is a Muslim. According to American values, he is what he says he is; a Christian.
From Robert Spencer at Jihad Watch:
Related: Malik Obama: My Brother Will Be Good for the Jews, Despite His Muslim Background
Barack Obama's new Fight the Smears website says flatly: "Senator Obama has never been a Muslim, was not raised a Muslim, and is a committed Christian."
This, of course, is nothing new: it is just what his campaign has been saying for quite some time. And that's why the mounting evidence that he was indeed known as a Muslim in his youth in Indonesia matters -- not because of some paranoid fantasy that Obama is a Manchurian candidate, a secret Muslim who will tell Americans on January 20, 2009, "Surprise! I'm imposing Sharia!" (I have never credited any of that nonsense) -- but because it raises questions about his honesty.
If he was registered as a Muslim in school and wEnt to Qur'an class (which he refers to doing in one of his books), why not admit that he was at least nominally a Muslim as a child? His conversion to Christianity, and his now-notorious church, are well known. Perhaps he has calculated that admitting this would cost him more in political capital than he is able or willing to pay, but -- so does, or so should, his lack of honesty about this matter.
Daniel Pipes has gathered together the evidence for this as it stands now. Here is some of it:
The Catholic school: Nedra Pickler of the Associated Press reports that "documents showed he enrolled as a Muslim" while at a Catholic school during first through third grades. Kim Barker of the Chicago Tribune confirms that Obama was "listed as a Muslim on the registration form for the Catholic school."
A blogger who goes by "An American Expat in Southeast Asia" found that "Barack Hussein Obama was registered under the name ‘Barry Soetoro' serial number 203
and entered the Franciscan Asisi Primary School on 1 January 1968 and sat in class 1B. … Barry's religion was listed as Islam."
The public school: Paul Watson of the Los Angeles Times learned from Indonesians familiar with Obama when he lived in Jakarta that he "was registered by his family as a Muslim at both schools he attended." Haroon Siddiqui of the Toronto Star visited the Jakarta public school Obama attended and found that "Three of his teachers have said he was enrolled as a Muslim." Although Siddiqui cautions that "With the school records missing, eaten by bugs, one has to rely on people's shifting memories," he cites only one retired teacher, Tine Hahiyari, retracting her earlier certainty about Obama's being registered as a Muslim.
Koran class: In his autobiography, Dreams of My Father, Obama relates how he got into trouble for making faces during Koranic studies, thereby revealing he was a Muslim, for Indonesian students in his day attended religious classes according to their faith. Indeed, Obama still retains knowledge from that class: Nicholas D. Kristof of the New York Times, reports that Obama "recalled the opening lines of the Arabic call to prayer, reciting them [to Kristof] with a first-rate accent."
Pipes has more, with links, at his site.
Melanie Phillips has been looking into all this as well, and she succinctly explains its importance:
As I have already said -- but let me repeat very slowly for those suffering from Princess Obama Derangement Syndrome – the concerns about Obama’s Muslim antecedents arise from the fact that a) he has tried to conceal them and b) that he has a puzzling number of indirect connections with radical Islamists or their supporters.
1) He has gone out of his way to support in Kenya Raila Odinga, head of the Luo tribe, who promised to introduce sharia law if elected. Obama interrupted his New Hampshire campaign to speak by phone with Odinga. As the Investor’s Business Daily has reported, his half-brother Abongo ‘Roy’ Obama is a Luo activist in Kenya and a militant Muslim who argues that the black man must ‘liberate himself from the poisoning influences of European culture’ and urges Barack to embrace his African Muslim heritage.
Phillips has mucg more on this; note also that Pamela has been doing yeoman work on investigating Obama's Kenyan connections, and has a great deal of information.
Again: if Obama had simply acknowledged that he was known as a Muslim as a child in Indonesia, and had left Islam later, none of this (besides the ties to the Islamic supremacists in Kenya) would be of any concern. But he has made it a matter of concern by denying what has been affirmed by so many others.
Click directly on the above image to enlarge it. Keep the image in your mind's eye the next time you fill up at a gas station.
So, why aren't our leaders hopping to it and freeing us from the shackles of OPEC?
"Before a commercial break on her America's Pulse show, she asked: "A fist bump? A pound? A terrorist fist jab? The gesture everyone seems to interpret differently. We'll show you some interesting body communication and find out what it really says."
But you can call Bush a Nazi, of course.
Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. For a daily survey of Australian politics, see AUSTRALIAN POLITICS Also, don't forget your roundup of Obama news and commentary at OBAMA WATCH
Tuesday, the Wall Street Journal decried Senate Democrats' obstruction of judicial nominees as "unprecedented in its stinginess," and noted that "[w]e'll soon see if Republicans will take this lying down." The answer came the next day, when GOP Senate Leader Mitch McConnell forced Senate clerks to read aloud the entire 491-page substitute amendment to the climate change bill. Kudos to Sen. McConnell, who explained that the tactic was intended "to give [Democrats] time to contemplate and consider the importance of keeping your word in this body."
McConnell was referring to Majority Leader Harry Reid's broken promise to confirm three appeals court nominees before the Memorial Day recess, as well as Reid's sure-to-be-broken earlier promises to meet the historical average (17) for appeals court confirmations by an opposition Senate in a president's final two years. In fact, McConnell noted, judicial confirmations are proceeding at a historically slow pace:
"If you look at judicial confirmations in a presidential year, you have to go back to 1848, . Zachary Taylor, to find the last time the pace has been this slow."
Of course, what Senate Democrats have mind is 2009 rather than 1848, as Sen. John Cornyn explained last week:
"It is becoming increasingly clear that the majority party is . attempting to run out the clock in hopes of a Democratic President appointing hard left, judicial activists in 2009. We will not let this happen."
But Democrats should not count their judicial activists before they're confirmed. As noted by the Washington Times, Sen. McConnell "issued the starkest threat to date that Republicans will retaliate next year if a Democrat wins the White House." Specifically, McConnell said
"It strikes me it's to their advantage to defuse this issue, because around here, what goes around comes around. That's happening today. It could happen next year. Surely, they're not so shortsighted as to think, 'Goodness, just a few months from now we could be processing nominees that we like.'"
Of greatest concern is confirming one or more of the Big Three nominees: Bob Conrad (4th Cir.), Steve Matthews (4th Cir.), and Peter Keisler (DC Cir.). The key will be whether GOP senators remain resolute, and so far the signs are good. When Wednesday's slowdown produced only a little movement on Reid's part - specifically, an agreement to hold confirmation votes for three district court nominees - Sen. McConnell continued to press Democrats by refusing to give consent for Senate committees to meet while the Senate was in session Thursday. McConnell promised to keep up the fight until Democrats back down from their obstruction of judicial nominees....
Posted by John Ray. For a daily critique of Leftist activities, see DISSECTING LEFTISM. For a daily survey of Australian politics, see AUSTRALIAN POLITICS Also, don't forget your roundup of Obama news and commentary at OBAMA WATCH
9. 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."
- WHY WEREN'T THE POW'S OF WW2 --- UNIFORMED SOLDIERS FIGHTING FOR NATIONS WHICH WERE GENEVA SIGNATORIES --- GIVEN HABEUS CORPUS RIGHTS!?!?!?
- BECAUSE LEFTIST LAWYERS DIDN'T RELENTLESSLY SUE FOR THEM... AND LEFTIST JUSTICES ON THE SCOTUS DIDN'T GIVE THEM ANY.
- WHY NOT!?!?
- BECAUSE THE LEFT WAS NOT ALIGNED WITH OUR ENEMIES IN THAT WAR - AS THEY ARE NOW.
- WHY WEREN'T THEY THEN!?!?
- BECAUSE STALIN WAS OUR ALLY THEN.
- THE LEFT HAS OPPOSED EVERY WAR SINCE THEN BECAUSE THE USA HAS NOT BEEN ALLIED WITH SOCIALISTS.
- AND NOW, THE LEFT OPENLY SUPPORTS THE ENEMY.
- WITH THE AID OF THEIR LIB BUDDIES ON THE SCOTUS.
- THIS IS WHY I HAVE LONG ARGUED THAT TO DEFEAT THE ISLAMIST ENEMY ABROAD WE MUST FIRST DEFEAT THE LEFTIST AT HOME.
- TIME IS OF THE ESSENCE...
Tallies in the Lisbon Treaty referendum indicate it will be rejected by the Irish people.
The No campaign appears to be winning in most constituencies across the State, with significant majorities emerging from rural and urban working class areas.
There is concern in other EU countries about the impact of the decision by Irish voters, and the French and German governments are expected to make a joint statement later today once the Irish result is known.
Ireland was the only country to hold a referendum on the Lisbon Treaty.
RELIAPUNDIT ADDS: IT'S OFFICIAL.
THERE ARE RUMORS THE EUSSR FOLKS ARE ALREADY WORKING AT ANOTHER WAY TO CIRCUMVENT THE PEOPLE AND DEMOCRACY.
MY FINAL MESSAGE FOR THOSE WHO WANT TO SOVIETIZE THE EU:
Senior officials from Shas announced on Thursday that the party would support the motion for the dissolution of the Knesset, initiated by Knesset Member Silvan Shalom (Likud), at any date in which the motion would be put to a vote.Hmm. In that case, let's hope Labor makes good on their part too, which would be a wise choice for them to make. Over here, it's reported that Ehud Barak has announced that Labor will be supporting the dissolution bill.
MK Shalom told Ynet that following the announcement made by Shas and the earlier announcement to the same effect made by the Labor Party, he would bring his motion to a vote on June 25.
The statements made by Shas and Labor indicate that Shalom's motion is set to have a significant majority in the Knesset's vote, at least in its preliminary reading. If no dramatic political changes take place to cause the Labor Party to retreat from its announcement, there will be over 65 MKs supporting the motion on June 25.
Thursday, June 12, 2008
LINK TO DOWNLOAD.
USE IT, NOW.
LISTEN TO IT ALL.
AND DON'T JUST GET MAD.
BY VOTING ACCORDINGLY.
- TODAY, THE SUPREME COURT RULED IN FAVOR OF ENEMY COMBATANTS AND THEIR LEFTIST LAWYERS AND AGAINST THE FREE WORLD.
- DETAILS/ANALYIS HERE.
- ROUND UP HERE.
- BY GOING BACK ON THEIR PREVIOUS RULING (SEE SCALIA; EXCERPT:
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. ... Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.)
- AND BY CONFERRING FULL FEDERAL RIGHTS ON THESE DETAINEES THEY ESSENTIALLY HAVE GUARANTEED THAT NOT A SINGLE ONE WILL TALK EVER AGAIN.
- THAT MEANS LESS INTEL' TO PREVENT ATTACKS HERE AND AGAINST OUR ALLIES ABROAD.
- THAT MEANS THE ODDS OF ANOTHER ATTACK JUST WENT UP.
- THANKS TO THE LIBERAL SCUMBAGS ON THE SCOTUS: AND I MEAN BADER-GINSBURG, KENNEDY, BREYER, SOUTER, AND STEVENS. ALL SCUM.
DO YOU WANT BETTER JUSTICES - ONE WHO DON'T CONFER THE PRIVILEGES OF OUR CONSTITUTION ON HOSTILE NON-CITIZENS, OR THE BENEFITS OF THE GENEVA TREATIES ON NON-SIGNATORIES AND NON-UNIFORMED ENEMY COMBATANTS!?!?
The Fairfax County Board of Supervisors refused to heed citizens' concerns in a May 19 hearing to renew the lease to ISA. Indeed, those citizens who took time from their day to testify before the Board were termed "slanderous bigots" by Board Chairman Gerry Connolly, who is now the Democratic Party's nominee for our Congress's House of Representatives.
In addition, this damning report also came out about the Islamic Saudi Academy -- after the lease was unanimously approved by the Fairfax County Board of Supervisors.
In a major shakeup at the Democratic National Committee -- and a departure from tradition -- large parts of the committee's operations are relocating to Chicago to be fully integrated with the Obama campaign.THE MACHINE MOVES IN...
The DNC's political department, housed in Washington, D.C., will be dramatically rebuilt, with staffers offered a choice of moving to Chicago, joining state operations, or staying in Washington, DNC spokeswoman Karen Finney said.
But the power will clearly be shifting to a centralized Chicago hub.
MORE ON THIS NEWS HERE - AT MEMEORANDUM.
MORE ON THE SLIMEY CHICAGO MACHINE - AND OBAMA'S HISTORY WITH IT - HERE.
OUTRAGE - TYRANNICAL SUPREMES GIVE GITMO TERRORISTS HABEAS RIGHTS; KSM NOW HAS SAME RIGHT TO US COURTS AS CITIZENS! (SCALIA DISSENT EXCERPTS HERE)
This decision even makes Roe v. Wade look good in comparison. And that is saying something.
From SCOTUS Blog:
So: does this not also imply that a soldier which captures an enemy on the battlefield now must stop and Mirandize him; to read him his "Constitutional Right" to a US Trial--and presumably to an Attorney, evidence discovery, and even military secrets--all to be paid for by American taxpayers, and most likey at the cost of greater loss of life to our troops???
In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.
The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.
The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”
Under this ruling, why would not a normal soldier at war simply choose to kill a potential prisoner instead of taking him prisoner? And, if it does play out that way, what would that "unintended consequence" do to our ability to create goodwill, or otherwise to extract critical intelligence from people who want to erase our cities from the face of the earth?
If this outrage does not illustrate the importance of the Presidency and of how critical it is to elect someone that will appoint Supreme Court Justices who will interpret the rights accorded to its citizens (and only its citizens) under our existing Constitution--rather than to invent new "Constitutional Rights" for foreign combatants out of the thin air--than we might as well just not even show up at the polls. All that stuff you were taught in Civics about "co-equal" branches? Forget it: today--after the Court has rejected a law which both the President and a very partisan Democrat Congress have agreed to--we are awakened to the fact that in reality we live in a Dictatorship comprised of a 9-member judicial Politburo.
When we grew up we were taught that this is OUR country; that is: that the Government only acts "with the consent of the governed"; we were not taught that our very lives were at the whim of 9 Dictators-for-life in robes.
Both the Congress and the President have consulted and agreed on how this War should be funded and conducted, and how its prisoners should be detained. Which makes sense, since they are who We, the People elected to make those decisions.
The Constitution was written so that US Citizens would not have to live under tyranny, could defend themselves, and live freely. With this travesty, the Supreme Court justices have blatantly become the means by which to impose tyranny on us.
Taken to its logical conclusion, if today's decision is to be taken seriously, the Bill of Rights written for US Citizens now applies to every person on Planet Earth. Next we will be giving Iran and China the "Constitutional right" to vote in our elections....
The Constitution has always provided that the conduct of War (if not its funding) was the domain of our Commander in Chief, period. During brutal wars which the our country has fought throughout history to defend ourselves and our allies from tyranny, murder, and oppression, it is unprecedented to allow POW's access to American courts. German and Japanese Prisoners of War captured on the battlefield never had a right to sue for their freedom during World War II--why should they have? They were trying to kill our countrymen. So: we are supposed to take a thousand prisoners in a large battle and give them all lawyers now??
It would have been unconscionable to suggest then (or ever) that our enemies ought to have the right to tie up our own court systems while they are at war with us. Now, with this heinous decision the court is saying that mass-murdering armies of terrorists, insurgents, and proxies of foreign enemies can just fire away--knowing that their "freedoms" are guaranteed in our courts.
Should we also guarantee our enemies the "right" to counsel before we endeavor in Wartime to determine what they know? If so, then I guess the CIA can all go home now...
How can free men and women abide such a monstrous decision?
I will be surprised if the President does not try and institute some new sort of Executive Order or new law that will find its way around the ramifications of this devastating ruling. Because we cannot allow this to stand.
Here are some lengthy excerpts from Scalia's scathing and brilliant dissent, edited by me, minus most of the legal annotations (the only link I have at the moment is to the entire opinion, including the dissents). I have also added bold emphases in places--everything else is Scalia's:
I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.Further down in this magnificent dissent, Scalia addresses (as the court did not..) how blatantly the court has ignored the prior Supreme Court Eisentrager decision, without bothering to overturn it. In so doing, Scalia echoes my own World War II point:
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.
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. 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. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.
The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].”
Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.
In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants 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 Bay have returned to the battlefield. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom waslater shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq.
These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified.
As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional.
If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase. But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information.
During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.
And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.”Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting.
As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act . . . represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.”
But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.”
What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
The Court tries to reconcile Eisentrager with its holding today by pointing out that in postwar Germany, the United States was “answerable to its Allies” and did not “pla[n] a long-term occupation.” Those factors were not mentioned in Eisentrager. Worse still, it is impossible to see how they relate to the Court’s asserted purpose in creating this “functional” test—namely, to ensure a judicial inquiry into detention and prevent the political branches from acting with impunity. Can it possibly be that the Court trusts the political branches more when they are beholden to foreign powers than when they act alone?Finally money quotes from Scalia's conclusion (first he concludes a rather lengthy common law argument):
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.
The Court’s analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises “absolute and indefinite” control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court’s reasoning, those prisoners whom the military plans to try by full dress Commission at a future date may file habeas petitions and secure release before their trials take place.
There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.
The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court’s “functional” test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia, much less an apology.
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 Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis. “The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them.” United States v. Raines, 362 U. S.17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803). Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.
But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme.
In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. 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.
The “functional” test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.
[...]This is a dark day in our history; I think it is not fully understood by most people just how horrible this decision really is--in a way this is darker day for America than even 9/11 was. Because on that day only our buildings collapsed; today may have been the beginning of a more catastrophic collapse: that of our institutions and the of very Constitution which is after all purported to be our government's "social contract" with its citizens. And once that is gone, what else is there?
In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.
What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only “in Cases of Rebellion or Invasion.” The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, “functional” considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ’s (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there.
... “[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.”
In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well).
It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.
And, most tragically, it 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.
It seems to me that today the Court has declared that "social contract" null and void. We are no longer governed with our consent; we are not electing a "leader" this year, nor "representatives" who will ensure that our interests are served; we are instead resigned to the tyranny of 9 unelected Dictators.
This is not merely a Constitutional crisis; it is an American existential crisis. God help us all.