A Hanging of Black for the Supreme Court

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“The Nation will live to regret what the Court has done today.” Justice Antonin Scalia

My mind is reeling. For the first time in our history…the first time under any President…alien combatants, in a time of war, have been granted habeas corpus. Our constitution has been distorted and stained by this shameful ruling. A shroud of black should be draped.

Yesterday the Supreme Court ruled 5 to 4 that prisoners at Guantánamo Bay have a constitutional right, in our federal court, to challenge their detention. Barbarian terrorists have been extended privileges as though they are American citizens.

Writing for the majority, Justice Anthony M. Kennedy said the Detainee Treatment Act of 2005 “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

In my piece today, I want to honor those Justices who love our country, who are patriots, those who spoke in dissent: Justices Antonin Scalia, John G. Roberts, Clarence Thomas and Samuel Alito, Jr. Both Justice John G. Roberts and Justice Antonin Scalia wrote vigorous dissenting papers. I am posting excerpts from one of those.

From Justice Scalia

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires. 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.

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.

Bench Memos at National Review

I tremble for our country and take umbrage at such “abandonment of principle…”

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My devotional blog is here.

9 thoughts on “A Hanging of Black for the Supreme Court

  1. I have read and reread many different points of view on, “The writ of habeas corpus.” Sorry, but I have not been able to find an application where it is afforded to an enemy militant who is, not on U.S.A. soil, not held under the laws of the U.S.A., not held in a territory of the U.S.A. nor have they applied for citizenship to America.

    These men are the avowed enemy of our country. Their main goal is either the total destruction of the American way of life! Or that we, Americans, become converts to Mohamed.

    Are there innocent people held within these camps? A very good possibility. Yet, the military courts have both the proper steps and the power to come to that conclusion.

    One more point or maybe several. These people are allowed their Holy Book, they are allowed prayer rugs, they are allowed time of prayer, at Ramadan they have a cleric both inspect the food, to meet the standards of purity and to bless it. Health care, dental care and eye care. Doesn’t sound too bad to me!

    I am not an ostrich with my head in the sand. I am very sure that some of these men have, been aggressively questioned or interrogated. GOOD, the military needs that information.

    Just my thoughts put to paper;
    Mervi

    Thank you, Mervi.

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  2. AP

    The funny thing is all the people who are for this think they’re giving poor helpless people more rights, but the truth of the matter is many of these sweet helpless terrorist will never make it to the prisons now, because troops knowing nothing will happen will deal with it on there own. Not that I agree with vigilante justice, just trying to make a point that this is a bad decision for all parties involved, especially the terrorist.

    Hi AP–

    They should have their day in a military tribunal. I don’t like the vigilante thought, but as I mentioned earlier, I have heard and read such thoughts.

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  3. As I wrote on my blog, McCain could 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.

    Welcome, Sweating–

    Hope you’re right. Is it just my perception of him, or do you also perceive John McCain as lacking in passion as he speaks? He needs to pick up the pace. This puzzles me for he is reputed to have fire in his belly. I want to see some of it–directed correctly, of course.

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  4. What about a trial in military courts for MILITANTS is wrong? It is only the same standards faced by our soldiers if they commit a crime.

    Since this ruling, I’ve both heard in private and public conversations, and in printed material, that there just may be fewer terrorists and enemy combatants captured.

    I hate war…have concluded it to be necessary; never-the-less, I hate it.

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  5. For those of you who would like to extend the right of habeus corpus to alien terrorist detainees not being held in the U.S. but over seas in military prisons; Why do you see the need to change the military tribunal system which is the bedrock that has tried military criminals since the inception of our nation?

    This ruling is so wrong, for unless I am mistaken, every US Commander-In-Chief–no exceptions until this day–has seen such criminals tried in military courts.

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  6. Democracy won by a single vote. That was scary.

    Why do four SCOTUS justices hate the bedrock upon which our legal system rests?

    Hi, Repack. Hope you visit often, even though our viewpoints are miles apart.

    It truly frightens me to think that any of the SCOTUS justices hate anything about our country.

    Like

  7. Thank God. If Scalia had won the day, America – as we know it – would have ceased to exist.

    Kurt, thanks for visiting my blog. Hope you are here often, even though we vigorously disagree.

    Like

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