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A Hanging of Black for the Supreme Court

“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…”


My devotional blog is here.

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Respect For The Fallen in Battle

A few days ago Jerry and I were talking about military service and he related how worried his father was during the second world war because of his sons who were overseas fighting for our country.

“He would sit and stare into space, working his jaw, silent and distressed ” Jerry told me. “He was proud of them, but he worried.” But because of the mercy of God and the throw of fortune, all the sons of William Buxton came home unscathed.

Not every parent is so blessed, for many sons give their lives for their country. Most parents, though unspeakably grieved, are proud of such children. Among them are Robin and Michael Read. But now, the Read family is suing.

It seems that Dan Frazier, without their permission, has printed their son’s name on anti-war shirts he is selling online. They are furious and are contending that Dan Frazier of Flagstaff has no right to profit from commercial sale of products that use the dead soldiers’ names without permission.

The shirts read: Bush lied, they died, and Frazier claims the 1st amendment gives him this free speech protection. Frazier’s attorney, Lee Phillips, says this project is clearly political protection, and is “not done for profit.”

PHOENIX — A Tennessee couple who lost their son in Iraq want an Arizona merchant to pay more than $40 billion in damages to survivors of soldiers whose names are on the anti-war shirts he is selling online.

Our military is comprised of volunteers, so of his own free will, the son of Michael and Robin Read prepared himself for battle. Knowing this, it seems of flagrant disrespect that this fallen soldier’s name would be used on anti-war tee-shirts.


My devotional blog is here.