Yesterday’s US Supreme Court’s decision in Boumediene v. Bush took up a legal issue upon which there can be genuine intellectual disagreement. The question of whether or not the "great writ" of habeas corpus should be extended in any measure to non-citizens detained by our federal government in territory over which another country maintains de jure sovereignty is by any measure a difficult one. Like most difficult questions of constitutional law, this decision came down to a 5 to 4 decision, which very easily could have swung the other way. Such is the malleability of constitutional law on difficult questions.
While I respect the intellectual position of the justices in the minority, I simply cannot abide Justice Scalia’s hysterical rantings that the majority’s opinion "will almost certainly cause more Americans to be killed." This rant was delivered orally from the bench, no less – which, for those of you who do not follow the Supreme Court, is only done occasionally and only when a justice is particularly firm in his or her conviction that the majority got it completely wrong.
To place the putative blame for more American deaths on his fellow justices for following their strongly held convictions and honest intellectual conclusions is simply repugnant. This type of vicious ad hominem attack may have some place in the political branches of the federal government (although I for one am getting pretty darn tired of that type of behavior on the part of the Executive and the Congress as well), but it demeans and politicizes the vital work of the Supreme Court to provide authoritative guidance on the great questions of constitutional law. In so doing, Justice Scalia provides more grist for the already churning mill of attacks against the federal judiciary.
Of course, Justice Scalia has already made it abundantly clear that he is a wholly political animal (duck hunting, anyone?), rather than a fair and impartial judge, so I guess none of this should surprise me. But hey, if you want to play this game, Justice Scalia, I’m in – "George Bush’s failed policies in Iraq will certainly cause more Americans to be killed."
6 comments:
There is a very interesting and (for a non-lawyer at least) informative discussion of the case here. The discussion extends into comments with a few inevitable tangents on Clinton's BJ.
Scalia believes 1) the result in this case is not mandated by the Constitution or precedent and 2) it will get Americans killed. He should say so. Scalia is renowned for the "called shot." He predicted what allowing the Independent Counsel law's violation of Separation of Powers would do before Clinton. He predicted that Lawrence would immedietely lead to same-sex marriage, as it did months later in Massachusetts. Here he is simply using his predictive powers, which have been right on the money to point out what is going on here.
I think of Harry Blackman's "I will not toy with the machinery of death" speach when he switched on the death penalty." Everybody swooned.
Also, there is nothing wrong with duck hunting with the Vice President. Federal Officials are named in complaints all the time and judges don't have to stop socialing with them because of that.
Finally, George Bush is an elected official with resonsibility for war and peace and prosecution of any war we are in. It is perfectly acceptable to say this or that policy will cause Americans to die. What is unacceptable is a Court for the first time in history interjecting itself into this decision. It is called "lawfare" and in that theatre alone the jihadis are winning.
Scalia is hysterical and wrong. It is not like the outcome of the majority's decision mandates that the Gitmo prisoners will be immediately released and issued weapons with which to come attack the US. Rather, the prisoners will have access to air their grievances before a federal court judge, the majority of whom are now Republican appointees. How awful, I know, that we would actually allow federal judges to judge cases, as opposed to Mickey Mouse military tribunals. The jihadis have clearly won when you get the federal courts involved! I know -- let's just abolish the federal judiciary entirely and be done with it, as it clearly just gets in the way of national security and unfettered executive power.
Scalia is neither hysterical nor wrong. The damage is not merely done by the release of jihadis it also pertains to how evidence must now be gathered on a battle field. It affects the manner in which we deal with foreign and other sources of intelligence. It allows a million lawyers tricks into a place they have never heretofore been and it extends the damaging fiction that the Supreme Court is competent in every field.
Were I the President I would make a deal with a dictator abroad to take everyone in Guantanamo and execute them immedietely. I would then issue an order to take no prisoners in the terror war.
I'll remind you of that when they come to your house in the middle of the night, JJV.
My home is not in Waziristan.
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