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Posted on 06/30/2004 4:34:27 PM PDT by Choose Ye This Day
Our Runaway Supreme Court
All in all, thanks to the Supreme Court of the United States, it was a pretty good week for imprisoned terrorists and pornographers. Let's start with the terrorists.
In cases challenging the Executive Branch’s authority to retain custody of Americans or foreign "enemy combatants" seized during overseas military operations, the Court ruled that these detainees have the right to federal court review of the legality of their detention. Exactly how, where, and using what rules of evidence, is up in the air. But one thing is for sure, our federal court system, already backlogged, is preparing for what is sure to be an avalanche of litigation filed by the 600+ detainees at Guantanamo Bay.
How big is the monster the Court has created here? Justice Antonin Scalia, dissenting in Rasul v. Bush, warned that "the court boldly extends the scope of the habeas statute to the four corners of the earth." In his lone dissent in Hamdi v. Rumsfeld (involving a detained American combatant), Justice Clarence Thomas, wrote "no governmental interest is more compelling than the security of the Nation," and that the President--the official primarily responsible for safeguarding our security--must necessarily be allowed to use "broad discretion" to carry out his duty.
Yes, the Court reaffirmed the general obligation and right of the Executive Branch to classify certain detainees as "enemy combatants." Yes, the Court recognized that federal courts must give substantial deference to the Executive Branch in its consideration of the habeas corpus petitions. But much like we saw in the Warren court era (think "exclusionary rule," Miranda warnings), the current Supreme Court has once again made it more difficult for our country to protect itself from real danger. Now a captured enemy combatant has been handed a new weapon courtesy of the Supreme Court--the right to litigate against, and waste the resources of, our government. Thanks a bunch.
Yet the cheers weren't just coming from the cells at Gitmo this week. The smut kings were doing a victory dance too. The Court, in a 5-4 squeaker, ruled that the Child Online Protection Act--signed into law by President Bill Clinton in 1998 and passed by a bipartisan majority in Congress--is overbroad and may infringe on an adult's ability to get pornography. The horror!
"There is a potential for extraordinary harm and a serious chill upon protected speech," wrote Justice Anthony Kennedy. To heck with the extraordinary harm posed to children. By the way, this is the second time Congress has rewritten the law to attempt to satisfy the Supreme Court. But Lucy pulled the football away from Charlie Brown once again.
We get frustrated, and understandably so, when we feel that our elected officials get so caught up in preserving their own power that they avoid tackling important issues. Yet this week, we see how that when our elected officials actually did try to take serious action on two major fronts--protecting us from terrorism and protecting our children from pornography--the Supreme Court kicked them in the teeth.
As impatient and irritated as we can get with the other two branches of government, we should now properly direct our anger at the judiciary. It is simply out of control. These cases are only the latest in a long line of Supreme Court cases where the will of the people and the original meaning of the Constitution have been trampled. Any one who calls himself a conservative today will have to think seriously about backing legislation to restrict the reach of the federal courts.
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Endnote: Ironically, at the same time the Supreme Court was undermining efforts by Congress to shield children from on-line porn, President Bush was in Turkey trying to persuade the Arab and Muslim world that embracing democracy does not lead to depravity:
"Some people in Muslim cultures identify democracy with the worst of Western popular culture, and want no part of it. And I assure them, when I speak about the blessings of liberty, coarse videos and crass commercialism are not what I have in mind. There is nothing incompatible between democratic values and high standards of decency. For the sake of their families and their culture, citizens of a free society have every right to strive peacefully for a moral society."
Excellent insight--if only the Supreme Court agreed.
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A hard rain's gonna fall....
Did I get that blast yet? Haven't checked the email yet.....
Better a hard rain than "a chill wind on free speech," according to moral relativists.
Should be there. I think I got mine within the last half hour or so.
I can almost guarantee that the near-future culture war will not be non-violent....
"I can almost guarantee that the near-future culture war will not be non-violent..."
OK, yes, yes. Now, think about this. Suppose Hillary is President, and decides that everyone on Free Republic is a terrorist. You are put in a prison in Puerto Rico and cannot contact a lawyer.
Some things are simply not capable of change. One of those is the right of individuals to the due process of law. Take that away from one person, based on whatever, and you lose it as well.
Think, please.
It is time for every social, homeland security, religious, military, and prosecutorial law coming out of Congress to contain the words, "not reviewable by federal or supreme court(s)."
Thank you for an intelligent response--I am not being sarcastic.
Scalia dissented in Rasul, the case brought by aliens imprisoned in Gitmo, but was even harsher on the Administration than the majority in Hamdi, the case involving a U.S. citizen held in South Carolina. Unlike the majority-- which thought Hamdi is entitled only to some sort of hearing before some sort of tribunal on the issue of whether he is or isn't an enemy combatant-- Scalia said the only two options should be to try him for treason in a civilian court with the full panoply of constitutional rights, or let him go.
"Thank you for an intelligent response--I am not being sarcastic."
I understand. It seems that many believe that any response is OK under certain circumstances. That may well be fine when the administration agrees with your position. In another day, it could be disastrous.
Such attitudes are typical of those who only give lip service to our constitutional protections.
The Muslim kid in Guantanamo may be a slimebag, but in 8 years, it could be your kid, if you don't agree with the administration at that time.
If we waive the rights to legal counsel for one group, based on religion, or whatever, we essentially waive our own rights.
If the government has a case against these detainees, well trot it out and charge them. Try them in a court of law.
If anyone believes that everyone detained in Guantanamo is guilty, then I have some really nice property on the Gulf coast of Florida for sale. Please contact me via Freepmail.
On what basis would she decide that every FReeper is a terrorist? The Patriot Act doesn't say the government can snoop into ANYONE's personal life, does it? There has to be just cause for suspecting someone is engaged in plotting or carrying out terrorist activities.
Sitting at a computer monitor in one's pajamas, munching on pretzels, while complaining about high taxes is hardly subversive behavior.
Sez you.
The Snake of Chappaqua, Her Majesty the Queen of Darkness might have another view.
read later!!
The Congress should simply pass a law that says that Congress by a 60% vote can overrule the decision of the Supreme Court on the constitutionality of any federal law. The congress could also prohibit the federal courts from hearing any case involving that particular law, thus precluding the Supreme Court from ruling that the law allowing Congress the right to overturn the decision of the Supreme Court was unconstitutional.
All of this would be perfectly constitutional. This would give the Supreme Court a role in determining the constitutionality of a law, but would also give the final say to the people through their elected representatives.
But this will never happen because no congressman right now has the will to make it happen.
"On what basis would she decide that every FReeper is a terrorist?"
And your point is what? Do you truly believe that Hillary Rodham Clinton, as President, might not decide that you are a terrorist? Please do not be so naive.
The difference is substantial. The American was caught in the U.S. The unlawful combatants were caught and kept overseas. Scalia is dead on.
If Justice can't string a Padilla up within the law, what does it take? Traitorous behavior here is obvious. The government should have a higher burden to bear because of it, because they are arresting Americans.
But unlawful combatants appealing their designation overseas? What a joke. I can just see Pvt. Jones hauled in from Afghanistan now, "Yes, that's the man that held a rifle in my general direction--he did it, your honor!"
What a travesty.
The Government argued to the Supreme Court that all that is necessary to lock someone up is for the President to say "As Commander-in-Chief, I have determined that this person is an enemy combatant," and that that is the end of it. The Supreme Court held that some court has to review the President's determination to decide if there is any evidence to support it. If the Administartion had won these cases, a total lack of evidence wouldn't matter, because the President's say-so would be enough.
Do you understand how ludicrous your analogy is?
You compare citizens in US Territories to alien combatants capture and held outside of the US proper. In short, there is no comparison.
Some things are simply not capable of change. One of those is the right of individuals to the due process of law. Take that away from one person, based on whatever, and you lose it as well.
In 228 years the United States Military has taken millions of prisoners outside of the US. Why don't you provide one example of an alien combatant held outside of the US who was granted a habeas petition?
Think, please.
Methinks you are the one who should give this some thought. The ramifications are immense and a major step forward for globalists everywhere.
Why don't you fly on down to Gitmo and blow a few kisses to your precious detainees?
After you're done playing 'Freedom-Fighter', you can then take a connecting Cloud-9 flight to Teheran where you can then cry in your tea about the "unfairness of it all" to the Mullahs.
You compare citizens in US Territories to alien combatants capture and held outside of the US proper. In short, there is no comparison."
Yep, one of THE most ludicrous analogies I've ever seen at FR.
Well, it wouldn't be her so much as the agencies under her Justice Department, namely the FBI, that would have to make that designation, and then back it up in a court of law. They would have to show probable cause.
Let me ask you something: do you think suspected terrorists should be afforded more constitutional protection than suspected drug dealers?
Some things are simply not capable of change. One of those is the right of individuals to the due process of law. Take that away from one person, based on whatever, and you lose it as well.
It ain't lawyers people will need when this happens. The 2nd amendment is why Hillary and her ilk will only dream of shipping members of the VRWC off to Puerto Rico when she, or someone like her, comes to power.
100 million Americans, and the Constitution of the United States, don't give a rat's @$$ about what happens to al-Q members in Gitmo, but they will care when Hillary starts going after 1/2 the nation the way the Clintonistas went after David Koresh at Waco.
p.s., I would gladly serve time in Hillary's Gulag for committing Thought Crimes against those who would force us to sacrifice our freedoms as Americans-- not as enemy combatants-- for the "common good".
Very strange, this is the same court, that last ruled that Political Speech and Press are not protected by the first amendment (CFR law) but now rules that pornography (which isn't even speech per se) is protected?
I have no particular problem with adults viewing pornography, if they want to pollute their brain, that's their business. But with children it's different. For one thing pre adult males don't have fully formed notions of the opposite sex, and porn tends to give them the idea that women (and girls) are just meat, rather something precious to be cherished (as well as leered at, that's still OK within bounds of good taste).
Now the particular scheme they ruled against may indeed be overbroad, but good gravey the campaign finance reform law is much more so, and so blatently unconstitutional on it's face that those Justices who voted to uphold it should be impeached on the basis that they are no longer "on good behavior". The same for the lower courts that also upheld CFR. Of course the ony problem with that is that those who would have to do the impeaching voted for the thing as well, since another apt name for the CFR law is "incumbent protection" law.
Totally different situation. Most FReepers are American Citizens, and live in the US. They would not be taken on a foreign battlefield. I agree with the Court that those detainees that are American citizens, should and do have habeas corpus and due process rights, if apprehended in the US or it's territories. But Achmed from Arabia, captured in Iraq or Afghanistan does not. Those that are naturalized US Citizens have a due process right to contest reversal of that naturalization. After which they are treated like the enemy aliens that they are. Personally I think they should have been treated like the land based pirates that they are, and executed by the first military, US or other, to come upon them.
L'etat c’est nous!
Finally! A clear-cut examination of the decision. Thanks for the post.
This causes howling and wailing, yet no one bats an eye at the Supreme Courts brag that it intends to use international/euro law to decide some cases rather than the Constitution? Amazing.
It does if the administration says so. As was previously mentioned, people who have posted nasty things about the Klintons could one day in the very near future be considered terrorists and locked away with no due process.
Wrong:
Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Where in that document does it say that the Supreme Court has the authority to declare an act of congress unconstitutional?
.
Actually, this is the Supreme Court establishing the Lawyers Full Employment Act (gosh, they can legislate, too!)
But if I can't yell "Fire" in the theater, why can they yell another F word on my sidewalk? (My 4-year old wants to know.)
Can you imagine how the Afghani's would now treat a prisoner who had fought with Al Queda or the Taliban?
Anyone released from such a court who is a terrorist would either be finished off by their own people as a security risk or lead surveillance teams back to other terrorists.
As sick as it sounds, we have reached the point where a few key people might have the ability to kill millions. But there must be a standard of posing a threat. If the purpose of detention is denying the opportunity to commit a crime, then a minimum of motive and means to commit the crime should be demonstrated, as well as intent. This last, while hard to prove, could lead to conspiracy charges at a minimum.
A simple means/motive test is dangerous: gunowners have the means to shoot someone. Disagreements, employment disputes, marital problems, etc. could provide motive, but absent intent, no one gets shot.
Hillary and those of her ilk would be content to disarm Americans based simply on the ability to be criminals, rather than even the verifiable intent to commit a crime. This gets especially twisted when the Brady/Sugarman bunch start talking about 'rifles designed only to kill people', one of the masthead truisms about some of my favorite firearms. Given opportunity and the power, they would twist this into mass murder charges for gunowners who have never drawn a bead on another human.
Unfortunately, one of the common reactions in crisis is to pursue 'safety' at any cost. I for one, am not willing to sacrifice my freedom to feel safe.
Please ping me!
The U.S Supreme Court sides 99% of the time with liberals and pursues what can only be characterized as an agenda of judicial activism. From legalizing sodomy, to refusing to uphold the Pledge, awarding terrorists rights most Americans don't have and striking down modest restrictions on pornography, the Court had made clear what side of the Culture Wars its on.
This says to our military, don't take prisoners, just kill them.
They have to now in combat because if they take prisoners, the courts could release them back to kill our soldiers later.
Laura, Monica and Ann Pics please.
Will do. She doesn't write often, so it's a pretty low-volume ping list.
You'll have to settle for a cold shower.
"I can almost guarantee that the near-future culture war will not be non-violent...."
Unfortunately, I'm afraid you may be right.
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