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Boumediene-Chief Justice Roberts and Justice Scalia- DISSENT (on Gitmo ruling)
Bench Memos at National Review ^ | 12 June 2008 | Ed Whelan

Posted on 06/12/2008 1:04:44 PM PDT by SE Mom

Boumediene—Chief Justice Roberts's Dissent [Ed Whelan]

I’m not going to undertake to summarize the 126 or so pages of opinions in Boumediene v. Bush. On the Volokh Conspiracy, Orin Kerr offers selected excerpts from Justice Kennedy’s 70-page majority opinion. I’ll do the same here for Chief Justice Roberts’s dissent and in a later post for Justice Scalia’s.

Various excerpts (citations omitted) from the Chief Justice’s dissent (joined by Justices Scalia, Thomas, and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an "adequate substitute" for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

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. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

06/12 02:13 PM


TOPICS: Front Page News; Government; News/Current Events; War on Terror
KEYWORDS: boumediene; boumedienevbush; constitution; enemycombatant; enemycombatants; gitmo; judicialactivism; judiciary; scotus
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And the dissent by Justice Scalia here:

Various excerpts (citations omitted) from Justice Scalia’s dissent (joined by the Chief Justice and Justices Thomas and Alito):

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. The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], 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…. 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.

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.… Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. 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.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed.… It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.

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.

06/12 02:40 PM

1 posted on 06/12/2008 1:04:44 PM PDT by SE Mom
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To: Bahbah; holdonnow

My mind is simply reeling.


2 posted on 06/12/2008 1:05:55 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Rush covered this most of today’s show...many interesting callers, too. Is there anything we can do?


3 posted on 06/12/2008 1:07:49 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: All

Much more for the legal minds at FR here:

http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213280702


4 posted on 06/12/2008 1:08:16 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: Miss Didi; Bahbah

Since I’m NOT a lawyer- I can’t really answer that clearly. My hunch is that another case would have to be heard before the Court that could allow for a new/different interpretation.


5 posted on 06/12/2008 1:10:27 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
Scalia: The Nation will live to regret what the Court has done today.

The Nation will continue to die its slow, agonizing death as a result of what leftist courts, SCOTUS included, do nearly every day.

6 posted on 06/12/2008 1:13:23 PM PDT by TChris ("if somebody agrees with me 70% of the time, rather than 100%, that doesnÂ’t make him my enemy." -RR)
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To: SE Mom

I like Scalia and Roberts.


7 posted on 06/12/2008 1:14:03 PM PDT by Ptarmigan (Bunnies=Sodomites)
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To: SE Mom

As I said on a different thread, the President should ignore this ridiculous decision. Combatants, even suspected foreign combatants, should have NO access to American courts. None.


8 posted on 06/12/2008 1:14:14 PM PDT by Czar ( StillFedUptotheTeeth@Washington)
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To: SE Mom

This is truly appalling: wars run by the Courts!


9 posted on 06/12/2008 1:14:47 PM PDT by SatinDoll (Desperately desiring a conservative government.)
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To: Czar

Well- the president can’t ignore it- we have three co-equal branches of government.

There will be repercussions that we can’t even see yet from this ruling.


10 posted on 06/12/2008 1:21:32 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Text books need to be rewritten ... or simply tossed. We no longer have three co-equal branches of government. Excuse me, gubmint. This is what a “distributed dictatorship” might look like.


11 posted on 06/12/2008 1:22:11 PM PDT by RobinOfKingston (Man, that's stupid ... even by congressional standards.)
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To: SE Mom

I can’t even begin to fathom this. These clowns act like they are elected by Democrats! How the heck can they sleep at night?


12 posted on 06/12/2008 1:23:48 PM PDT by benjamin032
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To: SE Mom

The Founders clearly set up the legislature, especially the House of Representatives, as the superior branch of government.

It can restrict what judges may review and impeach those judges that are not performing their duties properly.

In this case, Congress should exert its superior authority and tell the five judges to go to hell. I’d much prefer articles of impeachment be drawn up, followed by swift hanging, but that’s me.

Since that won’t happen, boys and girls, we, the American citizens, are on our own. It is up to us to take back our country. How we do so, history gives numerous examples.


13 posted on 06/12/2008 1:25:37 PM PDT by sergeantdave (Governments hate armed citizens more than armed criminals)
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To: SE Mom
Well- the president can’t ignore it- we have three co-equal branches of government.

The fact that we have three co-equal branches of government means the President can tell the Supreme Court to take a hike.

Remember all the times over the last ten years or so that Congress demanded someone from the Executive branch show up to testify on something, and the Exec refused?

14 posted on 06/12/2008 1:26:07 PM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: DuncanWaring

It’s a damn mess, isn’t it?


15 posted on 06/12/2008 1:28:45 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
The only "Win", in this case would be, if every time an enemy combatant is captured on the battle field (Iraq, Afghanistan, etc.), we send a plane load of US Circuit Judges to the battle field to try them. Let's first start with a 747 load of Justices from the 9th Circus for trial in Kandahar.
16 posted on 06/12/2008 1:31:31 PM PDT by TRY ONE (NUKE the unborn gay whales!)
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To: DuncanWaring

No President has seriously challenged a Supreme Court decision since Abraham Lincoln and that was during a domestic emergency far more severe than the Iraqi war. I am not aware that Congress has ever limited the jurisdiction of Federal courts even though the Constitution gives it that authority. Since the days of John Marshall, the Federal judiciary has asserted its superiority to the other two branches of government, mostly without any challenge. Judicial power must and should be restrained by Congress, even if the Supreme Court and the lower courts were populated with strict constructionists, which of course they are not.


17 posted on 06/12/2008 1:36:57 PM PDT by Wallace T.
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To: Miss Didi

. “Is there anything we can do?”

Yeah, start forming dues-paying, drilling Militias in our home states.


18 posted on 06/12/2008 1:40:16 PM PDT by TalBlack
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To: DuncanWaring

From the AP: Bush disagrees with, will ‘abide by’ court’s Guantanamo ruling


19 posted on 06/12/2008 1:45:14 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: TalBlack

It’s a good thing I am not the President because I would bring the terrorists now in detention to the Supreme Court’s front door and set them free. Let them live with the decision they make.


20 posted on 06/12/2008 1:49:16 PM PDT by Rapscallion (Our tolerance will be our undoing.)
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To: SE Mom

Kennedy et al flayed alive by Roberts & Scalia.


21 posted on 06/12/2008 1:50:20 PM PDT by savedbygrace (SECURE THE BORDERS FIRST (I'M YELLING ON PURPOSE))
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To: SE Mom

It’s hard to believe what these morons are doing to this country. Let’s release the bad guys bring them to the states and buy houses for them right next to the liberal SC judges. These morons on the SC won’t be happy until we are in worse shape then S. Africa or Zimbabwe.


22 posted on 06/12/2008 1:51:07 PM PDT by kenmcg
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To: savedbygrace

Grand dissents, eh? I loved reading them! Give em hell:)


23 posted on 06/12/2008 1:52:18 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Bump for my tag-line.


24 posted on 06/12/2008 1:56:48 PM PDT by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: brityank

LOL! good one:)


25 posted on 06/12/2008 2:01:34 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

Thanks for posting these dissents. Fascinating reading. Amazing words. Why doesn’t some of this rub off on the others?


26 posted on 06/12/2008 2:01:45 PM PDT by AuntB (Vote Obama! ..........Because ya can't blame 'the man' when you are the 'man'.... Wanda Sikes)
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To: benjamin032

Because they’re smarter than the rest of us - you know, we’d all just head off willy-nilly without our black-robed keepers...I’m sure those in the majority will sleep well knowing they’ve protected somebody...


27 posted on 06/12/2008 2:01:59 PM PDT by jagusafr ("Bugs, Mr. Rico! Zillions of 'em!" - Robert Heinlein)
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To: AuntB

I don’t know, Aunt B, I simply don’t know.

http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213280702

The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy’s concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas:

(Kennedy)
It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.


28 posted on 06/12/2008 2:11:09 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
Way back in my high school history class days, I chuckled at the thought of the ancient Druid class in forested glens passing mystic decisions on life and death. Oh, and how about the Oracle at Delphi who got high on vapors from the earth and advised kings?

You know where I am going and I see little difference.

29 posted on 06/12/2008 2:17:04 PM PDT by Jacquerie ('Tis a pity that judicial tyrants do not fear for their personal safety.)
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To: SE Mom

mark


30 posted on 06/12/2008 2:18:36 PM PDT by Christian4Bush ("In Israel, the President hit the nail on the head. The nails are complaining loudly." - John Bolton)
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To: SE Mom


The Last Days of the United States

Outrage Over Supreme Court Decision
31 posted on 06/12/2008 2:19:24 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: Miss Didi

Thanks:)

OMG I just heard Geraldo get into it about this ruling- he’s THRILLED with 5 of the 4 justices.

He and Judge Nappy are delirious with joy.


32 posted on 06/12/2008 2:23:46 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom
The Judge is happy??? Tomorrow's Friends will be unbearable as it's Geraldo Friday with the Judge weighing in, I'm sure.
33 posted on 06/12/2008 2:26:04 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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The only logical result is to take no prisoners, then.


34 posted on 06/12/2008 2:29:18 PM PDT by vollmond (Peace in our time. Obama 2008.)
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To: Miss Didi

Yep- both of them.

I don’t understand it, they’ve GIVEN the right of habeas to the ENEMY, in OUR courts. This is not a uniformed enemy of another state, these are a whole other category. They now have rights under OUR constitution reserved for US CITIZENS.


35 posted on 06/12/2008 2:31:14 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: Czar
Combatants, even suspected foreign combatants, should have NO access to American courts. None.

Exactly, they will exploit a system that was created for our citizens..not our enemies.

I'm happy that this is being undertaken. The loop holes that these new enemies can jump through need to be addressed.

You can not be a shining city on a hill if the enemy is allowed to flatten the hill.

36 posted on 06/12/2008 2:33:08 PM PDT by Earthdweller
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To: SE Mom
RUSH: The moral of the story is don't take any prisoners.
37 posted on 06/12/2008 2:33:46 PM PDT by Miss Didi ("Good heavens, woman, this is a war not a garden party!" Dr. Meade, Gone with the Wind)
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To: SE Mom
Never mind the military arguments, the most concerning thing about this ruling is that it is fundamentally imperialist. To extend and enforce rights to foreigners without treaty or reciprocity is to literally extend a claim on their lives. It is a violation of the essence of social contract that is the foundation of nationhood for which the Court majority now shows no respect.

Rights may be God-given, but the power to enforce them is not. These clowns have inverted the concept of limited government not only by exceeding powers given to them in the Constitution, but extending that power to global scope.

38 posted on 06/12/2008 2:33:49 PM PDT by Carry_Okie (We have people in power with desire for evil.)
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To: Carry_Okie

Welcome to the New World Order.


39 posted on 06/12/2008 2:35:28 PM PDT by SE Mom (Proud mom of an Iraq war combat vet)
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To: SE Mom

This is a terrible decision.
Another example of judicial arrogance run amok.
As usual, Scalia cuts the heart out of the decision, puts it on a skewer, dissects it, and shows how rotten it is.

“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.”


40 posted on 06/12/2008 2:37:14 PM PDT by WOSG (http://no-bama.blogspot.com/ - co-bloggers wanted!)
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To: SE Mom
"Well- the president can’t ignore it-..."

Sure he can. All it takes is the guts to do so.

41 posted on 06/12/2008 2:37:24 PM PDT by Czar ( StillFedUptotheTeeth@Washington)
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To: Earthdweller

With dumbass decisions like this one, it’s a wonder the military doesn’t revolt.


42 posted on 06/12/2008 2:39:07 PM PDT by Czar ( StillFedUptotheTeeth@Washington)
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To: Miss Didi
Well, we can make examples of the UnAmerican Democrat party, and their liberals on the Court.

We can rail to our family, friends, and every stranger we meet, about their perfidy, their betrayals, their disloyalty and treachery.

It is our duty to let every American know who is responsible for allowing Islamic headchoppers who are so cowardly and evil that they kill women and children, wear NO UNIFORMS in battle, the honor of a US Constitutional right.

43 posted on 06/12/2008 2:40:40 PM PDT by roses of sharon ( (Who will be McCain's maverick?))
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To: Carry_Okie
"It is a violation of the essence of social contract that is the foundation of nationhood for which the Court majority now shows no respect."

Sovereignty is such a dirty word. Let's dust it off and shine it as a blazing light. The vampires and roaches will scatter from here to Kingdom come.

44 posted on 06/12/2008 2:41:31 PM PDT by Earthdweller
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To: DuncanWaring

“The fact that we have three co-equal branches of government means the President can tell the Supreme Court to take a hike.”

it certainly would seem that the usual deference to other branchs by the Liberal Supremes is kaput.
But if Bush really thumbed his nose at this ...
The Dems would be on the liberal media pronto demanding impeachment over it, calling him a war criminal,. We’d have sob stories about the poor widdle jihadists stuck in Gitmo without even Halal meals and taxpayer-funded lawyers! Obama would win in a landslide and pardon ‘em all. And the dumb-nut people would cheer.

The inmates are running so much of the asylum that normal people are the ones who look crazy.

Fire off a letter to the editor on this - this is outrage of the month ... or at lest judicial outrage since the CALI Supremes imposed homosexual marriage.


45 posted on 06/12/2008 2:42:15 PM PDT by WOSG (http://no-bama.blogspot.com/ - co-bloggers wanted!)
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To: WOSG

Gee..you sure are a doom and gloom one today. You have us losing the election already. LOL


46 posted on 06/12/2008 2:46:38 PM PDT by Earthdweller
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To: vollmond

Logically...if they now have rights one mustn’t violate, how can we take no prisoners, how can we kill the enemy?


47 posted on 06/12/2008 2:53:45 PM PDT by 668 - Neighbor of the Beast (Vote McCain-Feingold. For all the difference it will make.)
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To: Miss Didi

UNLEASH Hell, make these bastard hear us for once.

HELPFUL TELEPHONE NUMBERS

Public Information Office: 202-479-3211, Reporters press 1

Clerk’s Office: 202-479-3011

Visitor Information Line: 202-479-3030

Opinion Announcements: 202-479-3360


48 posted on 06/12/2008 2:54:14 PM PDT by roses of sharon ( (Who will be McCain's maverick?))
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To: Miss Didi
"Those who cannot remember the past are condemned to (have their citizens suffer and) repeat it."
George Santayana



49 posted on 06/12/2008 2:55:48 PM PDT by Diogenesis (Igitur qui desiderat pacem, praeparet bellum)
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To: Miss Didi

Pray. Go over the heads of the Supreme Court to the Supreme Being. He’s listening.


50 posted on 06/12/2008 3:00:39 PM PDT by RoadTest ( Destroy this temple, and in three days I will raise it up. But he spake of the temple of his body.)
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