Skip to comments.Anthony Kennedy's international view
Posted on 06/15/2008 12:16:25 PM PDT by Red Steel
WASHINGTON -- When the Supreme Court goes on recess at the end of this month, Justice Anthony M. Kennedy will be off to his summer teaching job in Salzburg, Austria. For the 19th year, he will teach a class called "Fundamental Rights in Europe and the United States" for the McGeorge Law School.
He tells his American and European students that the belief in individual freedom and the respect for human dignity transcends national borders. There is, he once said in an interview, "some underlying common shared aspiration" in legal systems that protects the rights and liberties of all.
That international perspective was on display Thursday as Kennedy spoke for the Supreme Court in extending legal rights to the foreign military prisoners held at Guantanamo Bay, Cuba. "Security subsists too in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers," Kennedy said.
The 5-4 ruling highlighted the sharp divide over the law and the war on terrorism. The dissenters, agreeing with the Bush administration, said foreigners captured abroad in the war on terrorism had no rights in American courts.
Justice Antonin Scalia dissented with the decision "to extend the right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war." The ruling "warps our Constitution," he wrote in his dissent.
The majority, led by Kennedy, was more in tune with the views across Europe and of civil libertarians in this country, who have condemned the prison at Guantanamo Bay as a "legal black hole" where foreigners are shackled and held in harsh conditions without due process of law. The justices in the majority said that when U.S. authorities take someone into
(Excerpt) Read more at latimes.com ...
Thanks very much for posting. Interesting.
Except they're missing one thing...The opportunity to kill Christians and Jews and our Soldiers.
I love how they slipped in the lies about the hellish conditions at Gitmo.
The Boumediene v. Bush decision was a power grab by five justices or more specifically by Kennedy. The Constitution created three branches and it did not make the court supreme to the other two branches. Article III Section 2 second paragraph; establishes that the supreme Court shall have Jurisdiction “with such Exceptions and under such Regulations as Congress shall make.” The Military Commissions act explicitly stated that the military tribunals were constitutional and the courts to which enemy combatants had access. The Supreme Court has declared that they believe the courts are supreme to congress and entitled to makeup the rules for how to judge enemy combatants, then apply the rules that they make up, and order the other branches of government and the citizens to obey the judicial tyrants. If Congress were interested in anything other than playing politics, like asserting their constitutional authority to write the rules that the courts apply, then Congress would attempt to maintain the balance of power necessary for our Republic.
Pretty soon you will see General “Midnight Jogger” Souter telling the 101st Airborne where they may place their drop zones.
Yep. I think it was Rush that said some of the detainees at Gitmo have gained weight.
Kennedy is well known in taking legal decision based on international laws first and then on the Constitution.
His “teachings” show him to be the liberal hypocrite that he is. The leftist justices on the SCOTUS just cannot separate their PERSONAL POLITICS from the job of UPHOLDING OUR CONSTITUTIONAL LAW AS WRITTEN.
Yep. I think it was Rush that said some of the detainees at Gitmo have gained weight.
There, fix it.
Kennedy has gone looney tunes.
Yet, the food and air conditioning at the jail in Guantanamo would still be superior.
Eurotrash are such suckers.
It would be so much better if he would based his opinions on the US Constitution.
When the Caliphate is established the first ones on the chopping block will be the Supremes....
What law firm was behind Boumediene and what law firm and what individuals plead the case before the Supreme Court?
Kennedy will be remembered for being the deciding vote in one of the worst decisions ever from the Supreme Court on Guantanamo prisioners coming into civilian courts.
What burden does this place on the government? The government must merely demonstrate that there is a legitimate and lawful reason for holding these prisonsers prisoner. It would require for instance military officers stating under oath that said gentleman was captured bearing arms on the battlefield and is an enemy POW.
The reason that this is an important right in the war on terror is that many of the folks in Guantanimo were captured elsewhere. They may be illegal combatants. They may also be someone who was caught on the wrong airplane at the wrong time and has never had the opportunity to make his case. Until a neutral judge hears that, with a record of fact that is appealable, you don't know.
I understand the exigencies of war, but the guys at Guantanimo are hors de combat, thousands of miles from any front, and processing them through the legal system is hardly a legal strain on US government resources (most of which is standing around doing not very much anyway).
Me, I am awfully jealous of constitutional protections against arbitrary executive authority. I would not give up habeas corpus lightly.
So now our soldiers just won’t take any more prisoners. It can be really simple.
These three seem to be the lower than whale shit lawyers who argued for the Guantanamo detainees. Note the major law firms they work for and most work was done pro bono——>>
Attorneys in this case:
Attorneys for Petitioners:
Seth P. Waxman
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, N.W.
Washington, DC 20006
Party name: Lakhdar Boumediene, et al.
Attorneys for Petitioners:
Thomas B. Wilner
Shearman & Sterling LLP
801 Pennsylvania Avenue, N.W.
Washington, DC 20004
Party name: Khaled A. F. Al Odah, Next Friend of Fawzi Khalid Abdullah Fahad Al Odah, et al.
Karma B. Brown
Hunton & Williams LLP
1900 K Street, NW
Washington, DC 20006
Party name: Ridouane Khalid
You are way off base being that they were-—
- Captured in fighting off US soil
- Are not US citizens or legal residents
- Are unlawful combatants MEANING not in uniforms and part of a guerrilla army
— Detainees are not on US soil and have purposely been kept out of the jurisdiction of US courts
In comparison [with the protections afforded the detainees in Eisentrager] the procedural protections afforded to the detainees in the CSRT hearings [at Guantanimo] are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a Personal Representative to assist him during CSRT proceedings, the Secretary of the Navys memorandum makes clear that person is not the detainees lawyer or even his advocate. See App. to Pet. for Cert. in No. 06 1196, at 155, 172. The Governments evidence is accorded a presumption of validity. Id., at 159. The detainee is allowed to present reasonably available evidence, id., at 155, but his ability to rebut the Governments evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part V, infra.
If that is what SECNAV held, then I suggest you fume at the Secretary of the Navy for his blatant stupidity in the face of what was certain to be another Supreme Court review, and not the supreme Court who merely noted the inadequacy of the proceedings to establish the detainees status.
Fair is fair and a neutral adversarial process is a neutral adversarial process. Don't like the results, then tell Bush and his good ol' boys to stop putting their thumbs on the scales of justice. This desecration of anything that most of the western world regards as the basic minimum of due process is simply a provocation and an affront to the civilized world and the sooner we knock it off the easier it is going to be for us to get along with the world.
I am not against holding enemy POW's or charging and trying unlawful combattants. But do so in the light of day according due process to the accused.
should be a cause for removal
As this SC noted, the Constitution has long been viewed as a constraint on the power of the executive wherever in the world it operates. In the second place, as the SC noted, Guantanamo is under full and total de facto US government sovereignty. To claim Cuban sovereignty is to suggest that upon application of the Cuban government we would be compelled to hand over the detainees to Cuba. We would dispute that Cuba's sovereignty extends that far. You cannot have it both ways.
Captured in fighting off US soil
How do you know that? Have the capturing officers sworn to the manner of their capture under oath on the record in a manner subject to cross examination and review upon appeal? No, you don't know that at all. You just assume that what some government official tells you is true. Why do you trust them here when you don't trust the government to tell the truth on anything else?
I am also retired military. I thought I was serving to uphold the constitution, and I want my country to accord these kinds of rights to enemy detainiees because I want the opinion of the world on the shoulders of any of our enemies to press them to provide THESE SAME RIGHTS to our serving soldiers, sailors and airmen.
I find Scalia so far off base in his worship of the overriding authority of the executive, I don't understand where he thinks he is coming from. This country is not going to fall because we extended an habeas hearing to detainees at Guantanimo.
Antonin, time to retire if you think that hearing a case is a threat to the constitution.
Come on... You really think any of the Gitmo detainees were captured in the USA?
Plus the US has fought overseas many times and never before have slime ball lawyers found a way of insinuating themselves into the POW camps
What you don’t get about our liberal lawyers is that they are busybodies, a spreading cancer, and could not bear to be kept out of Gitmo and let military law take care of the process. Their prime objective is to insinuate themselves into every crevice of our existence
Let’s say we follow your opinion about the issue.
How do we then gather evidence on the battlefield to support any further “detentions”?
Do we mirandize all prisoners so they know what “rights” they have?
Do we assign counsel right away so that evidence can be preserved?
Do we stop any fighting to preserve evidence for trial in U.S. courts?
Do we pay for their lawyers?
Are they to be released on bail in the U.S. to await trial as they are to be considered innocent until proven guilty?
Just a few questions you need to clear up before we “give” them constitutional rights.
This whole sordid subject was brought up by the rats to try and stop Bush in everything he does.
The bestowing of rights on unlawful combatants was just another way to get Bush.
Interesting reaction by your ex-prof. Sounds like he's too addicted to "the process". He has an inflated idea of what's going on. The law is just a veil over an ideological struggle between those who defend America and those who advocate for civil rights for those who would kill us and them
This Guantanamo pro bono work by major corporate law firms is an outrage, anyone with a lick of common sense gets it
1. What is your problem with according these detainees an habeas corpus hearing? I don't get it. I really don't.
2. In past wars we have allowed frequent Red Cross visitors access to POW camps AS HAVE OUR ENEMIES. And confinement has not been for 6 years without any prospect of resolution.
3. What I don't know is that they are not some teenage kid who happened to be in the wrong place at the wrong time and got hauled off and taken to Guantanimo, and is now stuck there because there is no process for adjudicating his case. And you don't either because we do not have a neutral process for adjudication.
How do you know that they were unlawful combatants?
On what basis do you claim to be a libertarian?
Of course that's what is going on. This accounts for the weekly treasonous actions and statements from Nancy Pelosi. They don't care if they ruin America just so long as they "get" George Bush
AS someone who was heavily influenced by Ayn Rand and someone who believes the primary purpose of government is to protect citizens.
If someone is actually captured on a battlefield, and held in theater, there is no question about it.
The whole mistake was this Guantanimo thingee. It seemed so clever but was dumb. I seem to recall reading the name of the Bush appointed DOJ lawyer who argued for the whole thing. Dumb Dumb Dumb.
Do you believe that the constitution constrains the powers of the various branches of government, according to the words set forth in the constitution, or do we dispense with it when convenient? Who decides when and where we dispense with it?
No problem if they get it in a military court at Guantanamo
You must be asleep. You haven't noticed that Kalid Sheik Muhammad is trying to turn his trial into a circus?
All these pukes need to be tried in military courts
The liberal lawyers want them tried in civilian courts on US soil and turned into media circuses
2. In past wars we have allowed frequent Red Cross visitors access to POW camps AS HAVE OUR ENEMIES.
Red Cross has often been to Gitmo. So what
--And confinement has not been for 6 years without any prospect of resolution.
They would have been put through military courts and tribunals years ago. You get one guess who has been holding this all up
ANSWER: The same liberal lawyer brigade that just prevailed at the Supreme Court
I’m not as confused as you are.
If you can’t answer that question then everything else you posit here is meaningless left wing propaganda.
Ah, so you hold vigils for the second coming of John Galt. Or are you one of the Techies I used to run into who believe that Bill Gates is the second coming?
I want to know how you know that the folks who are held are enemy combatants, absent a hearing that establishes that they are enemy combatants. How do you know that they are not just some local trader who jipped some sergeant on a black market trade?
It is not confusing at all. You want to rely on the sayso of some PAO flak catcher, and me, I want an actual evidenciary hearing. I don't know why this is so hard, really.
Actually, the folks who have been holding this up is the Bush Administration who have been dragging out getting on with getting on for as long as they can. I just quoted the part where the principle foul up was the Secretary of the Navy who issued procedural orders that guaranteed that the hearings fell far short of the neutral adversarial hearings that were required under Rasul. Blame that on another good ol boy Bush appointee. Think there are none. Gates just cleaned out a couple of them. Sounds like he has more work to do.
So you want illegal combatants to have the same rights as legitimate prisoners of war? In fact, the SC decision actually gave these illegal combatants rights which exceed those granted to POWs. How many of the ten of thousands of German prisoners held in the US during WWII were granted habeas corpus?
You keep pointing out the SC reigned in the abuse of power by the Executive branch. What you fail to comprehend is that the SC trounced all over Congress as well. The Detainee Treatment Act was passed by Congress and signed by the President (because the SC said the President needed the Congress to setup the military tribunals) and expressly did not grant the detainees habeas corpus, “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” §1005(e)(1), 119 Stat. 2742. So the SC threw out several precedents and thumbed its nose at both Congress and the Executive branch.
Without a preconceived notion of the desired outcome, I don’t know how the SC could have ignored precedents such as Quirin (two US citizens held on US soil, tried by a military tribunal and executed) and Eisentrager.
Answer the questions in post 33.
Do we turn the entire world into an episode of CSI?
How in the world do propose we “gather evidence” in some hellhole where the high value target had to be kidnapped out of a hostile village before his plans killed thousands of Americans?
Please answer how we sanitize scenes like that or on a mountain somewhere accesable only by goats and on foot and days or weeks from civilization?
do we fly in all kinds of investigators and put them up in tents in order to gather evidence for hundreds of detainees scattered all over inccessable areas?
How many hundreds of investigators will be killed trying to gather the necessary evidence?
Or do you propose making all soldiers and Marines into investigators also?
How do secure the areas in hostile territory?