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Judge Shocks America’s Conscience
Townhall.com ^ | April 20, 2009 | Ken Blackwell

Posted on 04/20/2009 5:49:59 AM PDT by Kaslin

Recently, a federal court issued a decision that may be the next Supreme Court case in the War on Terror. The court ruled that terrorists held by the U.S. military in Afghanistan are entitled to the writ of habeas corpus, extending a panoply of rights to these detainees. This ruling could have a stunning impact on this and future wars, and bears out just how wrong last year’s major Supreme Court habeas case was.

Judge John D. Bates is a Bush appointee on the U.S. District Court for the District of Columbia. Judge Bates held that terrorist detainees that are held at the Bagram Air Force Base are entitled to habeas corpus, claiming that the Supreme Court’s 2008 decision in Boumediene v. Bush demands this result.

The writ of habeas corpus is powerful. Where habeas applies, it requires that any person held in confinement must either be promptly given a civilian trial with all the protections that the Bill of Rights gives American citizens, or that the person must be released. Before the Boumediene case, it had never been applied in a wartime context on foreign soil in the history of the United States.

No country extends more protections for individual liberty than the United States. Our nation has amazingly broad protections for free speech, religious liberty and political expression. People have the right to own property, have the means to defend themselves and their families, and be informed by a free press. If the government wants to convict them, they are presumed innocent, entitled to a prompt jury trial with the help of a lawyer, and cannot be tortured or given unreasonable fines.

Yet before last year, the courts always recognized the enormous difference between prosecuting criminals and fighting a war. Habeas corpus applies to American citizens or people on American soil as part of domestic policy. When invoked, it requires the government to apply all of those rights listed above. It’s a civilian process deliberately biased in favor of defendants that is focused on our courts under Article III of the Constitution.

War, on the other hand, is a military matter. It’s part of foreign policy under the president’s commander-in-chief power in Article II of the Constitution. It’s deliberately biased in favor of American power, intended to protect American lives and our national security.

Then Boumediene v. Bush came along, striking down the military commission system in Guantanamo Bay, Cuba (Gitmo). For the first time, with a 5-4 split decision, the Article III branch chose to override the Article I Congress that created the military commission system and the Article II president who was fighting a war. The four conservative justices that dissented in that case warned that America would regret the majority’s decision.

Today may be the beginning of that regret. Habeas here means everyone captured on battlefields is presumed innocent and gets taxpayer-funded defense lawyers and every right of Americans. That includes making the soldiers involved to be flown back to the U.S. for the terrorist’s trial, where they’ll have to testify and defend themselves. The soldiers will have to provide evidence to prove their allegations about the terrorist defendant. If they can’t prove every part of what they say, the terrorist will go free.

What’s surprising about this decision is that it wasn’t necessary. Judge Bates wrote that habeas had to apply in Afghanistan because Bagram Air Force Base could not be distinguished from Gitmo.

That’s just not so. In Johnson v. Eisentrager in 1950, the Court held that habeas did not apply to the U.S. military bases in Germany. In Boumediene, the Court bent over backwards to explain why Gitmo was different from Germany, saying that Gitmo was a century-long lease from Cuba that amounted to complete and permanent U.S. control. Therefore, Boumediene held, Gitmo was de facto sovereign American soil, and that’s why habeas applies.

U.S. bases in Afghanistan are more like those in Germany than Cuba. Bagram Air Force Base is just like the bases in Germany after World War II. If habeas didn’t apply to Germany in the Eisentrager case, then it shouldn’t apply in Afghanistan.

Judge Bates is considered a conservative judge with an excellent reputation. It could be that he felt compelled by the Boumediene case, which he must follow even if he disagrees with it. But this decision seems to go further than the case required, and will now be appealed to the D.C. Circuit. This case could go all the way to the Supreme Court, and change the way America conducts wars forever.


TOPICS: Editorial; Foreign Affairs; Government
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1 posted on 04/20/2009 5:49:59 AM PDT by Kaslin
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To: Kaslin

Transfer ownership of the prison to the Afghan government with an agreement to “assist” them in running it.


2 posted on 04/20/2009 5:52:12 AM PDT by Old Retired Army Guy (tHE)
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To: Kaslin

Bookmark.


3 posted on 04/20/2009 5:52:18 AM PDT by IrishCatholic (No local Communist or Socialist Party Chapter? Join the Democrats, it's the same thing!)
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To: Kaslin
Fly them at your home now. The more they see, the better.

ALSO

or if you are NAVY

Time to take the country back

4 posted on 04/20/2009 5:52:55 AM PDT by bmwcyle (American voters can fix this world if they would just wake up.)
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To: Kaslin

The goal of left wing lawyers has been to make it illegal to defend ourselves. Looks like they are succeeding.


5 posted on 04/20/2009 5:52:59 AM PDT by y6162
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To: Kaslin

Boumediene was decided without Roberts or Alito.


6 posted on 04/20/2009 5:54:37 AM PDT by Mercat (Scary middle aged people take to the street!!!)
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To: bmwcyle
Let them know what "kingdom" you belong to:


7 posted on 04/20/2009 5:55:23 AM PDT by MrB (Go Galt now, Bowman later)
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To: Kaslin

So what now? Shoot them all dead on the battlefield or just not fight the fight at all? I think we all know which way this administration wants to go.


8 posted on 04/20/2009 5:55:24 AM PDT by georgiagirl_pam
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To: MrB

That works also. The more that fly, the bigger the message.


9 posted on 04/20/2009 5:58:18 AM PDT by bmwcyle (American voters can fix this world if they would just wake up.)
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To: y6162
The goal of left wing lawyers has been to make it illegal to defend ourselves. Looks like they are succeeding.

You say that like it's a bad thing. Once we require soldiers to follow the Miranda Ruling before firing their weapons, and give Iran our nukes (they want nukes and we don't), those who oppose us in our overseas contingency operations will no longer feel threatened, and they will be nice and sing Kumbaya with us in perfect harmony.

10 posted on 04/20/2009 5:58:52 AM PDT by TurtleUp (Turtle up: cancel optional spending until 2012, and boycott TARP/stimulus companies forever!)
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To: georgiagirl_pam

Our nation has amazingly broad protections for free speech, religious liberty and political expression. People have the right to own property, have the means to defend themselves and their families, and be informed by a free press. If the government wants to convict them, they are presumed innocent, entitled to a prompt jury trial with the help of a lawyer, and cannot be tortured or given unreasonable fines.

At least that’s how it used to be.


11 posted on 04/20/2009 6:00:30 AM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Kaslin
Most likely the decision will be overturned. First of all the Afghanistan government wasn't asked to participate in the case ~ and yet the decision here claims extraterritorial jurisdiction by the US courts over Afghanistan (or at least a part of it).

I suppose the Afghans could just shoot any prisoner the judges wanted transferred to the US for trial ~ and if a judge demanded that the trial actually be held in Afghanistan, then the Afghans might well stick him or her in one of their prisons until rationality returns.

There are so many possibilities here.

12 posted on 04/20/2009 6:01:37 AM PDT by muawiyah
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To: Kaslin
Our nation has used to have amazingly broad protections for free speech, religious liberty and political expression.

McStain and company has severely limited the right to political speech. The congress and courts have severely limited religious speech and expression.

This is not the country it once was. Liberty is in retreat.

13 posted on 04/20/2009 6:03:05 AM PDT by Pontiac (Your message here.)
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To: Kaslin

Take no prisoners. Either kill them on the battlefield or just let them go. Either way, we must keep them out of the hands of the scumbag lawyers who hate their own country more than our enemies do.


14 posted on 04/20/2009 6:04:43 AM PDT by andy58-in-nh (You have enemies? Good. That means you've stood up for something, sometime in your life.)
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To: Old Retired Army Guy
Better still, overturn Boumedienne.

That sounds like the right answer to me.

15 posted on 04/20/2009 6:06:59 AM PDT by lentulusgracchus
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To: andy58-in-nh

The Supreme Court of Despots has NO AUTHORITY over The Actions of the Executive Branch or the Legislative Branch. They only have control of the Courts. there are countless examples of the Executive Branch telling the Despots to go pound Watermelons, however Sambo won’t go down that road. He will end up being the Terrorists best friend.


16 posted on 04/20/2009 6:09:29 AM PDT by eyeamok
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To: Kaslin

An American robed mullah speaks. Is this psycho judge related to Norman Bates? /sarcasm


17 posted on 04/20/2009 6:09:40 AM PDT by PGalt
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To: Kaslin

I have mixed feelings here.
But, ultimately, as the bill of rights is supposedly a Bill of [human] rights {evidenced of the word “people” rather than “citizen”, though arguable} I don’t see anything wrong with this...

I think that our Government SHOULD be held to task for violating these rights, DOUBLY so when concerning its own citizens.


18 posted on 04/20/2009 6:10:09 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Kaslin

I can’t really blame the judge here. From what I know, he’s only doing what he’s supposed to do, following SCOTUS precedent in Boumediene v. Bush. Conservative judges don’t make up the law as they go, unlike some folks who see the bench as an opportunity to remake society as they see fit.


19 posted on 04/20/2009 6:10:26 AM PDT by CitizenUSA
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To: Kaslin

This is precisely why NO PRISONERS must be the policy of our military. Hands up or fighting, no matter. Kill them on the spot.


20 posted on 04/20/2009 6:11:38 AM PDT by JimRed ("Hey, hey, Teddy K., how many girls did you drown today?" TERM LIMITS, NOW AND FOREVER!)
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To: Kaslin

I wonder if this decision is a natural outcome of our having “police actions” requested by the Executive Branch versus a formal declaration of war from Congress.


21 posted on 04/20/2009 6:12:13 AM PDT by earlJam
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To: andy58-in-nh

Killing them on the battlefield will have the same result, right? Endless court battles to defend the use of weapons. I don’t think we could be any clearer - our national policy is to not defend ourselves.


22 posted on 04/20/2009 6:12:44 AM PDT by ElayneJ
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To: y6162

>The goal of left wing lawyers has been to make it illegal to defend ourselves. Looks like they are succeeding.

There is a difference between defending ourselves and holding people for years on end w/o trial. That prisoners seem to have more rights than citizens is deplorable... but we shouldn’t allow that to mean that the state should only recognize the rights which are an intersection of the two. (In that case, you would not have the right to reproduce w/o governmental sanction.)


23 posted on 04/20/2009 6:13:06 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: JimRed
This is precisely why NO PRISONERS must be the policy of our military. Hands up or fighting, no matter. Kill them on the spot.

Then by that token, American soldiers should expect the very same treatment from the enemy.

24 posted on 04/20/2009 6:14:21 AM PDT by dfwgator (1996 2006 2008 - Good Things Come in Threes)
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To: Mercat
Roberts and Alito were both dissenters in Boumediene. Roberts recused himself from the previous Guantanamo case because he had already ruled on it.

And time to give credit where credit is due. The Obama Justice Department is appealing this ruling. Oh and time to point out his hypocrisy when the Boumediene case was handed down. It is win win.

25 posted on 04/20/2009 6:16:09 AM PDT by Mr. Blonde (You ever thought about being weird for a living?)
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To: eyeamok

The Supreme Court of Despots has NO AUTHORITY over The Actions of the Executive Branch or the Legislative Branch.


They do, as part of the checks and balances system.


26 posted on 04/20/2009 6:16:29 AM PDT by ElayneJ
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To: OneWingedShark

There is a difference between defending ourselves and holding people for years on end w/o trial.


Do POWs typically receive a trial? You’re assuming they are entitled to the same rights that US civilian criminals receive.

(In that case, you would not have the right to reproduce w/o governmental sanction.)


????? Our rights are outlined in the Constituion - they aren’t created by the Constitution. We aren’t limited to only those that are identified there. Am I missing your point?


27 posted on 04/20/2009 6:22:13 AM PDT by ElayneJ
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To: dfwgator
American soldiers should expect the very same treatment from the enemy.

That is exactly the treatment they would receive from THIS enemy. Well, not EXACTLY. First they'd be tortured (for real, not a fraternity hazing) then decapitated with a dull knife.

This is not a signator to the Geneva Convention we're dealing with.

28 posted on 04/20/2009 6:27:22 AM PDT by JimRed ("Hey, hey, Teddy K., how many girls did you drown today?" TERM LIMITS, NOW AND FOREVER!)
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To: JimRed
Hands up or fighting, no matter. Kill them on the spot.

Sounds great from the comfort of home, but there are downfalls to no quarter. First, you lose valuable intel when you can't question anyone. Second, the enemy will fight much more fiercely when they know its life or death anway.

Unfortunately, its real easy to mistake crazy for stupid. These people are fighting against the most powerful army in the world. They have small arms against heavy armor. They have word of mouth and little kids as spotters versus electronic warfare and unmanned aerial vehicles. And yet, they manage to kill us almost every day. I'm not trying to heroize the turds, I'm just emphasizing that no quarter does not work entirely to our benefit.

29 posted on 04/20/2009 6:27:57 AM PDT by douginthearmy (Until I get the proper order at the drive-thru, the unemployment rate is too LOW!)
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To: douginthearmy
Sounds great from the comfort of home...

Point taken; and as a former squid I can't claim to have walked a mile in your boots.

30 posted on 04/20/2009 6:31:33 AM PDT by JimRed ("Hey, hey, Teddy K., how many girls did you drown today?" TERM LIMITS, NOW AND FOREVER!)
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To: Kaslin

Well, I think Abraham Lincoln suspended habeas corpus when he fought a war with a foreign nation, too... :-)

Of course, I think there were people not too happy with him, either...


31 posted on 04/20/2009 6:32:15 AM PDT by Star Traveler
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To: Kaslin

Judge Bates is considered a conservative judge with an excellent reputation. It could be that he felt compelled by the Boumediene case, which he must follow even if he disagrees with it.

It could be that he wanted to force the issue back into the SC to clarify or moderate their opinion and return some sanity to this POW issue.


32 posted on 04/20/2009 6:34:40 AM PDT by saganite (What would Sully do?)
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To: ElayneJ

>Our rights are outlined in the Constituion - they aren’t created by the Constitution. We aren’t limited to only those that are identified there. Am I missing your point?

Actually that IS my point. I live in New Mexico, an open carry state, and just try walking around with a plastic sparring-sword. (Despite Amendment 2, Constitution OR Article 2, Sec 6 of the State Constitution.)


33 posted on 04/20/2009 6:45:02 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Kaslin
By the law of unintended consequences, it seems that future US Policy of taking no prisoners beyond ones "having a fixed distinctive sign recognizable at a distance and carrying arms openly" is fermenting out in front of our own eyes.
34 posted on 04/20/2009 7:00:52 AM PDT by alex
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To: Running On Empty

Marking


35 posted on 04/20/2009 7:05:53 AM PDT by Running On Empty ((The three sorriest words:"It's too late"))
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To: Kaslin
This sort of ruling should only be valid if they, and progressives like them are the ones to personally walk across the battle field and issue the writ of habeus corpus and arrest the enemy.
36 posted on 04/20/2009 7:15:45 AM PDT by highlander_UW (The only difference between the MSM and the DNC is the MSM sells ad space in their propaganda)
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To: lentulusgracchus
I suspect that's actually what the judge is trying to do: make the majority recognize the stupidity of conflating: a) combatants held by the military because they are a threat in a foreign country; and b) those held because they are being charged with a crime;

There were some habeus cases filed (believe it or not) on behalf of German or Italian POW's in WWII who were held in POW camps in the US but who had dual citizenship. I know the cases were dismissed, but I can't recall the reasons why (probably because there was no criminal charge, and/or because their 'citizenship' claim was not recognized).

37 posted on 04/20/2009 7:26:01 AM PDT by pierrem15 (.338 Lapua-- reach out and touch someone from 1000+ yds)
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To: pierrem15
Right, POW's wouldn't have been subject to criminal charges. The status of Waffen-SS would have been different; as a "private army" they might have been subject to execution on capture, but I think they were covered by Geneva nevertheless. I never heard of anyone executing SS troops out-of-hand (except the Russians, in the heat of battle).

The U.S. didn't recognize "dual citizenship" in those days (and should not now -- Israel and the lobby are to blame for that one), so that anyone who swore a military oath on enlistment in a foreign army (or the Knesset, in Rabbi Meir Kahane's case) became a foreign national and gave up U.S. citizenship. If my sister, born in Canada, had exercised the Canadian franchise or enlisted in the Canadian Forces before she voted in the U.S., she'd be a Canadian citizen today.

The Italians and Germans who claimed U.S. citizenship had no shot at getting a judge to sustain them.

38 posted on 04/20/2009 7:38:20 AM PDT by lentulusgracchus
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To: Old Retired Army Guy

To try and spread American judicial system to other countries smacks at the “Imperialism” that the left always accuses the US of doing.

Oh I forgot, its only Imperialism when a Republican does it not when a liberal does it....Just goes to show Bush made lots of mistakes in domestic policy..This judge sucks..


39 posted on 04/20/2009 7:41:49 AM PDT by goat granny
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To: pierrem15; saganite; Kaslin; PGalt
I suspect that's actually what the judge is trying to do: make the majority recognize the stupidity...

I agree with you and saganite, this is a conservative judge sticking it in the liberal Supremes' ears.

I hope Ruth Ginzburg and David Souter live at least 15 minutes longer than it takes to inaugurate the next GOP President.

40 posted on 04/20/2009 7:44:04 AM PDT by lentulusgracchus
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To: OneWingedShark

“There is a difference between defending ourselves and holding people for years on end w/o trial.”

These terrorists are prisoners of war. They didn’t get captured on the way to a peace march, ya know.

Germans and Italian prisoners were released at the conclusion of WW II. We took very few Japanese prisoners. No WW II judge was whining about their habeas corpus rights.


41 posted on 04/20/2009 8:07:42 AM PDT by y6162
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To: y6162

I think some of the problem is if you hold them until the conclusion of the war on terror, when will that be? Holder has said that a person can be considered a prisoner of war in this war even if they are captured no where near either Iraq or Afghanistan. It is tricky tricky ground either way you go.


42 posted on 04/20/2009 8:30:50 AM PDT by Mr. Blonde (You ever thought about being weird for a living?)
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To: ElayneJ

Wrong. They are SEPARATE but EQUAL, neither has the Authority to overrule the other.


43 posted on 04/20/2009 8:32:11 AM PDT by eyeamok
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To: y6162

>>“There is a difference between defending ourselves and holding people for years on end w/o trial.”
>
>These terrorists are prisoners of war. They didn’t get captured on the way to a peace march, ya know.

Actually we wouldn’t be facing these problems if they WERE considered POWs, unfortunately they are not. I think it was a stupid ruling on the judiciary’s part.


44 posted on 04/20/2009 8:43:35 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: eyeamok

Wrong. They are SEPARATE but EQUAL, neither has the Authority to overrule the other.


They are indeed separate by equal. But each branch has ability to check the power of the others.


45 posted on 04/20/2009 8:58:28 AM PDT by ElayneJ
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To: OneWingedShark

OK - Thanks for the clarification!


46 posted on 04/20/2009 9:00:23 AM PDT by ElayneJ
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To: ElayneJ

Yes, but only in their venue and jurisdiction. The Judicial Branch ONLY Decides Constitutional issues for the JUDICIAL Branch. The Executive branch and the Legislative can decide for themselves what is permitted under the Constitution. Read some history and you will find countless examples of the Executive and Legislative branches telling the USSC of Despots to go pound Watermelons. Try Andrew Jackson with regards to revoking the Charter of the Central Bank (biddle). USSC said he couldn’t do it, he did it anyway, and told the public that the USSC can only decide for themselves what was constitutional.

The legislative Branch does however have the power under the Constitution to ELIMINATE any Judicial Revue of the lwas they pass, they have done it before but very rarely.


47 posted on 04/20/2009 9:18:40 AM PDT by eyeamok
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To: eyeamok

Are you saying that, by design, the individual branches are responsible for policing their own actions?
Granted, the obama administration has exercised rights it does not have, but that’s exactly why we need to bring back the Constitution as the working framework it ws meant to be. The judicial branch does have the authority to declare laws unconstitutional, thereby checking the power of the other two branches and creating a balance among them.


48 posted on 04/20/2009 9:43:27 AM PDT by ElayneJ
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To: eyeamok

It seems like Jackson was the only one who really went out of his way to disregard the SC on constitutional issues. I guess there are others?

Do you really want to live in a country where Obama gets to decide the limits of his power? Or any President of any political persuasion? That could be a scary place in a hurry.


49 posted on 04/20/2009 9:49:56 AM PDT by Mr. Blonde (You ever thought about being weird for a living?)
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To: Mr. Blonde

There are countless examples all the way up to the turn of the century, thats when the ninnies began to come into power. prohibition,incometax.......now the Legislative branch has the Absolute Authority to Stop Sambo in his tracks, there is nothing the Executive Branch can do about it (they have the money and the power to impeach Sambo as well as the USSC of Despots).
People must learn the English Language for what it is not what they wish it is. Separate But Equal means just that.

If people would actually read the Constitution for what it says and not what 9 scumbag lawyers says it is, we would be much better off.


50 posted on 04/20/2009 10:00:03 AM PDT by eyeamok
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