"The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain."

June 12, 2008 2:54 PM

In a five-to-four decision, the Supreme Court ruled today that detainees at Guantanamo Bay have a constitutional right to habeas corpus review:

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. 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.[...] Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

Decision, Summary, Analysis
posted by anotherpanacea (118 comments total)

A refreshingly pleasant whiff of progress.

I'd pretty much given up expecting any "5-4 decision" from that particular court to ever be a positive thing again.
posted by rokusan at 2:56 PM on June 12, 2008

Posters on some righty blogs are already calling on GWB to "ignore" the ruling. Question for our resident legal scholars: what are the consequences, if any, for a President to ignore or defy a Supreme Court ruling?
posted by Avenger at 2:59 PM on June 12, 2008

Glenn Greenwald:

Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.

John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.

posted by null terminated at 3:02 PM on June 12, 2008 [16 favorites]

Ah, just in time for the elections. Now we'll be shown just how dangerous these boogeymen are, and everyone will get freaked out, and we'll be told we need to invade Iran, everyone will look around and nod, and John McCain will be elected president.
posted by optovox at 3:02 PM on June 12, 2008

Avenger, google the phrase "John Marshall has made his decision, now let him enforce it" for an example.

One reason I'd like to see Jackson off the $20.
posted by George_Spiggott at 3:04 PM on June 12, 2008 [3 favorites]

Aw heck, what's another constitutional crisis or two?
posted by crickets at 3:11 PM on June 12, 2008

From the BBC:

Major Guantanamo setback for Bush
Foreign terror suspects at Guantanamo Bay can challenge their detention in civilian courts, the US Supreme Court rules.

I hate that the BBC reports this in a negative fashion, a setback for Bush. It really should be spun in a positive way, something along the lines of "Guantanamo detainies are awarded basic human rights."
posted by Vindaloo at 3:16 PM on June 12, 2008 [15 favorites]

Good decision. I'm glad.
posted by wrapper at 3:25 PM on June 12, 2008

Yay Habeas Corpus! That's one of our most fundamental rights, and I'm glad to see someone in Washington acknowledging that. Awesome! So SCOTUS!!!
posted by MythMaker at 3:26 PM on June 12, 2008

Ah, just in time for the elections. Now we'll be shown just how dangerous these boogeymen are, and everyone will get freaked out, and we'll be told we need to invade Iran, everyone will look around and nod, and John McCain will be elected president.

I hear you, but it's kind of a Cyniczilla vs. Mecha-Cyniczilla: better to make it an election year issue in civil court, or to conduct the whole thing via a herd of largely unaccountable kangaroos?
posted by cortex at 3:26 PM on June 12, 2008 [1 favorite]

Security subsists, too, in fidelity to freedom’s first principles.

Not too, you numbskulls, mainly.
posted by three blind mice at 3:26 PM on June 12, 2008 [2 favorites]

The conservatives must be scratching their heads, wondering why they bothered to pack the Court when they hand down decisions like this.
posted by Dave Faris at 3:27 PM on June 12, 2008

Does Thomas actually vote, or does he just give his proxy to Scalia? I know he never asks any questions.
posted by RavinDave at 3:27 PM on June 12, 2008 [4 favorites]

I hate that the BBC reports this in a negative fashion, a setback for Bush. It really should be spun in a positive way, something along the lines of "Guantanamo detainies are awarded basic human rights."

At this stage doesn't it go without saying that a setback for Bush is a positive event for humanity as a whole?
posted by Reggie Knoble at 3:28 PM on June 12, 2008 [10 favorites]

Scalia: Court’s Decision Restoring Habeas ‘Will Almost Certainly Cause More Americans To Be Killed’.

Brian Tamanaha at Balkinization calls Scalia's dissent "an instant classic of the worst order: fear-mongering."
posted by ericb at 3:30 PM on June 12, 2008

An NPR show was saying that this is the third time the SCOTUS has come to this decision*. What happened to "Three Strikes You're Out?" At what point does this mean something?


*not a Constitutional Scholar, just parroting the voices on the radio.
posted by lekvar at 3:30 PM on June 12, 2008

This is great.

How come it took 7 years though?
posted by sien at 3:30 PM on June 12, 2008

The conservatives must be scratching their heads, wondering why they bothered to pack the Court when they hand down decisions like this.

Somewhere deep down inside, there is still a part of me that believes there are some conservatives for whom "conservatism" doesn't mean being recklessly aggressive militarily, hating minorities and supporting a police state.
posted by psmealey at 3:31 PM on June 12, 2008 [4 favorites]

Color me stupid. But I do not understand how four members of scotus could vote to deprive prisoners held in the U. S. of basic human/constitutional rights.
posted by notreally at 3:31 PM on June 12, 2008 [1 favorite]

Does Thomas actually vote, or does he just give his proxy to Scalia? I know he never asks any questions.

RavinDave, Thomas often votes with Scalia, but not substantially more than the other conservative Justices. It's worth noting that Scalia and Thomas vote together about as often as Ginsburg and Souter do. On certain issues their votes diverge, and when Thomas writes a separate opinion, the reasoning is often different from Scalia's even when they reach the same result.
posted by monju_bosatsu at 3:35 PM on June 12, 2008 [1 favorite]

Ah, just in time for the elections. Now we'll be shown just how dangerous these boogeymen are, and everyone will get freaked out...

I'm just waiting for current administration to start issuing color-coded Terror Alerts. Remember them? Oh, yeah ... they only seemed to be issued prior to elections (2004, 2006). They've been oh-so-silent since then. Will the Bushies/McSames have the audacity to play with us again over these next few months prior to the November election?
posted by ericb at 3:36 PM on June 12, 2008

*for the current administration*
posted by ericb at 3:36 PM on June 12, 2008

The "nation will live to regret what the court has done," Justice Antonin Scalia said...

Will all due respect your honor, go fuck yourself.
posted by chillmost at 3:37 PM on June 12, 2008 [9 favorites]

The "nation will live to regret what the court has done," Justice Antonin Scalia said...

The nation has long regretted most of what you've done, Justice Antonin Scalia.
posted by optovox at 3:40 PM on June 12, 2008 [7 favorites]

This is good, but:

1) How the gibbering fuck is this a 5-4 decision? Seriously? How?

2) The rightwingers calling for Bush to ignore this.. I don't get their thought processes, I really don't. I mean yeah, they're all hypocrites, but aren't the rightwingers generally also the HURF DURF LAW AND ORDER MOAR COPS people?
posted by dirtynumbangelboy at 3:42 PM on June 12, 2008

something along the lines of "Guantanamo detainies are awarded basic human rights."

That would sure make it sound like everything is now great for these detainees. Which is anything but the case. This is a right to district court review. The court provides no standard for detention, as the summary notes. And it's unclear how soon the district courts will hear such cases, or how they will rule. If past cases are any indication, the government will continue to parse rulings as widely as possible to justify their actions, or otherwise simply ignore them. Also, the damage is already done for these detainees, many of whom are suffering from severe depression, hallucinations, suicidal ideation. This is a good ruling, but maybe we should keep things in perspective, because this nightmare is far from over.
posted by naju at 3:43 PM on June 12, 2008

Oh well spotted those Supreme Court Judges... Dragging US justice into the thirteenth century.

Have they been confused about what 'habeus corpus' means for the last seven years?
posted by pompomtom at 3:45 PM on June 12, 2008 [3 favorites]

Scalia is a lunatic, authoritarian disgrace to the legal profession. He is an enemy of the Constitution he has sworn an oath to uphold.

His 25 page dissent is more horseshit from The Folks Who Brought You Bush v.Gore.

Get over it, Nino!
posted by rdone at 3:47 PM on June 12, 2008 [1 favorite]

This should have been 9-0 against the Bushies. It is terrifying that one swing vote could have meant that it is OK for the executive branch to create a constitution-free zone where the government can detain people indefinitely without any right to petition any court or see any evidence of their guilt.
posted by longsleeves at 3:48 PM on June 12, 2008 [3 favorites]

The insanity inside Guantánamo: A new report reveals that a number of prisoners – even some long ago cleared to leave – are spiraling into hallucinations, despair and suicide.
posted by homunculus at 3:49 PM on June 12, 2008

Scalia is a major embarrassment to America and American jurisprudence, the SCOTUS version of a "hanging judge."
posted by SPrintF at 3:52 PM on June 12, 2008

“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests"
posted by Bighappyfunhouse at 3:53 PM on June 12, 2008 [4 favorites]

The cynic in my wonders how long it will be before people can't point to this ruling any more as the reason bad things happen in our country:

2012, If we hadn't overturned the Habeus Corpus thing those terrorists would have been caught before they tried to blow up that bus.

2062, If we hadn't overturned the Habeus Corpus thing those terrorists would have been caught before they tried to blow up that hover bus.
posted by quin at 3:53 PM on June 12, 2008 [3 favorites]

McCain’s Long History Of Opposing Habeas Corpus
posted by homunculus at 3:57 PM on June 12, 2008

Foreign terror suspects at Guantanamo Bay can challenge their detention in civilian courts, the US Supreme Court rules.

No shit.

I can't believe it took this long quite frankly. Congratulations for taking 6 years to rule on a very well defined point of law SCOTUS! Way to go.
posted by fshgrl at 4:02 PM on June 12, 2008 [1 favorite]

Greenwald's right, if Obama loses this thing and McCain gets in, he will make the Court solidly Republican for the next 30, 35 years. Even more if McCain follows the trend of selecting 40 year olds (Thomas was 42, remember). Even if McCain only lasts one term and a Democrat wins in 2012, the GOP will have a 7-2, or 6-3 clean majority for a long time.

then, it's really rollback time, from Miranda to Roe to this latest thing, it's all history. which, in a way, would be very interesting to observe (from a distance)
posted by matteo at 4:12 PM on June 12, 2008 [6 favorites]

Why are people bitching about the length of time it took the Supreme Court to rule on this? They just don't sit around ruling on random crap as the whim takes them, the cases they rule have to move up the judiciary path, and they don't control that beyond what they grant certiorari to themselves.
posted by Snyder at 4:25 PM on June 12, 2008

(and by the way, since Scalia has ceased long ago to be a jurist, and his prose makes it clear that he's itching for some real political action, and the Court is way too polite an environment for him, once McCain is elected I really think Nino should resign, have McCain nominate a random 39 year old right wing nut lawyer in his place, and get himself a nice Senate seat or something, so that he can dedicate his full time to political brawls and lunches with Rush Limbaugh. Seriously, what does he care, the Court is too boring for him now, I'm sure he'll be rewarded with a safe Senate seat, among other perks, for all the work he's put in for the party)
posted by matteo at 4:25 PM on June 12, 2008

Even if McCain only lasts one term and a Democrat wins in 2012, the GOP will have a 7-2, or 6-3 clean majority for a long time.

then, it's really rollback time, from Miranda to Roe to this latest thing, it's all history. which, in a way, would be very interesting to observe (from a distance)

Yes, but you have to remember that if McCain doesn't get in then the sexists have won.
posted by Artw at 4:34 PM on June 12, 2008 [4 favorites]

a herd of largely unaccountable kangaroos

After reading that, I knew I would be unable to concentrate on the rest of the thread unless I looked up whether or not a group of kangaroos is, in fact, called a herd. As it turns out, a group of kangaroos is a troop. You may resume the conversation now.
posted by Faint of Butt at 4:36 PM on June 12, 2008 [5 favorites]

posted by Snyder Why are people bitching about the length of time it took the Supreme Court to rule on this? They just don't sit around ruling on random crap as the whim takes them, the cases they rule have to move up the judiciary path, and they don't control that beyond what they grant certiorari to themselves.

I'm not sure that's entirely accurate. They ruled on Bush v. Palm Beach County Canvassing Board and then Bush v. Gore rather quickly--the election was November 7, and they ruled on December 12.
posted by optovox at 4:47 PM on June 12, 2008

Echoing what others have said, Scalia isn't even trying to cover his tracks any longer. Being an "originalist" was just a smoke-screen for "ruling how I fucking feel like it and then trying to mystify everyone with rants about how the Constitution isn't a 'living document.'"

Fine. You're bound to get your way a number of times over the coming decades, but please spare us any bullshit regarding your vaunted intellectual principles.
posted by bardic at 4:53 PM on June 12, 2008 [2 favorites]

Scalia: Court’s Decision Restoring Habeas ‘Will Almost Certainly Cause More Americans To Be Killed’.

See, that's hilarious. Thats just fucking hilarious.

Hear ye, hear ye: let it be known that, from now on, the validity of any particular law will be determined by how many Americans it will potentially allow to be killed by potential terrorists.

Originalist my fat white ass.
posted by Avenger at 4:56 PM on June 12, 2008 [5 favorites]

Scalia: Court’s Decision Restoring Habeas ‘Will Almost Certainly Cause More Americans To Be Killed’

I think the opposite is more likely true. The vast majority of the prisoners are people who weren't involved in terrorism and were either rounded up off the street in random sweeps or sold into captivity for bounties. Then we tortured the shit out of them. We're creating terrorists, not punishing them.
posted by kirkaracha at 5:02 PM on June 12, 2008 [3 favorites]

let it be known that, from now on, the validity of any particular law will be determined by how many Americans it will potentially allow to be killed by potential terrorists

Seriously—I haven't read his ruling, but is there any actual legal opinion in it, or is it 25 pages of grandstanding?
posted by oaf at 5:04 PM on June 12, 2008

opinion, not ruling
posted by oaf at 5:05 PM on June 12, 2008

Again I urge you to please view this not as a democrat vs republican thing or a liberal versus conservative thing, or a red state versus blue states kinda thing.

This comes down to an argument between those who believe a document like The U.S. Constitution only protects the rights of individuals who are Americans in both blood and deed, and those who believe the purpose of documents like The Constitution is to preserve, define, and protect the inalienable rights of everyone. Rights that already exist and all living human beings deserve but that must be vigilantly defended from predatory, controlling interests embedded within humanity itself.

This is simultaneously far more simple than anyone is making out, and far more complicated than any of us can possibly imagine.
posted by ZachsMind at 5:15 PM on June 12, 2008 [2 favorites]

posted by ZachsMind those who believe the purpose of documents like The Constitution is to preserve, define, and protect the inalienable rights of everyone. Rights that already exist and all living human beings deserve but that must be vigilantly defended from predatory, controlling interests embedded within humanity itself.

Could you please show us where the U.S. Constitution says that? I must've missed it.
posted by optovox at 5:20 PM on June 12, 2008

Times like this I wonder, whatever happened to amberglow? He'd have found two or three additional damning quotes and their contexts by now.
posted by JHarris at 5:22 PM on June 12, 2008

a herd of largely unaccountable kangaroos

After reading that, I knew I would be unable to concentrate on the rest of the thread unless I looked up whether or not a group of kangaroos is, in fact, called a herd. As it turns out, a group of kangaroos is a troop, or a mob.
posted by speug at 5:26 PM on June 12, 2008

Could you please show us where the U.S. Constitution says that? I must've missed it.

optovox -- if I'm not mistaken the principles of the U.S. Constitution were based on a fundamental universal concept that bestowed "inalienable rights" upon all persons -- whether they be Americans or not. Here's some info and background.
posted by ericb at 5:31 PM on June 12, 2008

This question asked in good faith: why is it shocking that there were four judges voting against this, when your entire government is complicit in this unbelievable miscarriage of justice?
posted by loiseau at 5:36 PM on June 12, 2008

Furthermore, we must refer to the Declaration of Indepence for the intent and basis upon which our Founding Fathers sought revolution and the subsequent drawing up of our Constitution.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

"All men" does not exclude Arabic foreigners. "All men" does not exclude them from the principle of habeas corpus -- long established before the founding our our country.
posted by ericb at 5:39 PM on June 12, 2008 [1 favorite]

I believe you're referring to the Declaration of Independence, but unless I'm mistaken, the Constitution refers only to Americans:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
posted by optovox at 5:39 PM on June 12, 2008

Americans United States
posted by optovox at 5:41 PM on June 12, 2008

Justice Kennedy today:

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times. . .

"To hold that the political branches may switch the Constitution on and off at will would lead to a regime in which they, not this Court, say what the law is. . .

"Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

Winston Churchill, 1943:

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."

Thomas Jefferson, 1776:

"He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation. . .
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences. . ."

Two hundred and twenty-one days, folks. Then we'll have a president who doesn't see the Constitution as an obstacle to doing his job.
posted by EarBucket at 5:43 PM on June 12, 2008 [2 favorites]

OptoVox: "Could you please show us where the U.S. Constitution says that? I must've missed it."

I also said: "This is simultaneously far more simple than anyone is making out, and far more complicated than any of us can possibly imagine."

See what I mean?
posted by ZachsMind at 5:45 PM on June 12, 2008

the Constitution refers only to Americans

So foreigners who commit crimes on American soil can be summarily executed without trial? If so, great. I have a list of people who are going to suddenly be stripped of their citizenship under the Avenger Administration.
posted by Avenger at 5:47 PM on June 12, 2008 [1 favorite]

The Fifth Amendment strikes me as unambiguous on this.

It doesn't say, "people have the right to due process."
It doesn't say, "citizens have the right to due process."

It says, "no person shall..."

The people who wrote and approved that amendment chose to frame it in language that fundamentally limits the powers of government to hold people in prison. In many other places it does explicitly creates rights attached to citizenship. That's not the case here.

But... Actually reading the link-through and analysis, it doesn't seem that this decision really challenges the status of detainees. The Bush administration still has many options for throwing up roadblocks to keep people in detention.
posted by KirkJobSluder at 5:49 PM on June 12, 2008

So we can't risk American lives to protect (or, I guess, restore) the freedom of our middle-eastern prisoners, but it's not only OK but necessary to risk American lives to protect the freedom of the people of Iraq...

I wonder (if this ruling actually has any effect) what percentage of those prisoners will be released because of a total lack of evidence against them. I'm going to go with ~75%.
posted by Huck500 at 5:50 PM on June 12, 2008

OptoVox: "I believe you're referring to the Declaration of Independence, but unless I'm mistaken, the Constitution refers only to Americans..."

*heavy sigh*

The Declaration declares that we hold inalienable rights to be self-evident - and they are. Even when the communists in China behave as if they aren't, they still are.

Just because they're not also defined in the Constitution, that doesn't suddenly mean the Constitution isn't defending them.

There's the letter of the law and the spirit of it. The Constitution was written after the Declaration. Therefore, The Constitution was written with the Declaration well in mind.

We the People of the United States, in order to form a more perfect union...

Maybe your inalienable rights will not be protected outside these shores, but here, our intent is to defend them from enemies both foreign and domestic.

That is of course, until we let the foxes take over our henhouse.
posted by ZachsMind at 5:51 PM on June 12, 2008

ZachsMind This comes down to an argument between those who believe a document like The U.S. Constitution only protects the rights of individuals who are Americans in both blood and deed, and those who believe the purpose of documents like The Constitution is to preserve, define, and protect the inalienable rights of everyone. Rights that already exist and all living human beings deserve but that must be vigilantly defended from predatory, controlling interests embedded within humanity itself.

optovox Could you please show us where the U.S. Constitution says that? I must've missed it.

Well done, ZachsMind, well done. :) Rarely is a point so swiftly and resounding proven correct by one whose intent is to refute it.
posted by aeschenkarnos at 5:52 PM on June 12, 2008 [1 favorite]

Or to put it simply, the Fifth Amendment defines the process required for incarceration in the same way that Article I defines the process required for seating a legislature. The government no more has the power to arbitrarily suspend due process, than it has the power to abolish the congress.
posted by KirkJobSluder at 5:54 PM on June 12, 2008

The government no more has the power to arbitrarily suspend due process, than it has the power to abolish the congress.

Shh! He'll hear you!
posted by EarBucket at 5:56 PM on June 12, 2008 [2 favorites]

This question asked in good faith: why is it shocking that there were four judges voting against this,

Because one of them is Scalia, two were appointed by George W. Bush, and the other one is just crazy.

when your entire government is complicit in this unbelievable miscarriage of justice?

Yeah, I'm sure that Norman Mineta was in on every minute of it.
posted by oaf at 5:57 PM on June 12, 2008

Avenger: In addition to the google search that George Spiggott suggested, see Ex Parte Merryman.

The fact of the matter is that none of these issues are new. Anyone who is spending too much energy celebrating or decrying this decision would be well served to read a bit about the historical give-and-take among the branches of government during times of emergency.

Also, to answer Oaf's question, putting to one side the cassandra-play at the end, Justice Scalia's opinion is well reasoned and well written. I do not think one can credibly dismiss it as a hack job.
posted by Slap Factory at 5:58 PM on June 12, 2008

Or to put it simply, the Fifth Amendment defines the process required for incarceration in the same way that Article I defines the process required for seating a legislature. The government no more has the power to arbitrarily suspend due process, than it has the power to abolish the congress.

Not quite. You are putting this way too simply. This is not a Fifth Amendment case. Saying that detainees have rights to due process begs the question of what sort of process is due. This case is more like your second example, about abolishing congress, because it holds that the executive has no authority to suspend the writ.
posted by Slap Factory at 6:02 PM on June 12, 2008

This question asked in good faith: why is it shocking that there were four judges voting against this,

Because people don't really know much about the law, and only pay attention to the SCOTUS when it makes headlines?
posted by smackfu at 6:36 PM on June 12, 2008

So we might as well start grabbing the scotch tape and those torn pieces of Constitution in the recycle bin to start piecing this thing back together again.

And Mr. Scalia, you do realize no law/bill stopped a guy from lighting his shoe afire aboard a trans-continental flight. It was average citizens, some who may have even been innocent targets in this "Lack-of-H-C" period of time, who put that "Shoe-icide" bomber to the floor and held him till the plane landed.

I really hope the Lord, whom the people who put you in that spot of the supreme court worship, gives you some good words... may he forgive you.
posted by JoeXIII007 at 6:47 PM on June 12, 2008

I work at the firm that represented the plaintiffs in the case. Ostensibly we won and obviously this was a cause for celebration. And yet at the same time a somber tone prevailed, as it should have. These men have been at Gitmo for six years and only now do they get a chance to prove their innocence. Their search for justice is far from over. I've heard the attorneys who represent these prisoners talk about visits to the Gitmo detnetion cells, how these men have been devestated by their treatment, of years of solitary confinement and forced feeding, what has become of their lives, what's happened to their families. While the talking heads blather on about Middle Eastern boogiemen (and Scalia has the termerity to open with Lebanon, for fuck's sake) these are six Bosnian residents and there is no reason to believe that there is any legitimate reason for their continued detention. Celebrate today but let's not kid ourselves. Five Americans today thought this state of affairs was a problem, but there are millions of people in this country who would torture these men themselves if they could. And while we, as a country, may have won today, the problem that is us is not going away any time soon. We are the ones who got us into this mess and we haven't changed as much as people may want to pretend.
posted by allen.spaulding at 6:50 PM on June 12, 2008 [28 favorites]

Holy crap

Any Hillary Clinton supporters still thinking of voting for McCain should be sobering up about now
posted by fourcheesemac at 6:55 PM on June 12, 2008

(I said):This question asked in good faith: why is it shocking that there were four judges voting against this,

oaf said: "Because one of them is Scalia, two were appointed by George W. Bush, and the other one is just crazy.

I don't get this response. I would completely expect those people to oppose the ruling. Unless there's a subtlety I'm missing.

(I said):when your entire government is complicit in this unbelievable miscarriage of justice?

oaf said: "Yeah, I'm sure that Norman Mineta was in on every minute of it."

I don't understand this quip, and don't know who Norman Mineta is. But every day that your president wasn't impeached for this (among other acts) it means that your government hadn't the will to do so. I consider that the definition of complicity.

So I don't get why four conservatives opposing the measure should be a surprise.
posted by loiseau at 7:27 PM on June 12, 2008

Scalia's dissent is a piece of special pleading founded on the notion that the United States does not exercise sovereign jurisdiction over Guantanamo Bay, and therefore the Great Writ has no application. To me, this is result-oriented sophistry. This, indeed, is why Addington and the rest of the pettifogging lawyers of the Bush Administration encouraged the creation of the concentration camp at Guantanamo: they could pretend it was Fidel Castro's jurisdiction, and thus "foreign territory." It is obvious to me, a member of the Florida Bar for over 30 years, that Guantanamo became a U.S. colonial outpost long ago, and is and has been fully under the sway of extraterritorial American law.

Had the "detainees"--I want to spit every time I hear that stinking euphemism--been imprisoned in Afghanistan, Scalia would have a "well-reasoned" point or two. But the Cages of Gitmo were deliberately constructed to assure that the imprisonment would occur under the inescapable control of the U.S., a control no different in kind than if the inmates had been imprisoned in the cafeteria of the Supreme Court building. In short, the Guantanamo regime was deliberately erected expressly to avoid the strictures of American law. I have the highest degree of minimal regard for anyone who--like Mr. Justice Scalia--is willing to pretend otherwise.

I applaud the majority for calling the bluff of the scofflaws of the Bush-Cheney cabal. If the gents who have been so cruelly held at Gitmo deserve death or life imprisonment, I am confident that an independent federal judge can give them a fair trial, notwithstanding security concerns. But one only need look at the shenanigans, the iron thumbs on the scale of justice, that have plagued the "military commissions" so hypocritically touted by the lickspittle dissenters today to know that a fair trial is the last thing BushCo wants for the prisoners of Camp Delta.

As a member of the legal profession all my adult life, and one who has tried to take seriously my oath to uphold the Constitution, I have felt the worst possible humiliation to read the cynical casuistry offered by my erstwhile brethren of the "Torture Team" to justify torture, deprivation of basic human dignity, and the removal of the fundamental rights that make American justice the backbone of freedom. I have raged silently at the Orwellian invocation of "Freedom" by Bush and his bastards, as I have watched them moving as rapidly as possible to destroy that which they so shamelessly invoke. Tonight I feel a measure of vindication. But I must cry "Shame!" on Roberts, Scalia, Thomas, and Alito for their Pharisaical readings of American law. No less than Bush and Cheney, they disgrace our country in the eyes of the world.
posted by rdone at 7:33 PM on June 12, 2008 [25 favorites]

dirtynumbangelboy writes "The rightwingers calling for Bush to ignore this.. I don't get their thought processes, I really don't. I mean yeah, they're all hypocrites, but aren't the rightwingers generally also the HURF DURF LAW AND ORDER MOAR COPS people?"

The amazing thing for me is the large cross over between people who seem to trust the goverment never to detain innocent people and the people who don't trust the goverment to run anything else. The cognitive dissonance required to hold those two opinions is truly a mental state to behold. The only thing I've been able to figure is they just hold a practically sociopathic faith that it won't happen to them and everyone else can just pound sand.

loiseau writes "I don't understand this quip, and don't know who Norman Mineta is. But every day that your president wasn't impeached for this (among other acts) it means that your government hadn't the will to do so. I consider that the definition of complicity. "

I think oaf was taking umbrage with the clause "entire goverment". There are people in the US goverment who are opposed to what has been happening and have been acting against the batshitinsane excesses. And of course quite a few of them no longer work for the goverment.
posted by Mitheral at 7:49 PM on June 12, 2008 [2 favorites]

http://www.youtube.com/watch?v=wa_lkpBVkXU would-be totalitarians need to be democratically told to fuck off.
posted by longsleeves at 8:01 PM on June 12, 2008

Had the "detainees"--I want to spit every time I hear that stinking euphemism

Is that the result of a speech impediment? You should go easier when you pronounce the "T."

Seriously, though, people who are detained are usually called detainees. You may rather call them "pitiless souls" or some such, but "detainee" is actually pretty accurate and descriptive.
posted by Slap Factory at 8:03 PM on June 12, 2008

http://www.youtube.com/watch?v=wa_lkpBVkXU
posted by longsleeves at 8:04 PM on June 12, 2008

http://www.youtube.com/watch?v=wa_lkpBVkXU would-be totalitarians need to be democratically told to fuck off.
posted by longsleeves at 11:01 PM on June 12

http://www.youtube.com/watch?v=wa_lkpBVkXU
posted by longsleeves at 11:04 PM on June 12

http://www.youtube.com/watch?v=wa_lkpBVkXU

FTFY.
posted by ericb at 8:28 PM on June 12, 2008

Any Hillary Clinton supporters still thinking of voting for McCain should be sobering up about now

That is a bunch of media crap. I was involved in the Clinton campaign and I can't imagine any of her staunch supporters voting for McCain. Obama is far too heavy on the Bible thumping, self-congratulation and meaningless rhetoric for me and most of my sympaticos but MCain is a fucking nutbar. We've known that for 8 years.
posted by fshgrl at 11:05 PM on June 12, 2008

"detainee"

I prefer the euphemism, "guys held without due process." Is that pretty accurate and descriptive?
posted by ZachsMind at 11:11 PM on June 12, 2008 [1 favorite]

U. of Iowa Clinton backers endorse McCain
posted by Artw at 11:13 PM on June 12, 2008

That is a bunch of media crap. I was involved in the Clinton campaign and I can't imagine any of her staunch supporters voting for McCain.

That's probably true of most of her supporters, but there are several loudmouths who have said otherwise. If you go to sites like Hillaryis44, they're still bashing Obama. Taylor Marsh had a post talking about the emails she was getting from Hillary Supporters who planned to vote for McCain.
posted by delmoi at 11:46 PM on June 12, 2008

Seriously, though, people who are detained are usually called detainees.... "detainee" is actually pretty accurate and descriptive.

No, it's euphemistic and trivializing. To be "detained" has connotations of delay, not indefinite imprisonment. Like "detention", as in staying after school, or being detained by customs while they check out your luggage. To use it about people taken for bounty, flown halfway around the world, held incommunicado for years without due process, questioned under duress without representation and -- there is plenty of reason to believe -- much worse, is simple propaganda.
posted by George_Spiggott at 11:53 PM on June 12, 2008 [4 favorites]

Color me stupid. But I do not understand how four members of scotus could vote to deprive prisoners held in the U. S. of basic human/constitutional rights.

They're not held in the U.S.! (Or that's the argument...) They're held in a military base in Cuba that we lease from Cuba as part of a deal dating back to the Spanish-American War that specifically disclaims our sovereignty but doesn't really subject the base to Cuban sovereignty, either. So who knows what rights apply.

Yet another one of the extraterritorial clusterfucks brought to you by the framers who never really stopped to consider how the U.S. would add to its territory or govern in any territory not fully incorporated into the federal system, including when conducting military operations on foreign soil.

The SC's decision here was nothing more than putting a stop to the Administration's end-runs around guaranteed protections by operating this gray area in the jurisdictional reach of the Constitution, and forcing the government to defend their detentions on the merits.


Could you please show us where the U.S. Constitution says that? I must've missed it.

You missed the Preamble!?

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

posted by spiderwire at 11:56 PM on June 12, 2008

This may be me guilty of reverse racism, but I'm beginning to suspect any Democrats claiming to vote for McCain over Obama now that Clinton's out of the running, are doing so cuz they prefer the color of McCain's gib if you know whut ah'm a sayin' tew yew, pardnah. No one who votes on the issues would choose McCain over Obama after losing Clinton. If they'd take that leap, they're not doing it cuz Clinton and McCain see eye to eye on abortion or the war or the Yankees or pretty much anything.

That's like preferring Sleeping Beauty over Snow White, but since Sleeping Beauty can't wake up, you'll instead start rooting for the Wicked Witch (who's about to pull out that apple).

....

And yes I now realize after typing that, that I just compared Obama to Snow White. Dammit.
posted by ZachsMind at 12:09 AM on June 13, 2008

We're all adults, so we all understand that when conservatives bloviate about "strict constructionism" and rage against "activist judges", they're just talking about decisions they don't like. Still, the language of the conservatives here demostrates their total hypocrisy. Scalia is worried that the court's decision will result in more deaths? Maybe he should write to his congressman about changing the constitution. In the meantime, he could, perhaps, confine himself to ruling on whether legislation is or is not constitutional, instead of whether it will make him feel safe in his bed. Roberts actually has the temerity to accuse the majority of activism, when he complains that they rejected a very generous set of rules for put in place by our POTUS for challenging their detention. Maybe he could confine himself to determining whether those rules are constitutional, rather than how "generous" our President is being in offering them. Last I looked, presidential generosity was not a constitutional criterion. But then, I'm not a strict constructionist like these guys, so what do I know?
posted by haricotvert at 7:39 AM on June 13, 2008 [1 favorite]

No, it's euphemistic and trivializing. To be "detained" has connotations of delay, not indefinite imprisonment. Like "detention", as in staying after school, or being detained by customs while they check out your luggage. To use it about people taken for bounty, flown halfway around the world, held incommunicado for years without due process, questioned under duress without representation and -- there is plenty of reason to believe -- much worse, is simple propaganda.

I suppose that to me, as a lawyer, the term seems right and the complaint about it being euphemistic seemed overblown and nit-picky. Because "detainee" is typically what the law calls an individual held by the government without conviction. But sure, you should probably come up with a new term and put it in the suggestion box.
posted by Slap Factory at 8:34 AM on June 13, 2008

We're all adults, so we all understand that when conservatives bloviate about "strict constructionism" and rage against "activist judges", they're just talking about decisions they don't like. Still, the language of the conservatives here demostrates their total hypocrisy. Scalia is worried that the court's decision will result in more deaths? Maybe he should write to his congressman about changing the constitution. In the meantime, he could, perhaps, confine himself to ruling on whether legislation is or is not constitutional, instead of whether it will make him feel safe in his bed. Roberts actually has the temerity to accuse the majority of activism, when ...

Did you read the dissent? It's 20+ pages of legal analysis based on a strict constructionist understanding of the constitution, and then discussion of precedent. Then it caps off with a couple of comments about what the implications of the ruling might be. Honestly, you can disagree with his analysis, but the gripe that his dissent belonged in a letter to congress suggests that you might have missed all but the last page of the opinion.
posted by Slap Factory at 8:38 AM on June 13, 2008

Actually, Scalia opens with comments about the implications of the ruling, and in a particularly egregious and hysterical way.
SCALIA: I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
Me? I think it inappropriate for a strict constructionist to worry about the implications of accurately interpreting the constitution. But I guess if we're in a war with Islamic terrorists, things are different, right?
I'm not saying they don't support their case with reasoned analysis. Of course they do. But to suggest that the dissent represents an interpretation "based on a strict constructionist understanding of the constitution", where the majority's analysis represents some diversion from constitutional orthodoxy, seems patently ridiculous, not to mention hopelessly naive.
posted by haricotvert at 9:09 AM on June 13, 2008

Because "detainee" is typically what the law calls an individual held by the government without conviction.

They have also been calling them "unlawful combatants". That sounds like a conviction without trial to me. In every practical sense they have the functional disposition of convicts, not detainees, and with even fewer rights than our law allows for convicts, despite not having been tried and never having seen the evidence against them. Who among us even knows the manner in which any given one of these people were taken, or can vouch that even circumstantial evidence warranted their "detention" in the first place? Unlike you I'm not a lawyer, but this whole thing screams of an extralegal system that was specifically designed to be extralegal, and while I'll grant in principle that very dire and very temporary situations may call for temporary detention measures, this has been going on for years and it's past time that someone tried to place it within a recognizably american and principled legal and constitutional framework. Scalia, with his opening hysterical threats, is essentially playing the "temporary situation" card. That thing is played and these people need to stop milking it.
posted by George_Spiggott at 9:39 AM on June 13, 2008 [1 favorite]

Get your GITMO gear from the official Guantanamo Gift Shop.
posted by ericb at 10:06 AM on June 13, 2008

I can top that, ericb.
posted by cortex at 10:17 AM on June 13, 2008

haricotvert, Slap Factory was responding to a comment about the Roberts dissent, I believe, which is not completely incoherent like Scalia's is. Scalia really went off the deep end with this one. Roberts' argument is wrong, but it's at least colorable.
posted by spiderwire at 11:30 AM on June 13, 2008

I find it really distasteful the more popular idea that the Constitution confers rights as opposed to protecting them. Along with the Declaration of Independence, it is, in part, an assertion of rights that we have as human beings that the government cannot violate. Thus, arguments about how we don't have to apply its principles to people and in places not part of the U.S. go a long way to pointing out the hypocrisy in our stated ideals.

I pretty much expected that we would start to see more rulings and decisions curbing presidential power the closer we are to Bush leaving office. There's no way they ever intended that power grab be passed on to a Democratic president.
posted by troybob at 12:52 PM on June 13, 2008

I get it. I was actually more making a point about the absurdity of conservatives trying to claim some higher moral ground by imagining that their judges are strictly interpreting the constitution. Scalia's rant completely belies this point, indicating as it does that his decision's outcome has been determined a priori by his terror of Islamic terrorists, but I think Roberts' use of the word "generous" to describe the detainees alternatives to habeas rights is equally telling. It indicates his inclination to actively interpret the constitution and precedent in such a manner as to expand executive authority and check judicial authority (Of course, he spins it as saying that his opponents are drunk with lust for judicial power). But being predisposed to limit judicial power is just as activist as being predisposed to expand it. I just wonder how we let the conservatives get away with thinking they own strict fidelity to the constitution.
posted by haricotvert at 12:56 PM on June 13, 2008

If the term "detainee" is used to describe a person held briefly for questioning; an alien held pending deportation; or a person being held temporarily for extradition, I can accept it as proper usage. When the term is used because BushCo refused to say "prisoner"-- of war or otherwise-- while insisting it held "unlawful enemy combatants" entitled to nothing more than Nacht und Nebel, it is a detestable euphemism, and I still say the hell with it. Its use is no different than the use of "enhanced interrogation procedures" as a fair-seeming code for torture techniques.
posted by rdone at 1:47 PM on June 13, 2008

How 'bout abductee?
posted by Artw at 1:55 PM on June 13, 2008

Too mulderian.
posted by cortex at 2:28 PM on June 13, 2008

I'm just going to have to go with "unperson" then.
posted by Artw at 3:04 PM on June 13, 2008

Obama is far too heavy on the Bible thumping, self-congratulation and meaningless rhetoric for me and most of my sympaticos

fshgrl, you just might want to read The Family. Hillary's religious crowd is downright terrifying.
posted by five fresh fish at 3:23 PM on June 13, 2008

Obama is far too heavy on the Bible thumping...

Can you provide us with some examples, please?

fshgrl, you just might want to read The Family. Hillary's religious crowd is downright terrifying.

As well, take some time reading this previous MeFi thread. The author (Jeff Sharlet) of the book (The Family: The Secret Fundamentalism at the Heart of American Power) actually chimed in on the discussion.
posted by ericb at 7:09 PM on June 13, 2008

Obama is far too heavy on the Bible thumping...

As a fellow member of the United Church of Christ (of which Obama is an adherent), I can tell you that our denomination is far from "Bible-thumping." Take some time to learn about us. The UCC is way far from Biblical Literalism. We stand just a step away from those who are most likely the farthest from "Bible Thumpers" -- the Unitarian Universalists.
posted by ericb at 7:19 PM on June 13, 2008

Lest we forget the U.C.C. (which endorses same-sex marriage) found that some of their television advertisements were rejected by some networks due to their depiction of gays, lesbians and a range of diversity. Bible-thumping -- hardly!

United Church of Christ "Ejector" Ad.

United Church of Christ "Steeples" Ad.

United Church of Christ "Bouncer" Ad.

So, fshgrl, can you please provide us with some examples of "Obama...[being]...far too heavy on the Bible thumping?"
posted by ericb at 7:34 PM on June 13, 2008

Perhaps the intent was "fist-bumping" and it was an epic typo.
posted by cortex at 10:16 PM on June 13, 2008

I think the fact that Obama's a Christian who talks about his faith at all makes him a Bible-thumper in some people's minds. Fact is, we're not going to have a president who's a self-described atheist anytime soon. I'd rather have someone in the Oval Office who thinks Jesus wants him to help poor people than someone who thinks Jesus wants him to kill Muslims.
posted by EarBucket at 5:30 AM on June 14, 2008 [1 favorite]

It has nothing to do with whether or not the detainee is american or not. I don't care if the 'detainee' is a bionic watermelon from Pluto. Incarceration without due process of law IS unamerican. We're supposed to be the good guys. This behavior makes us the bad guys. WE ARE Americans, and we should behave accordingly.
posted by ZachsMind at 6:58 AM on June 15, 2008

"Obama is far too heavy on the Bible thumping..."

You can't win in today's american presidential politics unless you're a bible thumping Christian. Too many voters thump the bible.
posted by ZachsMind at 7:04 AM on June 15, 2008 [1 favorite]

An eight-month McClatchy investigation of the detention system created after the Sept. 11 terrorist attacks has found that the U.S. imprisoned innocent men, subjected them to abuse, stripped them of their legal rights and allowed Islamic militants to turn the prison camp at Guantanamo Bay, Cuba into a school for jihad.
posted by homunculus at 11:17 AM on June 15, 2008

I'm astonished to be agreeing with Zachsmind. You couldn't possibly win the US presidency these days without bible thumping, could you, given all this dog-whistling about Islam?
posted by pompomtom at 5:17 AM on June 16, 2008

I guess my problem with the Obama bible-thumping is that I think it is BS. All in all I think he has spent too much time manufacturing a marketable personality and that bothers me. I am not a big fan of some of Clinton's pro-business policies either but at least I think they are straight up.
posted by fshgrl at 11:29 PM on June 16, 2008

So in essence, you're saying you're desperate for any reason to not vote for the guy, right? He's too religious; he's not religious, it's BS; he's a manufactured personality; he's too rhetorical; etc.

Weak sauce, fshgrl, weak sauce indeed.
posted by five fresh fish at 11:33 PM on June 16, 2008

"he has spent too much time manufacturing a marketable personality and that bothers me"

Jesus Christ on a popsickle stick - THAT'S WHAT POLITICIANS DO!

Why is this bothering you NOW? Where you been the past couple few CENTURIES!!?

All politicians invent representations of themselves so (they think) we don't see what they really are - flawed human beings with no more or less validity asking for the presidency than your favorite uncle. This is all a farce. It's all lies. STOP VOTING. Please. I beg of you. You are only encouraging their behavior. If we all en masse turned our backs on the utter stupidity, maybe they'd go away.
posted by ZachsMind at 1:18 AM on June 17, 2008

PomPomTom: "I'm astonished to be agreeing with Zachsmind."

Gee whiz. Thanks for the vote of confidence. *rolls eyes*
posted by ZachsMind at 1:18 AM on June 17, 2008

Frankly, ZachsMind, your arguments of late haven't been reflecting well on you. I'm not surprised PPT is astonished; it certainly surprises me when you say something that doesn't reek of poorly-conceived, ill-considered rant.

When many people are telling you you're wrong, there is a distinct possibility that you are, in fact, wrong. That's something you should think about for a while.
posted by five fresh fish at 7:21 AM on June 17, 2008

Actually FiveFrieshFish, it's when people agree with me, that I fear I might be doing something wrong. It's when people disagree with me that I know I'm on to something.

Just because down stream is where the current takes you, doesn't necessarily mean you're going in the right direction. Fighting the current can get you where you want to go.
posted by ZachsMind at 7:58 AM on June 18, 2008

Riiiight. We're the educated stupid. And you're the one offering Gene Ray enlightenment to us. We should succumb to the obvious truth of your arguments, because they're not at all inane. A-yup, fersure.

You go for it, crazy diamond.
posted by five fresh fish at 5:03 PM on June 18, 2008

Ow. Comparing me to Gene Ray? You really know how to hurt a guy, Fish.
posted by ZachsMind at 8:53 PM on June 18, 2008

Uhhh.You're welcome?
posted by pompomtom at 10:50 PM on June 18, 2008