Well, this is at least an argument, rather than a pronouncement. Thank you.
I have listened all day to the pronouncements of conservative talk show hosts as they "explain" why the USSC's ruling is wrong. Unfortunately, these hosts don't actually know what they're talking about, but they are quick to condemn the USSC ruling -- which reinforces in the minds of the conservative electorate that "their" Justices are right, and the "other" Justices are insane activists. This is, as I have already stated, horse manure, and in the sort of justice system that these same conservative hosts would likely accommodate, those hosts would likely get a flogging now and then for their indiscretions about border security, budget constraints, and/or heaven forbid, unlawful use of prescription meds.
But, I digress (I've always wanted to use that phrase in a brief, but if I did, the judge would flush it down the toilet -- lol). Back to your argument.
The court ruled as a matter of statutory construction and therefore found no reason to consider the suspension doctrine. But, your man Scalia chose to encounter the Suspension Doctrine in his dissent, along with the Exception Doctrine, as well as a host of other issues, including his absolutely ABSURD belief that it is somehow self-evident that Guantanamo Bay is NOT within the territorial boundaries of the USA.
That is roughly equivalent to saying that Apostle Paul remained a Jew after founding the Catholic Church. We hold Guantanamo Bay under the oldest legal notion in existence -- "Adverse Possession." No reasonable person could possibly argue that the Bay is anything other than U.S. Territory, as we have occupied it hostilely, Adversely, Notoriously, Openly, Actually, Exclusively and Continuously for decades with no end in sight.
This, by itself, demonstrates the absolute disingenuousness of Scalia, Mr. The Constitution Can Only Be Interpreted One Way (as long as it's his way).
But, let's forget about all of that for now. The court ruled based on statutory construction that the Congress did not intend the Detainee Treatment Act of 2005 to apply to Hamdan's case. PERIOD. This being the case, it is fair that Scalia shut up about all of the underlying issues, unless he wants them argued before the court. And, if he does, then we are immediately shoved right up against the Suspension Clause, because that is where any argument about Habeas Corpus must inevitably lead.
And, Scalia went there, so my rebuttal is completely appropriate. The Constitution trumps Congress' statutory authority, and that means that it is arguably within the jurisdiction of the USSC to consider ANY Habeas Corpus Petition, because the Constitution says that the Writ "shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it."
Well, there certainly was an attack on the U.S., but was it an "invasion?" Does the public safety require suspension of the Writ against the Guantanamo detainees? Maybe. But, who gets to decide?
The President obviously decided that the Writ should be suspended (although the fact that the detainees were placed in Guantanamo in the first place, demonstrates that the President's advisors recommended that he place them at a location, which was, at the time, NOT considered U.S. territory, so that he wouldn't have to worry about the mere possibility of a Habeas Corpus petition).
So, I congratulate the Pres. for being so prescient (or, maybe he knew what he was doing was unlawful from the get go, so he just wanted to prolong it for as long as he could -- whatever). Back to the argument.
Executive Branch voted to Suspend, by application of will.
The Congress, equivocated. First it passed the AUMF which gave the President authority to use "all necessary and appropriate military force," to bring the bad guys to justice. Only who were the bad guys (mostly they all died on 9-11-2001, but we still needed to get them for the sake of national pride).
Then some people in Congress realized that when you declare war on an enemy who doesn't have a nation and doesn't wear any battle fatigues, that it's sort of hard to determine when the war is over. And, in fact, this war will NEVER end, because it is impossible to ascertain the enemy's defeat, as they simply replace their head with another and continue to fight.
So, while we may call this thing a war, it's not really a war at all. We are fighting a perpetual trans-national police action against a completely amorphous foe. If we caught bin Laden tomorrow it would make absolutely no difference, al-queda would continue.
Thus, the entire notion of Excepting the Writ for cases of invasion where public safety may require it, is a non sequitur, because under the President's working theory of this war, he can set aside the entire Constitution and ALL law as long as he believes public safety may require it. And, in fact, that is precisely what he has been doing -- knowing full well that a Republic majority Congress will never impeach him -- so he's safe. Good for him.
But, the point of the above is that when there are phrases like "necessary and appropriate military action," or "invasion and Public safety," or any other ambiguous, expansive (god forbid should we use the word -- "LIBERAL") text in a statute, guess who gets to decide "what the law is."
You know who -- the USSC. -- Marbury v. Madison.
So, you need to jump down off of your stool, or maybe clean the stool off of your shoes, because today the USSC ruled on what the law is -- just like it's supposed to do.
And, since there's no higher court, except when the People amend the Constitution, either by vote or internal overthrow of the government, that is the end of the discussion.
The law is now that the government's military commissions are illegal. PERIOD. There's no need to appeal to the obvious wrong thinking of the so-called activist Justices or the obvious sanity of the so-called originalist Justices, because the opinion of any one of them is entirely irrelevant. The Court has ruled, and it ruled against the President.
In my opinion, this is an excellent ruling. The fact that it may be ideologically driven by 5 Justices who want to send a message to the Executive Branch that "Congress did not issue the President a blank check," doesn't make it any less a good ruling.
The Pres has had 4 years to try these fellows, and it has chosen not to because it knows that it CANNOT prove its case. If it could, then it wouldn't have gone through all of these legal maneuvers to keep the detainees from getting an ordinary court-marshall. Shrouding everything in the veils of secrecy, because the government would have to produce undercover operatives and classified evidence could have been easily worked around by a reasonably competent trial judge.
But, the Pres chose not to, and let's cut to the chase -- because he wanted to send a message to the rest of the world that "if you mess with the bull, you get the horns." OK, message sent. How was it received? Judging from the continuing unrest in the world, I'd say objectively that the message received a very large shrug and yawn.
We have wasted a phenomenal amount of resources chasing rabbits down magic holes. It's time to get over the fairy tale and deal with the world as it actually is. The President's actions have caused the USA's prestige in the world to deflate among the other democracies, because we have broken faith with our implicit promise of justice for all.
You can argue that we had to do all of this to protect ourselves from another attack. There is no evidence, nor will there ever be to support that we could not have achieved the same result and not abandoned our respect for the rule of law.
The President is the leader of this nation, and to me, he must be held to a higher standard than any other U.S. Citizen. He needed to both protect our physical safety and our status among the other civilized nations. He has failed.
2008 cannot come soon enough for me.