From Michael Froomkin:
<a href="http://www.discourse.net/">Discourse.net: On the fringes of the public sphere: Guantanamo is NOT a Lawless Place: The main opinion is by Stevens...
RASUL ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMIBA CIRCUIT: No. 03–334. Argued April 20, 2004—Decided June 28, 2004:
Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4–17....
STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined...
It is, nevertheless, deeply, deeply disturbing that three justices believe that Guantanamo Bay is a lawless place--that no matter what is done there, no court anywhere has jurisdiction. That any of those three is a judge is a great mistake, and I hope the price we will have to pay for this mistake won't mount any higher than it already has.
Posted by DeLong at June 28, 2004 10:13 AM | TrackBack | | Other weblogs commenting on this postI'm not surprized, so I'm not disturbed.
The three dissentors believe that the law should only serve to protect the rich and powerful.
They hate the idea of equal justice under law (Renquist, while working for the Nixon administration, wrote a memo specifically stating that "Strict Constructionist" meant anti-worker, anti-civil rights, and anti-little guy).
Posted by: Matthew Saroff on June 28, 2004 10:53 AMForgive me if I'm wrong about this, but shouldn't ideologically conservative justices fear the unchecked authority and power of a cental government, particularly eminating from the executive branch? Or have they become so partisan that their ideology is a sham, second fiddle to more immediate political goals? And you thought Bush V. Gore was a bash...this one borders on finding fascism acceptable.
Posted by: Dr. C on June 28, 2004 11:13 AMDr. C,
Dead on target. There is a great deal about our conservatives that is not conservative. The very idea that democracy will bloom any soil, if we just push what is already there out of the way, is radical, not conservative. The idea that we can imbalance the budget in a big way in pursuit of some policy goal, for any goal other than national defense, is not in keeping with conservative tradition.
And, yeah, it's no surprise who the three dissenters are.
Posted by: kharris on June 28, 2004 11:21 AMI'll go back to it again, but my impression (Will Baude's site)is that Scalia thought the majority opinion nowhere near strong enough. He should have probably written a separate concurrence, but the guy is idiosyncratic, or concurred on a totally separate rationale.
Or maybe I am just confusing Rasul with Hamdi
Posted by: bob mcmanus on June 28, 2004 11:22 AMAh. I'll go back and look...
Posted by: Brad DeLong on June 28, 2004 11:24 AMNo, my apologies. I read Scalia's Rasul dissent, which was typical Scalia. Stinging and vituperative.
You were right the first time. "Lawless" except perhaps military law and executive findings, etc.
And International Law, Geneva, Hague etc, tho it appears this did not come up.
My expectation was for a compromise, for Padilla and Hamdi to go against the administration, and Rasul to go for it. I am surprised.
Posted by: bob mcmanus on June 28, 2004 11:39 AMConcerning the protests above, for SCOTUS to say that non-citizens not on US soil but under some form of US control have some of the rights of US citizens or foreign nationals on US Soil is indeed a radical step. As Scalia says in his dissent.
Posted by: bob mcmanus on June 28, 2004 11:43 AMGoing too long here, but Guantanamo is not, or should not be a "Lawless place". The relevant laws are Geneva and Hague, which the President is bound by the Constitution to honor as "the law of the land." I do not know how that is enforced, or whether Scotus thinks it has jurisdiction if the President chooses to ignore treaties, or if a complaint on those grounds has come up.
But these questions are obviously timely and relevant.
Posted by: bob mcmanus on June 28, 2004 11:51 AMWouldn't the military code apply to Guantanamo?
Posted by: Alan on June 28, 2004 12:22 PMGoing too long here, but Guantanamo is not, or should not be a "Lawless place". The relevant laws are Geneva and Hague, which the President is bound by the Constitution to honor as "the law of the land.
Except, of course, that the executive has ruled that these men are covered by neither, and that the DOJ has advised that even if they were covered, that the executive could ignore this for convenience.
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