Yesterday's 5-4 ruling restoring habeas to detainees is half a loaf. Here's the full text.Kennedy writes the majority like he's being chased by rabid wolverines, tossing raw deer meat off to the side of the trail, knowing all he has to do is slow the toothy bastards down...
For instance, the predatory John Roberts in dissent:
"The political branches crafted these procedures [CSRTs and military commissions] amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation."
Here, as elsewhere, my lizard-brain recoils in dread and confusion. Roberts is arguing that the procedures Congress established, which this Court strikes down for the third time, should have been pursued unimpeded. Detainees should have gotten out of their stress positions, walked to the Gitmo FedEx and filed their own petitions for review by the D.C. Circuit Court?
It is as if Roberts were dissenting with the Court in upholding the Fair Housing Act, by saying poor black folks redlined out of white neighborhoods should have worked harder in pursuing the remedies already available to them. "Why not go to another realtor, or pursue higher education. The fact that no petitioners live in my neighborhood is proof that they aren't trying hard enough."
The Court was forced to consider Boumediene and Al-Odah precisely because the petitioners cannot sanction the legitimacy of the proceedings. If the petitioners reverse their position in order to "avail themselves of the law's operation," conservatives on the Court would be able argue that following the avenues provided in the law demonstrated the sufficiency of the DTA in preserving habeas corpus. Petitioners' argument is that the US has de facto sovereignty over Gitmo, thus Constitutional protections apply. If petitioners avail themselves of the Roberts path, they provide de facto legitimation. Then it would be: "If the D.C. Circuit and the military commissions were good enough back then, why sue for extra rights?" Roberts is essentially whining that no lawyer fell into the legal trap built into the government's motion to dismiss.
And let's just ignore Scalia's convenient shift from strict constructionism to living word. Or his prophesies of doom. Kennedy had the first angle of complaint wrapped up when he quoted The Federalist:
"Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:
'[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone ... are well worthy of recital: "To bereave a man of life ... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the bulwark of the British Constitution." ' " [citations omitted; emphasis mine]
In Part 2: what liberals on the court are willing to do to citizens; deranged freaks; medieval information-gathering...
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