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February 21, 2007

Judicial Smackdown

Once again, the federal Courts have sided with the Odious Shrub in his ongoing attempts to shred the Bill of Rights and feed it to Barney, the White House Terrier:

Writing for the court in today’s decision, Judge A. Raymond Randolph said that the arguments put forward by the lawyers for the detainees “are creative but not cogent” and that Congress clearly meant to preclude the federal courts from considering the detainees’ cases. He said that there were no cases in which the habeas corpus could be used by foreign nationals held at an overseas military base and that the constitution “does not confer rights on aliens without property or presence within the United States.”

Fortunately for the Republic, Senator Patrick Leahy (affectionately known from his days on the Senate Intelligence Committee as "Leaky Leahy") quickly offered a more enlightened view of the Constitution:

Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.

“The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness,” said Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.

And here we thought the issue was the "Constitutional" rights of non-US citizens - enemy combatants - not being held on US soil during wartime. But then the Democratic party thinks illegal aliens have rights under the Constitution too, so perhaps we should not be surprised. In recent years, that document seems to have acquired a life of its own, miraculously spawning emanations from mere penumbras of nuances hidden in past participles of dependent clauses of precedents set by the Great Courts of Europe. From such gossamer stuff, shiny new "rights" are constantly being discovered without the tiresome necessity of having to consult the American people as set forth in the actual text of the Constitution itself; literal meaning being so last century, doncha know.

But when one is charged with carrying out the Will of the People, one cannot afford to shrink from stern measures, can one? After all, the DNC has their mandate... don't they?

* 57% believe “The Iraq War is a key part of the global war on terrorism.”

* 57% “support finishing the job in Iraq, that is, keeping the troops there until the Iraqi government can maintain control and provide security for its people.

* 50% want our troops should stay and “do whatever it takes to restore order until the Iraqis can govern and provide security to their country” while only 17% favor immediate withdrawal

* 56% believe “Even if they have concerns about his war policies, Americans should stand behind the President in Iraq because we are at war.”

* 53% believe “The Democrats are going too far, too fast in pressing the President to withdraw the troops from Iraq.”

The editorial staff cries for her country. Where, oh where is Keith Olbermann?

Will no one rid us of this Turbulent Twig?

Posted by Cassandra at February 21, 2007 06:44 AM

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Comments

"But then the Democratic party thinks illegal aliens have rights under the Constitution too, so perhaps we should not be surprised."

They are correct to think that. The 14th Amendment makes clear the distinction between "citizens" and "persons," and protects the "privileges [and] immunities of citizens." It then also protects "any person within its [i.e. a State's] jurisdiction" by asserting that they shall have "the equal protection of the law."

So, the Constitution does indeed provide protections to non-citizens, and even illegal aliens. That protection is justly limited to being arrested and deported according to the law, of course.

Not that I disagree with the court here, which seems correct as far as it goes. Just to clarify that the Constitution does protect non-citizens, at least from the States. I gather that aspect of the 14th has been applied by the courts to the Federal government also, but I don't see any reason in the actual text that would require it. Nor is there any historical reason, since the purpose of the 14th was to subjugate the states to Federal authority, not to bind the Federal government.

Posted by: Grim at February 21, 2007 09:15 AM

I knew I was going to pay for that wisecrack :p

Posted by: Cassandra at February 21, 2007 09:47 AM

I dont think this decision reaches any part of the bill of rights. Habeas is not in the bill of rights. It is in the constitution, and in fact, predates it.

As for whether it is about our rights, it most certainly is. One of the questions is when Congress can strip habeas. That power of Congress affects us all. It also is a ruling on the extent of the Habeas Right -- that affects us all.

And still left undetermined is who may be detained, who these elusive 'enemy combatants,' some of whom are not enemy, and are not combatants, are. That definition may implicate our rights too.

Grim addressed the situation with aliens. Look at the constitutional text. In lots of places, it does not mention citizens. The first, "people"; same with the 2nd; The 3rd, "any house"; the 4th mentions "people"; the 5th "no person"; the 6th, "in all criminal prosecutions"; some of the others are also just flat out prohibitions on government, like the 8th.

Posted by: annak at February 21, 2007 09:53 AM

Oh for Christ's sake.

I don't believe I said Habeas was in the bill of rights Anna. You are taking a joke that I make all the time way too literally.

Nor did I seriously mean anyone to think that the President has actually shredded the actual Bill of Rights and fed it to his dog, just in case that point also needs clarifying.

If you need to, you can look through my law archives for more serious discussion of this and other issues. Reading through this post, it is difficult to mistake it for even the barest attempt at a serious legal discussion, though you are welcome to try.

Posted by: Cassandra at February 21, 2007 10:14 AM

Nobody would be correct in thinking this was about shredding the bill of rights. Because it does not reach any bill of rights issues. Your statement on aliens, though, does.

As for serious legal discussion, I got a good overview of the opinion from marty lederman at a balkinization. He notes what parts the supreme court could overturn.

And he also describes more clearly, and with better citations, the ways I mentioned it does affect our rights. People don't seem to get precedent sometimes. Don't seem to get that that an opinion that rules on, say, habeas review of an enemy combatant, or a farmer growing wheat, or a user of medical marijuana, is ruling on several issues many of which may apply outside of that.

So this opinion is also ruling on when congress can limit habeas, that affects us all. And it also rules on whether the constitution 'froze' habeas in 1789. That affects us all. As an aside, this is why it is important that excellent counsel represent all sides in this litigation -- in order to make better decisions, and thus better law, since it will affect us all.

But apparently there is serious discussion in the archives, and not here.

Posted by: annak at February 21, 2007 10:23 AM

As I said, this was plainly NOT intended to be a serious discussion Anna, and the Democrats have tried and continue to try to write more implied "rights" for illegal aliens into the constitution than are covered in this post (which was, indeed, the point of my comment).

In any event, any post that begins with a reference to the Shrub shredding the Bill of Rights and feeding it to his DOG is probably ... oh gosh, I don't know... meant to amuse? The reference was to Keith Olbermann's accusations that our rights are being trampled by the President in a historically unprecedented manner (hence the Bill of Rights joke, which I am not going to explain here AGAIN) not to whether habeas itself was in the bill of rights. It's an old joke.

It's called nuance. In this case, laid on with an extremely heavy hand. I really didn't think it required explanation, especially since I cut out 12 paragraphs of SERIOUS analysis this morning because on further consideration I decided it wasn't such a great idea to mix snark with serious analysis in a post.

And your comment only reinforces that judgment. Lighten up a bit, Anna? I am fine with people disagreeing, but work with me a bit, OK?

Posted by: Cassandra at February 21, 2007 10:38 AM

I get that its a joke. Just making clear that this is not about the bill of rights.

I don't know if you were joking when you identified that the issues do not affect our rights. Seriously, you're wrong on that one.

Posted by: annak at February 21, 2007 11:23 AM

"As for whether it is about our rights, it most certainly is. One of the questions is when Congress can strip habeas. That power of Congress affects us all. It also is a ruling on the extent of the Habeas Right -- that affects us all.


Justice Randalph wrote that there were no cases in which the habeas corpus could be used by foreign nationals (my emphasis) held at an overseas military base and that the constitution “does not confer rights on aliens without property or presence within the United States.”

Article 4 of the Third Geneva Convention clearly defines the phrase "lawful combatant".
"In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): 'Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.'” Memorandum to Council on Foreign Relations Enemy Combatants, William Haynes, General Council of the Dept. of Defense.
"The determination of enemy combatant status has traditionally resided with the military commander who is authorized to engage the enemy with deadly force. In this regard, the task ultimately falls within the President’s constitutional responsibility as Commander in Chief to identify which forces and persons to engage or capture and detain during an armed conflict......In the current conflict, military personnel ordinarily make enemy combatant determinations during combat operations, under the combatant commander’s direction."

The President of the United States has made quite clear his determination for lawful and unlawful combatant status. As such, unlawful combatant do not warrant the extention of Geneva Convention protections and, given that they are also foreign nationals, they also do not warrant the Constitutional protections given to citizens of the United States of America. This has been challenged and affirmed in our own judicial system. If you are a foreign national not on US soil, you have no right to our Constitutional protections. How much more clearly can that get?

Posted by: Sly2017 at February 21, 2007 12:44 PM

No good joke goes unpunished.

Posted by: Mark at February 21, 2007 01:32 PM

Democrats now in control of Congress said they would move quickly to introduce legislation that would unambiguously give federal courts the right to consider habeas petitions by detainees.

Ohhh, boy! Can we arrange to have to vote on this taken just before the next election?

Posted by: bud at February 21, 2007 03:43 PM

Why do you bother Sly? Anna isn't going to read what you write. She's got her mind made and there's not a damn argument in the world that will change it.

'Sides, she's so anal she wouldn't know a joke if it jumped up and bit her on the butt. Some folks just simply do not know how to laugh! They are too filled with hate, distrust, and an overblown sense of some kind of moral dedication. Tilting at windmills comes to mind. Talk about your basic "life of the party". Ouch!

'Bout sums it up.

Then there are those of us that rarely take too much very seriously because we actually enjoy life. Even with all the trials, tribulations, and sadness that occurs. Bring in the clowns!

I remain,
Preverted!

OK Cassie, it's time for my monthly ban! I'm ready. I can take it! ;-)

Posted by: JHD at February 21, 2007 04:36 PM

Please don't worry about Keith Olbermann, as he will claim the poll is clearly wrong, and only he knows the truth.

Posted by: cck at February 21, 2007 05:23 PM

I did place a comment in the next post just for you, JHD.

And I try, occasionally, because (when my evil twin is not paying attention), I am moved by the pity I feel for idions who can't seem to (or just plain don't want to) understand the very real danger these extremists present to the Constitutionally provided freedom and rights MH and his band of brothers have fought and bled for.

Either that or I'm out of Damnitol .....
>;-}
heh

Posted by: Sly2017 at February 21, 2007 06:11 PM

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