April 3, 2007

"The liberal justices, or at least their leader, Justice Stevens, may well have decided that refraining at this point was the wiser course...."

Linda Greenhouse has a theory about yesterday's cert. denial in Guantanamo detainees cases (Boumediene v. Bush and Al Odah v. United States). Noting that Justice Stevens declined to vote along with Justices Souter, Ginsburg, and Breyer and that while four votes are needed to hear a case, five are needed to decide it, she writes:
The liberal justices, or at least their leader, Justice Stevens, may well have decided that refraining at this point was the wiser course, given the risk that the case might come out the “wrong” way, from their point of view, with an affirmation of the appeals court’s decision that would then become a hard and fast Supreme Court precedent.

19 comments:

hdhouse said...

I wonder what the underlying issue is. Persons held for 5 years (did I read that right) have as much memory and relevance to the current situation as the man in the moon. Are these terse comments merely a roadmap to bring this back to the court fairly soon under a different cover letter? If so, are the justices making a judgment that after 5 years what is another year or two give or take.

These protracted issues are, in my opinion, just a way to hold out until Bush leaves office and the matter is revisited by what surely will be a more reasonable successor.

Can we get rid of this black eye fast enough?

Mark said...

I think Kennedy did not want to reveal his hand; that's why the case will percolate until the DC Appeals Court renders its judgment. However, relatively strong language in Stevens/Kennedy concurrence suggests that if the case drags on for too long, Justices may return to it.
I think it's a matter of time until this unfortunate episode of US history is closed.

Al Maviva said...

Again, House and Mark, I suggest we grant the detainees asylum, and residence in the U.S. as a way of making up to them for all the terrible things we've done to these poor innocent shepherds. Since we can't ship them back to their home countries with a clear conscience (threat of torture, so repatriation forbidden by the CAT treaty) and since no third country would grant them asylum, for some unknown reason, I see no other lawful option. I'm only being about 15% snarky - I really don't think we can repatriate them, since Saudi, Yemen, and all the other nations that have officially adopted the Religion of Peace as state doctrine are enthusiastic practitioners of torture, especially w/r/t would be regicides, like suspected AQ members.

So preferably we resettle these innocent men, in your neighborhoods. Any objections?

MadisonMan said...

So preferably we resettle these innocent men, in your neighborhoods. Any objections?

If they can afford a house in my neighborhood, they're welcome to buy in. I would insist, however, that the US requires them to get, and pays for, a whole lot (Read: years) of quality psychiatric help so they can integrate. I would also want to be paid by the government, as I would be helping make these individuals productive members of society.

hdhouse said...

Al Maviva said..."So preferably we resettle these innocent men, in your neighborhoods. Any objections?"

I think the key phrase here is "innocent men". I don't think they are but that is my opinion. Do I want them as neighbors? After 5 years in solitary I don't think they can think straight. Do I think we should try them (now there is a novel concept) and determine if they are innocent or not,....well you pray to God that it isn't you someday.

Mark said...

Al Maviva:

Do you want as a neighbor a killer who's been released because he has served his sentence?

This has about as much relevancy to my post as your 15% snarky comment.

The point is that we, as a nation, are not in the business of holding indefinitely people who have not been fairly adjudicated to be unlawful enemy combatants. Yes, you are right to point out that a broader solution is needed for some of the radicals who are now held in Guantanamo. However, the solution is not to simply keep them forever locked up at Guantanamo.

Fen said...

I'm sorry, its sounds like Greenhouse is saying Stevens refrained because, after counting heads, he thought his "side" would lose the vote? Is that correct?

Fen said...

The point is that we, as a nation, are not in the business of holding indefinitely people who have not been fairly adjudicated to be unlawful enemy combatants.

If this was WW2 and the detainees were German's captured in uniform, would we be allowed to hold them indefinitely [or at least untill the war was over, which is what I think you really meant]?

hdhouse said...

Fen...

1. this isn't world war 2...a declared war remember?
2. this war will never end so how long do you propose keeping them in confinement?
3. they didn't wear traditional uniforms or if they did, we don't care do we. are we trying them as spys? agents? what? or are we simply not trying them.

Henry said...

Is there any reason Congress can't legally define a resolution?

Fen said...

1. this isn't world war 2...a declared war remember?

Congress authorized the use of military force. I'm not sure they can "declare war" on a terrorist org the same way they can against another nation. Regardless, I'm just checking on history here - please don't dodge - If this was WW2 and the detainees were German's captured in uniform, would we be allowed to hold them indefinitely?

2. this war will never end so how long do you propose keeping them in confinement?

The duration of the war is irrelevant. If D-day had failed and for some reason we were still fighting the Germans, would duration of conflict have any bearing on their status of POWs?

3. they didn't wear traditional uniforms or if they did, we don't care do we. are we trying them as spys? agents? what? or are we simply not trying them.

Illegal combatants. They have less standing than any hypothetical German POWs, and yet some want to extend the Bill of Rights to them.

12:26 PM

RogerA said...

Re "declared war;" The GCs are not restricted to combatants involved in formal declarations of war. From Article 2, Convention 1: "In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them."

I don't know if Iran is a signatory, but you don't need a declared war--only armed conflict.

Mark said...

Fen,

Yes, if this were a WWII, we would be allowed to keep prisoners untile the end of hostilities. However, this war is qualitatively different from all the wars so far; Al Qaeda is not an army; the war will not end with us entering Mecca or Damascus. This "war" may last for tens of years or even indefinitely. There will always be terror groups, or at least for a very very long time. It's like a Cold War. That's why we cannot simply apply the framework of WWII to the present situation: the situations are too different.

Fen said...

Thank you Mark for answering my question, and in good faith. And I agree that ww2 is different, I just wanted to know what the "baselne" was.

Fen said...

/gah

baseline

Aero! said...

It seems strange to me to call Justice Stevens the "leader" of the liberal justices, since he's often something of an idiosyncratic thinker himself, even if his conclusions are solidly liberal. I don't think they take orders from him any more than the conservative justices take orders from, say, Thomas.

hdhouse said...

I keep reading the war powers act and i don't find any of this in it....do you?

Simon said...

Fen said...
"I'm sorry, its sounds like Greenhouse is saying Stevens refrained because, after counting heads, he thought his "side" would lose the vote? Is that correct?

Not exactly - I think she's saying that the answer to this case (as with many) turns on Kennedy's vote, and Stevens isn't confident about which way Kennedy's going to go. There's something profoundly unhealthy about vesting such knife-edge power in someone so free from guiding principles as Anthony Kennedy.

I agree with Aero's general point (great name, BTW - I miss aeros!), but I think it's well-accepted that he has been a very succesfull strategic player in building alliances and carrying votes. That isn't to detract from his idiosyncrasy, and certainly he is the member of the court most likely to write separately at the drop of a hat, but I think you'll see more cases where Souter and Breyer have crossed the river than Stevens.

Revenant said...

However, this war is qualitatively different from all the wars so far; Al Qaeda is not an army; the war will not end with us entering Mecca or Damascus.

The war didn't end with us entering Tokyo or Berlin, either. It ended when Germany and Japan surrendered. It could have ended earlier still, had Congress opted to pursue peace with those nations; we chose to try for victory instead.

Al Qaeda (and Islamic terrorists in general) may not be a nation, but that doesn't mean they can't surrender, be wiped out of existence, make peace with us, et al.

This "war" may last for tens of years or even indefinitely.

All wars last indefinitely, right up to the point where they end. Nobody's ever started a war with a mutual agreement to end it at a specified future date. On purely practical grounds the war will end when we either win it or Congress decides to end it -- and Congress obviously isn't going to indefinitely support a war.