MmeGigs
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quote:
ORIGINAL: kittinSol
David Rifkin said it's 'tremendously arrogant' of the Supreme Court.
Comments?
This is going to be long and wonky. Sorry.
I heard Rifkin talking about this on NPR today. Some of what he said struck me as completely bizarre. He seemed to want to do away with the judiciary as a co-equal branch of government, implying that Congress rather than the Supreme Court should be the final arbiters of what is and is not constitutional. He was complaining that the Supreme Court didn't rewrite the law for Congress, instead leaving it to them to come up with a new law that will pass constitutional muster, as if this were something new and unusual when in fact this is the way things are done. The court will point out the facets of the law that were problematic, but it doesn't rewrite the law. Congress then rewrites the law and it stands until there is a case to challenge it. That's the way our system works. When the court has attempted to rewrite legislation they have been pounded to hell and back by congress for trying to usurp congressional prerogatives, which is as it should be.
Rifkin knows all of this, so why is he saying that it should be otherwise? I'm guessing it's because he's a cynic at heart - he sees things through a political filter and has no concern for long term consequences or practical concerns. It's definitely not in the US's long term best interest to be seen as a country that has no respect for individual freedoms or the rule of law. We gave away our technological preeminance decades ago, we're in debt way over our heads over the war in Iraq and as a result have lost our economic preeminance, so pretty much all we had left was moral authority. We've nearly screwed ourselves on that with our torture stuff and indefinite detainments. There's no money or political will to reclaim our technological position, no desire at all to raise taxes to pay off our debt, or to raise wages to shore up the consumers who are the lifeblood of our economy and become an economic powerhouse again, but we can reclaim moral authority - arguably our most important asset - if we can come to treat our enemies and suspected enemies fairly and reasonably. That's really the only power we still have to draw upon.
Rifkin really mischaracterized the SCOTUS decision, for example, claiming that if we pick up someone suspicious in a battle zone we'll have to Midandize them and lawyer them up before we can interrogate them, and that all the accused will have to do is say "I'm just a simple goatherd" or whatever and we'll have to let them go. That's nonsense, and I'm sure Rifkin knows it. The decision speaks specifically to this -
quote:
This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ [of habeas corpus] runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status.
<big snip>
In effectuating today’s holding, certain accommodations— including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections.
This is hardly the hamstringing of the executive and legislative branches that Rifkin describes. The decision really amounts to the Supreme Court telling Congress that it does not have the authority to cut the judicial branch out of the process. They rejected the argument that habeas corpus and the Suspension Clause does not apply to Guantanamo because the US does not claim sovereignty there.
quote:
The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is."
What's really weird about this whole thing is that the administration didn't grant these detainees protections under the Geneva Convention because they wanted more of a free hand in dealing with them, but by creating this new class of "enemy combatants" and denying the application of international law, they invited US courts into the process. It's scary to think that they believed they could do whatever they wished in this regard with no accountability whatsoever, but a relief to know that the separation of powers has checked them. I hope that those who disagree with this decision will be able to take a longer view and realize that it protects their most fundamental interests.
The text of the decision is here - http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf It's 134 pages, so I don't expect that folks will be rushing out to read the whole thing, but I sure hope that some will. The summary of the court's ruling is in the first 8 pages, but the remainder of the text is fascinating. The majority decision recounts the history of habeas corpus back to the Magna Carta and English common law. It started because "the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained" but "by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it."
Habeas corpus was an enormous part of what has made ours a really unique and admirable system of government. There's an interesting quote from the Federalist Papers - "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."
Some of the posts I've read in this thread show no understanding at all of what is at stake here. Habeas corpus is probably the most fundamental principle that we hold dear here in the US - that the powers that be can't take my property or lock me up indefinitely unless they've got a legally defensible reason to do so. I'm really pretty flabbergasted that so many are willing to throw this away. Situational ethics at its worst.
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RE: Foreign terrorism suspects have rights. - 
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