U.S. Supreme Court
Scalia’s ‘Apocalyptic’ Dissent Warns of American Deaths
Posted Jun 13, 2008 4:19 AM CST
By Debra Cassens Weiss
Two justices wrote separate dissents to yesterday’s decision giving Guantantamo detainees a right to habeas corpus, but Justice Antonin Scalia’s was “the more apocalyptic,” the New York Times reports.
Scalia and Chief Justice John G. Roberts Jr. wrote dissents, but they also signed each other’s opinions. The two other dissenters, Justices Clarence Thomas and Samuel A. Alito Jr., signed both opinions.
The Times described Scalia’s dissent as “biting” while Legal Times called it “bitter.”
Scalia wrote that the majority decision was based on “an inflated notion of judicial supremacy” and will result in “devastating” and “disastrous consequences.” Scalia referred to news reports that some detainees who were already released have returned to the battlefield. The decision "will almost certainly cause more Americans to be killed,” he wrote. “The nation will live to regret what the court has done today.”
Roberts said the decision “is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”
The majority opinion by Justice Anthony M. Kennedy found that habeas rights applied to the detainees, and the government had not provided an adequate substitute. The governing statute, the Detainee Treatment Act, allowed the U.S. Court of Appeals for the District of Columbia Circuit to hear reviews of tribunal decisions on whether detainees were enemy combatants.
But Kennedy wrote that detainees do not have the assistance of lawyers before the combatant review tribunals and there are no limits on the admission of hearsay, creating a significant risk of errors. Yet the D.C. Circuit reviewing a tribunal decision was not given explicit authority to order the release of a detainee and was not allowed to hear a detainee's additional exculpatory evidence discovered after the tribunal hearing.
The opinion is Boumediene v. Bush (PDF posted by SCOTUSblog).
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Comments
msg
Jun 13, 2008 6:40 AM CST
Never in the history of this country, and probably in the world, has a prisoner of war, or an “enemy combatant” (the recently political correct term to fight unofficially state backed terrorists) has a country given the POW’s the same constitutional rights of its own citizens. The Supreme Court went against its own ruling when it said it did not have jurisidiction over foreign held detainees and these were foreign held detainees - they are in Cuba. We lease that land from Cuba. This ruling even violates the terms of the Geneva Convention. It is a sad day for America. Justice Scalia is right.
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Paul
Jun 13, 2008 8:54 AM CST
I agree that terrorists are similar to historical pirates in that they are “extra-national” criminals.
However, Rule of Law means NOTHING without writ of habeas corpus ad subjiciendum and right of appeal.
America is supposed to be different from—even better than—most other nations because this country has a greater respect for individual civil and human rights.
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msg
Jun 13, 2008 9:01 AM CST
That is bunk. Does the term “border” mean anything to you? What is the definition of a country without borders? The very least a government is supposed to do is to protect its citizens from attacks by foreigners. America is different and better than any other nation and does have greater respect for individual civil and human rights. Read the constitution. That does not include conferring those rights on individuals who kill and mame our citizens and solders who protect those very same rights.
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Paul
Jun 13, 2008 9:02 AM CST
Justice Scalia weakens his argument by overstating his argument and the consequences of this decision.
While some detainees who have already been released have returned to the battlefield, that does not mean that the state should not have a case, make a case, and be willing to have that case proceed throught the courts.
There must be adequate prisoner protections. Even pirates and terrorists must have certain rights (to present exculpatory evidence, to not be tortured) or the whole tribunal is a grim farce and the whole justice system is corrupted and debased.
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RGT
Jun 13, 2008 10:16 AM CST
Bush’s efforts to define them as “POWs” and “enemy combatants” is a ruse to fool the public to believe that the detainees are less than human and deserve to be locked up indefinitely and without any rights. The reality is the detainees, including a “terrorist chauffeur” were kidnapped from their homes and incarcerated - some have been locked up for over 6 years and most without being charged. The rights under the US Constitution should not be trumped because of the lynchpin argument that the detainees are being held in Guantanamo, thus they have no rights. The rights under the US Constitution and the principals (habeus corpus)that serve as its foundation mean more to me than that. Why do you fear a federal court reviewing the evidence against the detainees? Wouldn’t you agree that if there is no reliable evidence against a detainee he should be released? Or have you concluded that they are all guilty already? The majority’s decision is right. It takes courage to do the right thing especially in the face of fear and hate mongers. Unlike what Scalia claims, what will cause more Americans to die is we stay on the path of mindless aggression that Bush has taken us on. People need to wake up from their “they’re all terrorists” stupor.
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AOM
Jun 13, 2008 11:29 AM CST
the constitution, when written, did not grant freedom to black slaves, women or people who did not own property. The only rights that were confrered were to wealthy white men - who were the property owners. This country ideas of what “freedom” is have always been warrped - this proves it. it is better this way maybe we can get them on the battlefeild.
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Tellin'It
Jun 13, 2008 10:32 PM CST
If the Bush Admin didn’t have the cojones in 6 years time to line them up and shoot these “terrorists” then the Bush Admin deserves what it gets from the SC.
Firing squad em, give them a trial, or let them go already.
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df
Jun 13, 2008 11:52 PM CST
There are some detainees who should never be released.
There are also some who, by the U.S. government’s own admission, are not a threat to the U.S. at all and (arguably) knowing what is known now, should never have been detained or treated as enemy combatants to begin with (e.g. the Uighurs from China)—but they can’t be sent back to their “home” countries because there’s a reasonable expectation they’ll be tortured or killed, and no other country will accept them.
There are also detainees who weren’t captured or detained in battlefield/enemy combatant decisions.
The SCOTUS decision does not say release them all, it does not say all detentions are justified. It merely says they may challenge the detention. That’s it. The reviewing court could well find for some or many cases that detention is justified.
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