Washblog

I find it revealing that RepubliKKKan senator Trent Lott was among the first to jump in with both feet (in his mouth). Lotts comment (my emphasis added) FauxNews:

LOTT: ...But preliminarily my opinion is they probably didn't even have jurisdiction. They shouldn't have ruled the way they did. This is not a bunch of pussycats we're talking about here. These are people that have made it clear in many instances that they would kill Americans if they got out. This is Osama bin Laden's driver. And this is one other example of why the American people have lost faith in so much of our federal judiciary. This is a very bad decision in my opinion.

What I see here is the Republican philosophy that Law shouldn't apply equally. If Republicans pre-judge someone to be "the bad guy" then they don't deserve the full protection of the Law. Republicans are just fine with vigilante 'justice' as long as they're leading the mob.

Lott's contention that the U.S. Supreme Court might not have jurisdiction is just plain stupid. The Article 3 of the Constitution is pretty clear about the extent judical power.

Article III

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;...

by citizensteve on Thu Jun 29, 2006 at 04:44:01 PM PST

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...I think you really should listen to the oral arguments. They are on the NY Times web site. I listened and then read the opinion (well, most of it) and it's a sweeping rebuke of the Bush Administration. The opinion is technical but that's mainly because of the "Constitutional avoidance" doctrine which asks courts to decide issues on non-Constitutional issues first, if possible.

What the Justices said about the Geneva Convention was that it should be understood to constitute part of the American definition of "the law of war", which is an important common law concept. "The law of war" is basically the body of law that talks about legal authority during wartime. Because the military "Comission" the Bush Administration tried to set up would clearly have violated an important rule set forth in the Geneva Convention - as well as rules set forth in the Uniform Code of Military Justice, the comission was considered, by the court to be an improperly constituted body which had no right to try anyone, especially under the charges filed. That is pretty incredible. While Justice Scalia argued that the comission was "prima facie" a legitimate court, the majority decided that it was not legitimate at all.

More importantly, they rebuked Congress for suspending the writ of habeas corpus without admitting they were doing it. They didn't do that directly, because of the Constitutional avoidance doctrine, but they made it clear that they were extremely unhappy about being stripped of their essential power of review in what appeared to be an unconstitutional way. And they told anyone listening carefully that they were making this decision to protect the other defendants BushCo intended to bring before this comission.

Within the oral arguments, the Justices in the majority suggested strongly that they did not accept that the United States was in a state of war AT ALL. Therefore the suspension of writs of habeas corpus would be unconstitutional. This is an important legal standard because different bodies of law apply in times of war and BushCo have been trying to use those bodies of war law - and pervert them.

Finally, they questioned the authority and competence of the Administration to set up military courts at all, in the way it intends. They suggested that the Administration cannot provide enough separation from the military to be in charge of appeals from military courts. This is also extremely important. It means the Court is suggesting that it rejects the idea that it does not retain its power of review in the face of a declaration of Presidential power.

Scalia is, as always, brilliant even when wrong. He basically slices up the technical decision and tries to force the court to deal with the question of suspension of habeas corpus (where they are trying not to go). Then he asserts a broad, irresponsible right of Congress to suspend habeas jurisdiciton. Justice Thomas just runs off the rails into fantasies about war declarations and Presidential power. What an embarrassment. We also got to see Alito in action. He makes a very bland, technical point, makes it thoroughly and well, but as part of a sweeping, ultra-conservative dissent. That's what he's all about - a handmaiden for lunatics.

by dlaw on Thu Jun 29, 2006 at 06:27:03 PM PST

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what blogs need are people like yourself paying attention and supplying us with your opinion and detail on what is normally just a sound bite on the evening news.

by Brian on Fri Jun 30, 2006 at 02:05:39 AM PST

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This is such a damning and incisive quote. If only it was from a Democrat. Lindsey Graham may be a lunatic but he's a good lawyer.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."

by dlaw on Fri Jun 30, 2006 at 10:43:23 AM PST

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