[QUOTE=Giles]
Right – they only claim that the US Constitution does not apply.
[/QUOTE]
No, that applies, too.
[QUOTE=John Mace]
If that is the case, then how can we be in violation of the constitution for something done in another country? Maybe I’m misunderstanding your point.
[/quote]
You are. My point was made into a response to a question about Scalia’s dissent, not the decision itself. Scalia based part of his dissent on his argument that Gitmo was not under US jurisdiction. I don’t agree with that position, I was just making rhetorical point about it.
[QUOTE=Two and a Half Inches of Fun]
No, that applies, too.
[/QUOTE]
NOW it does.
[QUOTE=Dinsdale]
Now why would you have responded to MY post? 
Have to say I did not expect this assessment from you, and am pleased to see it. (Not that my opinion should mean anything to you.)
You say the dissent’s argument wasn’t crazy, but if the majority got it right, doesn’t that mean Scalia and his buds got it “not right”? To what do you attribute that.
[/QUOTE]
It means I disagree with the arguments that persuaded Scalia, Thomas, Roberts, and Alito.
Doesn’t mean they’re crazy. Reasonable people can disagree, especially in an area where there was no clear, definitive law in place. Disputes of this type are exactly why we need a court system, where it’s simply uncharted territory.
It wouldn’t be unreasonable to say that alien enemies detained abroad by our military forces in the course of an ongoing war are never entitled to habeas. That’s a perfectly defensible position.
But it’s not as wise as recognizing that there should be an end limit, that if the ongoing war is with an enemy that has no headquarters, no uniforms, and no way to formally surrender and end the war, then the detention associated with that war is open-ended, and that’s what the right of habeas was intended to guard against.
So – either decision is rational. I like the one they came up with, but it doesn’t mean the other side is evil, or morally bereft.
Thanks for the response.
[QUOTE=Diogenes the Cynic]
NOW it does.
[/QUOTE]
It always did, and the administration never claimed it did not. Their argument was certain of the provisions did not extend in a judicially enforceable manner to foreign national held there.
As someone not familiar with the Court but looking to become so- is it common to see a dissent like Scalia’s, which seems exceedingly concerned with the impact of the decision rather than the interpretation of vagueness in the law? He almost seems to be saying “because of the current situation we find ourselves in, we should have found a way to decide thus,” and that seems very odd to me.
[QUOTE=Bricker]
But it’s not as wise as recognizing that there should be an end limit, that if the ongoing war is with an enemy that has no headquarters, no uniforms, and no way to formally surrender and end the war, then the detention associated with that war is open-ended, and that’s what the right of habeas was intended to guard against.
[/QUOTE]
Doesn’t that beg the question? The very issue is does the right of habeas guard against this particular situation.
[QUOTE=stolichnaya]
As someone not familiar with the Court but looking to become so- is it common to see a dissent like Scalia’s, which seems exceedingly concerned with the impact of the decision rather than the interpretation of vagueness in the law? He almost seems to be saying “because of the current situation we find ourselves in, we should have found a way to decide thus,” and that seems very odd to me.
[/QUOTE]
It is extremely odd for Scalia. It is something you would expect more from a judge like Posner than Scalia.
[QUOTE=Two and a Half Inches of Fun]
No, that applies, too.
[/QUOTE]
The majority opinion says:
[QUOTE=Justice Kennedy]
The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus.
[/QUOTE]
[QUOTE=Giles]
The majority opinion says:
The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus.
[/QUOTE]
That does not mean the Constitution does not apply. Only that the detainees do not have rights under the Constitution including habeas rights.
If the US Government can apply a label to people, and thus strip them of constitutional rights, then those rights seem very flimsy to me. If I were to be labelled an “illegal combatant” by Generalissimo Bush, would I lose all my constitutional rights?
One of the problems is that the words “illegal combatant” don’t really mean anything. It’s just an arbitrary designation tautologocally applied by the President with no set criteria or opportunity for challege.
[QUOTE=Giles]
If the US Government can apply a label to people, and thus strip them of constitutional rights, then those rights seem very flimsy to me. If I were to be labelled an “illegal combatant” by Generalissimo Bush, would I lose all my constitutional rights?
[/QUOTE]
Assuming you are a citizen of the US:
If you were in Central Ohio when picked up, you probably would not lose any rights (this is unsettled). If you were picked up on battlefield in Afghanistan and held in Gitmo, you would be lose some rights. If Justices Scalia and Stevens had their way, you would have the full rights of a normal criminal trial.
Also, Boumediene does not say that the detainees are entitled to any constitutional rights other than the right to habeas procedures.
[QUOTE=Diogenes the Cynic]
One of the problems is that the words “illegal combatant” don’t really mean anything. It’s just an arbitrary designation tautologocally applied by the President with no set criteria or opportunity for challege.
[/QUOTE]
Unlawful enemy combatant (and lawful enemy combatant) is defined in the Military Commissions Act of 2006. There was also a procedure to challenge this designation and it is not just applied by the President it requires a Combatant Status Review Tribunal.
[QUOTE=Two and a Half Inches of Fun]
Assuming you are a citizen of the US:
If you were in Central Ohio when picked up, you probably would not lose any rights (this is unsettled). If you were picked up on battlefield in Afghanistan and held in Gitmo, you would be lose some rights. If Justices Scalia and Stevens had their way, you would have the full rights of a normal criminal trial.
Also, Boumediene does not say that the detainees are entitled to any constitutional rights other than the right to habeas procedures.
[/QUOTE]
The majority of the detainees at Gitmo were not picked up on any battlefield and were not engaged in any combat with the US. They were mostly kidnapped civilians bought for bounties.
[QUOTE=Two and a Half Inches of Fun]
Assuming you are a citizen of the US:
[/QUOTE]
Don’t assume that, because I’m not.
[QUOTE=Diogenes the Cynic]
The majority of the detainees at Gitmo were not picked up on any battlefield and were not engaged in any combat with the US. They were mostly kidnapped civilians bought for bounties.
[/QUOTE]
Under Hamdi, I am not sure if this makes a difference. If Scalia had had his way in Hamdi it would clear cut for US citizens. The best solution to all these problems would be to change the law. But since there is not really a political will to do so, we are suck with a mess.
[QUOTE=Giles]
Don’t assume that, because I’m not.
[/QUOTE]
Then I do not really know what your rights are, but you will get habeas review. Maybe you will be famous one day―Giles v. McCain.
[QUOTE=Two and a Half Inches of Fun]
Then I do not really know what your rights are, but you will get habeas review. Maybe you will be famous one day―Giles v. McCain.
[/QUOTE]
I’m not looking forward to that, for a variety of reasons.