I'm with McCain on this one.  Why must we continue to clog our courts with all these "trials?"   In fact, if we REALLY wanted to reduce court congestion, we would focus on the single largest abusers of our criminal justice system: criminals.  It's a proven fact that over 95% of court clogs are due to criminals being tried!  

Anyway, Scalia's a pretty smart guy, apparently, but I don't think he knows a thing about intelligence work.  So maybe he should STFU?

":the courts are about to be clogged with cases from detainees"

God forbid we make our judges earn their freakin' paychecks! What are we thinking, people?!

I think the real problem is that the current Regime is now at risk for being outed as the fear-mongers they are.

Well, in the absence of colour coded fear-mongering, you have to do or say something.  I mean, what's McCain got to do?  Run on the Economy, Iraq, foreign policy, Bush's legacy, his age, experience in Executive office, oratory ...?

"[The majority opinion] will almost certainly cause more Americans to be killed."

Leaving aside whether or not this opinion is actually true, Scalia makes the mistake of mistaking a political and emotional argument with a legal one.  The majority decided whether the current detainee procedure is or isn't Constitutional, not whether the current procedure makes America safer or doesn't.

From a legal standpoint, so what if a law means fewer Americans will die because of a law?  Ban free assembly, and there will be fewer gang wars.  Ban marriage, and there will be less domestic violence.  Ban free press, and there will be less slander.  Ban free movement, and there will be fewer deaths from drunk driving.

Three cheers for the Supreme court doing its job (Is a law legal?), not doing the legislature's (Should a law be legal?)

I think Obama should really bring back Reagan's "There they go again" ... :-)

Nino is so crazy, he goes hunting with Dick Cheney.

So... McCain is basically in favor of granting Guantanamo detainees the same legal privaleges the Viet Cong so generously offered him.

Oops. make that "privileges".

So Scalia's got Katrina Van den Heuvel in his gunsights? What did The Nation ever do to him?

As the excellent Kaye article points out in its analysis of Scalia's near-hysterical spittle-flecked dissent, the majority holding in Boumediene will not result in the release of a single detainee.  But it does provide one more good swift kick in the solar plexus to the damn-the-Constitution unitary executive theory of presidential unaccountability which has provided the intellectual foundation for so many of the abuses and overreaches of the Bush regime.  This is probably the real cause of Nino's fit of apoplexy.

As for McCain's overnight flip-flop, who knows?  Maybe he was on the phone with Lieberman last night.  

primwallflow: bam.   Nice.

"one of the worst decisions in the history of this country"

Please do tell, Sen. McCain, how this case compares with Dred Scott, Plessy, Lochner, and Korematsu. Does McCain really think it's a good idea to get into a constitutional interpretation debate with Obama?

My favorite part of either dissent actually came from Roberts. We've seen Scalia declare the sky is falling before -- it's just that usually he saves this level of psychotic animosity for the gays, see dissents in Roemer v. Evans and Lawrence v. Texas.

But Roberts, in chiding the majority for striking down the Act, when into an all-dicta rant that seems to advocate that the majority had a responsibility to craft an alternate system to habeas, at least in terms of sharing evidence:

"What alternative does the Court propose? Allow free access to classified information and ignore the risk the prisoner may eventually convey what he learns to partieshostile to this country, with deadly consequences for thosewho helped apprehend the detainee? If the Court can design a better system for communicating to detainees the substance of any classified information relevant to their cases, without fatally compromising national securityinterests and sources, the majority should come forwardwith it. Instead, the majority fobs that vexing question off on district courts to answer down the road."

The majority should come forward with it? Wouldn't that be the definition of legislating from the bench? I thought the court's job was to play "referee" or "umpire" and merely call the balls or strikes. Apparently for Chief Justice Roberts, there are also times when the Court should play pitcher or catcher.

Now if someone can only persuade McCain to go windsurfling...

("[The majority opinion] will almost certainly cause more Americans to be killed", "The Nation will live to regret what the Court has done today.")

Right words, wrong timing. He should have said this the day the Court handed the presidency to George W. Bush back in 2000.

The McShuffle is at it again. Dancing his way to and fro and watching him say one thing one day and then completely reverse himself the next is like watching someone play Pong by themselves. Boring.

I think McCain will hand Obama the POTUS on a platter at the rate he's going. A slow descent into inarticulate ramblings based on ineffectual thinking results in a candidate that is only slightly less unnerving that Bush. Don't let McShuffle's ability to pronounce nuclear correctly confuse you into thinking he's a coherent and capable candidate of maverick magnitude.

Oh, please, adamvaught.  Obama wasn't a "professor."  He just "lectured."  Jeez.

I like how the minority in the court thinks that a freedom so fundamental that it was in the freakin' Magna Carta is too "generous."

Barnacle,

I think the Chief wanted Habeas Corpus to play catcher.

Scalia will be mad as hell when he finds out Roberts has been playing both pitcher *and* catcher, barnacle.

"one of the worst decisions in the history of this country" not strong enough, make that the world, nay the whole universe. I am cowering under my desk as I type this for fear Al Qaeda types will be released in my neighborhood.

Memo to McCain, stay invisible until November, let the right wingers make Obama unelectable and hope for the racist vote to come out in droves, seems more like a winning strategy than this.

As Dahlia Lithwick points out over at Slate: "Scalia points to the 30 detainees released from Guantanamo—by an order of the Bush administration, not a court, it should be noted—who have allegedly "returned to the battlefield." One detonated a suicide bomb in Iraq in May. Scalia notes that this "return to the kill" happened even after "the military had concluded they were not enemy combatants" (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia's mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives. For this proposition, Scalia cites the trial of Omar Abdel Rahman in federal court in 1995, in which the names of 200 unindicted conspirators were leaked to Osama Bin Laden. Just to recap, then, everyone at Guantanamo is guilty, and the mere act of trying them will result in more American deaths. This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can't reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed."

Of course McCain had to start pushing against the Bourmediene decision.  I'm sure one of his staff reminded him that he sponsored and drafted the Military Commissions Act that they found an unconstitutional substitute for habeas corpus.  

What will happens is that enemy combatants, instead of being brought to one centralized prison at Gitmo, will be left in an archipelago of military bases or turned over to countries like Egypt and disappear into various hell holes.

The Gitmo inmates will be praying to be back in their orange suits in Cuba.

I too was wondering why Scalia was so concerned with a patricular mag, is TNR going to responed about this rank favoritism?

Since he is such a towering intellect I guess we should not question his thoughts.

Adamvaught: your mentioning Dred Scott and Plessy is clearly another attempt by Obamabotphile Kool-Aid drinking liberals to play the race card.

Chan - thanks for the refreshing honesty.  It has been clear for many years that the Bush Administration has no concept either of decency or of law, domestic or international.  You're right.  As long as there is a criminal gang at the head of the US Administration, one never knows where detainees might disappear into.  I guess the US is finally catching up with the methods it taught such great paragons of democracy as the Argentine junta, the Shah and Pinochet: how simply to make people disappear instead of having to deal with them in open court.

This is why I like about Channy.  Much like Cheney and Scalia, he is honest about the disdain in which he holds US rights and liberties.

For your sake Channy, I hope this is not how you propose to teach democracy to those illiterate A-rabs.

Okay, if we have no intention of recognizing human rights, persist in advocating torture as state policy and continue to use legal blackholes like Gitmo, we should forgo the legal facade and just shoot prisoners at of hand. Frankly, the prisoners would prefer it and execution would be easier than parading out these dudes for that kangaroo court.

What a disgrace. We're the United States - we don't do these things. Hell, we haven't had this debate since before the Civil War. Somebody should tell Scalia.

icarusr,

Damn. You caught me.

Y'all may like the decision, but Kennedy admits that the holding is unprecedented.  He's right - I fail to see that habeas attaches to non-US citizens captured overseas on the field of battle.

The decision is every bit as bad as Korematsu - only 180 degrees the other way.  Over the long term, it will have the likely effects of creating fewer enemy combatants, because at the margins they will, in fact, be killed on the battlefield, and it may endanger lives (not just American).  Some of these guys will be released due to the difficulty of collecting evidence (which no one thought to do) in the middle of a war.  They may repair to their old neighborhoods, and take up their former day jobs of killing people.

We don't do these things?  YGBSM.  No, we firebomb cities, oh, and nuke 2 as well.  Please.  Those of us who believe that we are at war believe that it is not the task of the military to collect evidence and arrest suspects, but rather to kill people and destroy property, because that's what militaries do.

Adam, Ratnerstar

Thanks for catching the joke I pitched.

Wait.

I may be missing some central point here, but the following appear to me to be worth taking into account:

1.  It has been six years since most of the inmates were captured -- hence the intelligence value that any one of them may have had is now low to non-existent.

2.  Significant damage has been done, and is being done, to our claims to be a nation of laws that guarantees basic rights.  The concept that the U.S. or indeed any country has the right to detain people indefiintely without due process is one that only the ugliest and most authoritarian regimes could be comfortable with.   We are rightly accused of demanding from others what we don't provide for ourselves.  The more we appear to be acting, even in the context of counterterrorism, with a view to our basic civilized values, the more those values gain in strength.

3.  "Captured on the battlefield" has been proven to be so much humbug.  Many of the prisoners came into the system via forces such as the Northern Alliance and handed over to the U.S. already marked with the label "terrorist" -- the fact that (a) rewards were involved and (b) personal feuds played a role has been studiously ignored by the administration and the DoD.

4.  The court's decision is about the value of the Constitution and the Executive's responsibility to uphold it.

5.  Looking at the implications of 1-4, one intelligent way to proceed would be to close down Gitmo asap.  Prisoners against whom there is only circumstantial evidence of any offense should be released and assisted to restart their lives (if they wish) and those against whom evidence of criminal acts exists, should be tried in federal court.

I don't see your point of view at all on this butchie.  Not even a bit.  The Fifth Amendment applies to persons, not citizens.  If a soldier in uniform captured on the field of battle wanted to bring a habeas petition, he would have to assert some facts that made it inappropriate for him to be held as a POW under international law.  Otherwise he would have no substantive claim to make and the petition would be dismissed summarily.  You still have to be able to state a prima facies claim. One assumes that a person who could assert such facts (hard to imagine what they would be other than fraud of some kind) would presumably be able to bring a petition.  

The whole problem with the Bush approach is the attempt to address a substantive status issue -- who can and should be held -- by screwing around with habeas corpus jurisdiction.  The Bush idea is that he should be able to kidnap whomever he wants to, decide who should be held for reasons good and sufficient to him, and then prevent it all from being subjected to any independent review.

It is a disgrace to our country that this self-proclaimed judicial strict-constructionists who are actually reactionary judicial activists sit on the Supreme Court.

And say butchie,

Does it matter which people we kill and which property we destroy while we are fighting this war, or will anyone and anything do?

"Some of these guys will be released due to the difficulty of collecting evidence (which no one thought to do) in the middle of a war"

Just a note, but the DoD has been collecting tons of evidence since at least the 1st gulf war; they thought to do it a long time ago. I'm thinking the majority are going to be release for lack of evidence, but that lack of evidence is not going to be for lack of tryng.