More Lies and Half-Truths on the Gitmo Decision

Let’s start with John Yoo, who declares in the Wall Street Journal that last week’s SCOTUS ruling is “judicial imperialism of the highest order.”

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court’s “activism” for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy — joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer — saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court’s word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.

The Boumediene five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Well, this is rather funny. Isn’t John Yoo the guy who argued for the Unitary Executive theory of presidential power? That Congress has no right, under the Constitution and the War Powers Resolution, to place any limits on the president’s broad authority to conduct foreign policy as he sees fit? And now he’s saying that the Constitution “grants all war powers to the president and Congress“?

You might think the Gitmo nightmare is that such a place exists at all, but if you write for The Weekly Standard, the nightmare is that the Supreme Court is making it so hard for the executive branch to keep it a legal black hole.

Sadly, No! gives us the Cliff Notes version:

  • The Supreme Court’s decision is bad.
  • Compromises between the executive and legislative branches, when done in good faith, are inherently constitutional.
  • Neither lawyers nor judges should have any real influence over the conduct of the war on terror.
  • Proper deference means never disagreeing.
  • Anyone detained by the government on suspicion of terrorism is necessarily guilty.
  • The Supreme Court should write laws for the legislative branch if the latter is unable to come up with something constitutional.
  • The Supreme Court failed to outline every possible result of granting habeas rights to suspected terrorists. That’s a bad Supreme Court!
  • You want scary? Here’s scary — Scalia Scary:

    And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

    I’m not sure which is more disturbing: that Scalia thinks proving to a court that evidence supports confinement is an impossible task — or that he obviously doesn’t think such evidence need be provided.

    2 Responses to “More Lies and Half-Truths on the Gitmo Decision”

    1. Paul Strauss says:

      I agree that the Supreme Court is right and the Bush Administration wrong. I just want to add one of the absurdities of the right-wing position:

      Yoo says: “In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court’s word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.”

      Well, of course, the Supreme Court NEVER said “Guantanamo is not part of the USA,” and it never said “USA law will never apply in Guantanamo.” In fact it never said anything about Guantanamo. But there was some evidence that perhaps Guantanamo might be considered USA territory for the purposes of law. And that is so obvious we all forget it. For someone to argue that Guantanamo is not subject to US law, you have to ask why, and the answer to that is that you claim that Guantanamo is not really US territory, it is Cuban territory. And that in turn implies that you think Cuban law should apply, and the right wing surely does not think that.

      Anyone interested in the Guananamo situation should read this and the other articles in the package: http://www.mcclatchydc.com/259/story/38773.html

    2. The Heretik says:

      And now he’s saying that the Constitution “grants all war powers to the president and Congress“?

      A little late for Yoo. And well noted for its timely absurdity.

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    1. The Detainee Report | Comments from Left Field - [...] John Yoo’s deeply dishonest Wall Street Journal op-ed (which I also wrote about, here and here). The lies, Glenn…

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