Been a busy morning, already been to Clemson and back. I hate to cheat at this but I'm going to do some copying and pasting this morning. George Wills Op-Ed piece this week in the Washington Post is worth the read. For those that missed it and don't want to go through the effort to subscribe to the Post, I am posting it in my blog. For those of you who don't know, George Will is a conservative writer and news celebrity. He hits the nail on the head with this though. Enjoy the read.
"And I've just got to wonder what my Daddy would've done
If he'd seen the way they turned his dream around
I've got to go by what he told me, try to tell the truth And stand your ground
DON'T LET THE BASTARDS GET YOU DOWN"
Kris Kristofferson..."
Don't Let the Bastards Get You Down"Syd (Have a Great Week-end)
Contempt Of Courts
McCain's Posturing On Guantanamo
By
George F. WillTuesday, June 17, 2008; Page
The day after the Supreme Court ruled that detainees imprisoned at
Guantanamo are entitled to seek habeas corpus hearings,
John McCain called it "one of the worst decisions in the history of this country." Well.
Does it rank with
Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?
Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court -- meaning, which candidate would select the best judicial nominees -- a campaign issue.
The decision, however, was 5 to 4. The nine justices are of varying quality, but there are not five fools or knaves. The question of the detainees' -- and the government's -- rights is a matter about which intelligent people of good will can differ.
The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo's approximately 270 detainees, many certainly are dangerous "enemy combatants." Some probably are not. None will be released by the court's decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.
As such, the Supreme Court's ruling only begins marking a boundary against government's otherwise boundless power to detain people indefinitely, treating Guantanamo as (in
Barack Obama's characterization) "a legal black hole." And public habeas hearings might benefit the Bush administration by reminding Americans how bad its worst enemies are.
Critics, including
Chief Justice John Roberts in dissent, are correct that the court's decision clouds more things than it clarifies. Is the "complete and total" U.S. control of Guantanamo a solid-enough criterion to prevent the habeas right from being extended to other U.S. facilities around the world where enemy combatants are or might be held? Are habeas rights the only constitutional protections that prevail at Guantanamo? If there are others, how many? All of them? If so, can there be trials by military commissions, which permit hearsay evidence and evidence produced by coercion?
Roberts's impatience is understandable: "The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date." Ideally, however, the defining will be by Congress, which will be graded by courts.
McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, "quote 'First Amendment rights.' " Now he dismissively speaks of "so-called, quote 'habeas corpus suits.' " He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as "the great writ of liberty."
No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America's Constitution, which limits Congress's power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees' habeas claims?
As the conservative and libertarian
Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, "is a separation of powers principle" involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.
In Marbury v. Madison (1803), which launched and validated judicial supervision of America's democratic government, Chief Justice
John Marshall asked: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.
Well I survived 3 straight days of playing golf in Myrtle Beach this week-end. We had an unbelievable time, the hospitality and the golf courses were un-real. We played at Grande Dunes resort and members courses over 3 days. The event in its 7th year is held by the resort and the Mariott as a fund raiser for the Make-A-Wish foundation of South Carolina. I invited my brother-in-law and his wife as well as a client and his fiancee from the College of Charleston. It's going to take a while for Charlie to repay this week-end. Here is a picture of myself and Josh Bryson from the College of Charleston and Perry Tuttle of Clemson/SI Cover Fame. We actually played Sunday with Adrien Morrell, an ex-NYJet running back. The food was great also. The other big news was that I actually won the closest to the pin on Sunday. Not a bad week-end at all.
