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June 12, 2008

Bush on Boumediene
Posted by Adam Blickstein

The President shockingly disagrees with this morning's decision:

""We'll abide by the court's decision. That doesn't mean I have to agree with it...It was a deeply divided court, and I strongly agree with those who dissented. And that dissent was based upon their serious concerns about U.S. national security."

Well, he is 0-3 in Supreme Court cases questioning the constitutionality of his detainee policies so I understand he's bitter after once again being defeated by those pesky American institutions of the constitution, separation of powers and general rule of law. And as for those serious concerns about U.S. national security? I defer to Antonin Scalia:

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us.  It will almost certainly cause more Americans to be killed.

That right there is a very serious, astute, and judicious argument worthy of a Supreme Court Justice, don't you think? Then there's this again from the President:

Bush said his administration will study the ruling. "We'll do this with this in mind — to determine whether or not additional legislation might be appropriate so we can safely say to the American people, 'We're doing everything we can to protect you.'"

Um, does Bush understand that the Boumediene decision largely reverses a portion of legislation (The Military Commissions Act) he helped ram through Congress in 2006? Well anyways, good luck getting a Democratic Congress to approve any similar legislation, after the Supreme Court already ruled said legislation unconstitutional, during an election year.


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While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."

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As pointed out, the ruling doesn't require anyone to be released. And if we assume arguendo that in fact, (at least some of) the previously released detainees were in fact enemy combatants released to go engage in further hostile or criminal's worthy to ask whether perhaps a different group of people examining the evidence might not make a better determination than has been done under the system that Scalia (and "Bart") is so vigourously defending here. If fact, it almost reeks of Scalia's sidign with the majority in Dubya v. Gore, where Scalia insisted that the very evil he proclaimed to be so concerning should be the result of his preferred "remedy".

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