Oscar Jr. Was Here

Thanks, SCOTUS!

Here's the conclusion to Justice Scalia's opinion (Adobe Acrobat document) dissenting from the Supreme Court's Rasul (Gitmo detainees) decision:

Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation’s conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute, instead of by today’s clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent.

(footnote omitted.)

Today, on NRO, Robert Alt discusses the decision. Key excerpt:

Most important, the decision will have a deleterious effect on the military's ability to carry out the war on terror. The evidentiary issues arising from presenting testimony from the war zone are larger than the Court concedes. Indeed, one need only look at the district court's opinion in the complementary Hamdi decision, in which the lower court requested statements from field combatants who were not in the U.S. military, but rather were members of the Northern Alliance, in order to understand how deeply this decision inserts the courts into military processes. The Supreme Court recognized this 54 years ago in Eisentrager when it found that

such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.

Argh.

Posted by oscarjr at June 29, 2004 11:22 AM | TrackBack