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Posted by: McQ on Friday, June 13, 2008

Michael W has his first installment about the SCOTUS ruling concerning the Gitmo detainees up at A Second Hand Conjecture:
The recent Supreme Court case involving Guantanomo Bay (GITMO) detainees and writs of habeas corpus promises to be one of the most significant opinions for decades to come. Not because it grants foreign citizens the right to challenge their detention in U.S. civil courts (although that’s huge), nor because the decision will lead to possible terrorists being set free in the U.S. (which is almost inevitable), but because it sets a new standard for the power of the Supreme Court. However, no matter the angle from which one approaches the case, constitutional scholars will likely not tire of discussing its implications and applications for quite some time. This post will concentrate on just one of those angles (with others hopefully to follow).
Head on over there and read the whole thing (but don't forget to come back).
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Previous Comments to this Post 

Well, it’s not just one of the "most significant opinions." It’s a flat-out attack on the Constitutional power of Congress to control the jurisdictions of federal courts.

The "balance of powers" and "separation of powers" in the Constitution should never be taken as literally balanced and separated, only somewhat balanced and separate: the Constitution in fact clearly creates a government of Congressional supremacy. Period. What the Court does in this decision is to rebel against that fact and declare, contra the Constitution, a Judicial supremacy.

One of the powers of Congress is to create the federal judiciary below the Supreme Court, which is the only court established by the Constitution, and to determine the jurisdiction of those federal courts.

It was Congress, working with the Executive, that was trying to accommodate some objections that the Supreme Court had to the way that enemy detainees were being handled vis a vis military review of their status. It was Justice Kennedy, the author of the majority opinion in the current decision, who specifically asked for those accommodations.

By acting as it has the Supreme Court has in fact initiated a Constitutional crisis that this pusillanimous inert Congress will ignore until it is too late. This is what the federal government has come to in its own understanding of itself.

So, this isn’t just a "most significant opinion." It’s a declaration of civil war by the Judiciary against the Congress, which is why you (should) feel such an odd resonance coming off the situation.

Unfortunately, the Congress will capitulate, though it could certainly fight back, up to and including stripping the Supreme Court itself of the jurisdiction to review any further habeus issues originating with alien detainees outside the U.S. for the purposes of military confinement.

"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Additionally, with it’s power to create all federal courts inferior to the Supreme Court and its power to determine how to deal with violations of the laws of nations (laws of war), the Congress could specifically take any jurisdiction over the habeus issues originating with the military confinement of enemy detainees away from the federal judiciary as a whole. As it was, with the Military Commissions Act of 2006, the Congress gave detainees a final appeal within the federal judiciary to the D.C. Circuit.
Written By: Martin McPhillips

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