Wednesday, June 25, 2008

Scalia Activist Judge

The dissent filed by Antonin Scalia in Boumediene v. Bush was scathing concerning the dangers of releasing Guantanamo detainees.

"At least 30 of those prisoners hitherto released from Guantánamo have returned to the battlefield."

It is flatly untrue. Seton Hall University School of Law calls Scalia's contention an "urban legend," based on misinformation provided by DoD to the Senate Minority Report of a year ago.
On December 10, 2007 The Seton Hall Center for Policy and Research issued a Report,
THE MEANING OF "BATTLEFIELD": An Analysis of the Government’s Representations of
‘Battlefield Capture’ and ‘Recidivism’ of the Guantánamo Detainees, which demonstrated that
statements asserting 30 detainees had returned to the battlefield were incorrect. Further
developments since then, including recent hearings before Congress at which more information
was provided by the Department of Defense, confirm that the 30 recidivist claim is simply
wrong and has no place in a reasoned public debate about Guantánamo.

This report is Senate Report No. 110-90, pt. 7, p. 13 (June 26, 2007), Minority Views of Sens. Kyl,
Sessions, Graham, Cornyn, and Coburn; easily the usual suspects when fear mongering is about. It wouldn't be quite so disgraceful if it had not been refuted by the same entity that made the claim initially:
First, a Department of Defense Press Release in July 2007 belied
both Mr. Dell’Orto’s testimony and the Minority Views relying on it. Second, and even more definitively, a Department of Defense document produced at a House Foreign Relations Subcommittee Hearing on May 20, 2008 abandons the claim of 30.
The actual number may be 12 although there exist acknowledged mistakes by DoD in identification. Of these released detainees not a single one was released by a federal judge or as a result of Habeas Corpus. These releases were the responsibility of and actions by DoD.

A recent suicide bombing by a former detainee, ISN220 has something to say to us, this detainee was captured as he attempted to escape to Pakistan from Tora Bora, the military identified him as having trained with Al Qaida after going AWOL from Kuwait and being issued an AK47 and ammunition by them. He acknowledged participating in Taliban fighting and that he wished to harm Americans and was committed to jihadism. The military did not wish him released and yet he was. The relevant documents are redacted concerning why and what action was taken concerning ISN220 or Al Ajmi.

What ever Scalia was on about:
“[the Court’s decision] will almost certainly cause more
Americans to be killed.”
certainly has nothing to do with Federal Court review of Habeas Corpus and may have everything to do with essentially capricious decisions by Guantanamo Bay and politicians. If making a dissent based on untrue information regarding unrelated activities by unrelated entities is a basis for corrupting one of the oldest English law traditions enshrined in our Constitution in incontrovertible language isn't Judicial Activism I'm real unsure what that term is supposed to mean. It would appear to be, in this case, whatever a Republican fear-monger wants it to mean.

Let me be clear about something, I understand that sometimes concepts become clearly radically wrong with the passage of time, such as a provision that a slave is 3/5 of a human, but addressing that wrong in the spirit of increasing liberty and rights maintains the spirit of limited government power envisioned in the Constitution and Bill of Rights. For the Supreme Court or a member to assert that any Constitutional provision should be abrogated to narrow personal liberty by the expansion of governmental power is plainly ludicrous.

As a document the Constitution as a whole spends little time verbiage on giving the government power, it primarily breaks that power up and severely limits it. There was a very clear understanding by the Framers that governments tend to attempt to accrue power at the expense of the citizenry and their liberty and that the tendency should be stopped at certain lines. Antonin Scalia has proven himself unworthy of the robes he wears with this dissent alone. He proposes on the basis of factually inaccurate statements to be in favor of an unlimited power of the Federal Government to hold incommunicado and rightless anyone that Government states it would. It would not matter if the statements were actually true, the establishment of tyranny should be met with determined resistance. Antonin Scalia should at the very least be denied the company of all thinking individuals and shunned by the public at large. Frankly a ride on a pole clothed in tar and feathers would be more appropriate than the dignity of robes.


KISS said...

Supreme court justice appointments are probably the most compelling reasons to vote for Obama. With conservatives on the court Gun Rights will be kept, but on social issues we need more liberal justices. No matter what, the supreme court is usually made up of extremists on both sides.

jsg said...

So. A hypothetical risk to human life (or at least American human life) justifies the elimination of h.c.

Is Scalia mad with fear, or just mad?

You're right. Who cares?

Phil said...

Scalia could more righteously argue that America's continued presence in Iraq will almost certainly cause more Americans to be killed. Forget political correctness; it's not politically expedient for him to make that argument.

Chuck Butcher said...

I've probably said all I can about Scalia using polite words.