The Ball is Now in the Supremes' Court

Now, maybe as early as next week, come the lawsuits challenging the constitutionality of the just-enacted detainee legislation. It is likely to be challenged on many different fronts and its enforcement perhaps even will be stayed pending that judicial review. And, ultimately, the whole shebang could wind up on the steps of the United States Supreme Court. Twice before, remember, in 2004 and 2006, the High Court has rejected the Bush Administration's terror detainee arguments.

I wonder what the Justices are thinking this morning as they read and hear and see coverage of the passage of the new anti-terror law. I wonder if some of them see it, as many others do, as an affront to their own authority to determine and protect the rights of individuals. I wonder if some of them already are thinking of ways in which to discount Congress' effort to take away from all future detainees, including legal residents here in the States, the right to challenge their detention in federal court. And I wonder if some of the Justices understand that they, too, will be judged by history in large part upon how they react to this legislation.

With the passage of this terrible law, the "other" two branches of government have combined to try to ace the judiciary out of the detainee business. Congress and the White House through this legislation have made it measurably harder-- soon, perhaps, we will know whether they have made it legally impossible-- for the federal courts to accept and resolve detainee cases. Soon we will know, too, whether the latest White House plan to try the Guantanamo Bay detainees passes the baseline legal tests that it needs to. A great constitutional showdown is at hand and if anyone tells you they know how it will turn out they are lying.

By Andrew Cohen |  September 29, 2006; 11:30 AM ET
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Well, there's hope that, unlike the other two branches, the Judicial will actually consider the impact beyond the next election and retaining power for the GOP. If they do, then they'll be the heroes of this century. If they don't, the slide into dictatorship will be assured. After all, what would stop some anonymous political appointee to settle scores by finding, say, a newspaper column, as supporting terrorism. And if 'aggressive' techniques produce such good evidence, well, why aren't we using them against the thugs, punks, and drug pushers? After all, they must be guilty, otherwise they wouldn't have been detained. Right?

"Torture: It's not just for foreigners anymore."

Posted by: Michael | September 29, 2006 11:48 AM

Mr. Cohen:

Any chance you might go back and correct your prior entry which states that the new Act applies to US citizens?

I imagine by this point you're aware of the error. It would be helpful (and in keeping with the standards you seek to impose on the Administration) if you would recognize your mistake.

Posted by: dbett | September 29, 2006 12:24 PM

Well, now we know, if we did not already, why the Bush Administration has been so anxious to pack the Supreme Court with Justices who share its . . . um . . . "expansive" view of presidential authority. Assuming that Republicans retain control of the Senate, as now seems likely, the Administration stands an excellent chance of getting one more sympathetic Justice on the Court. That should ensure five votes to approve this legislation and whatever other dictatorial powers the Administration can obtain from a Republican-controlled Congress.

Posted by: Steve | September 29, 2006 01:02 PM

Where lost the land of the freedom?? years ago it dreamed about someday going to live to America, today I thank for the luck to live in Argentina, a Third World Country, but individual liberties and democracy, what the money cannot buy.

Posted by: Matias | September 29, 2006 01:03 PM

Just a question for folks bemoaning the loss of the Constitution?

If you were in Bush's place (as all powerful "Dictator"), how would you deal with terrorists captured abroad by US military forces?

Would you give them trials in civilian criminal courts? Just let them go? Try them in front of military commissions, but give them full rights as if they were criminal defendants?

Posted by: dbett | September 29, 2006 01:14 PM

dbett: At least as of this morning's radio news reports, the issue of applicability to US citizens was still a topic of debate on the Hill. The comment is therefore still relevant.

Posted by: jd | September 29, 2006 01:19 PM

Terrorism isnt some unique American problem like we have started to think and act like it is. It is a world problem it has been around a lot longer than Sept 11, 2001. If we were a country as we have always claimed that believes in the rule of law we would be working with other nations to hold some sort of World Court where these people could be prosecuted.

It is not the prosecution of terrorists that those of us who have issues with this bill are worried about it is the prosecution of SUSPECTED terrorists essentially without a trial and the TORTURE of said SUSPECTED terrorists without knowing if they are truly quilty or just in the wrong place at the wrong time. Which incedently has been proven with some of the Gitmo Detainess people who were released after years of captivity and questioning sometimes by harsh means with no means of getting out even if they were innocent.

No one wants the actually terrorists caught more than most people who have issues with the passage of this bill. It is the way in which we are trying to go about it that we take issue with. We can not hold ourselves up as a beacon of light and hope when we are removing those very things from innocent people. Show me they are truly terrorist not just suspects before we rush to say Torture and Prolonged Imprisonment are okay. Alls we the American people want from our elected officials is a show that we are not a nation who is willing to throw away the very things we were founded on because we are scared children.

Posted by: April | September 29, 2006 01:26 PM

To dbett- actually I do sympathize with the administration on this one. Of all the situations that have developed, this one is probably the least palatable. In a lot of ways there are few good options. Keep a hundred men locked up because some of them might be guilty of something or let a hundred men go free because some of them might be innocent? It's a tough one, no doubt but this bill is among the worst of a lot of bad options. Just look at what it says- only those selected for prosecution (those who government believes it can prove something against) will be allowed to challenge their detention in court. Those who are not to be prosecuted, probably because there is no evidence against them (at least possibly because they didn't actually do anything), will not even be allowed to go before a court to ask why they have been detained. At least Napoleonic law and assumption of guilty until proven innocent gives the defendant the right to eventually try to prove his innocence. Sometimes authorities make mistakes. But we are of course up against an enemy that will exploit every possible loophole to their advantage. That is why this kind of bill deserves an actual studied debate, not last minute double overtime legislative posturing for the election season. These people have been in detention for five years. Another couple of months to have an actual debate on their status will make a difference?

Posted by: bran-solo | September 29, 2006 01:39 PM

I wrote this yesterday. A little oversight of the Administrative Branch would go a long way.

Today it's offical we can longer say America Does Not Torture. Nor can we ever claim that our country is great because we have checks and balances in place to make sure no one man ever has all the power.

September 11,2001 accomplished so much more than the terrorists who attacked us ever thought it would. As we go around the world promoting American style democracies we are as I write this moving farther and farther away from the things we have always held dear. Other countries have struggled with terrorism far longer than we have and today we tell them to become democracies that it will help stop terrorism does anyone else not see the ironies in these statements. One attack 5 years ago changed the very fabric of our democracy yet we expect these people to have the courage to stand up to tyrants, to change their countries to be more like us. We have the nerve to tell them: we are better than them, smarter than them, and more right than them. When we as Americans have become cowards, children cowering in the dark, wanting someone anyone to protect us by whatever means that person deems necessary. Notice I say person not people not our government but a single person vested by his party to totally take control of what we the American people have the right to have a voice in. Over the last 5 years we have watched the coronation of a king today we watched in horror at they crowned him.

I cried today and I said something I have never thought I would say thank God my peace loving beautiful baby girl who believed so passionately in the Idea that is America that she argued, begged, badgered people to pay attention is not here on this earth to see this.

Today I cried not only for my children but for all our children because at the end of the day it is our children who will pay the ultimate price for the poor judgment shown by not only our President but our elected officials people charged with overseeing the Administrative branch people put forth by our constitution to make laws and have oversight of those laws and the biggest part of their job to make sure we uphold the constitution of this country they have failed us, they failed me, and you and even those who still believe they need to cower in the dark.

We can not promote democracy even as ours goes done the drain we can not claim we want to make someones life better while our own goes down the drain we can not and should ask people in other countries to take a chance at Democracy when our own fledgling democracy could not stand one great test.

They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
Benjamin Franklin

Everytime this administration tramps on the constitution in the guise of keeping us safe I think about this quote. I guess he would know since he was one of our Founding Fathers, but maybe this is open to broad interpretation like all those other pesky laws and bills and agreements.

Posted by: April | September 29, 2006 01:47 PM


July 4, 1776 - September 27, 2006

Posted by: Average Joe | September 29, 2006 05:31 PM

Hurrah for the legislation going to the Supreme Court. Unfortunately, do not expect a call-off of this joke. Just because the Supreme Court is had by some pretty smart people... does not mean there will be light at the end of this tunnel.

Case in point> Wolf Blitzer.
This is the guy that takes up a large portion of CNN's news day. His "Situation Room" is nifty and he has lots of correspondants and monitors and he seems like he does alot of prep for the coverage. Although, even a guy that seems as smart has he does did not critically challenge the fact that this whole entire development is no good when he openned with this statement:Just moments ago, a critical victory for President Bush in the war on terror.

What was possibly going through FOX Blitzer's mind when he said that? Was it a slip-up? He always speaks slowly and he was starting his piece, the odds of making an error usually happen towards the end of speaking. Was this the result of not enough sleep? He looked well rested. Is Blitzer secretly a conservative? I do not know or care. Anybody who has this much disreguard for the rights of us all compounded by the fact that this whole terrorism threat is hyped by the right wing to begin with for power, that the truth is that this menace still remains over seas ("we are fighting them 'over there', so we don't have to fight them 'over here'") and that this type of radical legislation is not needed just shows that just because you are a newsy intellectual does not mean that you will automatically not take to this debautchery. The Supreme Justices may just be as weak as the Senate, the right wingers, and Wolf.

We must get back the right to donate to Middle Eastern charities. There are third worlders in the Middle East that need our help just as much as any other region of the world, and the government --- if they pass this bill --- are just as wrong as the governments in poor Middle Eastern nations who may use the money for their own advantage and not the people. I do not get why we are so unsure of the Middle East where they have to resort to charity spying in the first place? This government has been in the Middle East so long that they should know much of the place by now, and not need to do that.

What I am trying to say here is, yeah, the ball is in the Supremes' Court... but who are the players? Robert Alito! Antonin Scalia! Sandra Day O' Connor!... the ball had better be in the Americans' court soon --- no one elses, especially not any erudite world leaders. At least, not like these people.

(Special note: Thumbs up for Media Matters for America for the Wolf Blitzer alert. This comment would not have been the same without them.)

Posted by: Oh, to have a Blog | September 29, 2006 06:32 PM


Nice response. I have been calling on Congress to address this issue for about 4 1/2 years. It's too bad that they only got around to it as the result of the SCt's recent decision. But regardless, further delay is hardle what's needed.

Posted by: dbett | September 29, 2006 07:14 PM


I'm not sure who is still "debating" what is crystal clear from the language of the Act.

Posted by: dbett | September 29, 2006 07:15 PM

"land of the brave
home of the free.."
are the bravesĀ“ hands usable for torture?
are we now free to incarcerate whoever and whenever for real or imagined threats?

Posted by: mmaung | September 30, 2006 03:44 AM

dbett: I struugle with phases like this:

"how would you deal with terrorists captured abroad by US military forces"

When someone is captured and defined as a terrorist, that isn't detention, it is judgment. It is guilty without the right to a defense.

Exactly when did our military become police enforcers, trained to differentiate the difference between a terrorist or supporter of terrorism and an innocent civilian? Doesn't Haditha stink of the same wrongful judgment?

Posted by: rm | September 30, 2006 07:49 AM

It's all an insidious plot: future Pres. H. Clinton or Pres. McClain will name GW an "illegal enemy combatant" when Rove or Cheney turn state's evidence to save their own skin or simply to sell a few books. Both know where the Saudi Royal family skeletons hang in the the Bush family closets. This approach is much easier and less messy than impeachment proceedings, and more permanent, essentially banning the king to the dungeon. Come to think of it, the next president could designate the entire White house staff plus Cabinet (and Poppy too for good measure) on Inauguration Day, 2009, and start the next Administration with a clean slate.

Posted by: 22Tango | September 30, 2006 09:48 AM

As I read the various opinions and denials that sketch out the death of the Republic, that map the rough geography of a rogue administration determined to enforce democracy abroad while stubbornly building a hardline theocratic regime at home - underneath it all I hear the jangling, discordant anthem to anarchy of the Rolling Stones...."hear the screams of Centre 42; loud enough to bust your brains out...the opposition's tongue is split in two...keep off the street, 'cause you're in danger".

Cuddle up tight, baby.

Posted by: Mark | September 30, 2006 11:47 AM

Don't count on the Supreme Court to right this sinking ship. Gonzalez is now making very public not-so-veiled threats toward judges who disobey the president 'during war time'. Are we at war? Doesn't Congress have to declare war. Or is his idea of declaring war one of those quaint notions like the Geneva Conventions?

Posted by: Paul Sutton | September 30, 2006 10:06 PM

I'm disgusted with my government and so many of my fellow citizens. So many of them would toss aside our most basic constitutional liberties because of one sucker punch on September 11th. The fearful, cowardly and ignorant wave the flag and still call America the home of the brave. Americans who supports this steady slide into fascism are betraying their heritage

Posted by: Ramblin Irishman | September 30, 2006 10:46 PM

Apparently it is true that the only thing we learn from history is that we do not learn. I love my country, but I am thoroughly ashamed of choices made by my government. While Canada addresses an injustice in which it participated and seeks to find the truth and make reparations, my government ignores its sins and covers up its nakedness.

As a child I met bishops imprisoned under the Nazis. The extent of the torture I do not know since no one would have given much in the way of detail to an eleven year old. I do know that Bishop Lilje of Germany was on, I believe, two separate occasions taken out to be shot as a coersive interrogation technique. I remember thanking God that we lived in a different society. Now I find that my society is as filled with evil as that one is.

Goodness is not a product of loyalty. We cannot presume that "we" are good and "they" are evil. Evil deeds define evildoers...we have obviously joined the ranks. May God have mercy on our country and turn us from this path.

Posted by: Nikka Gornitzka Ziemer | September 30, 2006 11:23 PM

Well, I'm italian, here in the Us since january 2001, I have to admit I changed my very pro-american views into first disbilief (how can this country disavow its core values that a lot in the world admired so much and made the american system so appealing to outsiders) and then sadness and anger. I can assure you in the foreign academic community the feeling is exactly the same. People start to think that maybe in the years leading to fascism in Italy and nazism in Germany the populace felt the same but the drift at the end lead to what it lead. How long before an "unethical president" decides that his political foes are to be considered "terrorists" and treated according to this new bill (aka put in jail indefinitely and maybe interrogated, or his family members....), I cannot believe the american people don't see the slippery slope they are entering.
This president and congress are betraying not only the american people but all the people in the world that have always seen America as a role model, you can already see this if you travel outside the US, americans are not welcome anymore in a lot of places and if I have to be sincere I wouldn't be surprised if the slowing in the economy is due in part on foreigners not wanting anymore to deal with americans. As for me and my family? We are moving to Canada, I don't want my kids to be americans anymore.
sincerely, Alessandro

Posted by: alessandro biglioli | September 30, 2006 11:37 PM

From the relative safety of Canada, I can't believe the weeping over this new detainee law by American liberals.

Hello ! latest news flash.. Iran wants nukes, Al Quida want WMD recruits... they want to party with your lives !

Terrorist KSM apparently became cooperative after only a few minutes of water-boarding... who knows how many lives were saved ? Being soft on terrorists will save NO American lives... and likely only guarantee nukes in New York.

Nothing short of abandoning Israel, mass conversion to Islam and implementing Sharia law.. is going to make a difference... you guys are the PRIME TARGETS !

Stop worrying about what feckless, frightened, and envious Europeans and Arabs might think of America... they REALLY don't give a HOOT... especially about American morals.

Better get REALLY tough, fight alot harder and dirtier, or prepare to die.

Posted by: Peter Wilson | October 1, 2006 01:14 AM

April, I feel for you and for all America. Just as the Germans handed total power to Adolf Hitler in the 1930s, so the American system is handing unprecedented power to the president, in the process destroying its much vaunted democracy based on 'checks and balances'. If only the person they have entrusted with all this power was infallible!
At the end of the day, the American people will suffer most from the abandonment of the lofty values based on the power of the people

Posted by: PW | October 1, 2006 03:23 AM

brackets needed:

Better get REALLY tough, fight [the Contitution] alot harder and dirtier, or prepare to die.

Posted by: Oh, to have a Blog | October 1, 2006 11:09 PM

PW: The Germans handed the country to Hitler based on a manipulated premise: Terrorists had attacked the Reichstag and marshal law had to be implemented; when in fact it was Nazi hardliners who burned the Reichstag to foment public support for their total-war policies. The parallels are truly frightening. A letter writer in my small local paper makes the point today that the term Islam fascists is a misnomer. True fascism is the partnering of the state with corporations to diminish personal liberties and increase state-corporation profits.

Posted by: Dave | October 2, 2006 06:15 AM


It is my understanding that portions of the Act do indeed apply to US citizens, namely the definition of "unlawful enemy combatant" as any "person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States..." Most legal analysis I've read is construing that definition to authorize indefinite military detention of anyone, including US citizens, the President or Secretary of Defense designates an unlawful enemy combatant.

The habeas suspension provisions of the Act apply only to aliens (including those in the United States and its territories). United States citizens designated by the DoD as unlawful enemy combatants and subject to military detention would presumably still retain the right to bring a petition for a writ of habeas corpus before a civilian court in order to challenge their UEC status.

Posted by: S. Hayward | October 5, 2006 07:54 PM

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