Time for Supreme Court to consider Detainee Cases - Page 2

11-13-2003, 05:38 PM

thanks for the detailed reply, timber. that really helped my understanding. a couple questions, if i may -

Quote:

Originally posted by Timber Loftis:
Substantive due process takes the PROCEDURAL requirement that you cannot be deprived of life, liberty, or property without due process, and warps it into a substantive right prohibiting legislatures from passing a whole slew of laws.

sorry, i must sound like a two-year old with this. is it that the courts have said "you are prohibited from making those laws", or is it that the legislature has realised that such laws are difficult to enforce due to judicial ruling and therefore just arent passing such laws anymore?

Quote:

Originally posted by Timber Loftis:
There's a ton I could write about this, but go read Robert Bork's book if you're interested.

which one? amazon lists quite a few. do you mean his latest?

http://www.amazon.com/exec/obidos/tg...glance&s=books

Quote:

Originally posted by Timber Loftis:
The problem isn't the Court growing more powerful vis-a-vis the Congress, but rather the fact that both have grown in power vis-a-vis you and I.

even without understanding the subtleties of the balance between the branches of govt, i couldnt agree more. balance is not just within 3 branches but across 4 groups. we the people hold that 4th power, power which we have abdicated.

hey, i like that. the 4th power. sounds like a book. call to arms! fire! workers unite!

edit: typos

[ 11-13-2003, 05:39 PM: Message edited by: sultan ]

Timber Loftis · 11-13-2003, 05:43 PM

I was referring to "The Tempting of America," but it's truly a legal work with social/political conclusions stemming from a detailed analysis of the law. It is quite astute, but has its flaws, and I'm considering bouncing some ideas off my old Con Law professor when I'm done with it, as I just can't find folks (even in a law firm) who are really anxious to delve into the heady Con Law issues. Real lawyers, you see, are very results/efficiency oriented, and don't want to hear the lofty academic BS. They just want answers.

Timber Loftis · 11-13-2003, 05:46 PM

Oh, and courts cannot prohibit legislatures from doing anything, they always act by striking down laws that offend the Constitution AFTER the laws are passed. In the modern era, the government gets some good mileage out of the interim time period. The Patriot Act, and the topic this thread began with are a fine example of this. Parts of it are just bound to be struck down, but in the meantime the administration has had a 2-year heyday.

You notice how this heyday works in shows like Law & Order, CSI, and Threat Matrix.

"Charge me or let me go."
"Sorry, I can keep you for 3 days, now, without charging you for anything. Or haven't you read the Patriot Act?"

Timber Loftis · 11-15-2003, 10:15 PM

ABA Journal

DETAINEES HAVE SOME POWERFUL ‘FRIENDS’
Impressive Amici Persuade Supreme Court to Hear Guantanamo Cases

BY DAVID L. HUDSON JR.

An impressive array of amicus briefs successfully urged the U.S. Supreme Court to hear cases filed by detainees at Guantanamo Bay, Cuba, who are challenging the legality of their detentions.

At least eight amicus briefs were filed, including some by former federal judges, three retired military officers and octogenarian Fred Korematsu, who was subjected to U.S. internment of Japanese Americans during World War II.

On Monday, the Supreme Court consolidated and agreed to hear the cases of Al Odah v. United States, No. 03-343, and Rasul v. Bush, No. 03-334. The court will determine whether U.S. courts have jurisdiction to hear claims filed by foreigners "captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base."

The U.S. Court of Appeals for the District of Columbia Circuit ruled in March that the detainees "cannot seek release based on violations of the Constitution or treaties or federal law." Al Odah v. United States, 321 F.3d 1134.

Some observers speculate that the amicus briefs may have influenced the high court to take the cases.

"As the court takes on more of these noteworthy, contentious and historic issues," says Thomas Baker, professor of constitutional law at Florida International University, "it should not come as a surprise that individuals and groups besides the litigants are motivated to speak to the U.S. Supreme Court."

Baker notes the justices seasoned their opinions in recent affirmative action cases with quotes from amicus briefs.

"The court by its behavior is inviting these groups and institutional litigators to file these briefs," he says. "The rules allow for it, and the justices are showing a growing willingness to cite these briefs and use their arguments."

Among the Guantanamo briefs is an amicus filed on behalf of former federal appellate judges, including John J. Gibbons (3rd Circuit), Nathaniel R. Jones (6th Circuit), Abner J. Mikva (D.C. Circuit), William A. Norris (9th Circuit) and H. Lee Sarokin (3rd Circuit). Other notables, such as former U.S. Sen. Paul Simon, also signed on.

Chicago-based attorney David J. Bradford of Jenner & Block, who authored the brief, says "many judges spoke with each other and decided to join the brief."

The judges seek to emphasize the importance of the separation of powers in U.S. government, Bradford says. "The way the executive branch approaches this situation is that unilateral incarceration of citizens of even friendly nations like Great Britain, Kuwait and Australia is proper without any form of judicial review.

"The judicial branch should have jurisdiction to determine whether, for example, there is a case of mistaken identity [of one of the detainees] or whether there is a right to a limited hearing," Bradford says. "But the executive takes the extreme position that the judicial branch has no jurisdiction and that it can deny all access to the courts even though Congress has not suspended habeas corpus jurisdiction."

Fred Korematsu is the litigant from the infamous Supreme Court decision Korematsu v. United States, 323 U.S. 214 (1944). In that case, Korematsu challenged the constitutionality of President Franklin Roosevelt’s executive order authorizing the internment of more than 120,000 people of Japanese ancestry on the West Coast. The court’s decision refusing to strike down the executive order has become, in the words of Korematsu’s amicus brief, "a constitutional pariah."

The Korematsu brief, authored by University of Chicago law professors Geoffrey R. Stone and David A. Strauss and New York University law professor Stephen J. Schulhofer, details other examples of infringements of civil liberties during times of war and foreign crisis. The brief cites U.S. Chief Justice William H. Rehnquist’s 1998 book All the Laws But One: Civil Liberties in Wartime.

"It may be that it is essential in some circumstances to compromise civil liberties in order to meet the necessities of wartime, but history teaches that we tend too quickly to sacrifice these liberties in the face of overbroad claims of military necessity," the brief says.

The military brief was filed on behalf of three retired officers with distinguished legal careers in the armed services. It urges the court to take the case and grant some sort of hearing for the detainees. The officers include Brig. Gen. David M. Brahms, Rear Adm. Donald J. Guter and Rear Adm. John D. Hutson, now dean and president of the Franklin Pierce Law Center in Concord, N.H.

"I think in my mind there are two overarching reasons that the U.S. ought to afford some sort of minimal due process protections to these detainees," Hutson says. "First, it implicates how future U.S. prisoners of war may be treated by our enemies and what we can expect and demand from our enemies as to how our prisoners are treated. Secondly, and more philosophically, the U.S. has been afforded a golden opportunity on a silver platter to demonstrate to the entire world, enemies and allies alike, what we stand for and what the rule of law means to us.

"We don’t want to miss this opportunity. The world is watching us, and history will record what we do. History will record not our rhetoric, but our deeds.

"Perhaps the court granting cert will be the impetus for the administration to afford these detainees some sort of due process," Hutson adds. "We would want that for our own soldiers who are detained."

©2003 ABA Journal

wellard · 11-26-2003, 05:47 AM

Top UK judge slams Camp Delta

http://news.bbc.co.uk/2/hi/uk_news/politics/3238624.stm

One of Britain's most senior judges has condemned the US over the detention of terror suspects at Guantanamo Bay.
Lord Steyn said conditions at Camp Delta were of "utter lawlessness", in a speech seen by Channel 4 News.

The Law Lord said the US was guilty of a "monstrous failure of justice" and challenged UK ministers to condemn the decision to hold any prisoners there.

He said detainees were "beyond the rule of law, beyond the protection of any courts and at the mercy of victors".

Lord Steyn's comments came as Australia said the US had agreed that two of its citizens at the camp would not face the death penalty, although they could face a military tribunal.

British officials said the deal would not affect talks over two UK citizens also facing trial at the base.

'Not quite torture'

Lord Steyn said the nine British prisoners in Guantanamo Bay had been failed by the UK Government - even though a guarantee sparing them the death penalty had been reached.

Hopefully things are starting to happpen

Timber Loftis · 11-26-2003, 09:58 AM

Thanks for the article, Wellard.

Quote:

"As a lawyer brought up to admire the ideals of American democracy and justice I would have to say that I regard this as a monstrous failure of justice."

Sad that I come from perhaps the proudest legal tradition and little oil monkee and industry's best slut Cheney turn it into this.

We have this tort statute in the USA called the Torture Victim Protection Act (TVPA). The TVPA allows a torture victim from anywhere to come to the US and sue the person who tortured them. Several individual members of Pinochet's regime were personally sued under this law (even though the victims had to catch them on US soil to serve them with process).

I'm offering any foreign national who leaves Guantanamo a cut-rate representation under the TVPA. Remember the name of the grunt who tortured you and the officer who ordered it (if you know) and come see me. We'll sue them personally. And, we'll see how high this chain of command goes.

I'm reminded of a fictional Gitmo-related quote that has become true in the last few years.

YOU CAN'T HANDLE THE TRUTH!!

11-26-2003, 05:21 PM

Quote:

Originally posted by Timber Loftis:
I'm offering any foreign national who leaves Guantanamo a cut-rate representation under the TVPA.

sic balls, chopper! [img]graemlins/thumbsup.gif[/img]

ZaRos · 11-27-2003, 12:16 PM

Nice tread.
And now the American administration, has gone to Iraq to teach those damned Iraqis about democracy and human rights...
Makes you wonder

Timber Loftis · 11-27-2003, 02:17 PM

Quote:

Originally posted by sultan:
sic balls, chopper! [img]graemlins/thumbsup.gif[/img]

I loved that movie.

11-13-2003, 05:43 PM	#12
Timber Loftis 40th Level Warrior Join Date: July 11, 2002 Location: Chicago, IL Posts: 11,916	I was referring to "The Tempting of America," but it's truly a legal work with social/political conclusions stemming from a detailed analysis of the law. It is quite astute, but has its flaws, and I'm considering bouncing some ideas off my old Con Law professor when I'm done with it, as I just can't find folks (even in a law firm) who are really anxious to delve into the heady Con Law issues. Real lawyers, you see, are very results/efficiency oriented, and don't want to hear the lofty academic BS. They just want answers. __________________

11-13-2003, 05:46 PM	#13
Timber Loftis 40th Level Warrior Join Date: July 11, 2002 Location: Chicago, IL Posts: 11,916	Oh, and courts cannot prohibit legislatures from doing anything, they always act by striking down laws that offend the Constitution AFTER the laws are passed. In the modern era, the government gets some good mileage out of the interim time period. The Patriot Act, and the topic this thread began with are a fine example of this. Parts of it are just bound to be struck down, but in the meantime the administration has had a 2-year heyday. You notice how this heyday works in shows like Law & Order, CSI, and Threat Matrix. "Charge me or let me go." "Sorry, I can keep you for 3 days, now, without charging you for anything. Or haven't you read the Patriot Act?" __________________

11-15-2003, 10:15 PM	#14
Timber Loftis 40th Level Warrior Join Date: July 11, 2002 Location: Chicago, IL Posts: 11,916	ABA Journal DETAINEES HAVE SOME POWERFUL ‘FRIENDS’ Impressive Amici Persuade Supreme Court to Hear Guantanamo Cases BY DAVID L. HUDSON JR. An impressive array of amicus briefs successfully urged the U.S. Supreme Court to hear cases filed by detainees at Guantanamo Bay, Cuba, who are challenging the legality of their detentions. At least eight amicus briefs were filed, including some by former federal judges, three retired military officers and octogenarian Fred Korematsu, who was subjected to U.S. internment of Japanese Americans during World War II. On Monday, the Supreme Court consolidated and agreed to hear the cases of Al Odah v. United States, No. 03-343, and Rasul v. Bush, No. 03-334. The court will determine whether U.S. courts have jurisdiction to hear claims filed by foreigners "captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base." The U.S. Court of Appeals for the District of Columbia Circuit ruled in March that the detainees "cannot seek release based on violations of the Constitution or treaties or federal law." Al Odah v. United States, 321 F.3d 1134. Some observers speculate that the amicus briefs may have influenced the high court to take the cases. "As the court takes on more of these noteworthy, contentious and historic issues," says Thomas Baker, professor of constitutional law at Florida International University, "it should not come as a surprise that individuals and groups besides the litigants are motivated to speak to the U.S. Supreme Court." Baker notes the justices seasoned their opinions in recent affirmative action cases with quotes from amicus briefs. "The court by its behavior is inviting these groups and institutional litigators to file these briefs," he says. "The rules allow for it, and the justices are showing a growing willingness to cite these briefs and use their arguments." Among the Guantanamo briefs is an amicus filed on behalf of former federal appellate judges, including John J. Gibbons (3rd Circuit), Nathaniel R. Jones (6th Circuit), Abner J. Mikva (D.C. Circuit), William A. Norris (9th Circuit) and H. Lee Sarokin (3rd Circuit). Other notables, such as former U.S. Sen. Paul Simon, also signed on. Chicago-based attorney David J. Bradford of Jenner & Block, who authored the brief, says "many judges spoke with each other and decided to join the brief." The judges seek to emphasize the importance of the separation of powers in U.S. government, Bradford says. "The way the executive branch approaches this situation is that unilateral incarceration of citizens of even friendly nations like Great Britain, Kuwait and Australia is proper without any form of judicial review. "The judicial branch should have jurisdiction to determine whether, for example, there is a case of mistaken identity [of one of the detainees] or whether there is a right to a limited hearing," Bradford says. "But the executive takes the extreme position that the judicial branch has no jurisdiction and that it can deny all access to the courts even though Congress has not suspended habeas corpus jurisdiction." Fred Korematsu is the litigant from the infamous Supreme Court decision Korematsu v. United States, 323 U.S. 214 (1944). In that case, Korematsu challenged the constitutionality of President Franklin Roosevelt’s executive order authorizing the internment of more than 120,000 people of Japanese ancestry on the West Coast. The court’s decision refusing to strike down the executive order has become, in the words of Korematsu’s amicus brief, "a constitutional pariah." The Korematsu brief, authored by University of Chicago law professors Geoffrey R. Stone and David A. Strauss and New York University law professor Stephen J. Schulhofer, details other examples of infringements of civil liberties during times of war and foreign crisis. The brief cites U.S. Chief Justice William H. Rehnquist’s 1998 book All the Laws But One: Civil Liberties in Wartime. "It may be that it is essential in some circumstances to compromise civil liberties in order to meet the necessities of wartime, but history teaches that we tend too quickly to sacrifice these liberties in the face of overbroad claims of military necessity," the brief says. The military brief was filed on behalf of three retired officers with distinguished legal careers in the armed services. It urges the court to take the case and grant some sort of hearing for the detainees. The officers include Brig. Gen. David M. Brahms, Rear Adm. Donald J. Guter and Rear Adm. John D. Hutson, now dean and president of the Franklin Pierce Law Center in Concord, N.H. "I think in my mind there are two overarching reasons that the U.S. ought to afford some sort of minimal due process protections to these detainees," Hutson says. "First, it implicates how future U.S. prisoners of war may be treated by our enemies and what we can expect and demand from our enemies as to how our prisoners are treated. Secondly, and more philosophically, the U.S. has been afforded a golden opportunity on a silver platter to demonstrate to the entire world, enemies and allies alike, what we stand for and what the rule of law means to us. "We don’t want to miss this opportunity. The world is watching us, and history will record what we do. History will record not our rhetoric, but our deeds. "Perhaps the court granting cert will be the impetus for the administration to afford these detainees some sort of due process," Hutson adds. "We would want that for our own soldiers who are detained." ©2003 ABA Journal __________________

11-26-2003, 05:47 AM	#15
wellard Dracolisk Join Date: November 1, 2002 Location: Australia ..... G\'day! Posts: 6,123	Top UK judge slams Camp Delta http://news.bbc.co.uk/2/hi/uk_news/politics/3238624.stm One of Britain's most senior judges has condemned the US over the detention of terror suspects at Guantanamo Bay. Lord Steyn said conditions at Camp Delta were of "utter lawlessness", in a speech seen by Channel 4 News. The Law Lord said the US was guilty of a "monstrous failure of justice" and challenged UK ministers to condemn the decision to hold any prisoners there. He said detainees were "beyond the rule of law, beyond the protection of any courts and at the mercy of victors". Lord Steyn's comments came as Australia said the US had agreed that two of its citizens at the camp would not face the death penalty, although they could face a military tribunal. British officials said the deal would not affect talks over two UK citizens also facing trial at the base. 'Not quite torture' Lord Steyn said the nine British prisoners in Guantanamo Bay had been failed by the UK Government - even though a guarantee sparing them the death penalty had been reached. Hopefully things are starting to happpen __________________ fossils - natures way of laughing at creationists for over 3 billion years

11-27-2003, 12:16 PM	#18
ZaRos Dungeon Master Join Date: October 30, 2003 Location: denmark Age: 44 Posts: 80	Nice tread. And now the American administration, has gone to Iraq to teach those damned Iraqis about democracy and human rights... Makes you wonder __________________ But — as Jean-Paul Sartre almost said — forget recycled urine; true hell is other people <img border=\"0\" title=\"\" alt=\"[Smile]\" src=\"smile.gif\" />

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