Revenge of Article III

We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

Kennedy’s opinion raises the role of the President in this opinion on several occasions, notably when it points out that these men have been detained solely through executive order.

They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history.


Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. [my emphasis]

Kennedy suggests that the procedures the Bush Administration put into place might be designed with interests other than independent review in mind. Golly. You think he’s thinking of the way the Show Trials are being timed with the presidential election in mind?

To anticipate and undercut the cries of "Article II Article II!!!" Kennedy argues (not all that convincingly) that their judicial review of Bush’s power to imprison people indefinitely makes him stronger.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Somehow, I don’t think David Addington was convinced by this argument.


Kennedy’s opinion was slightly less direct in its criticism of Congressional overreach. He starts by pointing out how unusual it is for Congress to attempt to curtail habeas corpus.

Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation’s history to preserve the writ and its function. Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ’s protection but to expand it or to hasten resolution of prisoners’ claims.

And then describes the ways–the several ways–in which Congress has passed unconstitutional laws. First, he describes what would be required for any legal substitution of something else for habeas corpus.

We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court “can only direct [the prisoner] to be discharged”); R. Hurd, Treatise on the Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It cannot be denied where ‘a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,’ for the writ then becomes a ‘writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty’ ”). But see Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (remanding in a habeas case for retrial within a “reasonable time”). These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required.

And then gives a list of other ways the DTA is constitutionally "infirm."

The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of “enemy combatants” as the Department of Defense defines that term. Thus a challenge to the President’s authority to detain is, in essence, a challenge to the Department’s definition of enemy combatant, a “standard” used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA §7 to remain intact.

The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing whether those “standards and procedures” are lawful.

The argument I find most interesting–because it applies to other abuses of executive power, like the Administration’s warrantless wiretap program–is the Court’s insistence that judicial review must constitute more than simply a review of whether 1) the standards and procedures developed by an executive agency are lawful and 2) whether those standards were followed. As Kennedy points out, Congress has narrowly circumscribed the role of the courts to reviewing the execution of a plan implemented by the executive branch.

Congress has granted that court jurisdiction to consider

“(i) whether the status determination of the [CSRT] . . . was consistent with the standards and procedures specified by the Secretary of Defense . . . and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742.

Under DTA, the courts only have the authority to affirm what the executive branch does; they don’t have the authority to make judgments concerning the legality of the detention itself.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

And that is the core of the problem for Kennedy–that the DTA does not permit the courts to intervene except pursuant to certain actions by the Secretary of Defense, which does not constitute adequate judicial review. The courts must have the ability to judge the evidence presented in CSRT proceedings itself.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Now, as I pointed out, this argument is significant beyond the Boumediene decision. That’s because Congress is as we speak debating implementing a similar circumscribed review process for wiretapping Americans.

The idea behind the Protect America Act and–to a large degree–the FISA amendment, after all, is that the Attorney General writes a set of procedures surrounding a given wire-tapping method. The FISC gets to review those procedures to see if they’re legal. And it gets to review individual cases of wiretaps to see if they followed procedures.

But the FISC never gets to review the actual wiretap evidence to see if the programs themselves were legal, to see if the evidence underlying the decision to wiretap a bunch of Americans was sufficiently credible to justify the program.

So you can take the complaint the court made about DTA…

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

… Rewrite it to apply to FISA…

The FISC has jurisdiction not to inquire into the legality of the wiretap program generally, but only to assess whether the government complied with the "standards and procedures specified by the Attorney General" and whether those standards are lawful.

And you’d have a direct parallel in which Congress was proposing a law which took legal review out of the hands of Article III Courts and put it instead into the hands of the executive.

Now, I realize that the Court’s ruling applies only to detention and only explicitly to Gitmo. But the court has laid out an argument–that Article III cannot be legislated into a review function of the executive branch–that has much wider applications. Having just glanced at Roberts’ dissent and seen the prominence of his defense of such a role for the courts, I imagine the Administration has seen this argument too.

And I expect David Addington is even less happy about that argument than he is by the Court’s half-hearted nod to the power of the Commander in Chief.

101 replies
  1. cobernicus says:

    Great summary! I’d love to hear your analysis of Kennedy’s rebukes to the CJ’s, which he seems to have neatly dismembered. This opinion reads like a good history book, hearkening back to the Magna Carta, British Common Law and the Federalist papers.

    Does the CJ truly believe that Guantanamo represents “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”? (p. 82)

  2. Minnesotachuck says:

    Once again, Marcy, an awesome condensation of the decision, at least to these NAL’s eyes.

  3. brat says:

    Fabulous! The greatst of ironies? It’s a CONSERVATIVE decision. Kennedy is reading the Constitution, like a conservative jurist (not these radical uniatary executive types), and correctly pointing out where both Congress and the Bushies have overstepped themselves.

    Delicious, to be sure.

    ANd three cheers for Teddy Kennedy for ensuring Robert Bork did not become a Supreme Court Justice. Anthony Kennedy was Bork’s replacement.


  4. ThingsComeUndone says:

    If Bush believes this opinion shouldn’t he then be freeing the prisoners and cutting them checks if they promise not to press charges or talk to the press or will that come after the election in the middle of the night?
    I say this because if I were Bush I know that I would not want those prisoners talking to the press or sueing me.
    After all I think the laws protecting the President from lawsuits stop at war crimes.

  5. kbskiff says:

    Well, someone better tell Lindsey Graham it is the courts responsibility. He seems to think he can introduce a constitutional amendment to suspend Habeas Corpus regardless of what the court says.

    Also- what’s the deal with Scalia saying Americans are sure to die because of this decision! Did he become a foreign policy expert on his little get aways with Cheney on their secret hunting trips?

    • dopeyo says:

      Re Scalia’s claim that more Americans will die as a result of this decision: what does Scalia know that the rest of us don’t? What do he and Deadeye Dick discuss when they’re out of earshot of the Secret Service? IANAL but I don’t recall Scalia ever voting against Cheney’s interests.

      It might be interesting to compare membership lists between Opus Dei (Scalia and Thomas as far as I know) and the PNAC. Both attract an unhealthy roster of authoritarians.

  6. DeadLast says:

    Good post.

    My problem with this decision was the 5-4 score. Scalia has proven himself to be a flip-flopper and a fascist in his dissent. Scalia has always championed the “original intent of the founders” doctrine. But here he argues that habeus needs to be thrown out with the warning that by not doing so will result in the death of Americans. So Scalia is arguing that we should throw out the constitution if doing so protects the lives of Americans. “Give me liberty or give me death” is not a phrase that Scalia would support, instead saying “I’ll trade the liberty promised in the Constitution for Bush’s assurances of safety.” Scalia should be impeached. He is a fraud.

    This is his worst decision, only slightly worse than Bush v. Gore wherein he decided that it was more important to overturn the due process set forth in the Florida State Constitution, a state’s rights issue which Scalia is arguably the biggest defender, to protect the George W. Bush from having a few sleepless nights (and to crown him el Presidente).

    Yes the Supreme Court is political, but I am sick of the Republicans and thier judicial thugs claiming to be fighting for ideals. They are sell outs and have crossed the line into fascism. There is no other word.

  7. Leen says:

    Ew there is a post up at crooks and Liars about Mukasey’s response to the Supreme courts decision in regard to gitmo

    • PetePierce says:

      Mukasey’s response will be in the attempt of Congress at the urging of his lobbyists to nullify Boumediene and to go on as if it never happened.

      While the language in the opinion of Kennedy’s law clerk may be interesting, way way way too much is being made of the significance of Boumediene. It’s what it has not done that’s even more compelling as an index of the Rule of Law’s demise.

      It has not touched the head fakes at a day in court particularly for some who may have done nothing at Gitmo. There still are

      defendants with limited legal access
      defendants who are held for years with no charges
      defendants whose every breath and their lawyers’ are recorded on tape when they meet
      defendants who have no access to legal materials or ny semblance of a law library (an imitation of what BOP/DOJ has been doing for years in their facilities
      heresay evidence is being used against these people
      evidence gleaned as fruit of the torture tree is used against these people
      these people are medicated against their will with the few crude antipsychotic meds that are available in the US in 2008–there has been relatively little progress in them in 50 years–the side effects are major, and they are used to zonk out these defendants as well as defendants all over the U.S.

      The habeas petitions, if they ever see the light of day may never spell freedom. What probably is going to happen is that Lindsay Graham and his homies on SJC will draw up yet another MCA and your spineless, gutless do nothing Congress–that’d be the one that is anorgasmically screwing you on FISA although slowly–will probably pass it.

      If theH Norma Rae Hillaranisas come out in force and vote for McCain, you will get much more of what Boumediene’s appeal was meant to stop.

      One unfortunate event for Obama is that on next Wednesday in one southern state, Georgia, the deadline for voter registration will be over, and 600,000 indifferent African Americans will not have registered to vote.

      The failure of Boumediene are captured in the links here and here.

  8. FormerFed says:

    Marcy, again a great piece of work. IANAL but I am able to follow most of the legal stuff the way you present it.

    I haven’t read anything about the CJ’s opinion, but is there anything in it to give us hope for the future from this man? When I was reading up on him during the confirmation I had glimmers of hope that his intellect would eventually win out over his Repug ties. (Or maybe I was just looking for something that wasn’t there.)

  9. Leen says:

    Cheney, Mukasey and the rest of the Bush administrations response to the Supreme Courts decision


  10. BooRadley says:

    FWIW, Scalia, Thomas, Roberts, and Alito make terrorists, who are really planning to hit the US, a lot harder to find. The US communities, who are most likely to receive relevant information, are a lot less likely to come forward, if they fear, rendition, torture, and a lifetime at Gitmo (floating prisons). From an enforcement perspective I want the people who hate America to be on the street corner proclaiming it. That gives them a non-violent way to vent, it segments their supporters into violent and non-violent groups, and it makes it a lot easier to gauge the relative support. Once Bush/Cheney declared war on habeas corpus and started using torture, it gave the violent extremists exponentially more leverage within the wider ethnic, religious populations from which they come.

    FWIW, nobody helped the James Younger gang more than the Pinkerton’s (funded by Federal authorities) when they firebombed the James home. Jesse was killed by his own gang and Frank was never convicted of anything. US applied the same principles to handling native American tribes. I suspect similar parallels are frequent in the way the British handled Ireland.

    OT every “classified” government function is one more “opportunity” for ripping off the taxpayers. Is it any wonder the FBI gravitates to high priced hookers, when it comes to surveillance? GAO can’t properly audit routine, non-classified projects.

    • oldtree says:

      correct. You show how the law and criminals live for one another. It is a bizarre symbiosis, but it is a sure fire way to make money, get money for ever greater prisons and weapons. Lastly, it is the terror card that almost every sheriff that ever campaigned has used to bamboozle the public. Make up another law to put a segment of the population in jail. The most jailed people in the world, the USA. Something is either right or wrong about this argument.

    • earlofhuntingdon says:

      My condolences to Mr. Russert’s family. I wished him personally no ill will, only that he do his job. He enriched himself instead. I hope that in his relationships with his family and those who knew him, he enriched them in other, more durable, ways.

  11. JThomason says:

    Originally administrative law was developed because of the complexities of applying legislation in a technological society and so the executive has been given latitude to develop regulations with the force of law within the scope of enabling legislation. Still this power is constrained in the context of the scope of the enabling legislation and the standard that the executives action be reasonable in its relationship to the scope of the executive action and not arbitrary and capricious. Executive action in this context has always been reviewable by Article III courts.

    The problem that this system has created is in the bidding on corporate constituents to control executive rule making procedure and so removes the process one step further from the electorate. This surge in influence in administrative law then in turns emboldens partisans to depend on executive rule making rather than legislation in creating law. This is the foundation from which the current issues concerning executive excess arise and if you couple this with brazen de facto expansion of the limited judicial doctrines of state secrets and executive privilege then you have walked right up to this place where corporate constituencies are able to bypass Congress to effect regulation that is designed to further their economic interests above and beyond that of the people.

    Many of Kucinich’s Articles deal with this trend and the obstinacy of the executive to provide information necessary for over site to see that the executive is regulating withing the scope of enabling legislation. Another example of erosion of traditional Constitutional boundaries is the provisions in the Homeland Security Laws giving law enforcement to issues letters with the force of warrants removing determinations of probable cause from the judiciary.

    I appreciate your noticing the nods with respect to this problem that Kennedy for the majority makes. I agree with your reading that this opinion acknowledges unwieldy problems that are arising as the executive increasingly takes actions that in effect proclaim that it is a law unto itself. The heavy lifting that will follow in making judicial review of the substantive and procedural practices of the military commissions lies ahead but the habeas review will at least provide a vehicle to see whether these tribunals in fact are acting within the prescriptions of law and due process whatever they are found to be in this context. This review process is just beginning but the administration is in far more jeopardy of being found to have acted illegally which of course it had schemed to shield from the light of any judicial branch review and their excesses in inhumane treatment of prisoners and coercing evidence will continue to be brought forward. Whether the rise of the corporate constituency feeding off the executive can be checked is another question.

  12. readerOfTeaLeaves says:

    Thx, pdaly. Just got online, saw the same thing, and came to EW to see whether anyone had seen this yet. Russert’s was the testimony, IIRC, that nailed Scooter Libby’s lies in the Plame Affair about the leak. Must be a terribly difficult time for MSNBC staff.

    ‘Worked himself into a state of exhaustion’. In that sense, he was truly an American of the early 21st century.

  13. wavpeac says:

    My condolesences to family and friends. Question though, were there any further questions needed to be asked of him as a result of Scottie’s book? Would his death have any impact on new inquiries into the Plame case?

    Just wondering…if his death has any potential fall out in regard to this case.

  14. earlofhuntingdon says:

    Justice Scalia’s fearmongering seems as much about threats to the Unitary Executive as it is about threats to the safety of all Americans. He knows that few of those detained at Gitmo are guilty of anything other than being in the wrong place at the wrong time. Many were simply sold into captivity by local warlords, responding to rewards posted by the American military.

    He knows that many might now, after years of solitary confinement and physical and psychological abuse in an intentionally lawless zone — a black hole of Calcutta, transmuted to the Caribbean — might rationally wish us ill. Further, he knows that it is Mr. Bush’s policies, notably torture and the kind of lawless prisons of which Gitmo is only an example, that have been our enemies’ greatest recruiting tools.

    It takes only a small part of Justice Scalia’s purportedly brilliant mind to predict that one or more of our now enlarged number of enemies might do us physical harm in the future. That harm would relate directly to the deprivation of the due process of which this President is so proud. It would have nothing to do with this Supreme Court decision. That decision, in fact, because of its promise of a return to policies that respect basic human dignity, which imperial occupations explicitly denigrate, might reduce or delay such harm.

    • Minnesotachuck says:

      EoH, I don’t disagree with the facts and implications thereof that you lay out. However, I question whether Scalia actually “knows” them, at least at a conscious level. It’s been my experience that denial is a basic character trait of most of the more vociferous adherents of the modern right, at least the ones I’ve known.

      • skdadl says:

        Minnesotachuck, I was just about to say something similar to EoH. Scalia’s problem is that he doesn’t think of “those people” (however he conceives of the Other) as fully human, so he doesn’t bother to follow their logic through. He just presumes that anything they do is evil; blowback has nothing to do with him since he is Scalia and most of the rest of us are not.

        EW, your translation from one context to the other is just brilliant. Boy, I hope there are staffers reading you. Great post.

        I don’t watch network TV often and I have a hard time talking about anybody’s death, but I do remember Tom Brokaw as a total smoothie, so I thought that his broken delivery in the video that is up at TPM was telling. Life is fragile.

  15. Mary says:

    Here’s my only quibble on the FISA “compromise” comparison. Where you say:

    … Rewrite it to apply to FISA…

    The FISC has jurisdiction not to inquire into the legality of the wiretap program generally, but only to assess whether the government complied with the “standards and procedures specified by the Attorney General” and whether those standards are lawful.

    from what I have seen of the compromise it would be more correct to have the “rewrite” be:

    The FISC has jurisdiction not to inquire into the legality of the wiretap program generally, but only to assess whether the government complied with the “standards and procedures specified by the Attorney General” and whether those standards are lawful

  16. Rayne says:

    ABC report just went there, pointing out Russert’s role in the Plame outing.

    Here and I figured they’d tippy-toe around that for a while longer.

  17. phred says:

    Great post EW, thanks for showing us that the decision was not just a shot across the executive’s bow, but across the legislative one as well. Lets hope Congress takes heed of it.

  18. Scarecrow says:

    Great job, Marcy. I think you’ve nailed it. And note that the Court’s “policy” arguments wrt to detentions also apply wrt to warrantless surveillance: secret program, lying about it, went on for years without accountability; efforts to suppress/restrict judicial review, importance of the right being violated to democratic values, etc. All the elements are there to apply exactly the same argument in the FISA case.

      • Scarecrow says:

        Well, all this does is predict an ultimate S.Ct. reversal of the FISA gutting. All of the objections to limiting/denying habeas were also known and made in advance — before DTA and MCA, but the Congress paid no attention and the Administration didn’t care. Logic and constitutionality are not driving the FISA debate, or it would have died already.

        • emptywheel says:

          Only problem is, there are 200 people who clearly have standing, which is why this got to SCOTUS.

          There’s just one group that clearly has standing in FISA–al Haramain. And there, they’re not allowed to prove they have standing.

      • phred says:

        Over at the mothership, Christy tells us Steny’s swell new compromise has a 6 year sunset. So lets say they pass this unconstitutional law, given how slowly the wheels of justice turn, might the law expire mooting the issue before SCOTUS would have an opportunity to rule on its legality?

        • bmaz says:

          No, it would be faster than that. The cases are already in district court and will likely be dismissed within 6-8 weeks (procedural briefing time frames) of the act becoming effective. From there to the 9th Circuit Court of Appeals and on to the Supremes.

          • phred says:

            Ah well that’s encouraging : ) It would be good if it got to SCOTUS quickly, at the moment they appear to be in no mood to brook this kind of unconstitutional shenanigans, well 5 of them anyway…

      • bigbrother says:

        Scarecrow’s post this morning and these comments are important. You make the case well. The undelying wounds to democracy created by this administrationthat ar festering.
        I think it goes to the CIA covert activities that have sucessfully opposed democracies on the rest of the continent North, central and South Amrica. The Chicago School of economics has plundered ours and other states as Naomi Klien points out in Shock Doctrine. The Addington and Woo opinions are tied closely to unitary executive powers that have enabled the Bushco machine (PNAC, AIPAC and others) to stael the treaury to dis-enable any Keynesian/Galbraith economics model.
        The hinge pin is the great writ with it he cannit do what King George did tot he colonies which precipitated our constitution. This decision reafirms habeis and takes away huge executive power. Bush annoubced he will comply but his AG seems less cooperative. We’ll see what Bush’s version of cooperation is.
        This can be the deal breaker of the Neocon movement.

        • bigbrother says:


          Scarecrow’s post this morning and these comments are important. You make the case well. The undelying wounds to democracy created by this administration
          that are a festering wound.
          I think it goes to the CIA covert activities that have sucessfully opposed democracies on the rest of the continent North, Central and South Amricas. The Chicago School of economics has plundered ours and other states as Naomi Klien points out in Shock Doctrine. The Addington and Woo opinions are tied closely to unitary executive powers that have enabled the Bushco machine (PNAC, AIPAC and others) to steal the treaury to dis-enable any Keynesian/Galbraith economics model for future administrations.
          The hinge pin is the great Writ with it he cannot do what King George did to the colonies which precipitated our constitution. This decision reafirms habeus and takes away huge executive power. Bush announced he will comply but his AG seems less cooperative. We’ll see what Bush’s version of cooperation is.
          This can be the deal breaker of the Neocon movement.

  19. Scarecrow says:

    Plus — blurring the distinction between domestic vs “foreign” surveillance. In fact, that piece is even stronger in the surveillance case, because the Administration can’t explain how they’re going to separate the two and focus on the latter while “minimizing” the former.

  20. Scarecrow says:

    But it’s still worth the effort, just in case some fence sitters actually care. So . . . well done, and good luck.

    • bmaz says:

      And then there were those like the Scottish Gummy Haggis that engaged in the spectre of admitting he voted for the thing because the court would knock it down anyway. That was principled and heroic…..

  21. bmaz says:

    So, have checked the sites for Conyers, HJC, Leahy and SJC. Zilch. Where are they? Leahy acted like a lion on this for a brief period; why is he sheepish now? Are there any Michigan residents that have great weight and credibility with Conyers that could wake the geezer up?

    • phred says:

      Did you see Christy’s post? Sounds like Steny and Jello Jay are working behind the backs of Leahy and Conyers. All the backstabbing going on here would be highly entertaining if it wasn’t such a serious threat to our democracy.

  22. LabDancer says:

    Ms EW: Your post here captures- for me at least & I gather evidently for JThomason as well- one of the two transcendent themes from reading all the opinions.

    To me reading the Kennedy opinion is like receiving yet another summons to act as if humans should strive to exceed their baser instincts, in the American tradition of some of the Founders notably Adams & Jefferson – & later Lincoln as his rhetoric became more universally applicable & spare – & FDR & JFK – & now BHO. Inspirational yes but a bit unsettling because most of us have difficulty finding in our own lives the opportunities to put it into action. But I would not say so of Ms EW.

    The real “revelation” in the case [the quotes are intended as advisory] lies in reading the opinions of Scalia – which seems to be getting a lot of play for its [IMO] purple Krauthammer-ish passages – & of the Roberts – which despite his chief-ness seems to be almost being ignored due to it being written with so little in the way of the sort of art that Kennedy shows or the sort of color & volume that Scalia shows – thats is almost stylish in its dullness. That said: the opinions of Roberts are those of the majority far more often than Scalia – which IMO suggests that but for the brash bloggish phrasing & O’Reilly-esque perspectives Scalia is really not much more than the doorknob that is Thomas. All in all I am a lot more concerned about what Roberts & Alito write than anything Scalia does or Thomas doesn’t – because whereas brooding Thomas adds nothing more than the type of ballast that his legions of dittohead fans add to the influence of Rush Limbaugh, & Scalia might as well be posting his opinions once a week at WaPo or daily at NRO with a weekly gig on the panel at FauxNoose Sunday, Roberts & Alito routinely display the sort of discipline & mundanity that Hannah Arens phrase about Eichmann caught.

    What really bothers me is where Roberts & Alito came from: the same DOJ OLC that has among its alumnae Goldsmith [whose okay] & John Yoo. I hate to sound so rejectionist but I firmly believe that ANYONE who has served in that office should be presumptively disqualified from ever serving on the SCOTUS, because the Law of Executive Power According To John Yoo may [I stress “MAY”] represent the most extreme opinions on it ever produced from the OLC – in truth there is something endemic in the role that I fear involves some early procedure whereby the values which animate the opinion of Kennedy [& the rhetoric of Adams & Teddy Roosevelt & FDR & JFK & Obama – & the actions of Jefferson & Lincoln & hopefully Obama – & the blogging of Ms EW] are surgically excised.

    Anyway: what drives the contrasting views is worthy of far more consideration, & so once again I have to express my admiration for Ms EW seeing that. Perhaps we need a new category for her – as in: in the cases of bmaz & me & a number of other regulars here we are “IAAL” & as Ms EW is so professionally diligent in noting she is IANAL –

    but given her remarkable gifts of combining analysis & linguistics & psychology [I was going to qualify that last as “human” but I note the recent mention of McAffery & IMO with dogs in general & labs in particular I’m not convinced that a distinction is worth raising]

    HEY! Where is our Lab porn fix?]

    I suggest that for emptywheel IANAL may be technically legally correct but in effect is deceptive packaging.

    Im sure any number of folks here could do better than these suggestions – but I will get the wheel rolling on this:

    IANALWIMCIAA: I am not a lawyer which in my case is an advantages.

    Oy…thats as weak as that crap on Anderson Cooper.

    IANALTG:I am not a lawyer thank God

    This has all the versatility of a Swiss Army knife: the last letter is replaceable EG A for Allah or B for Buddah – or my personal preference: MB for Magic Bunny.

    IANALBILWALR: I am not a lawyer but I live with a labrador retriever.

    Pretty much says it all – but my #1 suggestion for Ms EW:

    IANALBIAITPD: I Am Not A Lawyer But I Am Immune To Pixie Dust.


    I feel bad about Russert, mostly for his family & friends, but in part for that poor Yorick thing.

    Funny: I never even met Steve Gilliard but the recent first anniversary of his passing brought on the same sad contemplative longing as for a beloved family member or dear friend. With Tim its more like: as may be evident from some of his interviews like the first one of Bush after the invasion of Iraq, he certainly went to class & he certainly fit the popular stereotype of a tough cross examiner – but with all due respect for the private things he may have done for his family & friends & colleagues, he sold out his talent a long time ago, & once he lent his skills out to Kabuki theatre, they withered, & we really never got to see the ‘talent’ all his friends & colleagues will be granting him over the next few days. Its been my experience that one’s life is far more likely to end up soft & fat if only you show willing to sell out – whereas it can be pretty damned hard & lean if you dont & especially if you’re invited to & decline. Me: I could never get comfortable with all that softness. But Tim did, & while I know that after he was crossed as he was in the Libby trial he did come to understand he was part of the problem, & that he was in turmoil about doing something to rectify it, he never got round to it. I’d like to think he was still in mourning for lost innocence so I’m going to grant him that.

  23. bobschacht says:

    EW– thanks for a great post!

    I think this decision of Kennedy’s will be quoted in many law school textbooks in the future.

    Bob in HI

  24. JohnLopresti says:

    Tony Kennedy has the equanimity of old fashioned conservatism to preserve credibility among the political right’s members of the supreme court. The addition of the subtle JRoberts and isolative Alito seemed to elicit more of TonyK’s proclivity toward narrow application of fundamentals rather than expansive rhetoric to reset contemporary frameworks. His writing in the Rapanos case made this approach clear. Yet, as I make time to read the two opinions published yesterday, I am reminded of his strength in international perspectives both current and historical, spheres in which certainly he is equipped to negotiate as a peer on the supreme court with the other justices there. It is additionally heartening to listen to the prodding he directs toward congress. TonyK omits atavistic imagery which is the spice of Scalia’s latter days in our times recently, but to my view where Bush and Congress shunned entering with the AUMF was the issue of incremental martial law. To me that is the most accessible justification for the authoritarian policy Bush has developed, or, rather, the neocons stocked in the Bush armarium. Though, we are in a semantic age with these folks and the new media, and enough elections effect change to keep the leadership of the political parties from more brazen terminology than the labyrinth of PatriotAct and its penumbra.

  25. strider7 says:

    cspan had a great meeting of the Conference on a New American Strategy on wed that is being rerun now.Albright and Armatage gave an intro.Great panel even kristol was allowed in.John Yoo and Eric prince were in the audiance. huge response.900 elites showed

  26. randiego says:

    Greetings! I just logged into the hotel computer in Singapore, and BAM! Tim Russert died. Crazy!

    Can’t wait to dig into my back reading! Singapore – Tokyo – LA and I’m back!

  27. Hugh says:

    These were some thoughts I had on the meaning of the Boumediene decision.

    The biggest part of the story which has been missed by almost everyone is what a major defeat this is for the Roberts Court. This was a defeat that was telegraphed some time ago when the Court agreed to rehear the case. Since it takes 5 justices to grant such a review and this is the same number that formed the majority, it is pretty clear that these two groups are the same. Seeing this coming at them, probably explains the bitterness of the dissents and their temper tantrum tone.

    Roberts dissent is as weird as it is goofy. It like that of Scalia goes to show how the Fascist Four on the Court decide cases based on their ideology and then bend and twist the law to accord with this. Roberts was OK with a formal process and could have cared less if that process was not real or substantial. But to oppose the majority opinion, he had to turn around and argue that all of the defective, illusory aspects of the CSRT process were, in fact, robust. He even went so far as to say that they provided more protections than the remedy ordered by the majority. It is really strange and speaks volumes about the state of the law in this country that a Gitmo detainee has a better grasp of the situation than the Chief Justice of the Supreme Court.

    I have also heard little about stare decisis and Marbury except when I bring them up. I think the majority opinion honors both and takes into account our history as a country and the place of habeas in that history. What I think gets lost is that the Fascist Four also thought that they were following precedent and that they did provides a window on the black and white cartoon version of the Constitution they have. They are horrified that Constitutional protections should be extended to gooks and fuzzy-wuzzies. For them, the Constitution is only for American citizens and ends at the water’s edge. And what infuriates them is that these brown people are given standing in their Court where not even ordinary Americans but only the Congress, corporations, and the Executive are worthy to be heard. If you think that I have gone too far or am over the top with this, I invite you to look at the end of Roberts’ dissent where he asks who won:

    “Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone.”

    The contempt is palpable. Why do you bother me the great Roberts with a quirk filled with brown, unimportant quirks? Why do you bother me with history? Am I to blame that history does not accord with my views? It can also be seen in Scalia’s hair on fire:

    “America is at war with radical Islamists.”

    and his using John Yoo as a legal authority to justify what needs to be done in time of war. Like Roberts, Scalia is not interested in history. It gets in the way. He is not interested in what the Founders thought either. He is only interested in what he says they thought.

    You can see how pernicious the whole casting of the War on Terror as a war is. The Fascist Four use it as a pretext to dump almost all of it outside the Constitution. Go through some hazy forms, do what you have to do, we will ask no questions. How much different if terrorists were treated as straightforward criminals. We have dealt with those, both foreign and domestic, for more than two hundred years without recourse to all of this disingenuous and contemptuous disregard for the foundations of the law, the Constitution, and international obligations. But this would conflict with the Court’s ideologues.

    I would just add that the animus shown in the dissents may have an impact on the future ability of the Four Fascists to bring Kennedy on board. There are big egos on the Court and I doubt that Kennedy is going to appreciate the grenades that the arch-consevatives on the Court lobbed his way.

    • emptywheel says:

      Great comment all around, Hugh.

      As to the tempers, I also think Roberts believed he could deliver for Bush–probably got some pressure to do so–and found himself impotent. So now he squawks. I don’t know why he would have thought so–the former Kennedy clerks in the Bush White House have been warning of his limits for years, and that was even as he kept moving to an internationalist stance and therefore caring whta the world thinks of us.

      I was thinking today about how, if we can just get to January and have Obama start naming replacements for Stevens and maybe Kennedy and who knows who else, then we may have gotten beyond the tremendous risk position we’re in, with 5-4 decisions being all that sustains the COnstitution. And I thought, “But you’ve still got Roberts as Chief.” But then I thought, “Well, thus far, he has shown absolutely no aptitude to use his position to persuade and/or push the fifth member.

      He’s like Bill Frist. Sure, he’s in a position of power. But he has no aptitude–at least none that we’ve seen so far–to use it.

      • readerOfTeaLeaves says:

        Damn, EW. I was wondering about this very thing.
        I suspect that you and Hugh are prophetic.

        I still find it ironic that Kennedy has a more global view than the others; seems more aligned with the Bigger Picture issues of the present/impending social, economic, political era. And to think that he was appointed by Reagan… stranger than fiction.

          • strider7 says:

            how did Dylan put it?
            The masters make the rules
            For the wise men and the fools
            But it’s alright ma, I’m only dying

            • bmaz says:

              That sounds reasonable too. There was a real difference twenty years ago between a conservative from California and coming from the 9th and what you would find on the east coast though. I’ll sure bet that what Toobin indicates helps keep some of those broader thinking constructs imbedded in him.

          • readerOfTeaLeaves says:

            Ufffff (gag! cough!!), don’t even get me started…

            I suppose that I’d assumed all Constitutional lawyers had at least a passing familiarity with formal logic. But I was surprised, in reading a decision by Scalia, that his points did not follow logically from his premises, and that shocked me.

            Most of the people here with any programming background (and I leave myself out of the mix ) are more adept at spotting illogical legal contortions than Scalia seems to be.

            I’d expected more rigorous logic in a SCOTUS judge.
            Regrettably, I was in error.

      • Hugh says:

        I’m with you. I hope we make it OK to January and then I hope President Obama has the chance to nominate some young, healthy progressives, no centrists, no Republican-lites, please.

      • quake says:

        If we get to Jan. & Pres. Obama takes office a little “Court-packing” (increase to 11 or 13 justices of SCOTUS) seems in order.

    • phred says:

      Excellent point Hugh, fwiw it’s worth I made the same point yesterday about the Roberts’ quote you cite, but you make it much better than I did : ) However, I would quibble with your characterization that this is a major defeat for the Roberts Court, it was only a narrow miss for them and I fear mightily that the Roberts (in the majority) Court will yet get the upperhand in due course.

    • MarkH says:

      Am I to blame that history does not accord with my views? It can also be seen in Scalia’s hair on fire:

      “America is at war with radical Islamists.” [ — Justice Scalia ]

      America is the greatest nation which has ever existed in the history of the human race. But, since a handful of ragtag fanatics want to hurt us Scalia suggests we should toss our 4th Amendment (and by association our Constitution) in the trash.

      Scalia is either a dope or has another agenda priority. At minimum the intellectually honest thing to do would be to speak publicly about what he sees as the flaws to our system, especially under the stress of war, and to propose changes. That’s the American way.

  28. freepatriot says:

    so what if four supreme court justices voted against Habeas Corpus

    it’s only the founding principle of a Democracy, that’s all

    still think my idea of impeaching and removing these criminal traitor fucks is such a bad idea ???

    if we’re gonna have people to interpret the Constitution, those people should know and respect the constitution

    67 Senate Seats, an impeachment crisis, and then we wake up in a brave new world

    we got the chance

    let’s drive a stake thru the heart of the repuglitards

    oh, and btw, punkinhead can burn in hell for all I care. that pretentious biased fucker is part of the reason the journaism in America SUCKS (think about it, everybody admits that journalism today AIN’T journalism, and potatohead was the leader of the non-journalists)

  29. readerOfTeaLeaves says:

    EW, thanks not only for following — and explaining! — the logic so clearly, but also for ‘digging down’ to reveal the meaning.

    Sometimes I think there should be a new term: ‘geneticist of legal documentation’; I swear you have a knack for examining the DNA, then highlighting the relevant chromosomes, and explaining the ‘legal mutations’ (i.e.. Scalia’s illogical arguments) better than anything I’d ever even hoped to encounter.

    As for JThomason and LabDancer’s absolutely brilliant insights about the factors driving the UE, and the huge risks of it in a complex, technological society… will ponder and hope to comment after synthsizing.

    Awesome post, Awesome comments.
    Wow… just to know there’s this much thinking happening in the world today is heartening.

  30. strider7 says:

    Anybody know anything about Eric Holder? Senior legal adviser to Obama.Former deputy atty gen to clinton admin

  31. MadDog says:

    In an announcement from the White House on the death of MTP’s Tim Russert, Dana “Pig Missile” Perino addressed the assembled White House Press Corp:

    “When told of Tim Russert’s death, Vice President Cheney was speechless.”

    And Dana continued:

    “We’re dumbfounded. I don’t know what to say.”

    • MarkH says:

      In an announcement from the White House on the death of MTP’s Tim Russert, Dana “Pig Missile” Perino addressed the assembled White House Press Corp:

      “When told of Tim Russert’s death, Vice President Cheney was speechless.”

      And Dana continued:

      “We’re dumbfounded. I don’t know what to say.

      I can’t imagine Timmy having said anything recently to make the Bushies mad, so it’s unlikely they made an impact. But, one should check to see if Dubya’s mother is smug, happy or sad about the event.

  32. readerOfTeaLeaves says:

    RE: Russert.

    It intrigued me that following the mess Russert got into with the Plame Leak, that MSNBC seemed to be the most aggressive commercial network in making changes to their programming and guests. Although the changes at MSNBC were probably largely driven by dollars, I wondered whether — between Chris Matthews having to listen to Rove tell him that Valerie Plame was ‘fair game’ and Tim Russert being called as an expert witness — maybe MSNBC finally realized they’d been burned too badly by Bu$hCo, and started to adjust their programming (sloooowly) accordingly.

    Bill Moyers remains my hero, but Russert and MSNBC did seem to signal that they were fed up with being lied to by the likes of Rove. And it’s interesting that the best, early interviews of McClellan were at MSNBC.

    Just observations…

    • bmaz says:

      I dunno about that. I saw nothing different about Russert. The changes came grudgingly and, from my take, seemed driven solely out of a desperate realization that the only show that they had that was doing squat was Olbermann. I am trying to hold my tongue in deference to the departed, but I am about ready to puke from the crap all over not just MSNBC, but CNN and, in a 15 second driveby, even Fox, who are all making Russert out to be more Murrow than Murrow himself. I am sorry, but Russert wasn’t worth shit as a journalist (quite frankly, I can’t see that he ever, in fact, was a journalist) and his questioning style was asinine and pompous. He seems like he might have been a decent chap at heart, and a good family man, and I am profoundly sad that he has passed (spooks the hell out of a guy that just went the wrong side of 50); but I never saw the guy they are talking about.

      • bigbrother says:

        Thank you for the candid snapshot, I agree. All the talking heads seen to put out the corporations spin. The catholics in chile backed the Allende coup. Don’t think he was fair in his interviewa amybe he change I turned off the television over a year ago or I would have had massive heart failure by now. All the best to his.

      • PetePierce says:

        As often very well said. I agree. I nearly destroyed several generations of TV out of frustration for what Russert refused to ask but had to know he should have.

    • Rayne says:

      Money. It’s about the money.

      GE isn’t just a manufacturer of products used in war; they make a lot of money on money itself. About half its revenues have come from its GE Commercial and GE Consumer Finance, although that may have changed substantially in the wake of the credit crisis. (I think I need to look for a copy of their annual statement, because my spouse has stubbornly refused to sell his small holding of GE stock…long past time to dump this.)

      GE can surely see that the gravy train of war is coming to an end, and they can also surely see that any profits they’ve made on war have been eaten more rapidly by the crash of the credit market. There’s only one place to lay the blame for all this, and it’s with this administration, which has borrowed ridiculous sums for the war and encouraged equally ridiculous excesses in credit due to its rejection of oversight of any kind.

      This makes it all the more necessary for marginal businesses like GE’s entertainment unit to earn its keep; where once NBC could be counted upon to earn its way through propaganda that would in turn encourage favorable tax policies and related legislation, NBC must now make money. It must be profitable either to help bail out the rest of the business, or to make it more appetizing to a potential buyer when the price is right, so that capital from the spin-off could be used to prop up GE’s 5 other business centers.

      NBC and in turn GE execs finally figured out that the larger market share was left behind in the chase for the consumer that frequented Fox. Why fight with CNN and Fox for 48% of the market when there was 52% to be had — and that portion of the market is younger and likely to be around a lot longer.

      And then there’s the question of liability…what if it did come out that GE/NBC was complicit in aiding and abetting an illegal run up to war? Wouldn’t it be better for them to increase market share, make money, while looking like they’ve turned around politically?

      It’s all about the money.

      • readerOfTeaLeaves says:

        There’s only one place to lay the blame for all this, and it’s with this administration, which has borrowed ridiculous sums for the war and encouraged equally ridiculous excesses in credit due to its rejection of oversight of any kind.

        Oh, I include a spineless, conniving Congress; a Rove-enabled, Abramoff-K-Street funded lobbyist wing; a lot of money-laundering and Globalization interests; a few Iraqi and Iranian spies/double agents, and some feckless, gullible journalists in my ’stoopid’ list — I think there are multiple places to lay the blame for this monumental fiasco. ALL of which ties in to your insights about the huge portion of revenues/profits GE was making from their finance arm… all that ‘finance’ business fueled corrupt government.**

        But bmaz @65, your points are well taken.

        ** Just starting Soros’s latest book – and wow, it is ever interesting to read his views about the bursting of the Credit Bubble. (But then, I’m a huge admirer of Soros’s rigorous thinking; and I happen to agree with his views that in the larger context, markets are a good place to test the validity of one’s thinking.) Very interesting implications for GE, and its various subsidiaries, if Soros’s analysis is accurate.

      • bigbrother says:

        Love your logic and your posts. Fox has a lot of word eating to do. GE Capital is coming to the table on the Water/Wastewater infrastructure repair that is $2 trillion dollars worth. GE is positioning to privatize public utilities The game is in progress see their website and DBIA design build using the capital you mention. Their is a lot of unreported disater capital projects in the work here at home like the infrastructure contracts in Iraq. We are seeing the tip of the Neocon icegerg which is partly why they are so smug. Small iz is in big trouble.

    • LabDancer says:

      “Just observations”. Not to me: I actually think that you’re on to something that could take up somewhere between the sort of leering insider gossip media behavior analysis & the less lurid but more disciplined & comprehensive objective survey approach of Jay Rosen AT LEAST – & something more than a chapter in a full treatise book on the evolution of cable news [& maybe sports too: ESPN & The Golf Channel would fit the template] from birth pangs through maturation- with a special focus on their response to crises that threaten their very survival.

      It’s only my gut talking [Oops- forgot breakfast again] but I wouldn’t be surprised if a full workup on the MSNBC armada with particular focus on the hows & why of the sinking of its then Liberal flagship USS Donohue ending with tomorrow mornings first post-Russert MtP & the intriguing possibility of its current Liberal flagship USS Olbermann being promoted to Admiral to fill the unexpected vacancy.

      Who knows… but with Kommie Keith in charge MSNBC might dump its full line-up of Piggly Wiggly tabloid rejects- like the Lock Up tour of American meta-crazies- in favor of wall to wall with the likes of Rachel Meddow [who I think is the closest thing to a dead solid lock to be an industry star since the Mighty hockey Pens drafted Sid the Kanuckian Kid – & maybe a range of blogging heads: Ms E Wheel for example is coming along very nicely from her early days poking holes in Dwight Shrute

      [Isn’t that the name of the guy from National Review who played her crazed psychotic agenda-ridden straight man? I think I might have the name wrong: Shrute’s takes would be way more intriguing. He as a yorkie right?]

      If you were to do that story, you could HIRE folks to read your tea leaves.

      • LabDancer says:

        Oops – I was thinking The New Yorker’s Ken Auletta for the lurid gossipy story, but it must not have reached my typal lobe.

        • readerOfTeaLeaves says:

          Typal lobe… got one to spare?

          I think that I spelled it ‘Schroot’ in an earlier comment somewhere… it appears you have the correct spelling of the character on the only show that I watch (on DVD, online) NBC’s “The Office”. Indeed, as I read the SSCI report section about Larry Franklin, the character of Dwight Schrute, sent to Rome by Stephen Hadley and Dougie Feith, completely certain of his own importance, leapt into my brain and has continued to haunt me since. The imagery was so traumatic that I’ve not yet finished that report, nor translated massaccio’s synopsis… (*sigh*)…
          Unclear about your reference to the yorkie guy… so many faces, so much blur…

          EW on MSNBC?
          Cogent thought? Analysis?
          A background in teaching, who knows how to explain complex topics…?
          Puleeze!! Don’t tease!

          Agree with you on the Rachel Maddow assessment: she’s a pulsar in a galaxy of so-called luminaries running out of fuel.

  33. Rayne says:

    OT — well, kind of OT — just because it seems so prescient in hindsight, here’s a link to Colbert’s 2006 speech to the National Press Club. About the only thing that Colbert didn’t cuff up the administration and the media about was its attempts to rewrite the Constitution.

        • phred says:

          What bmaz said — that was creepy… wow. ‘Course it puts the lie to BushCo’s favorite refrain, “who could have imagined”? Well, now we know — The Onion.

        • readerOfTeaLeaves says:

          Oh, yeah, I recognize that item from The Onion. My spouse has had it bookmarked for about seven years now, I think.

        • WilliamOckham says:

          This is part that always gets me:

          “We as a people must stand united, banding together to tear this nation in two,” Bush said. “Much work lies ahead of us: The gap between the rich and the poor may be wide, be there’s much more widening left to do. We must squander our nation’s hard-won budget surplus on tax breaks for the wealthiest 15 percent. And, on the foreign front, we must find an enemy and defeat it.”

          I’m not sure what’s more horrific. The idea that, in some way, we all knew what was going or that Bush managed to be even worse than the most extreme parody. Or maybe it’s that they expressed Bush’s aims more cogently than he ever has.

  34. watercarrier4diogenes says:

    Here’s a cartoon from the Sacramento Bee that I hope a very large audience out there in “I know not what our leaders are doing to me” land manages to see and absorb.

  35. MadDog says:

    OT – For an interesting read, you might take a gander at Secrecy News’ latest FOIA catch:

    U.S. Military Hoped for Virtually Unlimited Freedom of Action in Iraq Drafting of U.S.-Iraq Security Agreement Began Nearly Five Years Ago

    And from one of the Joint Task Force’s documents back in December 2003:

    Red LInes:

    1. Authority for the Coalition Force, without interference or permission, to have the freedom of action to fight the GWOT, fight anti-coalition forces and to ensure a safe and secure environment in Iraq.

    2. A clear definition of the status of the Coalition Forces including a basis in international law and Iraqi Fundamental Law.

    3. A clear understanding of the authority by which the Coalition Force will exercise operational command over Iraqi forces and to be assisted by the Police.

    4. The right of the Coalition Force to detain, interrogate and intern anti-Coalition forces and security risk personnel as deemed by CG, CJTF-7.

    5. Recognition that the Coalition Force will continue operations to find WMD and uncover additional information relating to such programs.

    6. The requirement of the Coalition Force to determine the Rules of Engagement under which it operations.

    7. Freedom (without passports or visas buty with military identification) of entry and exit of Coalition Force personnel into and out of Iraq and complete freedom of movement within Iraq.

    8. Right for military to wear uniforms and for both military and approved contractors to carry arms in order to ensure safety and security of Iraqis, Coalition Forces and contractors.

    9. Exclusive right to exercise criminal jurisdiction over military personnel in respect of any criminal offences that may be committed in Iraq.

    10. The right of the Coalition Force to use, free of charge, all necessary radio spectrums and enjoy priority of use for public utilities at rates no less favourable than those available to Iraqis.

    11. The right of the Coalition Force to have freedom from Iraqi taxation to import and export without restriction and without any liability to pay customs duty.

    12. The Security Agreement must cover Coalition Force military and civilian personnel as well as contractors.

    13. Full diplomatic immunity for all Coalition Force personnel and those contractors employed by the Coalition…

    I bet the Iraqis are sure glad we didn’t come as Occupiers.

    And I bet the Iraqis are in 7th Heaven over the fact that we gave them Democracy without any right to ask their “guests” to leave.

      • yonodeler says:

        2. A clear definition of the status of the Coalition Forces including a basis in international law and Iraqi Fundamental Law.

        I can’t imagine anything harder to come up with than that.

    • readerOfTeaLeaves says:

      Oh, go read some of the older posts at Ben Lando’s UPI Iraq Oil Report and see who’s been bidding on, and getting contracts to, oil field development in Iraq. Someday his stuff should be bundled into a book.

      Probably Justice Kennedy would read it.
      But Scalia would probably be about as open to Ben Lando’s pragmatic reporting as he is to The Daily Show’s ruthless truth-telling… (deigning it ‘not worth his time’). Perhaps he doesn’t want to miss reruns of “24″… sigh…

  36. WilliamOckham says:

    I grew up seeing ”Impeach Earl Warren” billboards. I’d give up on impeaching Bush/Cheney if the Congress would start impeachment hearings against Scalia. Yes, I think his latest fear-mongering is worthy of impeachment.

    • PetePierce says:

      Scalia and Renquist. Two appointments that have inflicted irreversible damage on this country.

  37. Leen says:

    Bmaz I know you have reminded me before that I am just a visitor here wading through the territory of brilliant minds. But this really feels unnecessary and premature.

  38. JohnLopresti says:

    I found a biography of TonyKennedy posted likely around y2K at Oyez; it is interesting to review his penchant for quantum jurisprudence. I see the Scotus shifts as an oscillation; consider this 2005 keynote from a crim law colloquium at OH State’s MoritzLaw by George Thomas examining the conservatism of several Scotus justices who subsequently became relativistically liberal as the ambience shifted to a kind of mouldering conservatism, 10pp.

    Though a late second term Reagan appointee, TonyK was a trusted fallback known recourse following a pair of scandalous nominations. Essentially Reagan’s parting gift to nascent neoconnery crashed when profTribe and some helpful senators bared the gambit Bork meditated.

    However, JBalkin seems to have a warning and yet another joke as he studies what Scotus might be trying to counsel neoconnish Bush to read into the latest decision in Boumediene, JB sounding as if freshly emerged from caste hostilities, depicting neocons as revolutionaries.

    Maybe strider7 @55 has happened upon the appropriate characterization from a difficult time fully 23 years prior to TKennedy’s 1988 nomination, in 1965 when the performer in a modern folksong partly cited @55 added a fading bit of civil rights pop psychology in a passing mention of person(s) “Bent out of shape from society’s pliers”. The idea of the unruly verse seemed to be a theme of individualism and principle, though a lot more is happening, too. That was a year when the writer recognized he was more artist than politico, a view that has a continuum, as may be viewed in some newly published pen and colors artwork by the same individual viewable in sneak preview at the currently morphing website linked. I want to read Balkin’s list of 4 losses at the Supreme Court again, for the foundered neocons in the Bush administration’s sake, and for article III’s worth.

  39. DrDave says:

    Kennedy’s remarkable opinion and trenchant insights reveal that he is the real Chief Justice, and not a political hack. This decision will go down in history as a narrow escape from the attacks upon law, reason and rights. The dissenting opinions are poorly crafted; an embarrassment: moreover, dissenters’ comments contain talking points and FUD–a new low for the court.

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