Scalia’s Cowardice
Posted by
Kevin
One of the more striking things about the decision yesterday was just how unhinged, almost Malkin or Limbaugh-like Scalia sounded:
Reflecting how the case divided the court not only on legal but, perhaps, emotional lines, Justice Scalia said that the United States was “at war with radical Islamists,” and that the ruling “will almost certainly cause more Americans to get killed.”
“The nation will live to regret what the court has done today,” Justice Scalia said.
That is a talking point straight out of the worst recesses of the right wing fever swamp. It is also a cowards argument. I know, I know — I am being shrill and unkind and hardly polite. But I am tired of having to take this nonsense seriously just becasue some gasbag with a microphone or a Justice’s robe says it. Habeas corpus is the first freedom: without the right to challenge the executive’s power to detain you, you are not free. if the executive can decide who to hold, how long to hold them, and even whether or not they will ever be charged with a crime, then the government has a method for the complete control of its citizens. whether it chooses to use that method on you at any given time is merely a detail. You are not free in those conditions — you are merely a prisoner the government has chosen not to confine. No democracy can long survive the threat of a government that can lock you away without recourse. Democracies cannot survive without habeas corpus. And Scalia and Roberts and Thomas and Alito want to throw that freedom away. Why? Because a small group of fanatics got lucky once*. The country faces no threat to its existence. Al Qaeda are not the Nazis of the 1930s and 40s or the Soviets of the Cold War or, heck, even the Confederacy or the British of 1812. They are in no posiiton to bring down this nation. they can, on occasion, with if the stars all align perfectly against us, kill people. That is a horrible thing and something to be guarded against and fought. But it is not a threat to the survival of the nation and it is certainly not as dangerous to the nation as the repeal of habeas corpus would be.
To be so afraid of such a small threat that you would be willing to throw away the very foundation of liberal democracy is a cowardice so vast that I cannot even comprehend it. How does a man so filled with unreasoning fear manage to walk out of his own home, much less talk to strangers coherently? Certainly such a coward does not belong anywhere near a Judicial bench. No man who sees planet-devouring monsters in small terrorist groups can be expected to deal fairly with questions of justice and security. Obviously, his deep paranoia and personal fear-fullness will blind his legal judgment.
Oh, I’m sorry. Did I go too far there? Was I impolite? How terribly rude of me. Of course we must take seriously the notion that giving up the first freedom of liberal democracy is a necessary and required step to defeating a group that poses no serious threat to the survival of the nation. I say bollocks that. It is the argument of a coward or, even worse, a man willing to knowingly exaggerate the threat in order to terrify his fellow citizens. either way, it is a contemptible notion deserving only derision. If you really are so afraid that you want to toss the constitution over the side for the illusion of safety than your are obviously not thinking rationally. Such people should be given a cup of hot cocoa, a pat on the head, tucked into their beds, and be kept out of the way of the rest of us as we deal with the real problems at a level somewhere above that of a panic attack.
*And let’s be clear here — they did get lucky. If any of the major party candidates who ran in 2000 had been in the White House instead of Bush, it is very unlikely that the 9/11 attacks would have succeeded, at least to the massive extent that they did. perhaps that is why Scalia is reacting the way he is to these cases: guilt over his putting his pet idiot into the white House.
1. Your last comment regarding Bush and 9/11 is idiotic to the extreme. Period.
2. Extending rights that belong to US citizens to people from a foreign country involved in any kind of military action is incredibly dangerous and somewhat stupid. You do now realize that IF Bin Laden was captured and taken to Guantanamo Bay that he would be accorded all rights of a US citizen (at least that is my understanding of the ruling) which means he has legal access to federally funded appeals, etc. IF I have misunderstood the ruling then please advise me and I will rethink my position. There is a group in Canada that has been pressuring our courts to say that the Canadian constitution applies to anyone captured by Canadian troops in Afghanistan and they are now pointing to this decision as an example.
Comment 6/13/2008
Generally, speaking, citizens and non-citizens arrested by US law enforcement are granted the same legal rights. I don’t really see why this is such a contentious issue. Yes, I would support Bin Laden having those rights, they are considered human rights in this country - meaning you can’t refuse to extend them to bad guys. In fact, as trite as it is to say, it is those kind of situations that prove whether you have any conviction to the concept of human rights, or just like to pay lip service to it.
However you feel about that (I’m not sure if that’s the line of argumentation I want to get into anyway), you must realize that Osama is the extreme, right? The fact that there is this one really bad guy for whom we’d rather no chance, no matter how small, exist that he get away (assuming we catch him) is not a reason to circumvent important protections for everybody. I truly have trouble understanding why that is a source of contention.
Have you ever had you basic rights ignored by the legal system? I have, multiple times in fact - certainly not the extent we’re talking here. But, perhaps even something as simple as an illegal search and seizure that leads to a weekend in Queens House, a string of subsequent court dates, a drug test, a hundred hours of community service, probation, etc. would be enough to change some peoples’ minds.
Comment 6/13/2008
The human rights side of things is laid out pretty clearly in the Geneva convention and several other international areas of law. What this opens things up to is capturing a war opponent on foreign soil, and as soon as he/she is in US custody (even if it is in a foreign country) he/she is accorded all the LEGAL rights a US citizen has in the US. That would mean that a war opponent who has never set foot in the US and has as his only aim killing American soldiers will now have complete access to legal aid (if you can not afford an attorney one will be appointed for you is a right in the American legal system) which means the US government will then be responsible for paying for the defence and all appeals. To me, that makes absolutely no sense.
To me it is also a logical step to see the US constitution used to override all international law when it comes to detainees. Which would mean any other country can now do the same for any prisoners they capture in any fight.
Comment 6/13/2008
The human rights side of things is laid out pretty clearly in the Geneva convention and several other international areas of law.
Too bad the US set that aside, too. If we were talking about a decision between treating them as POWs or treating them as under arrest within the legal framework, you might have a point. But the US is explicitly trying to treat them as neither. They’ve explicitly argued that the Geneva Conventions do not apply. That’s the real problem with what “any other country” can now also do.
But nonetheless, you’re still wrong here. There’s nothing in our Constitution that says that the right of habeas corpus exists only for citizens. If you’re on vacation in the US and they arrest you, do you really think you have no rights? And further, the majority of those held at Guantanamo Bay were not captured on the battlefield, and were not actively fighting against
US“coalition” troops.I know your instinctive reaction is to side with the conservatives, but I really think you need to take a step back on this one. You’ve shown that you can be reasonable about these things, and I’m asking you to rethink it here. Don’t let what the dextrosphere* has to say about it be the be-all and end-all, and have a look here and here and here for some detailed defenses of the ruling (the first by a layperson, the others by lawyers, I believe).
* - Credit to Xrlq for the term.
Comment 6/13/2008
As I said in comment 1, I am open to rethinking my position. Thanks for the info tgirsch. So here is the way it looks to me in point form.
1. The ruling does not apply to people captured during a war.
2. The ruling does apply to citizens (US or otherwise) detained anywhere and then held on US territory (i.e. Guantanamo).
3. The Canadian group that is using this as an example of how the Canadian constitution should override Afghanistan or international laws for soldiers captured by Canadians on the battlefield are also viewing the ruling incorrectly.
Does that about sum it up? From the way it came across to me, foreign soldiers caught during a war on foreign soil were being granted the same rights (including governemtn sponsored legal defense) that they would have if they were just a regular foreigner on vacation in the US. I would guess that was a misunderstanding on my part. Correct?
Comment 6/13/2008
“1. Your last comment regarding Bush and 9/11 is idiotic to the extreme. Period.”
No. Read the 9/11 report. If McCain, Gore or Bradley were in the WH, it does not happen like it did. Its hard to prove a counterfactual, but the Bush Admin was just colossally arrogant and colossally incompetent when they came into office. They didn’t do things they should have and they did things they should not have. I don’t think that Gore, McCain or Bradley would have had that combination of arrogance and incompetence.
“2. Extending rights that belong to US citizens to people from a foreign country involved in any kind of military action is incredibly dangerous and somewhat stupid.”
Blame Bush. He is the one who decided not to treat them as POWS. Either a person captured in a time of war is a POW or a criminal. If they are not going to be treated as POWS, then they have to be treated as criminals. And the President doesn’t get to decide which criminals get the protections of the rule of law and which one does not.
And, for the record, I reject the premise. There is no harm in treating people you call criminals as criminals. And Bin Laden should get the same rights if he is going to be tried as a US criminal. If he is going to be tried for war crimes, then he should be sent to the Hague and tried under their procedures. He should not be stuffed into a kangaro court and made into an obvious martyr.
Comment 6/13/2008
I honestly believe that Big U does not understand the basic situation here. What is happening is so counter to what any reasonable person would expect that he keeps missing the point. Comment #5 being the final proof. If one of you guys has the patience to get the actual facts through, I believe Big U will do a 180 on this. No offense intended here, other than to the Bush admin.
Comment 6/13/2008
Ted, I think I get the point. In my mind my comment in #5 was pretty close to doing a 180 compared to my initial comment. Not sure how it wasn’t seen that way.
I still say that without knowing who all the people who would have been in positions of power had someone else been president at the time of 9/11 that it is impossible to say the attacks would not have succeeded. It is simply speculation. And to make such an emphatic statement based solely on speculation shows more about the commenter’s personal prejudices than it does any available evidence.
Comment 6/13/2008
I’m not trying to be a jerk here, really, but let’s make an analogy. Lakers are down by 1 with four seconds left. Inbound to Vladimir Radmonovich who immediately hoists up a contested three from 28 feet away (can’t blame him, he’s apparently genetically wired to do this regardless of situation). At the same time, Kobe is open at the free throw line. Can you say the Lakers woulda won if V-Rad passed the ball - no, not definitively - but intuitively, you know you woulda had an exponentially better chance. Not saying, the Dems had a Kobe on their roster. I’m just sayin’.
Disclaimer: I may or may not agree; I just think that making humorous sports analogies is my most tangible contribution to this site.
Comment 6/13/2008
Big U, I agree with you on the 9/11 comments in this thread. I was only referring to the rights - or lack thereof - of people held at Gitmo. Not held as criminals, not held as POWs, just held as non-US citizens that might be involved in terrorism.
Comment 6/13/2008
Big U, I read your #5 too fast. Sorry. I retract #7.
Comment 6/13/2008
digg:
Your sports analogies would have more pop if you’d avoid pro basketball, a sport which almost nobody on this blog cares about.
Comment 6/13/2008
BU,
Yes, you’re understanding at #5 is exactly what I got out of reading the court’s summary of it’s ruling (http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf; and here’s a transcript of the oral arguments: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-1195.pdf).
I think Ted, though misreading your second interpretation, was right to say that “What is happening is so counter to what any reasonable person would expect that” your first reaction was understandable.
Comment 6/15/2008
Hm, I’m getting errors about “(Morris)” being a bad regular expression. To Kevin or TG or any other sysop, your killfile is munged. You probably have some mismatched parens or need to escape the parens with backslashes.
Comment 6/15/2008
Big U -
An amendment to your #5:
1. The ruling does not apply to people captured on the battlefield.
I assume that’s what you meant by “during a war,” but I think you’ll easily see the difference: Imagine the US seizing someone in, say, England and taking them to Gitmo (which the US insists it has the right to do) and then arguing that since they were taken “during” the wars in Iraq and Afghanistan the ruling did not apply.
Properly, those captured on the battlefield should be regarded as POWs; it’s wise to recall that the term “unlawful enemy combatant” was invented by the White House for the specific purpose of putting those detained beyond the reach of both the Geneva Accords and US courts.
Comment 6/17/2008
As far as I’m concerned, Scalia is a snied italian-american onion-breathed wingnut judge who happens to
be, by sheer expediency, a justice on the Supreme Court.
Scalia is a heartless loudmouth who deserves to be removed
from the bench. Hopefully, he will moderate as he is
continually chastised by others for being such a photo
and news opportunity hound. He reminds me of a more
venal “Denny Crane” as on TVs “Boston Legal”. Scalia is
much less likable. I LIKE the Denny Crane character.
Ball court analogies don’t get it here. Food analogies do.
Scalia is one SMELLY onion in the Supreme Court and he stinks the whole place up. (Scalia’s name in italian means “onion” or “scallion”. HA! Furthermore, Scalia is
stinkin’ like the party of Lincoln.)
Comment 6/17/2008
In defense of my analogy - it was actually an analogy. Steve’s is a metaphor. Actually, and more specifically, it’s a food metaphor, which are the best things ever, except perhaps the “liberal use of the food metaphor.”
My analogy wasn’t even about Scalia - so it’s a false dilemma anyway.
Comment 6/17/2008
Touche, mon cher digglahhh.
Comment 6/17/2008
What does him being Italian-American have to do with anything?
Comment 6/18/2008