Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

06/14/2008 (1:33 pm)

Supreme Court Grants Court Access to Enemy Combatants

The tyranny of the left grew by a huge leap on Thursday when the US Supreme Court struck down the Military Commissions Act of 2006 (hereafter, “MCA”) as unconstitutional, in Boumediene v Bush, The act of granting habeas corpus rights in American courts to captured enemy soldiers who are not Americans, are not located in America, have never lived in America or visited America, who would rather not be anywhere near America, and who already have more rights than any combatants in the history of the world, is bad enough — when we’re fighting a war, it helps if our highest court does not act the Useful Idiot and aid our enemies’ most cynical tactics. It’s much worse that in order to do it, the Court arrogated to itself the right to enforce the terms of the US Constitution to anyone, anywhere on the globe, ironically in the name of limiting the power of the Executive and Congress.

The opinion of the majority reads like the rationalizations of a high schooler in trouble; it’s clear from the outset that the Court was squirming and trying to pretend there was no ruling precedent, though they clearly knew there was. Anthony Kennedy, speaking for the leftist wing of the Court, slithered through a lengthy history of habeas corpus in common law to prove that habeas corpus was a critical right (as though anybody doubted this) and hoping to illustrate that nothing addressed the question of granting rights to aliens captured in battle. The smokescreen attempts to obscure the thorough and probably deliberate misreading of the one precedent that directly addresses the question, Justice Jackson’s majority opinion in Johnson v Eisentrager, an attempt by German war criminals to obtain habeas corpus rights in American courts. I’m sure the true leftists urged the moderate Kennedy to write the opinion so as to avoid blame for it themselves.

Just so we can see what the leftist tyrants were attempting to avoid while blowing their ink cloud, allow me to quote the findings of the Court in Eisentrager:


1. A nonresident enemy alien has no access to our courts in wartime…

2. These nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States…

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States…

Clear enough? The Court does have the right to overturn previous decisions; this Court, however, chose instead to misrepresent Eisentrager, so as to invalidate a standing precedent without having to explain why.

The Court makes much of the length of detainment without hearing, ignoring (again, probably deliberately) the simple fact that it was the pending higher court appeals that prevented timely resolution in the prescribed military tribunals. The detained enemy combatants made sure they did not stand trial before military tribunals in order to make this very point possible. As Chief Justice Roberts points out in dissent,

Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute’s review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead.

The most ironic and laughable aspect of this decision is that the MCA, which the Court struck down, was specifically recommended by the same Court a mere 2 years ago as the remedy for the previous law, the Detainee Treatment Act of 2005 (hereafter, “DTA”). The Court in Hamdan v Rumsfeld, another case decided by leftist premeditation and in clear contempt of Congress, had decided that the DTA, though constitutionally sound, did not apply to cases underway before the DTA was passed, but stated plainly that the Congress could specify the law to apply to such cases if they chose. Congress and the President proceeded promptly to pass the MCA, adding precisely what the Court had told them was lacking in the DTA. Quoth Justice Scalia in dissent, “Turns out they were just kidding.”

Chief Justice Roberts and Justice Scalia both wrote unusually harsh dissents, both drawing the conclusion that the majority decision was really about extending Court authority rather than about protecting any particular rights.

From Roberts’ dissent:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Roberts adds that the MCA grants the detainees everything the majority opinion claims would be required in order to meet the Constitutional standard — the right to hear the charges, to challenge the basis for detention, to call witnesses, to appeal. to employ counsel, to challenge the factual record — and that the fact the MCA-defined procedure was not followed should have prevented the plaintiffs from being heard by the Supreme Court in the first place. He also notes the creation of a new, “reverse-facial” test for constitutionality in which the majority claims that if it can imagine any situation in which the statute might be used in an unconstitutional manner, it must be struck down in its entirety; the usual standard is that the Court must “establish that no circumstance exists under which the Act would be valid.” (US v Salerno, 1987).

Scalia’s dissent began with an assessment of the damage done by the majority opinion, both to the war…:

America is at war with radical Islamists… The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today…

At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield… These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified… If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

… and to the separation of powers:

And today it is not just the military that the Court elbows aside… [It is] clear that Congress and the Executive— both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting… What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails…

Even today, the Court cannot resist striking a pose of faux deference to Congress and the President … the Court says: “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.

He goes on to explain the majority’s complete misreading of the Eisentrager case, pointing out (as I did, above) that contrary to the claim of the majority that Eisentrager had set up a “functional” test for jurisdiction, the Court had explicitly found that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

In a case related by the ideology of the judge, an Ohio Circuit Judge yesterday struck down Ohio’s death penalty statute on bizarre procedural grounds. The Volokh Conspiracy posted the link to the photo from the USA Today article describing the decision.

We’ve grown used to the left in America abusing the Courts in order to jam their agenda down the nation’s throat. I would be calling for the impeachment of judges if there was any possibility that the procedure would be finished while President Bush was still in office. As it is, this case illustrates how crucial it is that liberal Democrats be kept out of the Oval Office this year; the liberties of the nation are clearly not safe in the hands of judges who let their ideology decide their cases, and then play with the words dishonestly until they justify the result their ideology demanded.

Ed Morrissey adds his observations about the case at yesterday’s Hot Air.

04/20/2008 (7:01 am)

Fundie LDS Case Trips Libertarian Alarm

I wrote earlier this month about the fundamentalist Mormon sect whose ranch was raided by Texas authorities on suspicion of child abuse. Libertarians have been up in arms regarding what they regard as “police state tactics” on the part of Texas, holding more than 400 children separate from their parents on the basis of a single, anonymous phone call alleging that an underage girl was forced to bear children and needed the state’s protection.

Developments in the story prompt me to come down on the side of the alarmists.

During the hearing regarding whether the children should remain in the state’s custody pending further investigation, child psychologist and state witness Bruce Perry testified that the group’s belief system is abusive.

Earlier Friday a cult expert told the judge in the West Texas polygamous sect child custody hearing that the group’s belief system is abusive.

Psychiatrist Bruce Perry testified that teen girls don’t resist early marriages because they are trained to be obedient and compliant.

Perry took the stand in a hearing concerning 416 youngsters removed this month from a polygamist compound near Eldorado and placed with Texas Child Protective Services.

Perry, who’s an expert on children in cults, says while the teen girls believed they were marrying out of free choice, it’s a choice based on lessons they’ve had from birth.

This is a matter of concern to me. Who wants the state to have the right to decide which beliefs are “abusive” and which are not? Crimes usually address behaviors, not beliefs. The state has every right to investigate abusive behaviors. But abusive beliefs? I’m sorry, we’ve just stepped over a line that civil liberties cannot tolerate. How long will it be, do you suppose, before the state decides that teaching that homosexuality is offensive to God constitutes an abusive belief? Should the state be able to declare a belief system “abusive” if a church teaches that wives should be submissive toward their husbands? Is it possible that the state may eventually decide that to teach teenagers that premarital sex is wrong and that adults should refrain from sexual activity until marriage, constitutes an abusive belief system? Keep in mind, I’m not asking if you think that’s abusive — I’m asking if the state should be permitted to make that assessment.

The psychologist in question acknowledges that the individuals he interviewed seemed psychologically healthy. He just thinks the beliefs are abusive. Too authoritarian, you see. I’d probably agree, but if the state can take my children away because they dislike my beliefs, liberty is an illusion.

Members of the sect have reportedly been evasive about who is married to whom, so it’s unclear to whom specific children belong. The court has ordered the children held for genetic testing so they can determine whether the law was broken. If you’ll recall, the law in Texas says that young women may not marry before the age of 16, with or without their parents’ consent. Furthermore, the legal age of sexual consent in Texas is 18 outside of marriage. Consequently, girls who are pregnant before they turn 16 constitute prima facie evidence that a crime has been committed. I have no libertarian objection to the state of Texas proceding in this direction; they have appropriate probable cause that a crime has been committed, and they’re exercising due diligence.

Also in the “due diligence” department, Texas Rangers are investigating the possibility that the original distress call might have come from a disturbed individual who has a history of calling in false alarms. They’re seeking a “person of interest” in Colorado Springs who may have been the source of the original complaint. Police originally received a call from someone who claimed to be Sarah Jessop Barlow, a 16-year-old who was beaten and forced to cohabit with an older man. Police have not located anybody of that name, and members of the Fundamentalist LDS church claim that she does not exist.

This is a difficult arena. Cult groups push the envelope of what behaviors the state can tolerate, while hiding behind a completely appropriate shield of religious liberty. The massacre of the Branch Davidians in Waco, back in 1993, marked a sort of extreme reaction we all want to avoid. Today, Texas is skirting the edge of allowable law enforcement; we need to speak up about which parts of their conduct are appropriate, and which cross libertarian alarm wires.

04/16/2008 (8:41 pm)

Sneer Reflex, Judicial Style

The US Supreme Court today released its decision on Baze v. Rees, the case examining whether lethal injection constitutes a violation of the 8th Amendment ban against cruel and unusual punishment. The Court correctly decided that it does not.

On a tip, I read the concurring opinion by Justice Scalia, whose decisions are usually brilliant, precise, wry, and entertaining. Today’s was no exception, as he very precisely tore Justice Stephens’ concurring opinion to shreds. Stephens, while agreeing with the final decision of the majority, apparently had argued that the ongoing support for the death penalty, itself, is “the product of habit and inattention rather than an acceptable deliberative process,” Scalia spanked him appropriately.

Since we recently discussed the Uncontrollable Sneer Reflex in the wake of Barack Obama letting his mask slip and exposing the American Left’s universal, reflexive disdain for the opinions of anybody not a member of their club, I thought the closing shot from Scalia’s opinion was particularly appropriate. Here Scalia takes Stephens to task for an act of raw, judicial activism:

As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

I especially note Stephens’ dismissal of the state legislature’s, Congress’, and even the Court’s support for the death penalty as “the product of habit and inattention rather than an acceptable deliberative process.” Translation: “They’re not as smart as me.” I also note his dismissal of the public’s support for the death penalty as a mere “thirst for vengeance.” To me, this is the same sentiment Obama expressed as he described small-town Pennsylvanians “clinging to their guns, and to their religion…” The political left genuinely thinks the only way anybody could possibly disagree with them is if they’re just too stupid to see what those enlightened, properly educated leftists see. They believe this so deeply that they think it’s their duty to overrule them, even in the teeth of the US Constitution. Leftists are pure totalitarians at heart. They cannot be trusted with our liberties. Ever.

I understand the lure of thinking one is smarter than others; I fall prey to it myself sometimes, but I sincerely hope I would never allow my esteem for my own intellectual prowess to lead me to cancel the legislative process demanded and protected by the Constitution.

04/07/2008 (9:57 am)

Blueprint for Climate Change Tyranny

Via Instapundit:

Expansive Executive power is a bad thing when wielded by a Republican for national security, but apparently a good thing when wielded in the name of controlling climate change.

A team of researchers at the University of Colorado worked full time for nearly six months to produce a report that explores the legal limits of Executive Orders by the President and lays out a blueprint for fast-tracking policies to force American industry to reduce its carbon footprint, without having to wait for legislation. Read about it here (Warning: EnviroLoon Territory).

The new report, “The Boundaries of Executive Authority: Using Executive Orders to Implement Climate Change Policy,” lists hundreds of executive orders — and the basis for each order’s authority — that could be used to combat global warming.

“We’re defining the playground in which the president can play,” said Alaine Ginocchio, lead author of the paper.

(Webmaster’s note: the quote block is from the original article, which appeared at http://www.dailycamera.com/news/2008/apr/05/fast-tracking-climate-policies/. However, that link no longer displays the article from which the quote was taken. My apologies.)

Any of us who recall the Clinton administration understand how Democrats really feel about Executive power. In stark contradistinction to their caterwauling over Bush administration national security measures, Democrats applauded as an out-of-control President Clinton not only filed Executive Orders that often directly contradicted specific acts of Congress, but bragged about doing it. From a Heritage Foundation review of the use and abuse of Executive Orders:

During the previous Administration, President Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests…

A review of President Clinton’s directives also reveals some important departures from the practices of his two predecessors. This is particularly true of his use (and abuse) of powers under the Antiquities Act of 1906 and numerous directives issued in the areas of foreign and defense policy, environmental policy, regulatory review, labor policy, and civil rights. A disproportionate number of these executive directives were either illegal or issued in the furtherance of an improper policy or political objective.

Meanwhile, Dr. Roy Spencer, principal research scientist at the University of Alabama at Huntsville, provides a pithy review of the sloppiness of climate science research in the current politically-charged atmosphere. It’s worth a read.

04/06/2008 (7:55 pm)

Religion vs Law, a Precedent

Early this morning, local and state law enforcement officers in Eldorado, TX raided a ranch serving as the temple for an aberrant sect of extremist Mormons accused of violating Texas law regarding marriage of underage women. One hundred eighty three women and children were removed from the ranch over the weekend after a sixteen-year-old girl alleged that she’d been sexually abused and bore a child while underage. The ranch, considered a temple by the Fundamentalist Church of Jesus Christ of the Latter Day Saints, had been converted to a retreat by polygamist leader Warren Jeffs, who is now serving a jail sentence in Utah for being an accomplice to rape.

Aside from evoking images of the massacre in Waco in 1993, this story is important because it highlights the official position of at least one state toward religions that attempt to operate outside state law. With Islam establishing Sharia in clear opposition to local and national laws all over Europe (see also this article), the willingness of states in the US may soon be tested by Muslim enclaves attempting to assert the right of their own religion to enforce behavior as they see fit.

Islam differs from Judaism and Christianity in that it recognizes no division between religion and the state. Jews and Christians generally regard the law of the land as the law of God, so long as the state requires nothing of them that violates their conscience; Christians are perhaps more apt to attempt to change national law through peaceful means. Extreme versions of Islam, however, regard the state and the law as the province of religion, and Muslims have set up enclaves in which Sharia is enforced by the community, sometimes in opposition to local and state ordinances.

There’s a difference between enforcing the law against a few hundred wild-eyed Mormons living together on a large ranch, and attempting to enforce state law in a community where the residents intend to enforce a different law. It remains to be seen whether law enforcement in the US will show the same resolve against extreme Muslims that they’re showing today against extreme Mormons. Let’s hope the law remains the law, regardless of who’s breaking it.

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