Carol Platt Liebau: Not Infallible, Just Final

Thursday, June 29, 2006

Not Infallible, Just Final

Today, the Supreme Court has reminded us of the abiding truth of Justice Jackson's words: We are not final because we are infallible, but we are infallible only because we are final.

Almost unbelievably, it appears that the Court has ruled in favor of Osama bin Laden's driver, Salim Ahmed Hamdan, who has argued that the President lacks the authority to order military tribunals for prisoners at Guantanamo Bay, and instead that prisoners are entitled to a civilian trial or court martial. Slip opinion is here.

In this regrettable piece of work, the Supreme Court -- with Justices Stevens, Ginsburg, Breyer, Souter and Kennedy (!!) in the majority -- has effectively found that members of Al Qaeda are, in fact, entitled to some of the protections of the Geneva Convention, a conclusion that, quite frankly, has the potential to undermine the Court's credibility in a major way. (Clarification: Justice Kennedy did not agree with the portion of the majority's holding that radically misread the Geneva Conventions).

Chief Justice Roberts had to recuse himself in the case, as he joined the opinion on the D.C. Circuit that was overturned this morning. That means that without Kennedy's defection, the case would have gone the other way, as a 4-4 tie would have allowed the D.C. Circuit opinion to stand.

Once again, this is a compelling reminder that elections matter and that Supreme Court choice nominations are of infinite importance.

Seems to me that while the Congress is busy voting on resolutions condemning nameless entities, it might be worthwhile for them to weigh in on whether terrorists are entitled to any of the protections of the Geneva Conventions. And immediately, it needs to legislatively endow the President with the authority to establish and use military tribunals.

In the days after 9/11, who would have dreamed that the third branch and the fourth estate would make it so difficult actually to prosecute the war on terror? Who would dream that the latter would be betraying effective, legal programs that had been successful at catching terrorists -- and that the former would arrogate to itself the power to supply them with a panoply of rights that belong to prisoners of war fighting in uniform, but definitively not to those who, by stealth, move among us and attempt to murder innocent civilians.


Blogger SicSemperTyrannus said...

This comment has been removed by a blog administrator.

7:52 AM  
Blogger SicSemperTyrannus said...

"they'd" vs. "they"

7:53 AM  
Blogger COPioneer said...

Great points Carol. The hyper-pussilanimus left wing is leaking into everything. They won't touch the wicked, but they prey on the most weak and innocent.

7:58 AM  
Blogger The Flomblog said...

I wonder?

Perhaps they (SCOTUS) might be right. We need to live the example. In spite of the horror these cretins would cause given the opportunity, we are the "Good Guys". In todays world we cannot simply "Lock them up and throw away the key".

I'm NOT screaming torture or somesuch nonsense, however I do believe that this topic deserves a serious discussion.

However I do have to wonder - Do we now hold our enemy combatents to the UCMJ?

8:24 AM  
Blogger suek said...

We took them in Afghanistan - send them back to Afghani courts.

It certainly doesn't encourage the military to take prisoners...

9:28 AM  
Blogger SicSemperTyrannus said...

To paraphrase President Andrew Jackson, Justice John Paul Stevens has made his decision, now let him enforce it.

9:43 AM  
Blogger Pete said...

The poster in the post office used to read, "Wanted - Dead or Alive". Now that SCOTUS has voted, it is time to cross off the 'Alive' part!

9:53 AM  
Blogger Dittohead said...

In their infinite wisdom the justices decided in favor of the rule of law over a tyrannical dictatorhip.

10:01 AM  
Blogger wrabkin said...

That would be ACCUSED terrorists, Carol. You might want to think back to the first couple days of law school. Remember when they taught you that a simple accusation doesn't prove guilt? Or did you skip class that day?

If so, it must have been the same day you skipped math class. The decision was 5-3 against the installation of a dictatorship with completely uncontrolled power. If you added the Chief Justice to the side of totalitarianism, that would make 5-4, not 4-4.

Oh, and love your poster who advocates murdering the Supreme Court. Glad to see you have such patriots on your side.

10:29 AM  
Blogger Pete said...

Verrrrry Interesting! We return to the days of "innocent until proven guilty" regarding terrorists. Oh, I'm sorry - "ACCUSSED" terrorists.

Funny how that simple principle is lost when we're attacking the present administration, or a conservative pundit, isn't it? Then it is the more PC mantra "guilty until proven innocent!"

The inDUHviduals of the left - gotta love 'em!

11:43 AM  
Blogger eLarson said...

Unintended consequences:
This ruling could lead to a 'take no prisoners' approach on the field of battle. If you are not in a uniform, you can be shot as a spy.

12:04 PM  
Blogger Duke-Stir said...

I know, Pete. It's so unfair for us to assume Bush lied or that his appalling incompetence contributed to 9/11. The only fair thing to do is to assign an independent prosecutor to find out. Someone completely impartial and without any preconceived notions. Like Ken Starr. HA!

Don't you agree? That way there won't be any more "speculation" as to whether or not Duh-bya is the least qualified person to ever sit in the Oval Office.

12:07 PM  
Blogger wrabkin said...

Yes, Pete,

We return to the days of innocent until proven guilty for accused terrorists. Or, in other words, we go back to the laws and the constitution of this country. If you or Bush want to change the presumption of innocence, start working on a constitutional amendment.

And the comparison to liberal bloggers saying mean things about the president just shows how right-wing self-pity completely rots the brain. If you are prepared to compare a liberal saying that Karl Rove should be indicted with someone being thrown into a prison camp with no charges, no trial, no chance to communicate with a lawyer, and no rights, then you are so lost in self-delusion that you have simply let all reality slip out of your grasp.

2:45 PM  
Blogger Carol Platt Liebau said...


Thanks for the gentle civility with which you attempted to correct my math; apparently, my point was too subtle for you.

I wrote:

Chief Justice Roberts had to recuse himself in the case, as he joined the opinion on the D.C. Circuit that was overturned this morning. That means that without Kennedy's defection, the case would have gone the other way, as a 4-4 tie would have allowed the D.C. Circuit opinion to stand.

In other words, if Kennedy had voted with the conservative (Alito, Scalia, Thomas), there would have been a 4-4 tie. When that happens, the decision of the court below is upheld.

Get it now?

2:52 PM  
Blogger Duke-Stir said...

Saucy Carol.

3:23 PM  
Blogger wrabkin said...

I did miss the subtlety of your math, Carol, thank you.

I guess it didn't register because it didn't make much sense. Yes, if people had voted differently, the end result would have been different. If Scalia and Thomas actually meant a word of what they say about the "orginal intent" of the constitution, they would have voted against the insane -- evil -- idea that we are now ruled by a king, and the vote would have been seven-one. (Of course, since "original intent" is a crock and they -- like you -- know it, there wasn't much chance of that happening.) And if all nine of them had voted to install me as Grand Poobah of the USA, I'd be wearing ermine right now.

Fortunately, Kennedy still has some respect for this nation and the principles on which it's founded. And I'm sorry, Pete, co-pioneer, and the rest, there's no place in the constitution where it says "None of this applies if we get scared by scary bad people."

3:43 PM  
Blogger Dittohead said...

A repudiation of everything George Bush stands for…

*Bush said he could do whatever he wanted to in conducting the war on terror, with no further congressional authority.

*Bush said detainees in the war on terror have no rights.

*Bush said, in the war on terror, the United States is not bound by the Geneva Conventions.

*Bush said we could round up suspects and hold them for years, without a trial, without counsel, without charges being filed against them.

The Supreme Court said he’s wrong, wrong, wrong, and wrong.

5:51 PM  
Blogger Marshall Art said...

But on many of those points, the SCOTUS, or at least your favorite members, are wrong. How many uniformed Nazi's were tried after being taken prisoner? And wrabkin, how do you know that these "detainees" aren't where they deserve to be considering they were taken off the battlefield? That's what our people and our allies are saying and I choose to believe them. Were any of those Nazi's "charged" with a crime or just taken prisoner and held for the duration? What the hell is wrong with you guys? Why don't you sheath your irrational hatred for Republicans until the war is over and then you can nitpick 'em to death with BS accusations?

For the fomblog,

I don't believe we are failing in our role of "Good Guys" in the manner in which we're conducting this war. The enemy has proven itself to be vicious, hateful, unrelenting and without honor or the desire to listen to reason. It's unfortunate that our only option is to bring the hammer down hard until they can no longer take it and surrender unconditionally. When that time comes, we send the libs to talk nice to them. That way, they'll understand reality as the bad guys then go back on their surrender and get savage.

9:21 PM  
Blogger Dittohead said...

This comment has been removed by a blog administrator.

11:44 PM  
Blogger Dittohead said...


Perhaps you can fire off an email to the Justices and explain to them that they got it all wrong.

11:50 PM  
Blogger Carol Platt Liebau said...

The first comment in this thread, pertaining to 9/11, the Pentagon and the Supreme Court has been removed.

Frustration with the Supreme Court is certainly understandable. But we are all Americans -- and we should refrain from comments that give an impression that we wish harm on any of our fellow countryman. After all, preventing such harm has been the goal of those of us who believe in fighting the war on terror robustly.

11:25 AM  
Blogger Marshall Art said...


Perhaps you could just send them the dissenting opinions of the smarter justices and those of the knowledgable pundits. I can't say it better than they can. Of course, with all the lefty blatherings, apparently no one's come up with a way to explain it so the left can understand. Smaller words perhaps would help.

12:59 AM  
Blogger Dittohead said...


Apparently you don't understand how SCOTUS works.

11:20 PM  

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