Strengthening Constitutional Self-Government

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Rasul v. Bush is bad law, bad policy

Robert Alt claims that the Supreme Court, in Rasul v. Bush has created a "bold new world." And it is a world, Alt claims, that we should not like because it "opens the federal courts to any detainee held by the United States anywhere in the world," as long as they seek habeas review. Alt: "Thus, as Scalia suggests in his able dissent, anyone held in a foreign theatre of active combat such as Iraq or Afghanistan may bring a petition against the Secretary of Defense." Read the whole thing.   

Discussions - 9 Comments

The Court did the right thing in repudiating one of the fascist policies of Bush2/Ashcroft.

Mr. Gordon: The case did not repudiate Bush policy so much as it rewrote a statute and trampled on more than 50 years of established precendent. If it repudiated anyone’s policy, it repudiated FDR’s policy regarding enemy detainees which formed the basis for the Supreme Court’s jurisprudence in this area following WWII. Sorry to ruin your Bush/Ashcroft conspiratorial fantasies.

I’ll let my previous comment stand. The current policy of detainment may be similar to the shameful policy of internment during WWII. Nevertheless, the the recent decision was addressed specifically toward the detainees now being held. You mention "the Supreme Court’s jurisprudence in this area following WWII." Can you cite some examples of this jurisprudence during the period of say 1946-2000?

I would recommend that you research the topic before you comment. The WWII policy issue was not internment--as much as I am sure that you would like it to be so that it would fit into an easy category to dismiss. Internment dealt with American citizens who undeniably had access to federal courts. The issue in this case is foreign enemy combatants captured and held in non-U.S. territory during time of war. As for examples of this jurisprudence between 1946 - 2000, the seminole case is Johnson v. Eisentrager (1950). By my recollection, there were thousands of more cases brought after Eisentrager, which were all summarily dismissed on the basis of that binding precedent.

So in your response, you have attempted to paint Bush and Ashcroft’s policy as fascist, before you realized that the policy dated back to FDR. Then you mischaracterized a policy recognizing a congressional limitation on the jurisdiction of federal courts with an FDR’s Executive policy of interning citizens. And despite all your complaints about the policy, you have failed to muster one word to explain what possible legal basis the court had to expand its own jurisdiction--which was the sole question in the case. If you are going to say anything else, it would be good for you to address the actual subject matter of the court’s decision--jurisdiction--which is also the core of my article with which you disagree.


Ultimately, you could disagree with the policy but still recognize that legally, the courts are not the proper avenue for address the grievance. If you disagree with the policy, there are two solutions: petition the Executive to change the policy, or petition Congress to modify federal jurisdiction. It is Congress’s responsibility in our constitutional system to make these changes. They could have reached the Gitmo detainees by creating special jurisdiction for federal courts, but did not. Instead, the court acted beyond its power by changing its own jurisdiction. Even if you like the result, which you seem to, you must realize that court decisions are blunt objects, and have ancillary effects beyond the four-corners of the opinion. Far better to leave the matter to the political branches to whom it is designated, which can deal with the specific matter in question, and who can be made held accountable for their decisions by the electorate.

Mr. Alt,

You have your opinions and philosophy about the law and its interpretations. In this particular case you don’t like the Rasul decision and what you see as some of its ramifications. Fine. However, your opinion on Rasul vs Bush and its ramifications is not shared by a majority on the Supreme Court and it is not shared by many others in the legal community either. I personally think many of Bush’s policies are a disgrace to any civilized nation.

But let’s cut to the chase here -in all likelihood, you are the only person who posts here and has a law degree. So, it would be pointless to argue about the law with you. I did try to read through the opinion of Stevens, but since I’m not a lawyer couldn’t decipher all the legalese. I did notice though, that Stevens seemed to cite many precedents in support of the court’s ruling on the issue of jurisdiction.
Just curious -have you ever argued a case in a court of law? Or perhaps you’ve published in some of the more credible law journals? I’d love to see you participate in a forum of your peers, where you had to confront others with opposing points of view. Will that be happening in the near future? Or are you content with only being a big fish on right wing talk radio?

Mr. Gordon: Your response is curious. First, you beg ignorance of the law, and then you seem to suggest that I am the one who is not seeking to defend my positions. Quite to the contrary: before I left I participated in a public debate with a leading expert in international law where I made the very arguments I made in the article just before I left for Iraq. And for those who are worthy advocates of the opposing position, my stance has always been--I will debate you anytime, any place.

But let us return to your argument: if you are going to respond to a legal opinion or argument, then you should really be able to understand it. You say that you disagree with Bush’s policies. Fine. But that is not what Rasul is about. Your failure to understand that means that you are not even responding to my article, or to the Supreme Court’s opinion about jurisdiction. As I said in my previous post, you can think that Bush’s policy is wrong, and still come to the conclusion that Rasul is wrong. They are not contradictory conclusions. The only way they become contradictory is if your your view of law is completely outcomes based. And since you seem to admit of no knowledge of law except for outcomes, I suppose we now know your jurisprudential position. But with that, do not pretend that you are complaining either about my article, or about the dissents issued by the Supreme Court, for you have shown yourself to be incapable of grasping the substance of either.

Mr. Alt: You stated
"you seem to suggest that I am the one who is not seeking to defend my positions." I didn’t suggest that about you at all, nor did I conclude such. That is why I *asked* you about your experience in arguing legal positions. You mentioned a "public debate with a leading expert in international law where I made the very arguments I made in the article..."
Who did you debate and what were the parameters of that debate? Is there a transcript available online? However,I wasn’t really thinking about a debate as such, but was thinking rather about either trial experience, published articles, or forums that are part of meetings such as those held by the American Constitution Society or its chapters.

Next you stated: "if you are going to respond to a legal opinion or argument, then you should really be able to understand it." Really now. That depends on the nature of the reponse and the level of understanding you have in mind. Many people outside the legal profession have reponded, in the way of commentary, about all kinds of legal opinion. Since those people are not specifically trained in the law, I think it’s safe to say that they don’t pass muster when it comes to what you call understanding. Are you saying they should all remain silent? Or are you willing to concede that a responsible citizen has the right to comment on such matters?

Now moving on to the issue of Bush’s policy, you say "that is not what Rasul is about." To paraphrase one of your heroes, "there you go again!" To you, Rasul was about certain legal principles and evidently nothing more. But obviously Rasul had an impact on Bush’s detainment policy, a fact you seem to be incapable of admitting. Or is your vision of the law so narrow that you see it as something completely divorced from the community in which it exists?

Finally, you finish with
"do not pretend that you are complaining either about my article, or *about the dissents* issued by the Supreme Court, for you have shown yourself to be incapable of grasping the substance of either." (emphasis mine) Show me anywhere in this thread where I’ve complained about the dissents issued by the Supreme Court.
Your arrogance, Mr. Alt, is inversely proportional to the substance of your argument.

You make the bold assumption that in order to understand a legal argument, you must be trained in law. I made no such statement. But you stated you weren’t capable of getting past the legalese. That’s fine, but you don’t have to be a lawyer to read a case. I train undergrad students to read cases in my Con Law class. That said, if you are claiming, as you seem to, that you can’t understand the law of the case, then all you are responding to is the result. That’s fine, but my article was about the law. I am more than willing to admit that the decision
s outcome will effect Bush’s policy, but unlike what you have argued, my argument takes into account the fact that cases establish law for a larger category than the particular litigants. As such, the case may in fact create worse policy--leading to execution of those who violate the law of war on the battlefield (something that is consistent with the law of war), or leading to the detention of enemy combatants by less hospitable states. My position recognizes the policy implications and the law; while you seem content with looking at a small sliver of the policy and not even trying to understand the law. As for your ad hominem at the end about the substance of my argument, you have already conceded that you are not capable of understanding legal argumentation--which is not a function of lack of legal training, but presumably your own lack of effort. I don’t think your testimony as to substance carries much weight.

You are obviously incapable or unwilling to respond to the questions I raised or the points I made, but instead have to resort to more ex cathedra proclamations that say........nothing. For someone who is on the record as being willing to "debate anytime, anyplace," you sure have a mighty peculiar record. Where is it? Or are you one of those that’s all bark and no bite? Talk is cheap, Mr. Alt. When you get that first case under your belt, publish your first paper, or participate in your first real debate(see above for the question you obviously dodged), be sure to let me know, okay?

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