Redstate

Goobledygook mixed with smatterings of incomplete Latin. Even the Vatican gave us mass in the local language, maybe the courts could try it.

All judges and lawyers write them that way so us commoners won't understand them; justification for keeping them around, we need someone to interpret the Runes and the chicken bones.

I'd just like to let you know that your drive-by attack worked.  A single tear rolled down face as I read this, and I realized everything I've ever believed has been wrong.  I'm going to go change my registration to Green tommorow.

that exceptions to (e)(1) exist in (h)(2), which says;

Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

Thats seems like an unreasonable construction. If (h) is silent on the question of (e)(1) then all we can conclude is that it is silent. It's creative reading worthy of a Supreme Court justice to assume that this can be somehow read as an implicit restriction of (e)(1).

I will find it interesting to see how this is ultimately handled. Clearly one option for the administration is for the AG to say that the Court overstepped its bounds in this case and we should just ignore the ruling. What happens then? The Court can't really do anything to the administration.

The Congress could decide to step in but their options are limited. They have already told the Court to stay out of it. If they soften their stance on jurisdiction the are bending to the Court. If they reiterate their position they are clearly confronting the Court.

Could be interesting.

Gitmo isnt our only prison.

the Attorney General will advise the President and the Congress that the court overstepped its Constitutional bounds as a direct result of choosing to ignore the Article III limit on jurisdiction. And, and that as a result the ruling has no validity.

There is nothing wrong with a Constitutional crisis now and then; let's find out a) who really has authority in military matters; b) whether the Congress meant what it said and said what it meant.

As Bush would say 'bring it on.'

As far as I'm concerned, the immediate effect of this case on the war will be minimal.

But if the Court can just ignore the right of the Congress under Article 3 of the Constitution (yeah, they love Article 3 of Geneva, but what about OUR Article 3?), then the Supreme Court loses the biggest check on its power that the Constitution creates.

I, too, look forward to see what the administration does about this.

of the personal freezers and office wastebaskets of the members, I doubt that Congress can recognize a constitutional crisis let alone take the time from lunching, junketing and campaigning to respond to it.

Congress has failed to make its will felt repeatedly over the past decades. I don't expect any renewed energy now.

What's new about Hamdan is that the Court just steamrolled through the second-last Constitutional safeguard on the Court.

They've pulled supremacy out of the thin air of Marbury, and now they've blotted out jurisdictional control over themselves with Hamdan.  All it takes now for them to become truly like Iran's Council of Guardians, is for them one day to overrule a Congressional attempt to remove one of them from office.  Perhaps that case will be Souter v. Pence, in which Souter (who sat out this 5-3 ruling) sues the leaders of the House and Senate for removing him against the Constitution.

They did not want to concede in vacating Article III, Section 2: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

that its reasonable to interpret as you do. As I pointd out in a previous post, Scalia wrote quite a bit about the matter, contesting the majority's opinion. He had some good points, and I believe that he made his arguments in good faith--not so that he could get to the result he wanted. My point (as I noted) was simply to hopefully demonstrate that the majority's opinion was also reasonable.

You insist (here and above) on alleging that the majority secretly agrees that the DTA applied, but then wilfully broke the law in order to reach the result they wanted. I disagree-both as to them and the conservative judges. I think all nine are good people working in good faith. However, it is of course impossible for me to convince you that the majority interpretation was reasonable if you believe they decided "yep, scalia is right, but let's just pretend otherwise, and ignore the law to get the result we want." That belief closes off debate--just as it would if I said "no, you're wrong, Scalia decided he was wrong but just wrote what he had to to get to his desired result." There is no avenue of discussion after that.

As I said in an above post--I'm not particularly interested in a discussion in which I regurgitate the majority's opinion while you give back Scalia's. Its a waste of both of our time. Neither of us will change the other's mind. The point I wanted to make has been made--In my opinion, there is no constitutional crisis. If the statute had said "(e)(1) applies to claims pending on and after the date of enactment," as it did for (e)(2), and the Supreme Court had ignored that, then we'd have a constitutional crisis. My point was that it didnt, and we dont.

I've enjoyed the discussion--thanks for the reasoned (at least from my point of view--I wont put words in your mouth)debate.

"Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review . . . is pending on or after the date of the enactment of this Act."

If this provision is to mean anything, it must mean that Paragraph 1 applies only to claims whose review is pending after the date of enactment, not those pending on the date of enactment.

Really? I have to say, that is an odd construction. It seems equally reasonable to read it in the reverse fashion; Paragraph 1 applies only to claims whose review is pending on the date of enactment, not those pending after the date of enactment. Given that everyone in the world knows that this act was specifically aimed at this case, that actually is a far more reasonable interpetation.

The problem is that once the SC starts "interpeting" things it has a knack of seeing whatever it wishes to.

It's confusing because section 1005(e) "Judicial Review..." of the DTA is adding an amendment to section 2241 of Title 28, and as inserted in Title 28 the amendment will be numbered (e)(1) and (e)(2). Those "e"s arent part of the DTA numbering...you can tell because they have a ` mark next to them.

Hamdan falls under 1005(e)(1) "In General", which includes the amendments `(e)(1) and `(e)(2). After that, you get to the (e)(2) of the DTA--entitled "Review of Decisions..." and then (e)(3) "Review of Final Decisions..."

Those paragraphs, (e)(2) and (e)(3) of the DTA, are the ones refered to by 1005(h)(2).

Hopefully that clarifys things, sorry I was a little unclear.

in this country is that we leave things to the experts; we leave law to the judges and the lawyers, we leave governance to the career politicians and the bureaucrats. And look where it got us.

I didn't mean it as a knock on Hamilton.  I'm sure he meant every word he said, and I'm sure he believed it to be true.  There is no doubt in my mind that the Founders -- Hamilton included -- did not intend for the Courts to ever have as much power as they have given themselves, and I'm sure they would disapprove of the current state of affairs.  

One thing I find interesting is that the anti-federalist 'Brutus' warned that the wording of the Constitution's Article III section could be taken by judges as giving them supreme power over constitutional questions.  Hamilton's response was basically to say that such fears were unfounded; he did not say that the Courts would properly have such power.  

So I don't really fault Hamilton.  As you say, he couldn't know how the Courts would break from their intended limited role.

Until you look at 1005(h)(1) together with (h)(2). At that point your reverse construction becomes unreasonable.

However, you are right that the interpretation of this section is "in the eye of the beholder;" after all Scalia disputes Stevens' reading--most of his opinion is spent rebutting the majority's jurisdictional interpretation.

I won't waste your time rehashing Stevens vs. Scalia on this, you (and I) can simply get it from the horses' mouths.

My main point is that the Court didn't refuse to recognize Congressional powers under Art. III to control jurisdiction. If a case arose to which the DTA jurisdiction-stripping provisions applied, the Court would have to make a decision about those Congressional powers. But the Court didn't invalidate the DTA, or indicate that it wouldn't comply, it simply ruled that in this case the DTA didn't apply.

I enjoyed it also.

for some time, awaiting with dimming hopes, the time that you might actually add something of substance to any debate.

If the new cicrumstances arise which are difficult to interpret under existing law then the executive ought petition the legislature to pass new laws covering the matter.

Alas, I am still waiting!

Your fist post was dripping with self righteous sarcasm and not very much on substance. Your subsequent replies to me have had more true debate in them which is probably the way you want to go starting out. I throw in a bunch of sarcastic comments all the time but I try to put in some substantial commentary from time to time too. Just saying you want to start on the right step or you may not last long here.

Anyhoo, about Gitmo, my Iraq comment was in response to rounding up people in general (replying to the post). Yes the court decision was about Gitmo but the post, i believe, was more general.  As far as the countries requesting their citizens back thanks for letting me know that. I am sure that is going through diplomatic channels and Britain isnt about to attack us any time soon.

Honestly, to be blunt, our power to round up people isnt really a Constitutional issue as much as a power issue. We can start rounding up every Swede on the planet if that is what we want to do and tactically think we can get away with it. Im not saying it is a good idea or not, just that it is not really a Constitutional issue.

it was allowed it by the Congress and Executive.  Whether we like the outcome or not, the democratic branches of government were content to allow the Court to do the heavy lifting on a lot of major issues in the last century or so.  Any time they wanted to, the other branches had the Constitutional power to overturn the Judiciary.

UK did, Australia did...Pakistani's whispered and we returned a few, also a few Saudis I believe, or were they Egyptians.  But most nations that we support in the Islamic middle east don't probably care much about their citizens to try to retrieve them.  

But so what if they did or didn't want them? How does it change the fact that Gitmo has nothing to do with Iraqis?

You point to Justice Jackson's quote:

And lastly, it affirmed the fears of Justice Robert H. Jackson from 1949--when he famously said, "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

As conservatives, isnt that what we have always been against?  Justices inserting their own brand of "practical wisdom" is what has gotten into this mess.  I realize this may be an unpopular opinion, but I just dont see where we have the power to round up citizens of other nations, without consent from their governments, and not charge them with any crime.  

To be frank, I WISH we did in fact have this power.  The GWOT would be far easier if we did in fact have this constitutional power.  I am not a lawyer, and will fully allow for the possibilty that the majority misinterpreted the constitution and congressional statutes, but there, and only there, is where our arguments must lie.  

We cannot insist on judicial restraint, originalism and justices refraining from acting as legislators, then in certain cases say "forget that nonsense; in this case we need you to forget about the Constitution and do what we think is right."  The fight for years has been couched in terms like "Original Intent" and "Rule of Law."  If we want the SCOTUS to behave as such, we can never demand the opposite, no matter how valid our reasoning.

In my haste, I neglected to include a link to SCOTUSblog for the sysopsis of the oral arguments contained in this piece.  The link can be found in my original diary on this topic, which I did link to.  I did not intend to portray that synopsis as my own and I apologiize for any confusion this may have caused.  If it is necessary to update the post, here is the proper link:

SCOTUSblog's synopsis of Hamdan oral arguments

the power to round up citizens of other nations, without consent from their governments, and not charge them with any crime.

It seems pretty clear that we do have this power, or every war we've ever faught was illegal.

It's not given to the SC to rule on whether or not we may round up citizens of other nations. Their delusions of grandur are getting out of control.

The Detainee Treatment Act does exactly what the SC says has not been done. It is a law passed by Congress setting out the legal system under which terrorists are to be tried.

In any case the idea that the executive branch cannot act without specific permission from Congress is a brand new one. It used to be that the executive could do whatever it wished provided it did not run afoul of some existing law.

This whole business coukld have been avoided if Congress and the President had gotten together and formalized the matter into public law. In late 2001 or early 2002 there would have been little resistance to such a process, apart from the far Left and they lacked the power to do more than carp. Unfortuantely neither Congress nor the White House wished to do this: the Bush administration was too interested in asserting its privelege to consult even a GOP dominated Congress, and Congress was (as usual) too interested in buck-passing.

O! Rethuglicans? It's just a matter of time before we run you and the boy king out of town...start running boys and girls?

W? War Criminal and a WEASEL TO BOOT. THAT'S W.

I agree with you that this really calls for a defined, alternative civil, and miltiary, liegal system to deal with international terorism.

But I doubt that at the time anyone seriously thought that there would be this much dispute from the looney left and the Europeans. My guess is that everyone 'assumed' that it was a no brainer. These guys are terrorist so we do what you do with terrorists, hunt them down and kill them.

Who knew, or could anticipate, that there was actually an entire America cottage industry in defending the "rights" of this kind of scum.

postulating Congressional action, simply the AG telling the President to ignore it. How Congress acts is anyone's guess.

didn't hold that the DTA's jurisdictional provisions were invalid--but that paragraph one (the provision that applies to Hamdan) didnt apply to cases pending when DTA was enacted into law.

You're ignoring section 1005(2): "Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review . . . is pending on or after the date of the enactment of this Act."

If this provision is to mean anything, it must mean that Paragraph 1 applies only to claims whose review is pending after the date of enactment, not those pending on the date of enactment.

The Court avoided the question of whether Congress could strip jurisdiction because that question simply didnt apply. Even if this jurisdiction-stripping statute is constitutional, it doesnt apply--so there is no need to consider its constitutionality.

the PResident shouldn't think he is a King, respect the history of our nation, and respect the Geneva Convention.

with the assumption that the text means something, and that our interpretation should begin, end, and be based upon the text. That assumption requires careful reading of the text, with attention to everything that is, and is not, said.

1005(h) is entitled "Effective date." That title leads me to believe it sets the date on which the DTA will be effective.

There are only two classes of claims to which the provisions of subsection (e) can apply: (1)those pending on the date of the enactment of the DTA; and (2) those pending after the date of the enactment of the DTA.

1005(h)(1): "This section shall take effect on th date of the enactment of this Act."

So on the date of enactment, the provisions of section 1005 will be effective. To which class of claim or claims will they be effective?

1005(h)(2): "Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim . . . that is pending on or after the date of the enactment of this Act."

If 1005(h)(2) meant nothing, it would not be there. It must mean something. If Congress wanted paragraph (1), as well as paragraphs (2) and (3), to apply to any claim both pending on and pending after th date of the enactmen of the DTA, Congress would have said so--it would be in the text. It is not. Therefore, for 1005(h)(2) to have ANY meaning (which I must assume it does, or create a principle by which to distinguish statutory provisions that do and dont have meanings), it MUST apply to paragraphs (2) and (3) to the exclusion of (1). That meaning must paragraphs (2) and (3) apply to claims pending on and after enactment, while (1), in some respect, doesnt. So, does (1) apply to cases pending on enactment? Or those after? It can't be both.

From 1005(h)(1), we KNOW that all sections, including (e)(1), are effective on the date of enactment. It is therefore unreasonable to conclude (1) applies to cases pending on enactment, but never again. You will note that Scalia doesnt argue that (1) applies only to cases pending on enactment. Such a reading would contravene the plain meaning of (e)(1) and (h)(1).

Therefore, (e)(1) must apply to cases pending after enactment, but not those pending on enactment.

I go through this excercise not to convince you that I am right--I am not so naive as to believe you might give any credence to anything that I say--but to hopefully demonstrate (using the basic principle of adherence to text) that it doesnt take a "creative" reading to come to the conclusion a majority of our supreme court reached.

My main point is that the Court didn't refuse to recognize Congressional powers under Art. III to control jurisdiction.

I think everyone knows what the Court did here, including you, me, and everyone on the court. They did not want to concede that Congress had the power to strip their juristiction. They did not want to come right out and tell Congress that they did not accept Aricle III. They did want to get involved in this case. So they did.

Their rationale involved pretending that DTA did not apply, but the reasoning involved was an eye-roller. They gave the finger to Congress, no other way of looking at it. This had everything to do with turf and just about nothing to do with law.

This is from Justice Stevens' opinion:

The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that "no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay." Section 1005(h)(2) provides that §§1005(e)(2) and(3)--which give the D. C. Circuit "exclusive" jurisdiction to review thefinal decisions of, respectively, combatant status review tribunalsand military commissions--"shall apply with respect to any claim whose review is . . . pending on" the DTA's effective date, as was Hamdan's case.

Isn't that an admission that the DTA did apply to cases pending.  Stevens states here that the Act provides for this, not that the Government alleges this.  

He, of course, goes on to refute the Government's argument by using "ordinary principles of statutory construction."  But, it seems plain to me that he is arging, in essence, "They didn't really mean what they think they meant."

reading carefully enough. Stevens "admits" that (e)(2) and (e)(3) apply to cases that are pending. But Hamdan falls under (e)(1). Its all right there in your own quote.

We actually also kill citizens of other countries without the consent of their government. Its what happens in war.

But you do bring up an interesting point. If a concern is the consent of the other government, I have not heard any outcry from the Iraqi government to let them go.

In the case of many in Gitmo it is my understanding that they are enemy combatants that have no government (or rights under the Geneva convention) that they are affiliated with and the one that they may have been affiliated with no longer exists. Sucks for them.

They should have thought of that in the first place.

has been completely discredited

Republican philosophy on governing is caput!

Gitmo contains only prisoners rounded up in the Afghanistan operation.  But to your point, I don't recall President Karzai objecting to their detention.

but certainly an interested and engaged party, I have been oscillating a bit as I read differing perspectives.

Unfortunately, this view seems the most accurate from the perspectives I have gathered.

It's an executive branch search warrant for a corrupt Democrat politician's office.  

Intersting we haven't seen Hastert rush to defend his branch and Gitmo with the same vigor he defended his branch and Jefferson.

before you criticize.

have any of these countries called to retrieve their citizens?

I'm honored.

This is far worse than just a ruling against reality and logic, such as Kelo.

How long will it take the NYT to release some nasty stuff about a couple of Justices?  They'll say, "We can't have the SC making decisions that affect all of us without consultation with the Congress---er the President---er us, that's it, us.  They need to understand that they don't have the last word, WE do."

It's a pity we have ideologues like Ginsburg and Stevens, and mushbrains like Souter and Breyer and Kennedy on the Court.  In one decision, they have managed to put the country at risk both from without and within.

and it is not at all clear that the section you reference refers to the section I quoted in the piece.  

For one thing, section 1005 talks about paragraphs (2) and (3) of subsection (e).  You'll notice that in the section of the Act I quoted, there is no paragraph (3) of section (e).

go ahead and let congress pass whatever oversight law that they want regarding military tribunals. He could just attach a signing statement to it so that he can interpret it any way he wants. That's been working pretty well for him up to this point....

How will Congress react to such a rebuke on its Constitutional authority?  I usually expect next to nothing from Congress, but there are times when they circle the wagons when they feel their institution is under attack.  They do like to believe they, not the courts, are the "most equal" branch of government (both believe the executive branch is there to execute only their will or in the manner they see fit).

Hastert and others circling the wagons for Jefferson's right to diplomatic immunity in his office was the latest example.  Then there's the Senate that's all about tradition and its institution.  Their little club has just been slapped around.  I don't expect anything from the Lefty loons who will gladly destroy any American institution in their pursuit of power, but I can't help but wonder if there aren't a few Dems that will not like seeing their branch of government told the living constitution jettisoned the portion of Article III that had to do with Congress's jurisdiction over the courts.

I don't expect to see it out in public debate, but now that Congress's is forced to deal with this again some Dems may want to quietly play ball and put the SC back in its place.  

Time for the registration delay to be brought back

Re: are [you] saying not simply that the exexutive branch must obey laws which have been passed, but that in the absence of a specific law the executive must remain inactive?

No, I am saying that the executive should act within the law. If the new cicrumstances arise which are difficult to interpret under existing law then the executive ought petition the legislature to pass new laws covering the matter. Obviously there may be emergency instancse where the executive cannot wait on that process and in those cases I am sympathetic to the executive making bold decisions insofar as they do not actually violate stautes and constitutional provisions, and are subject to later preview by the legislature and the courts, but that does not describe the current situation as years have gone by without any such process being set in motion.

Before Congress ruled that the detainees couldn't have trials about 300 were being held.  The Supreme Court ruled that they must be given trial because before under U.S. law the President did not have the power to set up military trails and that they were required to be heard by the legal court.

If I murder someone and it is not against the law at that time and a week later the Congress passes a law outlawing murder I still can't be charged with murder.  It is the same basic thing here.  

I am guessing 99% of the people here have no or barely any legal or Constitutional Law education so lets leave this up to legal experts

It probably never occurred to him that...

 * Judges would live a long time after their appointment.

 * Judges would get this radically detached from the law.

 * The Congress and the President would be afraid to use their power to check a runaway Court.

I find it to be a useful practice.

It so happens that (h)(1) and (h)(2) have descriptive text associated with them.

"(h)(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act."

"(h)(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act."

I think a reasonable person would interpet the (h)(2) title, REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS, and come to the logical conclusion that (h)(2) is in fact about those matters.

In other words, (h)(2) is not, as you insist, a "RESTRICTION ON THE CHANGES to USC 28 SEC 2242", aka (e)(1). If it were, it would say just that. Instead, it seems more reasonable to read (h)(2) as being what it says it is, a clarification of what has been said in (e)(2) and (e)(3) about the tribunals.

This is further borne out when you consider that (e)(1) is logically seperate from everything else. It is in fact the text to be inserted into the USC. If any restrictions on (e)(1) were to be made they would be included along with (e)(1) in the USC.

(e)(1) is the judicial stripping provision. (e)(2) and (3) go to what is being set up to to replace what has been stripped. Since they institute a new kind of court Congress spelled out in more detail than they might have otherwise what the conditions of this new court were to be. Hence  "REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS", which makes zero mention of the Supreme Court but applies only to the DC Circuit and the military tribunals.

I'm at a loss as to how anyone can not get this. But I'm pretty sure the smart people at SCOTUS did get it. They just decided to pretend otherwise.

What do you believe Congress intended in passing the DTA?  

This is not only my first post, but also my first 'political' post ever...anywhere. I appreciate.

Correct.  But the context was about Gitmo. So let's stay on the context.

[About Iraqi prisons: we have regularly released Iraqis from prisons in Iraq.  We have even closed down some Iraqi prisons]

the Administration will infintely weakened.

Let me take this opportunity to say, also, that Congress dropped the ball on this whole detainee business from the get-go. There should have been far-reaching legislation propsed by about November '01 contemplating a kind of alternative legal system for terror suspects -- an amalgam, as it were, between the civilian and military courts. The idea would be to protect intelligence assets in a very messy and unprecedented war, while still allowing for the penetration of the principle of due process. Congress created the Military Code; why not a code for terror trials of this sort?

If ever an issue verily cried out for legislation, this was it. It is no good to have the whole business articulated through the drama of Executive over-reach and Judicial correction. That's not how a republic operates.

The Court has again ruled that up is down and night is day.

They are getting perilously close to creating a Constitutional crisis that the country might not recover from.

As you say, the language couldn't be clearer, so who is going to bite the bullet and be the first branch of government to ignore, and thereby correct, the Court?  Will this be the case, or can we hope that Stevens and another elderly Court member will retire soon, thereby avoiding the crisis for a while?

And that's all without the fact that the decision didn't make any sense, anyway.

You have stated it all extremely well.  Thank you.

not simply that the exexutive branch must obey laws which have been passed, but that in the absence of a specific law the executive must remain inactive? In other words, that the executive branch has zero powers inherent to itself?

I do think that on some tough, contentious social issues, the politicians are secretly happy when the Courts step in, so that they can then feign helplessness and further prop up the bogus idea of judicial supremacy.  In doing so, they have contributed to the perversion of the democratic process whereby the question of judicial nominees has taken on a level of importance beyond which the original intent of the role of the judiciary would have ever called for.  

Over time, this idea of judical supremacy has become entrenched in society, and I think that members of the Executive and Congress have come to believe in it for reason beyond the above stated one of political expediency.  It is taught to the general public in basic civics classes.  It is taught in the law schools.  It is supported by the media.  It has gotten to the point now where Congress is reluctant to even strip the Courts of jurisdiction, lest they be accused of 'threatening the indepence of our courts', or some other such nonsense.

That's the only language in Article III, huh?

One supposes the whole of Article I could be summed up as "necessary and proper," which would leave pretty much all legislation Constitutional per se.

to make up his own rules as he goes along. Laws are supposed to be made by Congress.

You certainly see POTUS and us as the enemy, not not Osoma's driver.  You're just working on getting him sprung.  

Somewhere there's a fever swamp missing an idiot.

We left dealing with foreign terrorists to the "legal experts" prior to 9/11.  This entire discussion has been a 9/10 debate focused on which (e) applies to who.  

Congress authorized the use of military force against these clowns shortly after 9/11, long before this 2005 act with all the (e)s in all the wrong places.  I don't see why the 300 held prior don't just fall under the war time authorization, the old murder law.  That worked just fine when FDR fried eight German illegal saboteurs after one of his military tribunals which come with wartime powers, and after SCOTUS acknowledged the POTUS's war time authority.

The stupid 2005 DTA was nothing more than a preemptive attempt to deal with an activist court that can't be trusted to recognize the President's constitutional authority during wartime.  Now Congress has been foisted on its own petard and we're back to fighting terrorists in open court rooms so the enemy can see the evidence for intel the way bin Laden did after WTC I.

So much for his assurances that the judiciary is "the least dangerous branch" and "beyond comparison the weakest of the three departments of power."

Sooner or later, Congress and the President (and the states in other cases) are just going to have to draw a line in the sand and simply refuse to obey one of the Court's crazy decisions.  

in public sector collective bargaining with using arbitrators, especially interest arbitrators.  The politicians don't have the guts to deal with the issue or want to give the union something but can't take the political heat for doing it.  So, they just go throw an arbitration, make a press release about unaccountable arbitrators, but then say there's nothing they can do because it is final and binding.  It is usually none of those things, the only thing binding is their cowardice.

We've sent a packet to pick you up and take you to The Pile™.

So in parts of these opinions, my eyes just glaze over.

But the Constitution, that's easy to read.

"...But you do bring up an interesting point. If a concern is the consent of the other government, I have not heard any outcry from the Iraqi government to let them go...."

I didn't know that Gitmo prisoners are Iraqis.  They are Iraqis, are they? Really?  Hmm...so now Iraq represents Saudi Arabia, Afghanistan, Egypt, Pakistan, UK...let's know who else? US? There was at least one US citizen there for a while.

The Anti-Federalist penned by Brutus on the power of the Courts.

I'm assuming that the Exceptions clause was added during the Convention in response to this.