Whatever happened to the doctrine of judicial restraint?
Some are suggesting that the "al Queda Five", the Supreme Court majority, that held Guantanamo detainee military tribunals to unconstitutional, should be hung from the top of the Capitol dome.
This is a bit extreme. It would be hanging them higher that Haman (see Esther 6-7). They are probably not as rotten as Haman.
But it is of note that Justice Clarence Thomas for the first time in his long years of service, read part of his dissent from the bench.
It is clear that, in his view, the majority was without a fig leaf of reasonable support from either law or precedent.
And to many observers a new level of judicial lawlessness has been attained.
The following quotes are transcribed from a pdf file at the Supreme Court site, providing the opinions of the justices in the Military Tribunal case.
Scalia, joined by Thomas and Alito in dissent:
[…] the Detainee Treatment Act […] unambiguously provides that, as of [December 30, 2005], "no court, justice, or judge" shall have jurisdiction to consider the habeas corpus application of a Guantanamo Bay detainee. Notwithstanding this plain directive, the Court today concludes that, on what it calls the statutes most natural reading, every "court, justice, or judge" before whom such a habeas application was pending on December 30 has jurisdiction to hear, consider, and render judgment on it. This conclusion is patently erroneous. And even if it were not, the jurisdiction supposedly retained should, in an exercise of sound equitable discretion, not be exercised.
[…] An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.
Thomas in dissent, joined by Scalia and partially by Alito:
[…] [The Court's] opinion openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs. The Court's evident belief that it is qualified to pass on the "military necessity" to employ a particular form of fource against our enemies is so antithetical to our constitutional structure that it simply cannot go un answered. I respectfully dissent.
Our review of petitiioner's claims arises in the context of the President's wartime exercise of his commander-in-chief authority in conjunction with the complete support of Congress.
[…] The structural advantages of the Executive Branch---namely, the decisiveness, "'activity, secrecy and dispatch'" that flow from the Executive's "'unity'" […] ---led the Founders to conclude that the "President has primary responsibility--along with the necessary power---to protect the national security and to conduct the Nations's foreign relations."
[…] the President hat the authority to "employ the Nation's Armed Forces in the manner he may deem most effectual to harass and conquer and subdue the enemy"
[…] But "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act" and "such a failure of Congress … does not, 'especially … in the areas of foreign policy and national security' imply 'congressional disapproval' of action taken by the Executive."
[…] When the President acts pursuant to an express or implied authorization from Congress," his actions are "'supported by the strongest of presumptions and widest latitude of judicial interpretation, and the burden of persuasion … rests heavily upon any who might attack it.'"
[…] In the present conflict, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 … in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
[…] the "capture, detention, and trial of unlawful combatants, by 'universal agreement and practice' are 'important incidents of war,'" […] and are therefore "an execise of the 'necessary and appropriate force' Congress has authorized the President to use."
[…] In such circumstances, our duty to defer to the Executive's military and foreign policy judgment is at its zenith; it does not countenance the kind of second guessing the Court repeatedly engages in today.
