Dearest A,
Maybe I was completely wrong in my assessment of the throw-away legal value of Justice Scalia's remarks in Boumediene.
In the most recent round of briefing in the consolidated Guantanamo cases before the D.C. District Court, government lawyers are parroting the silver-tongued justice. "The costs of an erroneous determination against the Government -- which could ultimately result in the deaths of more American soldiers or civilians, either on the field of battle or from terrorist attacks -- are grave." (not available online)
Not even a cite to the original wordsmith. For shame, government attorneys. For shame.
Love,
Sammy
Monday, July 28, 2008
Wednesday, July 23, 2008
It's Business Time
Sammy,
I agree that Scalia is clearly writing to the Sean Hannity crowd when he writes that the ruling "will almost certainly cause more Americans to be killed" -- especially when DC v. Heller almost certainly will cause more Americans to be killed, and Scalia is completely and utterly untroubled by it.
Here's a more important question that I've had rattling around in my brain: why are we still pretending that this system is anything other than rigged? Justice Scalia thinks that habeas corpus is not only dispensable but actively malign? Conservative legal types -- totally silent during the Clinton presidency -- are now convinced that the President has "near dictatorial" powers? There are a thousand other examples (torture, wiretapping, etc.) of Republican lawyers making patently absurd legal arguments to justify their party's horrifying behavior.
Why do we pretend that these people are supposed to be serious legal scholars, and why do we act shocked when they act otherwise? I'm coming around to the Seidman school of thought, that the system we've built -- the rule of law, and all that entails -- is only ever as good as those who are in power to implement it. This is not a new opinion. And I'm not alone in thinking this.
One of the major political parties in this country exploits fear of gays, blacks, and non-Christians to advance its agenda of tax cuts and gutting of the regulatory system. It has a very well-funded PR arm, which employs (among other people) a number of lawyers. Let's stop pretending that any kind of professional/institutional/patriotic obligation will keep these lawyers from doing the things that they are paid to do.
- A
I agree that Scalia is clearly writing to the Sean Hannity crowd when he writes that the ruling "will almost certainly cause more Americans to be killed" -- especially when DC v. Heller almost certainly will cause more Americans to be killed, and Scalia is completely and utterly untroubled by it.
Here's a more important question that I've had rattling around in my brain: why are we still pretending that this system is anything other than rigged? Justice Scalia thinks that habeas corpus is not only dispensable but actively malign? Conservative legal types -- totally silent during the Clinton presidency -- are now convinced that the President has "near dictatorial" powers? There are a thousand other examples (torture, wiretapping, etc.) of Republican lawyers making patently absurd legal arguments to justify their party's horrifying behavior.
Why do we pretend that these people are supposed to be serious legal scholars, and why do we act shocked when they act otherwise? I'm coming around to the Seidman school of thought, that the system we've built -- the rule of law, and all that entails -- is only ever as good as those who are in power to implement it. This is not a new opinion. And I'm not alone in thinking this.
One of the major political parties in this country exploits fear of gays, blacks, and non-Christians to advance its agenda of tax cuts and gutting of the regulatory system. It has a very well-funded PR arm, which employs (among other people) a number of lawyers. Let's stop pretending that any kind of professional/institutional/patriotic obligation will keep these lawyers from doing the things that they are paid to do.
- A
Back to Business
Dearest A,
We've both been busy as of late, due to our jobs in the non-digital world. Good thing no one reads our blog! But there's been a lot of law made over the last few months. Most notably, a certain case involving certain people held against their will at a certain tropical location. And I ain't talking about Temptation Island.
There's been a lot of ink spilled about Guantanamo already, and I don't want to rehash old legal arguments. But there's one little tidbit that truly interests me -- Justice Scalia's statement that the decision "will almost certainly cause more Americans to be killed."
First off, that's not true as a legal matter. The decision did not set all the detainees at Guantanamo free. It simply gave federal judges the ability to take a peek at the basis for the detention of these men. And I'm pretty darned sure that no federal judge is going to be sending KSM back to Afghanistan anytime soon.
Regardless, the DoD has been doing a pretty darned good job of letting dangerous detainees go without any help from the courts.
But my main point is this -- who the hell was Scalia writing that line for? Certainly not as precedent for future legal briefs since, as I noted above, it's not legally valid and, as far as legal opinions go, borders on the histrionic.
It was clearly meant for the Rush Limbaugh types, the red-staters who hear that line on TV and grin in agreement.
Is that the proper audience for a dissenting opinion? We've got the Executive and Legislative branches already crawling all over each other to win political points. Is there some reason why the Judiciary shouldn't be doing the same? My gut tells me no, but I can't think of any coherent reason why not.
Love,
Sammy
We've both been busy as of late, due to our jobs in the non-digital world. Good thing no one reads our blog! But there's been a lot of law made over the last few months. Most notably, a certain case involving certain people held against their will at a certain tropical location. And I ain't talking about Temptation Island.
There's been a lot of ink spilled about Guantanamo already, and I don't want to rehash old legal arguments. But there's one little tidbit that truly interests me -- Justice Scalia's statement that the decision "will almost certainly cause more Americans to be killed."
First off, that's not true as a legal matter. The decision did not set all the detainees at Guantanamo free. It simply gave federal judges the ability to take a peek at the basis for the detention of these men. And I'm pretty darned sure that no federal judge is going to be sending KSM back to Afghanistan anytime soon.
Regardless, the DoD has been doing a pretty darned good job of letting dangerous detainees go without any help from the courts.
But my main point is this -- who the hell was Scalia writing that line for? Certainly not as precedent for future legal briefs since, as I noted above, it's not legally valid and, as far as legal opinions go, borders on the histrionic.
It was clearly meant for the Rush Limbaugh types, the red-staters who hear that line on TV and grin in agreement.
Is that the proper audience for a dissenting opinion? We've got the Executive and Legislative branches already crawling all over each other to win political points. Is there some reason why the Judiciary shouldn't be doing the same? My gut tells me no, but I can't think of any coherent reason why not.
Love,
Sammy
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