Thursday, June 12, 2008

Idiot Scalia Dissent

I hate to call Supreme Court Justice Antonin Scalia an "idiot." That's not because I don't think Supreme Court justices can't be idiots (after all, Clarence Thomas still sits on the Court). But, in terms of his dissenting opinion in today's decision that grants military detainees at Gitmo habeas corpus rights, Scalia reveals his inner idiot.

Of particular note is this line from the 4th paragraph of his dissent:

"The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today."

Let me address this point-by-point. First, the supposed "bait-and-switch" is that the President's Office of Legal Counsel in December 2001 said it was OK to indefinitely hold detainees at Gitmo. Is it my imagination, or might the Office of Legal Counsel be a bit biased? And, if the Office of Legal Counsel was the final legal authority, why do we have a Supreme Court?

Second, Scalia asserts that it is likely more Americans will be killed. He bases this on the fact that the military, before today's decision, released a number of prisoners, 30 of whom returned to the battlefield. Scalia then lists a number of examples of the murder and mayhem caused by some of those released detainees. It should be noted that the examples Justice Scalia cites does not include one killed American.

Finally, Scalia argues that because the military could not always tell who would continue to fight and who wouldn't, it shouldn't go to the courts because the courts will make even more mistakes. In other words, because the military screwed up, detainees should not have habeas corpus rights, because, if they do, the courts are more likely to release prisoners than the military would. Not only does Justice Scalia not cite any evidence for this assertion, he reveals that he has a rather dim view of the judicial system. Then again, when you think you are the only person who is right on the law, and everyone else is wrong, you would come to this opinion.

I'm not surprised that Scalia dissented. After all, on a recent "60 Minutes" profile, Scalia scoffed at the notion that torture was cruel and unusual punishment. I just didn't think he would make such idiotic statements and arguments as he did in this decision.


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