Michael Shaw, I think you have to distinguish between a conservative jurist (Kennedy) and radical/subversive jurists who are bent on the overthrow of our constitutionally established system of checks and balances (Roberts, Scalia, Thomas & Alito).  Hamdan was a 5-3 decision.  The only reason it was not a 5-4 decision is that Roberts recused himself because he had taken part in the DC Circuit Court of Appeal decision that was being challenged before the U.S. Supreme Court. 

All four are members of the Federalist Society.  All four ascribe to the radically subversive theory known as the “Unitary Executive.”  In fact, Alito, as a member of the Reagan Justice Department, issued a 1985 memo that was the first iteration of “Unitary Executive” theory.  It is a theory that envisions virtually unlimited executive war powers, which, under the Orwellian concept of an endless “global war on terror” amounts to a virtually unlimited executive, period!  They do not merely contend that Congress has no right to challenge the executive in these circumstances but go so far as to assert that it is the president, and not the courts, who is the ultimate arbiter of scope of executive powers.  If this were to ever become a majority view, it would essentially end the rule of law as we know it for it would demolish a fundamental pillar of U.S. constitutional law that dates back to the 1803 decision in Marbury vs. Madison.  The Court, in Marbury, held that the interpretation of the constitution is a “judicial” function.

All five members of the majority in Hamdan held that the Kafka-like “military tribunals” violated Common Article 3 of the Geneva Conventions.  Kennedy issued a separate opinion that literally amounted to firing a shot across the bow of the U.S.S. Unitary Executive.  Kennedy added, “By Act of Congress…, violations of Article 3 are considered ‘war crimes, punishable as federal offenses….”

It was this shot that sent Attorney General Alberto Gonzales scurrying over to the rubber-stamp Republican Congress.  The Military Commissions Act not only seeks to restore what the Court had taken away in Hamdan—the ability of the President to arbitrarily designate anyone an “enemy combatant” and to deprive them of their right to due process in a court of law.  It extended an immunity to all who committed “war crimes” in the service of the so-called “war on terror.”  It provides that the immunity extends retroactively all the way back to 9/11/01.

Even if the Court should overturn those provisions of the Military Commissions Act that permit the arbitrary designation of individuals as “enemy combatants” (a violation of Common Article 3 which requires that such a determination be made by a jurist) and seek to legislatively approve subjecting these “enemy combatants” to the injustice of “military tribunals,” it will leave in tact the retroactive immunity.

Well I see it as being in the hands of one conservative judge. We can only hope that decency will prevail.

I’m still not sure if I understand where Kennedy is on tribunals as a concept. I think it may be more likely we see a narrower decision that strikes down these tribunals as now set up that can attract 7 votes. I think Kennedy, Roberts and Alito would rather see this remain in the military courts if they can find a way to do it fairly. Stephens, Ginsburg, Souter and Breyer will concur but go further, the nutjob twins will dissent.

Given the content of the Hamdan decision, I think it likely that the acceptance of this case will, in all probability, produce a 5-4 decision in which the Court will find (a) the Military Commissions Act (MCA) does not measure up to the criteria required by the Constitution for the suspension of habeas corpus; (b) the right to due process of law extends to foreign nationals in U.S. custody; (c) the so-called “military tribunals” which are straight out of Kafka violate both the Constitutional right to due process of law and Common Article 3 of the Geneva Conventions.  The four dissenters will be the Federalist Society Justices, Roberts, Scalia, Thomas & Alito, who will take the position that the Court has no right to decide the issue not only because the MCA strips habeas corpus but because, in their view, the Court’s decision will amount to an unwarranted “judicial” interference with the prerogatives of the “Unitary Executive.”

The decision will leave in tact those provisions of the MCA which purport to extend a retroactive immunity for all crimes committed in the service of the so-called “war on terror.”

Quy Tran The US Supreme Court can’t decide on free speech. They are controlled by the neocons.

Hey, wake up the U.S. Supreme Court !

#82519

Yeh! It’s like the old shell game.

And why, you may ask, is this happening? Because, even as they roll back 50 years of social progress, not even this Supreme Court can stomach the blatant mockery of the Constitution that is the detainee program.
  But the wheels of justice are slow and by changing the circumstances of this illegal and intolerable imprisonment, the Bushies know they will make those seeking justice begin the dance all over again.
  The Court today agreed to hear whether the boards deciding prisoner status satisfied the requirements of the Constitution.
  The Bushies know the boards will not pass muster with even this most friendly of courts. After 5½ years we are in danger of having an independent authority actually look at the evidence and decide if these detainees are dangerous. OHMIGOD! Time to pack the whole circus up and move it to Afghanistan. Then we’ll let the courts start all over deciding who has the standing to sue about that.
  Once again this administration proves it cares nothing about justice, only winning.

I have heard rumor that in Afghanistan they are building another secret prison that will house Gitmo detainees. Don’t know if it’s true or not but a friend/reporter who was in Afghanistan mentioned it as the talk of the land.

Courtesy of Jane Stillwater’s Blog
http://www.jpstillwater.blogspot.com/

Sunday, June 24, 2007
Location location location: Has Gitmo just bought a new home in Kabul? Yeah.

When I was in Afghanistan a year ago, I kept hearing odd rumors about something called “the new Guantanamo”.

“They are building a huge new prison facility here,” I was told again and again.

“Where? Where are they building it?” I asked.

“Here in Afghanistan, right outside of Kabul. The Justice Sector Support Program of the US State Department is building it.”

“But why?”

“It’s going to replace Gitmo. They are going to close down Guantanamo and move all of the prisoners here.”

“Close down Guantanamo? That can’t be true. That will never happen,” I always replied. “Bush would never close down Guantanamo.” Would he?

Apparently he would.

According to a recent CNN report, “The Bush administration is nearing a decision to close the Guantanamo Bay detention facility and move the terror suspects there to military prisons elsewhere, The Associated Press has learned.” So. It sounds like the deal is on. Apparently Bush has gone ahead and hired his real estate ladies to go and check out prices on houses in the highly popular Pul-i-Charkhi suburb of Kabul.

According to the UN Assistance Mission in Afghanistan, “UNODC is overseeing a major new project at Pul-i-Charkhi…. Next door the Americans are renovating a block to house suspected terrorists, including Afghans who have been held at the US naval base at Guantanamo Bay.” Pul-i-Charkhi is one of the most notorious prisons in the world, its only major competitor in the notorious-prison contest being an up-and-coming suburb of Baghdad called Abu Ghraib. Go George!

how quaint.i hope this gives bush and alberto a big kick in the ass.