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July 1, 2006
Hamdan, Endo, Disarray, and Arrogance
Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court's decision in Ex parte Endo.
The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight "relocation centers" that the War Relocation Authority was operating at that time.
What's interesting to me is that the Administration spent the summer and fall of '44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court's decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.
Compare this to the disarray in Washington over the last couple of days.
It's quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.
Why am I not surprised?
Posted by Eric at July 1, 2006 10:45 AM
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Comments
I agree but would go a step further.
In contrast to Hamdan, where this gang of BullSheviks could not, as you suggest, bring itself to believe they'd lose and hence are unprepard, even when they're right to believe they're acting within the proper scope of Art. II, the BullSheviks seem incapable of preparing for the inevitable. See Katrina.
PS - should the NSA's domestic spying scheme ever make it to SCOTUS, I'd predict at least a 6-3 loss for the BullSheviks as the program applies to CITIZENS. The vote: "the Stevens 4," relying on his analysis of the AUMF and his remarks about Art. II power in fn. 23 given FISA's clarity, not to mention the 4th Amendent; Lone Kennedy, repeating his theory of popular democracy in the intro to his Hamdan concurrence; and Nino Scalia, whose dissent in Hamdi (2003), in which he didn't bite on the Administration's AUMF argument, makes clear in Part VI that he believes, as to citizens, any scaling back of civil rights -- once an emergency has passed -- is solely Congress's role. And Congress has not acted, or been asked by the all-knowing BullSheviks to act. [I think Eric posted something about the "go it alone" approach of the BullSheviks at ConcurringOpinions.]
I also believe, perhaps foolishly, that Alito and Roberts would concur in result on narrow grounds -- making it 8-1 -- that, on whatever record exists at that point (and it will be about as broad as a NYTimes Pulitzer story), it would not support the existence of a "permanent emergency" that justifies an across-the-board disregard of the 4th Amendment as to CITIZENS. Congress would need to impose martial law, or something akin to it, to justify warrantless domestic spying on citizens. See Moyer v. Peabody (Holmes) (cited in Scalia's Hamdi dissent).
This would all seem to follow from the premise that, as Hamdi suggests, CITIZENS -- even those expressly designated as enemy combatants let alone mere suspects -- do not lose their Constitutional rights once the emergency has passed.
As for "America as the battlefield," again, absent Congressional findings of a permanent emergency, suspension of any constitutionally written right cannot be done unilaterally by the BullSheviks. Consider how Burr and his band of traitors were treated -- in full accord not only with the Constitution's treason requirements, but subject to the 4th Amendment. See Ex Parte Bollman.
Finally, as for Thomas, that man is truly a lost soul. But I get a chuckle every time I read his "the Executive Branch cannot err" opinions -- whether it be Hamdi, Hamdan, or Groh v. Ramirez.
The reason for my chuckle? If a Democrat were president, NO FU#*ing chance he rules for the executive branch.
Posted by: marietta at July 1, 2006 12:04 PM
It's quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big
I disagree. I think the Bush Administration does not have, and has never had, any intention of complying with a SCOTUS decision that went against them. What you see is not disarray; it's calculated indifference -- they want the constitutional crisis that refusal to comply will bring.
Posted by: paperwight at July 1, 2006 1:28 PM