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Boumediene Insta-Symposium:

Opinio Juris is hosting an "Insta-Symposium" on yesterday's Boumediene decision. Contributors include Steve Vladeck, Deborah Pearlstein, Ted White, Eric Freedman, and the Opinio Juris regulars, among others, with more to come. Check it out.

omarbradley:
Does anyone have any idea why neither side really mentioned Jackson's Youngstown concurrence that had been held up for so long by liberals as a touchstone of jurispridence.

When Bush was just acting on his own and without Congress they brought it up at every turn. Trumped how important it was.

Well, the statute struck yesterday was clearly under his category one, when the President's power is at its maximum:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A [detention] executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

Yet the majority seemingly ignored it completely.

So much for being supported by the strongest of presumptions and the widest latitude of interpretation.
6.13.2008 1:51pm
Sid Finkel (mail):
When one looks at Justice Scalia's dissent, one of the most striking areas is his reliance on the fact that according to him, some 30 individuals who have been released from Guantanamo have returned to the battlefield, and thus this fact (if it is true) becomes a legal basis for holding prisoners indefinitely (read life) without access to any legal proceedings.

It seems that if one follows this logic to its conclusion, it is Judge Scalia's opinion that because people who have been arrested and then released from custody go on to commit a crime, anyone who is arrested must be held for the rest of their life to protect the citzenry.

You folks are not just lawyers, but highly skilled legal scholars. Is this the doctrine those of you who agree with Scalia would support, and if so, how does it not mean the end of liberty in the U. S.?
6.13.2008 2:20pm
Dude Ranch:
Sid - you don't seem to recognize the inherent difference between detentions during peacetime of US citizens in US territory and the taking of prisoners on the battlefield. Scalia does.
6.13.2008 4:09pm
jukeboxgrad (mail):
dude: "you don't seem to recognize the inherent difference between detentions during peacetime of US citizens in US territory and the taking of prisoners on the battlefield."

You don't seem to recognize that most of the people in Gitmo weren't taken as prisoners on the battlefield.
6.14.2008 8:16am
byomtov (mail):
you don't seem to recognize the inherent difference between detentions during peacetime of US citizens in US territory and the taking of prisoners on the battlefield. Scalia does.

Right. Scalia, and everyone else, would benefit from reading at least the summary of this report.

Note that the data is taken from "written determinations the Government has produced for detainees it has designated as enemy combatants."

Wonder if Scalia has ever eaten at an Italian restaurant, or gone to church, while some Mafioso was present. I guess that would mean he is "associated with" organized crime, and needs to be locked up forever.
6.14.2008 11:44am
Titus Pullo:
Scalia is not saying that these bad results justify his dissent, he is merely noting that bad things will happen as a result of an opinion he dissents from on other grounds.


Scalia:

"It [the majority's opinion] 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 <i>abandonment</i> of such a principle that produces the decision today." (Italics his)
6.14.2008 4:28pm