Re: Gitmo News [Andy McCarthy]
The majority opinion of the D.C. Circuit Court of Appeals, reversing Judge Ricardo Urbina's lawless order that 17 Uighur detainees be released in the United States, is emphatic. A sampling:
>>> Justice Frankfurter summarized the law as it continues to this day: "Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State" – a matter "wholly outside the concern and competence of the Judiciary."<<<<
Predictably, though she concurred in the judgment reached by the three-judge panel, Judge Judith W. Rogers (who, as I recounted here, has in this case previously equated the training received by jihadists in terrorist camps with the training received by Americans who own firearms), insists that, due to the Supreme Court's awful Boumediene decision, federal judges now do have the power to order detainees released in the U.S. — she just thinks Judge Urbina acted a bit "prematurely." I continue to be very concerned that there are at least four, and perhaps five, Supreme Court justices who would agree.
One More on the Gitmo News [Andy McCarthy]
Judge Randolph's majority opinion asserts that the district judge's airy allusions to "constitutional limits" on detention and "the fundamental right of liberty" do not amount to law that authorizes a court to order an alien held outside the U.S. released into the U.S. To the extent, the majority charitably suggests, that Judge Urbina was referring to the Fifth Amendment's due process clause, that won't do: "[T]he due process clause does not apply to aliens without property or presence in the sovereign territory of the United States."
Very interesting: the court here drops a footnote: "The Guantanamo Naval Base is not part of the sovereign territory of the United States. Congress so determined in in the Detainee Treatment Act of 2005[.]... The Immigration and Nationality Act ... also does not treat Guantanamo as part of the United States."
This, folks, is the line of scrimmage for the coming battle. In Boumediene, the Supreme Court held that alien enemy combatants held in Gitmo somehow had a federal constitutional right to habeas corpus (i.e., civilian judicial review of the lawfulness of their detention). Key to that conclusion was that the detainees were held at Gitmo, where the United States exercises de facto control, which, Justice Kennedy reasoned, extended both the Constitution (which generally does not apply outside the U.S.) and judicial oversight. So, the question naturally arises, was Justice Kennedy's rationale limited to habeas corpus (the only right at issue in the Boumediene case) or did it extend to all rights under the Constitution?
The D.C. Circuit (at least two judges thereof) says it does not apply to the due process clause. I think that's right — but, of course, I didn't think the alien combatants had habeas rights either. Rest assured we haven't heard the last of this.
So Much for Transparency [Jonah Goldberg]
From the Politico:
In his first weeks in office, President Barack Obama shut down his predecessor's system for reviewing regulations, realigned and expanded two key White House policymaking bodies and extended economic sanctions against parties to the conflict in the African nation of Cote D'Ivoire.
Despite the intense scrutiny a president gets just after the inauguration, Obama managed to take all these actions with nary a mention from the White House press corps.
The moves escaped notice because they were never announced by the White House Press Office and were never placed on the White House web site.
They came to light only because the official paperwork was transmitted to the Federal Register, a dense daily compendium of regulatory actions and other formal notices prepared by the National Archives. They were published there several days after the fact.
A Politico review of Federal Register issuances since Obama took office found three executive orders, one presidential memorandum, one presidential notice, and one proclamation that went unannounced by the White House.
corner.nationalreview.com |
