SCOTUS Score: One and One


The Roberts Court yesterday handed the Bush Administration one victory and one defeat, and the victory may turn out to be Pyrrhic.

1. Detainee Suit Rejected

The SCOTUS won’t be hearing a suit filed by almost 400 Gitmo prisoners trying to restore the legal rights taken away from them by Bush and the Republican Congress.

The court decision was a significant victory for President Bush, who has asserted for nearly six years that the fate of hundreds of detainees, held without charges as alleged terrorists at the U.S. naval base in Cuba, should be determined by secret military tribunals. The decision leaves intact, at least for now, a measure passed at the administration’s urging last year when Congress still was in Republican hands that denies Guantanamo Bay detainees the right to such habeas corpus petitions.

This despite the fact that the Court has ruled not once but twice in the last three years that the detainees have the right to petition the courts to “contest their detention”. The grounds for the Court’s rejection appears to be the new Democratic Congress’ intention to repeal the law under which they’ve been held.

“What the court is saying today is that Congress has spoken explicitly about the denial of the court’s jurisdiction about the pending cases, and those cases should be reviewed first of all by the D.C. Circuit,” said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University. Kmiec noted that Kennedy and Stevens signaled that they may be willing to reconsider “after the process has run its course.”

This is apparently a reference to language in the PATRIOT Act inserted by anti-judicial Republics that forbids the court from over-ruling Congressional intent. That language itself is most likely unConstitutional but the Court wasn’t asked to deal with it and is simply passing the ball back to Congress. Pat Leahy says they will.

“We cannot and should not outsource our legal, moral and constitutional responsibilities,” said Senate Judiciary Committee Chairman Patrick J. Leahy (Vt.). He is co-sponsoring legislation that would grant the detainees habeas rights with the committee’s ranking Republican, Sen. Arlen Specter (Pa.), who called on his colleagues yesterday to “act promptly” to adopt their bill.

Yes, please do.

There are a couple of things people don’t know about the Gitmo prisoners that they probably should.

  1. The Army itself estimates that the vast majority of detainees are innocent of anything, perhaps as many as 90%. They have already released some 600 detainees because there was no evidence whatever that they were involved in any way with terrorist acts or terrorist groups.
  2. Hundreds of them were picked up on the streets of Islamabad and Lahore by elements of Pervez Musharraf’s Army, labeled “members of Al Qaeda” and turned over to the US in batches in order to give the Bush Administration the illusion that Musharraf was moving against Al Qaeda cells in Pakistan when he was doing no such thing. News reports from European media outlets confirming these mass arrests have been largely ignored in the US. The Bush Administration never made any attempt whatever to check the validity of Pakistan’s claims. Neither did the Army. But in fact, many of the innocent who were scooped up in the raids were opponents of the Musharraf govt. Musharraf basically used Bush’s demand for a crack-down on Al Qaeda to rid himself of some of his political enemies in the certainty that the American govt would never catch on. Which they didn’t.

Needless to say, not everyone is satisfied with the Court’s decision.

Detainee advocates and several congressional Democrats criticized the court’s decision. “All we are asking for is the most fundamental . . . right to go into court and say, ‘Why are you holding me?’ ” said Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents many of the detainees. “If they had a full and fair hearing, there would be hardly anyone left at Guantanamo.”

True. It’s long time past to stop this insanity, and the Court’s excuses for not doing so are both weak and indefensible.

2. EPA’s Idiotic Decision Slapped Down

With the Environmental Protection Agency firmly in the pocket of an oil industry that has no interest in protecting the environment if it interferes with their profits, it was no surprise to the cynical when, under pressure from the energy industry, the auto industry, and Karl Rove, the EPA decided to announce the rather loopy conclusion that “it could not curb the most common greenhouse gas, carbon dioxide, because it is not a pollutant.”

Massachusetts led a group of 12 states and several environmental organizations in a successful effort to stop the EPA from arguing that it was powerless to regulate motor vehicles, which are responsible for about one-third of all carbon dioxide emissions. By finding that this gas is a pollutant as defined by the Clean Air Act, the court’s 5-4 majority also opened the door for regulation of emissions from electric utilities and manufacturers.

In his majority decision, Justice John Paul Stevens placed the onus on the EPA to either begin regulation of carbon dioxide in cars or make a strong case for why it should not. “EPA has offered no reasonable explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” Stevens wrote. The Clean Air Act authorizes the EPA to regulate pollutants that can “endanger public health or welfare” and defines “welfare” to include adverse effects on “weather” and “climate.”

Bush promised to regulate carbon dioxide emissions during the 2000 campaign but it was just talk – one of many promises he made that he had no intention of following through on. Now his EPA will have to.

Except they probably won’t. They can – and most likely will – drag their feet for the next 2 years. EPA Administrator Stephen Johnson used to work for Hazelton Labs, the guys who for years falsified or made up out of whole cloth the “science” that backed up tobacco industry claims that cigarettes were not addictive. He’s had lots of experience boosting bogus science and as a “loyal Bushie” won’t have any trouble making heavy weather of a decision my 6-year-old grandnephew could make in about 10 seconds. If that. Expect the new “studies” to be barely begun by the time Bush leaves office.

Loyal Bushies have never shown any reluctance to ignore laws and legal decisions the Emperor doesn’t like. There’s no reason to think they’ll obey them now.

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