To 2015 — And Beyond!

by matttbastard

Making every Democrat and progressive who gives a shit about effective Congressional leadership wince, Harry Reid has informed The Politico that he isn’t going anywhere, and dares Republicans to bring it on (so to speak) in 2010. Yes, because nothing says “heckuva job” like once again guiding Congress to historically low approval ratings in 2008–shit, if Reid were the CEO of a Fortune 500 company he’d…er, well, he’d likely be handed a hefty multi-million dollar bonus and a contract extension. Anyway, despite all that pesky dissatisfaction being expressed by the ungrateful masses, Reid confidently likens his role over the past 8 years to “a point on a spear going against George Bush,” claiming “[t]hat’s what I had to do to protect the United States Senate and the country.”

Right, well, if that’s the case, the Dems better think about sharpening that mofo, because apparently it can’t pierce tissue paper, as Glenn Greenwald tartly notes:

Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush’s most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure — what we once charmingly called “oversight” — regarding what Bush’s domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime — pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush’s spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership. It legalized vast new categories of warrantless eavesdropping and endowed telecoms with full immunity for prior surveillance lawbreaking. Most important, it ensured a permanent and harmless end to what appeared to be the devastating scandal that exploded in 2005 when the New York Times revealed to the country that the Bush administration was spying on Americans illegally, without warrants of any kind.

With passage of the Act, Democrats delivered to the Bush administration everything it wanted — and more. GOP Sen. Kit Bond actually taunted the Democrats in the Times for giving away the store: “I think the White House got a better deal than they even had hoped to get.”

[…]

The FISA fight was the destructive template that drove virtually every other civil liberties battle of the last year. Time and again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate to restore habeas corpus, which had been partially abolished in 2006 as a result of the Military Commissions Act that passed with substantial Democratic support and wholesale Democratic passivity. Notably, while Senate Democrats, when in the minority, never even considered a filibuster to block the Military Commissions Act, it was simply assumed that the GOP, when it was in the minority, would filibuster in order to prevent passage of the Habeas Restoration Act. And filibuster they did.

Apparently Reid and his fellow travellers in the legislative branch never paid much heed to the old adage re: bringing knives to gun fights. The principle also holds true for spears, I’m sure. Especially dull spears, with roses and sweet, sweet candy tied to the tip (sour overtures to lame ducks aside).

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In Which matttbastard Puts the Habeas Decision in a Partisan Context

by matttbastard

Ages of the majority:

Stevens 88
Ginsburg 75
Kennedy 71
Breyer 69
Souter 68

Ages of the minority:

Scalia 72
Thomas 60
Alito 58
Roberts 55

The LA Times:

Whoever is elected in November will probably have the chance to appoint at least one justice in the next presidential term. The court’s two most liberal justices are its oldest: John Paul Stevens turned 88 last month, and Ruth Bader Ginsburg is 75.

McCain promised that, if elected, he would follow President Bush’s model in choosing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

That could establish a large conservative majority on the court for years. With conservatives in full control, the court would probably overturn Roe vs. Wade and the national right to have an abortion. The justices also could give religion a greater role in government and the schools, and block the move toward same-sex marriage.

If elected, Obama would be hard-pressed to create a truly liberal court. But by replacing the aging liberal justices with liberals, he could preserve abortion rights and maintain a strict separation of church and state.

Related: Marcy Wheeler provides a detailed report on today’s Center for Constitutional Rights conference call on the Habeus decision:

• The 40 to 60 people who have already been determined not to be enemy combatants will now have court assistance in finding a way and a place to be released. One of the key issues for these men is that they often come from countries like Syria where, if they were to return, they would be tortured. A number of them have petitioned to be released to third countries, in some cases where they have family. DOD has refused to consider this up until now. This ruling gives courts the ability to provide for relief to those being held even after they were determined not to be enemy combatants.
• There are roughly 260 people at Gitmo who have not received a Combat Status Review. Over a hundred have already petitioned for Habeas, and a number of those have been stayed awaiting this ruling. Some of those stays require the petitioners to restart their petition within 10 days of the ruling, so you’re going to see them move into a Habeas process within the next two weeks.
• Michael Ratner, the head of CCR, stated that he believes in many of these cases, the government will be unable to prove it has reason to detain these people–either because the evidence is tainted or because there is no evidence. So the government may be forced to release many of these men as well.
• It’s unclear where and how these Habeas petitions will be heard–so it’s an open question whether detainees will be able to come to DC to present their case.
• Carol Rosenberg, my favorite journalist covering the show trials, asked if the government will rush to charge detainees under the Military Commissions Act. Gutierrez responded that they’re really limited by whom they can charge; she put the number at around 60-80 people who they have enough evidence to charge.

More on Boumediene from skdadl @ pogge, SCOTUSBlog (round up here), Hilzoy, David Barron and Marty Lederman, who notes that there were two questions that the court did not answer, but, as Lederman goes on to explain, did provide hints as to where it was leaning:

1) Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo (such as Bagram)?

and

2) What is the substantive standard for who may be indefinitely detained?

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