It seems somehow unethical, but I’m not sure if it really is. With the Obama administration struggling with how to disposition some of the hardest cases at Guantanamo (and the Republicans being as unhelpful as possible), wouldn’t be a good idea to bring the entire Supreme Court into the Oval Office and figure out what they can unanimously agree to in terms of solving this problem? Despite the rightward tilt of the court, they have been good at defending the Constitution on these detainee issues, so far. They repeatedly rejected the Bush/Cheney plans for Military Commissions and indefinite detentions. Why mess around guessing at what will pass muster? Just ask the Court directly what can and cannot be done. Argue the case in the White House. Wouldn’t that provide much-needed clarity? Would that violate basic ethics? What do you think?
About The Author
BooMan
Martin Longman a contributing editor at the Washington Monthly. He is also the founder of Booman Tribune and Progress Pond. He has a degree in philosophy from Western Michigan University.
You can’t do it without representatives of the detainees in on the discussion. If you’ve got an agreement there, you don’t need the Supremes. If you don’t, then you have the spectacle of the Supreme Court conniving with the prosecutor to limit the rights of the detainees–or at least the appearance. That’s not likely to enhance the esteem of the Court. It’s not their role to negotiate with the prosecutor.
you’d have to avoid specific cases. But what about just defining what is Constitutional and what is not?
The Supreme’s can’t be bound by any such agreement. The specifics–including the context of individual cases–are determinative. They don’t give advisory opinions either. It’s not their Constitutional role. The legislature and executive make the law. The Court interprets the law and applies it to specific facts. You want them to get into actually making the law by negotiating with the executive? (And ignoring the legislative as well as the defendants?)
I understand the case and controversy clause and I believe it’s very important. I understand that they can’t issue advisory opinions. I’m thinking of something more informal.
In your criminal trial for assault and battery on Glen Beck, would you want the prosecutor and the judge having “informal” discussions ex parte?
no. but this isn’t an ordinary situation.
We have people that have been detained for years. If Obama crafts another unacceptable solution then these people will be in limbo for even longer.
No doubt. It’s a tangled web, for sure. That doesn’t mean there’s a “fix” that won’t tangle it even further. I don’t claim to know what to do about it–probably just order their release or their trial in District Court. Take your pick.
Either they are P.O.W.’s, entitled to their Geneva Convention rights, or they are criminal suspects, entitled to their full Constitutional rights. There is no third way. There is no third category of “nasty A-rabs that we want to hold forever because they hate us.”
Do these people even HAVE lawyers? To me, those picked up on the battlefield are POW’s. The ones picked up because a villager with a grudge fingered them are at best criminal suspects. Move their cases to federal court and appoint unbiased lawyers from the pool. If there is no evidence after years of interrogation let them go.
I don’t mean to state that the Supreme Court doesn’t get into fashioning remedies (bussing comes to mind) But they don’t do it where other remedies are available to redress the Constitutional questions.
I don’t know about ethics, but it would violate the separation of powers. The Executive is a political office. The SC supposedly is not. (OK, we all know that’s a lie, but anyway.) What you’d really be asking for is for the SC to legislate.
Well, the judiciary doesn’t give advisory opinions. It’s got to be a case or controversy.
During my First Year Contracts class, our professor asked us on the first day of class: What is “obiter dicta?” Nobody raised their hands. The professor explained that “Obiter Dicta” is Latin for “Bull Shit.” I think that’s the same thing as an advisory opinion or an “informal” discussion. It binds nobody to anything but it sometimes works it’s way into the case law anyway.
Sweet. I’m always looking to add to my repertoire of legal Latin phrases and that’s a good one.
I just don’t see how it could be proper for Justices to signal to the executive how they will rule on a particular case–especially informally in the manner suggested. Better to read the dicta (non bull related) between the lines to decipher a court’s intent.
This is one of those instances where the executive does have an obligation to “faithfully execute” the laws of the land and in this case interpret constitutional law. Of course, the Supremes get the final say but Obama cannot punt this decision to someone else. Good thing he’s a law professor, eh?
And it makes me wonder what Obama was like in class. I just can’t see him using the Socratic method as effectively as some other professors. He’s more of a lecturer or discussion leader than Socratic interlocutor.
My first year contracts professor made someone cry the first day! And I was the first person to be called upon. He dropped a telephone book-sized document on my desk and asked what it was. I remembered I was in contracts class and said, “a contract?” I was off to awesome start!
Actually, his students said he asked open ended questions and really DIDN’T try to lead the discussion. I read everything I could re Obama a year ago, and one of the articles was all about comments from his past students. He didn’t lecture. He really engaged them.
A few problems I see:
Undoubtedly the Bush administration has f*cked up in one way or another so as to make every one of them non-prosecutable. But if they are let go, the Republicans and the media will go bonkers as soon as one of them gets a parking ticket. A few will do much worse than that.
However, there is also the very real issue of the rule of law. I don’t understand why the Obama administration isn’t trying harder to both point to it and hide behind it.
If you need the SCOTUS to tell you what is constitutional (let alone moral, ethical, and just plain ‘right’) in this particular situation then you should not be POTUS.
It would just be a ploy for political cover. And haven’t we had enough of that?
Eventually Obama is simply going to have to do the right thing, irregardless of politics. Or else nothing else he does while POTUS will matter.
1st rule of life…. Never, EVER listen to what a person says, always watch what they DO. Because by their actions they tell you what they really believe.
nalbar
re first rule- if we are to base our opinion of the O ma based on your first rule– he gets a F. A big effung FFFFFFF!
Talk is obviously cheap!
I say no.
It is not the role of the Supreme Court to advise the President. He has lots and lots of lawyers in the executive branch who can do that. The court decides cases and controversies – no advisory opinions.
I know that, above, you say you are thinking of something less formal than an opinion. But, leaving aside the constitutional issues, I don’t think you’d get much from what you propose. You ask them to figure out what they can unanimously agree to in terms of solving this problem. You’re right that any kind of advice would be worthless if ALL of them didn’t agree. But how likely is it that this group will ever agree unanimously on these issues? Boumedienne was a 5-4 decision. Assuming that they could get to a unanimous decision on ANY issue with respect to Guantanamo, that means that it is such a basic issue that knowing their answer in advance wouldn’t give much guidance anyway. Basic issues are not what he needs guidance on.
So my take on it is that it is unconstitutional and impractical.
Maybe Sandra Day could lend her expert opinion then?
Is that snark?
no.
Ok. Then I’m not clear what she would contribute that he couldn’t get from ordinary lawyers. Explain?
she knows them.
So do all the rest of us – their judicial philosophies at least. I’ve never understood the court to make decisions based on personal relationships. Besides she was always the deciding vote so it was less necessary for her to understand them than that they understand her.
she is a better position to know what the bottom line is for each justice than anyone else. And she can offer her own advice freely, which I think would be valuable.
The bottom line here is that we need a solution that is probably going to go outside of what the system normally allows. You’d like to quarantine this thing and make it a solution for a very specific and time-limited problem. You don’t want to bring something to the Court after all this compromising and political sniping and then have them toss it out and say ‘start over’. If nothing else, we’re dealing with some people that have been denied due process for seven years now.
If we can’t even get Congress to appropriate money to move these people here for trial, we have some serious problems fixing this. We’re not going to let people go in our society, as I have been saying all along. So, we need something the Court can live with and I don’t think the answer is predictable based on their prior records or even prior law. This comes down to bottom line principles that only someone like O’Connor is likely to have a solid grip on.
So, we need something the Court can live with and I don’t think the answer is predictable based on their prior records or even prior law.
I don’t think OConnor could predict any better than the rest of the con law supreme court legal specialists out there.
The only person who could tell you what the court would approve is Kennedy and that’s because whatever he approves will be law. And he isn’t going to tell you in advance. And that’s because he doesn’t KNOW what he’ll approve in advance. Judges are not legislators, they think differently and this court is worst than most because there is no one on it who didn’t come from a judicial background. There are some judges who can think legally AND practically, but this is not a group made up of those people.
That’s why I’ve said all along that appointing someone to the bench who is NOT a federal judge would bring necessary diversity to the bench. But I digress …
I have no idea if OConnor is in a position to tell you how to structure something that Kennedy will approve of. We already know that he’s inclined toward basic rights and is sensitive about foreign criticism, but he’s also a conservative. I just don’t think that OConnor could tell THE PRESIDENT what to do to deal in advance with Kennedy – she might be able to help out the other gang of four on how to bring Kennedy over to their side on a specific legal issue – but they probably know all that anyway.
Sometimes the executive just has to enforce the law – whether Congress likes it or not and whether Congress appropriates money or not. He has to use the existing budget and existing powers in creative ways.
Tell me this. Prior to the civil rights act, did Congress appropriate money for justice to enforce Brown v. Board and the other civil rights suits? Did they appropriate money for Eisenhower to bring in federal troops to Little Rock? Or did he just do it under the existing budget and utilize existing law? Eisenhower thought calling in federal troops in Little Rock was a constitutional duty. It sounds easy today but the decision to bring armed soldiers into an American city to enforce a court decision is not a decision a President makes lightly. At least, not back then.
I’m not buying Obama’s whining on this. He could have real trials for these people. They are held at a military facility operated under the military budget. The military owns planes. The military owns many military facilities in the US. He could fly those prisoners from one military facility to another military facility on a military plane and hold them here for trial. What budget does he need for that? He could invite the court to the military facility and ask that the trial be held there if he didn’t want the dangerous ones taken off of the base – as long as the public could watch. And if the court orders release he can ask the court to delay release until a deal can be made with another country to take them or make a motion under immigration laws to hold them in an immigration detention facility until they can be deported. And if the court says no? THEN HE HAS TO RELEASE THEM. Screw the politics, his job is to enforce the law. If he didn’t want to do the hard parts of the job he shouldn’t have run for President.
O’Connor isn’t going to help him with the politics. She’s a former judge. HE’S the politician. This is his problem. You are mistaking a political problem for a legal problem. A good justice would not care about the political problems.
I can’t think of another example in our history where the law and our national security have intersected in a way that is this at odds, and then you add the ridiculous political element on top of it, and I think that a good judge must think politically here.
They need to know that the only way we’ll get anything near a decent compromise is if they take the political heat off the president.
That is not their job. Nor should it be.
Seriously? She screwed up on the case of the century.