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Messages - Evolve

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I don't believe DTA referenced "new" cases in any way, and as far as the intent of Congress, you know that the conservative jurists really won't care (as a strict constructionist, if DTA doesn't say "new cases" then it doesn't mean "new cases").  This is where Alito and Scalia would likely bump heads (though probably coming to the same conclusion regarding the meaning of statute): Alito is much more likely to use legislative history (and the perceived intention of Congress) than Scalia (see this terms U.S. v. Zedner in which the two duke it out over this idea).

Not explicitly, no. Section 1005(h)(2) states "REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.". The paragraphs it is referring to hear are the ones that limit the Court's jurisdiction over these cases. Basically, the Act is saying that any claim for reviewing combatant status (which is at the heart of any habeus corpus request or demands for PoW/Geneva rights) after the Act is passed can not be heard by the Court, hence my saying no new cases. The Court in this case, however, judged Hamdan to be pending before the Act was passed. Therefore, it had jurisdiction and therefore it could rule against the military tribunals and, I'm sure by no coincidence, against DTA restriction of judicial power.


I see your point.  I would, however, interpret this as saying that Congress can assign original jurisdiction to the Supreme Court by statute, not that it can strip a court of any and all jurisdiction on a particular issue.  If Congress can strip the Supreme Court, or other courts for that matter, from any jurisdiction, doesn't this completely negate the judicial check on the legislature?

Actually, it states that the Court's appellate jurisdiction is at the mercy of Congress, but its original jurisdiction in beyond Congress. Historically though, the Court does not take kindly to Congress limiting its powers and, as a result, usually finds a way to moot such laws.

The sad part is the mental gymnastics one has to go to in order to even find that SCOTUS has jurisdiction in this case.  DTA and Article III should've forbidden them from hearing this case at all.

I agree, but so goes many of the Court's decisions. In all fairness it isn't that big of a stretch. The DTA simply stated that the Court couldn't hear new cases concerning military tribunals. The Court then just decided that since Hamdan was appealing for a writ of habeus corpus that his case was pending. Whether or not that was the intention of Congress is highly debatable (I think its clear that Congress meant to keep SCOTUS from hearing any more cases regarding Bush's military tribunals), but the reasoning of the Court in hearing the case isn't that convuluted.

Not if he asks immediately...if he shuts down Guantanamo, moves the prisoners there elsewhere, holds on to them until after the elections, and then asks, he might get it.

That would be a major risk for him politically. First of all, the legal implications of this trial are not isolated to Guantanamo Bay. The thrust of this case revolves around the "enemy combatant" status the DoD has been doling out as a reason to deny PoW rights and dodge the Geneva Convention. Simply moving them out of Gitmo won't rectify the problems the Court has found. Second, moving them and holding them until after elections would run him past the Detainee Treatment Act time table for reviewing and reporting "enemy combatants" putting his administration into further legal trouble than its been in thus far. At that point he would be directly violating a law passed by Congress that he pushed for. Finally, doing so would act contrary to the Court's decisions in Hamdi v. Rumsfeld and Rasul v. Rumsfeld which found that the sort of indefinate holding of detainees without fair trial was unconstitutional. I suppose a case could be made for a new time table being needed because of the Hamdan decision, but I doubt the Court would buy it.

What I think is more likely is that Bush will shut down Gitmo and release most of its prisoners back to their own countries for trial or release there. Of course, the real baddies will move into the federal court system and be tried there. On a side note, does anyone else find it interesting that Bush distinguishes between the real terrible guys locked up at Gitmo and the rest. I mean, if there's such an obvious difference who are these others we're holding and why? Oh yeah, the Court ruled on that too didn't it.

im currently wading through SCOTUSblog atthe moment. yayyy. remember that he can still go back and ask congress for the proper authority, etc. but i doubt they'd give it.
True, but that's already happened once before and it resulted in the Detainee Treatment Act. The DTA addressed the Court's concerns with Gitmo, at that time, pretty much to the letter. Yet, here we are today watching them find for Hamdan. Bush was even quoted earlier this week saying he was considering shutting down Gitmo pending the results of this case. I highly doubt he'll go back to Congress for new authority yet again and expect the result to be any different. To that end, even if he believed it might work this time I  simply don't think he has the political capital to push something like that through without a major victory  in the midterm elections.

I know, this is awesome. My undergrad con law class used this very case for a mock trial so I've been following it very closely. Though I'm stoked about the decision I can't get over how the Court seemed to brush aside the Detainee Treatment Act, and I'm on pins and needles waiting to see Stevens' logic. What surprises me most is Kennedy! I thought for sure this was going to be a 4-4 decision or even a 5-3 for the government with Breyer possibly deferring to Congress.

I replied to this in the "News" thread, but since the discussion seems a little warmer here I think I hop on in. Not only is this article or other postings about it mysteriously absent from the web, but CBS has published entirely opposite findings.

Zarqawi's killing hasn't helped President Bush with the public, either. His overall job approval rating remains just 33 percent down slightly from 35 percent last month while 60 percent disapprove.

Rather you want to say more to me or not is entirely up to you. However, my answer to your question isn't circular. You asked merely asked why it was only reasonable for him to be politically correct and I replied because of the consequence it would bring. I think consequentialism is an acceptable measure of reasonableness. If you meant to ask, why he deserved the consequences for his lack of (what you call) political correctness then my answer would have been circular. But to answer that question I did spend a small amount of time touting the values of social grace so I think I answered that question as well.

Now I never said that he "deserved" anything. I'm not particularly interested in morally calculating his actions and the reactions it brought. What I have been saying is that he effed up and he should have known better. Its apparent that he did based upon his back-peddling and apologizing after he was criticized. Rather or not that should have been enough is also of little importance to me. What is important is that he was forced to reason because he made an amateur mistake and that is reasonable. Or if you'd rather use the terms you are putting in my mouth then he deserved to be pushed out because he made comments that were stupid, but it they weren't stupid because he got pushed out. Instead they were stupid because he should have known they would get him pushed out. So he was pushed out because he was too stupid to realize the consequence of his actions... not circular.

Now for the "liberal bias" issue, no I don't believe in the "liberal bias" in academia. I think its simply another one of the rights' paranoid fantasies and scape-goats like the "liberal media" and "liberal assault on religion". Seeing as one of the points you have brought up is that perhaps difference may be innate instead of caused, then isn't it feasible that there are more liberals in academia simply because smarter people tend to be liberal? Now, I don't actually believe that but can't you see that its essentially the same point and Summers had come out and said that then I doubt most of his defenders would be siding with him. In all seriousness though, even if you believe in some sort of "liberal bias in academia" then I still feel that this not the place to find it.

I did say a significant portion and, as the original CNN link that you posted states, a "poll conducted by the Harvard Crimson student newspaper, 57 percent of 424 undergraduate students said Summers should not resign". I would still say around 40% is a significant portion of the student body.

Now I grant that there is evidence on both sides of the debate, but that still doesn't make it prudent for Summers to make this assertion. You want to know why it is reasonable only for him to take the politically correct side? Well, look at what it got him. Anyone could have seen this coming from his comments. But if you want more than that then suffice to say that it is untactful, presumptuous, and generally improper. It isn't political correctness to exercise discretion in a speech. Discussion that is fit for the board room isn't necessarily fit for a convocation. Just as you don't ask someone their salary or talk business at the dinner the table, you don't make these kinds of assertions in a public forum. Put simply, if you equate common social graces to liberalism then fine. That's a mantle I think they'll happily bear. However, I think tact is something that should be fairly universal and it should certainly be exercised by people in positions of power and attention.

The fact of the matter is that a fairly liberal President at one of the most traditionally conservative academic institutions in America was forced to resign because he allowed himself to become far to contraversial. If you honestly believe that this is some sort of sign of liberal bias in academia then we're gonna be spending a lot of time (and pry have a decent amount of fun) dragging this thread out.

Rather he is or is not saying that, he is recognizing the that there is validity to the argument. Hell he specifically mentioned it in his speech.

"And here, you can get a fair distance, it seems to me, looking at a relatively simple hypothesis. It does appear that on many, many different human attributes-height, weight, propensity for criminality, overall IQ, mathematical ability, scientific ability-there is relatively clear evidence that whatever the difference in means-which can be debated-there is a difference in the standard deviation, and variability of a male and a female population."

Granted this is only one possibility he discusses, but the subtle assertion is present throughout the speech. I highly doubt he actually means that women are outright less intelligent then men for genetic reasons, but for a good portion of his speech he sure sounds like it. Again this gets back to the point that this man is a victim of being a poor leader and making public comments that an 8 year old could have predicted would piss off his faculty and students. And rather Williams considers a signficant portion of Harvard students and faculty to be "children" is irrelevant because I doubt many of them would have made Summers' foolish mistake.

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