Balkinization  

Monday, April 02, 2007

What Now at GTMO?

Marty Lederman

The Court today denied the cert. petitions in the Guantanamo detainee cases, choosing instead to wait until the Pentagon's detention decisions have been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, as prescribed in the Detainee Treatment Act and Military Commissions Act. What this obviously means is that Justice Kennedy was unwilling to tip his hand on the merits either way within the Court. (If either block of four Justices had been confident of gaining his vote, they presumably would have voted to grant the petition.)

Justice Stevens and Justice Kennedy have been the principal architects of the Court's detainee cases, and they wrote jointly today with a pointed warning to the government not to delay the proceedings below:

Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, see Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring), and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it appropriate to deny these petitions at this time. However, "[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies." Marino v. Ragen, 332 U. S. 561, 570, n. 12 (1947) (Rutledge, J., concurring). [NOTE Justice Stevens's continuing resurrection of the wisdom of Justice Rutledge's wartime decisions -- Marino was a case of which Justice Rutledge and his clerk, one John Stevens, were especially proud -- see Diane Amann's new article, 74 Fordham L. Rev. 1569, 1580-1582.] If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. See 28 U. S. C. §§1651(a), 2241. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, "courts of competent jurisdiction," including this Court, "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." Padilla v. Hanft, 547 U. S. 1062, 1064 (2006) (Kennedy, J., concurring in denial of certiorari). And as always, denial of certiorari does not constitute an expression of any opinion on the merits. See Rasul v. Bush, 542 U. S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).


So what now?

The vast majority, if not all, of the pending habeas petitions were brought by alien detainees who now have had a Combatant Status Review Tribunal (CSRT) hearing, who were deemed detainable "combatants," and who claim that their detention itself is unlawful -- either because the Administration is using an impermissible standard for detention, because the process in the CSRT was legally inadequate, or because the factual record does not in fact satisfy the proper legal standard for detainability.

Under the 2005 Detainee Treatment Act (DTA), preserved by the MCA, those detainees cannot bring a habeas petition, but they may appeal to the United States Court of Appeals for the District of Columbia Circuit "to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant."

And in that D.C. Circuit review, the court can (indeed, must) consider whether the CSRT's use of the DoD standards and procedures to make the determination [of enemy combatant status] is consistent with the Constitution and laws of the United States."

Whether or not the provision of D.C. Circuit appellate review is adequate from a constitutional perspective for this set of detainees -- under the Due Process Clause and/or constitutional rights of habeas corpus (reflected in Article I's Suspension Clause) -- can be a complex question that will likely turn, in large part, on the exact nature of the D.C. Circuit review that the DTA prescribes.

Although the Court of Appeals for the D.C. Circuit cannot engage in de novo review of the CSRT record itself, or consider facts outside the record bearing on the grounds for detention, it can require the CSRTs to conform their own standards to all statutory, constitutional, law-of-war, and even, perhaps, treaty-based requirements. (The Court in Hamdan indicated that the DTA's references to "the Constitution and laws of the United States" includes "the law of war," 126 S. Ct. at 2775, which the Court construes to include the Geneva Conventions. The principal sponsor of the court-stripping provision of the MCA, Senator Graham, agreed. See 152 Cong. Rec. S10266.)

Thus, even outside the structure of the habeas review that the MCA eliminates, the D.C. Circuit can still review the adequacy of the CSRT procedures to determine whether they provide the sort of evidentiary process that constitutional habeas, and due process, requires (e.g., a right to adequately rebut the government's allegations and to have a decisionmaker engage in a meaningful factual inquiry) -- and if the court finds that the CSRT process is legally deficient, it can order the CSRT to provide the required form of review of detention decisions, to the extent possible.

It is not at all clear that the D.C. Circuit review of the CSRTs could satisfy all constitutional requirements. For example, to the extent the Constitution requires some sort of factual review of the basis for detention by an independent adjudicator outside the Executive branch, the DTA might not provide for it.

Most importantly, even if the D.C. Circuit issues an injunction to the Pentagon that fundamentally restructures the CSRT process -- and, most importantly, that establishes a legally acceptable definition of "enemy combatant" for the CSRTs to use -- and even if such an injunction would be constitutionally adequate prospectively, i.e., for future detainees, it is not at all certain that that would satisfy the Constitution as applied to these detainees, most of whom have been detained at GTMO for more than five years already. Presumably even a substantially revamped CSRT, on remand from the D.C. Circuit, would not issue revised detention decisions for quite some time -- to be followed by yet further D.C. Circuit review. To the extent constitutional habeas and due process require timely review of the Executive's detention decisions -- see, e.g., Preiser v. Rodriguez, 411 U.S. 475, 495 (1973) (“"[S]peedy review of [a prisoner’'s] grievance . . . is so often essential to any effective redress.”" -- any D.C. Circuit-issued remedy, which could take years to implement, might be constitutionally inadequate as to these detainees, even if it might "cure" the constitutional problems going forward.

One other important factor: As Justice Breyer stresses in his dissent from denial of cert., the D.C. Circuit panel has already held that the alien detainees at GTMO enjoy no constitutional rights -- a holding that the Supreme Court will almost certainly reverse, but that is the law of the case for now. As long as that decision stands, the court of appeals will not be willing to enjoin the CSRTs to comply with any constitutional requirements. The only way for the court of appeals to address any constitutional deficiencies, therefore, would be for the full en banc court to overrule its previous decision -- something that would prolong the proceedings even further. That's very unlikely. Breyer: "It is unreasonable to suggest that the D. C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have." And yet the detainees are likely to get a favorable decision on the constitutional question (at least in pa rt) from the Supreme Court). Therefore, although the tactics on this are uncertain, the detainees might well be best served by a quick and decisive loss in the D.C. Circuit, so that the constutional and other important questions can get to the Supreme Court sooner rather than later.

Comments:

The extended timing of these cases now might make legislative and political developments determinative. For example, there is a serious chance that Congress will mandate in the upcoming Defense Appropriations bill that Guantanamo be closed and the detainees transferred to military custody stateside. The Court's denial of cert makes that issue more visibly critical.

The MCA does purport to strip habeas jurisdiction over alien "enemy combatants" even within the United States. But the constitutionality of that seems more vulnerable since the existing D.C. Circuit decisions depend on the particular geography of Guantanamo.

Meanwhile, in the longer time frame, there will be a presidential election next year. The next president -- if he/she is either a Democrat or John McCain -- might move the detainees even if Congress has not acted.
 

My first take is that the appeals to the DC Circuit could take several months, if not years.

We are talking about potentially hundreds of individual appeals in addition to the DC Circuit's already bulging regular docket.

The DC Circuit probably has little or no knowledge about the SecDef's rules of procedure for these tribunals and will have to get up to speed on them. This may be complicated by the fact that these rules probably changed over time as the military applied them over the past few years and identified those which did not work.

Then, the DC Circuit has to determine if any provision of the Constitution applies to combatant status hearings.

The court could simply apply the Quirin decision holding that the 5th and 6th Amendments do not apply to unlawful belligerents facing a military commission to the status hearings which determine whether the capture is an unlawful combatant. Even in this case, the DC Circuit will probably be cautious and do a great deal of research to support its opinion before a skeptical Supreme Court with which it has been fencing.

If the DC Circuit finds that some or all of the Constitution applies to combatant status hearings and the SecDef's rules of procedure are in part or completely unconstitutional, then the cases get sent back to the military for a new set of rules and a new set of hearings - a process which could itself take months to years before going back up to the DC Circuit for a second round of appeals.

Finally, and most time consuming, the DC Circuit will have to review the classified hearing transcripts to determine of the SecDef's rules were followed for each hearing. Given the classified nature of these transcripts, the court's clerks may not be able to assist the judges in this phase.

The only way these appeals get to the Supremes in the near future is if the DC Circuit knocks out a single expedited appeal on the next few months to a year.
 

jao:

I doubt that the GOP in the Senate or the President will allow legislation closing Gitmo and transferring these prisoners stateside.

Think of this for a moment...

As soon as we bring into the US the dozens of detainees who the tribunal have found to be non combatants or "no longer dangerous," they will seek asylum to stay in the United States as immigrants. These are generally former terrorists which no other country wants. Which congressional representative or senator wants to campaign on importing terrorists in 2008?

The other group are a few dozen hard core terrorists. The only purpose to bring these terrorists into the US would be to compel criminal trials in federal court. That puts the military in the position of either releasing these terrorists or blowing their ongoing classified sources in open court. Except for the most brain dead Dem representatives and senators, exactly who would want to create such a choice or campaign on the results of that choice?
 

JaO:

Meanwhile, in the longer time frame, there will be a presidential election next year. The next president -- if he/she is either a Democrat or John McCain -- might move the detainees even if Congress has not acted.

Yeah, I know the "wheels of justice grind slow but exceedingly fine". But that would be seven years or so, just waiting for charges to be brought (if at all; the maladministration has been releasing large numbers of detainees under pressure, after having assured us early on these were all "the worst of the worst").
 

"Bart" DePalma just doesn't know what's going on:

We are talking about potentially hundreds of individual appeals in addition to the DC Circuit's already bulging regular docket.

SFW? Appeals ain't for your convenience, "Bart".

But outside of that, since the DTA/MCA says that the DC Circuit in limited in what it can consider to only whether the process is legal (and not to whether the facts in individual cases are consistent with any notion of "due process"), even if there were a thousand appellants, it would be combined into one case. Hardly a blip on the radar screen for case load. The only ones inconvenienced would be the maladministration.

Cheers,
 

"Bart" DePalma:

The court could simply apply the Quirin decision holding that the 5th and 6th Amendments do not apply to unlawful belligerents facing a military commission to the status hearings which determine whether the capture is an unlawful combatant.

Uhhh. "Argument by repeated assertion and ignoring responses". See here for my response to this specious argument, which "Bart" of course ignored ... only to make the same lame assertion a couple days and threads later as if no one had said anything in response.

Cheers,
 

"Bart" DePalma:

The DC Circuit probably has little or no knowledge about the SecDef's rules of procedure for these tribunals and will have to get up to speed on them....

And this (if true) is supposed to give us confidence that the law is beign fairly applied? That out own courts don't know the "rules of procedure" that the maladministration is using?!?!?

... This may be complicated by the fact that these rules probably changed over time as the military applied them over the past few years and identified those which did not work.

OIC. Because the rules are being changed even as we speak, we can rest assured they're being fairly applied. I feel so much better now. Calvinball!!!

Cheers,
 

"Bart" DePalma says:

As soon as we bring into the US the dozens of detainees who the tribunal have found to be non combatants or "no longer dangerous," they will seek asylum to stay in the United States as immigrants. These are generally former terrorists which no other country wants.

Anyone else see a problem with this 'logic'?

Cheers,
 

"D.C. Circuit can still review the adequacy of the CSRT procedures to determine whether they provide the sort of evidentiary process that constitutional habeas, and due process, requires (e.g., a right to adequately rebut the government's allegations and to have a decisionmaker engage in a meaningful factual inquiry)...."
I know there's language in Hamdi which seems to say habeas itself guarantees some sort of opportunity to be heard -- at least for U.S. citizens -- but for the life of me I don't know how the idea got started that habeas, a forum, carries with it process or other rights, any more than diversity of citizenship in a federal court carries with it the right to win the case. The fallacy in Hamdi was to confuse the procedure for determining habeas petitions themselves with whatever procedure a detainee might be entitled to, to test the validity of his detention. These later rules or rights must be derived from law sources outside the habeas statute and constitutional (suspension) provision, in my opinion.
 

Bart: I doubt that the GOP in the Senate or the President will allow legislation closing Gitmo and transferring these prisoners stateside.

I think congressional action is uncertain but quite possible, for two reasons:

1) The move originates in the House Defense Appropriations bill (hearings have been held on this proposal already). Gates has not endorsed it, but he is openly sympathetic to the general idea of shutting down Guantanamo.

2) In the Senate, McCain is on record in favor of closing Guantanamo and moving the detainees to Fort Leavenworth. His close ally, Graham, is one of the GOP's lead actors on this issue. Presumably, they both would rest on the constitutionality of the MCA, on which they were lead negotiators with the White House last year.

Thus, unlike the brewing standoff over Iraq funding in the supplemental, there is no clear-cut partisan divide over a potential veto.
 

Arne Langsetmo said...

"Bart" DePalma just doesn't know what's going on:

We are talking about potentially hundreds of individual appeals in addition to the DC Circuit's already bulging regular docket.

But outside of that, since the DTA/MCA says that the DC Circuit in limited in what it can consider to only whether the process is legal (and not to whether the facts in individual cases are consistent with any notion of "due process"), even if there were a thousand appellants, it would be combined into one case. Hardly a blip on the radar screen for case load.


Try reading the law before you post. The pertinent provision of the DTA states:

(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A);

and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.


The Constitutionality of the process is only one question facing the DC Circuit unless the appellants are going to waive a review of the whether the Tribunal followed its rules in their individual cases.

The latter issue requires a review of the proceedings for each appellant.

I would remind you that it took months for the DC Circuit to deal with just the shared legal issues raised in the Boumediene case. Add potentially hundreds of individualized reviews of the hearings and the potential for delay is enormous.
 

One also has to wonder whether the GOP's Senate contingent would be 100% on board for filibustering an attempt to close Gitmo. Not exactly a "go to the mattresses" kind of issue.
 

JaO said...

I think congressional action is uncertain but quite possible, for two reasons:

1) The move originates in the House Defense Appropriations bill (hearings have been held on this proposal already). Gates has not endorsed it, but he is openly sympathetic to the general idea of shutting down Guantanamo.


Because of a variety of lies about the treatment of detainees at Gitmo which has created a enemy propaganda tool, I believe even the President is on record wanting to close Gitmo.

However, closing Gitmo is not the problem. The problem is what to do with the detainees. Gates raised those problems at a recent appearance before Congress and asked Congress to address those problems.

Until an alternative location can be found which does not cause more problems than it solves (as I noted above), I believe you can count on a Bush veto and next to no support from the GOP and conservative Dems.

This decision will have to be made by the next President.
 

Bart,

In theory you may be right about your political predictions, but your record is not good. I recall that last fall you confidently predicted that the GOP's strategy of using Democrats' votes on the MCA against them would be a winner. Rove and Republican candidates certainly followed that strategy. The result: Not a single Democratic incumbent was defeated.

The talking point that the military cannot keep the prisoners securely in such facilities as Fort Leavenworth or the Charleston brig is simply laughable.

In any event, I don't see why you are worried about any detainees being released if they were held in military detention. You and the government confidently assert that they are, in fact, "enemy combatants," and are being held for good reason.

The MCA on its face still strips the courts of habeas review (assuming you and the administration are right and it is constitutional). Even if the habeas-stripping provision should fall, the government still has the argument that the CSRT process is a legally sufficient alternative. And even if the government lost on that one, the habeas procedures such as those crafted at the district court / magistrate level in the Al-Marri case are quite favorable to the government.

If these folks are truly "enemy combatants" the government should be able to demonstrate this easily given such a favorable playing field.
 

Frank Fish:

The fallacy in Hamdi was to confuse the procedure for determining habeas petitions themselves with whatever procedure a detainee might be entitled to, to test the validity of his detention. These later rules or rights must be derived from law sources outside the habeas statute and constitutional (suspension) provision, in my opinion.

I agree with your last statement, but to do that, first you have to get out of your concrete floored 9X12, and get in the courthouse door. It's this first step that the maladministration has been fighting every step of the way....

Cheers,
 

jao said...

If these folks are truly "enemy combatants" the government should be able to demonstrate this easily given such a favorable playing field.

Normally, I would agree with you. Outside the 9th Circuit, I have no particular worries in the lower courts. However, I do not trust Kennedy as far as I can spit anymore. He has followed Souter and "evolved" into a full judicial legislator.

After rewriting the habeas corpus statute, Kennedy has joined with the four libs to rewrite the Clean Air Act today. CO2 has just been judicially legislated from a perfectly natural element of our atmosphere necessary for life on Earth to a "pollutant." The democratic process has just been bypassed yet again by the Court.

Hell, it doesn't appear that the EPA even has to defend the science it will use to enact new regulations on CO2 because five Supremes have used their God like scientific expertise and proclaimed the science behind the global warming theory to be sound.

And you wonder why Gates worried about what this outlaw court might do next if we were to bring these prisoners inside our borders? Under these circumstances, the hypotheticals I posed above are not remote possibilities at all.
 

"Bart" DePalma:

["Bart"]: We are talking about potentially hundreds of individual appeals in addition to the DC Circuit's already bulging regular docket.

[Arne]: ... But outside of that, since the DTA/MCA says that the DC Circuit in limited in what it can consider to only whether the process is legal (and not to whether the facts in individual cases are consistent with any notion of "due process"), even if there were a thousand appellants, it would be combined into one case. Hardly a blip on the radar screen for case load.

Try reading the law before you post. The pertinent provision of the DTA states:

(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A);

and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.


Yes, one might read part (i) to say that this involves a determination of the validity of the procedures as applied to the facts of a particular case, but it could well be argued to mean simply that the inquiry is to be done to the extent of determining only if the gummint followed the rules they themselves wrote, not whether there was an basis on the evidence presented for the "final decision" reached. IOW, the gummint may well argue (as you have done here and elsewhere, somewhat incorrectly) that actual factual innocence will not be reviewed in a quasi-habeas forum. As such, assuming some consistency of procedure (and if we don't have consistency of procedure, we have a quite different ball of wax, don't we?), the facts at bar would be similar, and it would make sense to consoldidate the cases (as I'm sure the courts will do, probably on the urging of the gummint).

There is some interplay between the adequacy of a procedure and the actual facts at bar (consider, e.g., "substantive due process" claims), but expect the gummint to argue, once in court, that the legislation limits the courts to considering only the adequacy and legality of the procedure (as the second clause hints at, as well). The gummint doesn't want any Article III court looking into whether these people were indeed properly treated or convicted on the facts.

Cheers,
 

"Bart" DePalma:

After rewriting the habeas corpus statute, Kennedy has joined with the four libs to rewrite the Clean Air Act today. CO2 has just been judicially legislated from a perfectly natural element of our atmosphere necessary for life on Earth to a "pollutant." The democratic process has just been bypassed yet again by the Court.

Three words: Selenium. Mercury. Lead. I could go on, too: Petroleum, for one. Care for some antimony with your cupcakes, cupcake?

Cheers,
 

arne said...

Yes, one might read part (i) to say that this involves a determination of the validity of the procedures as applied to the facts of a particular case, but it could well be argued to mean simply that the inquiry is to be done to the extent of determining only if the gummint followed the rules they themselves wrote, not whether there was an basis on the evidence presented for the "final decision" reached.

I know this is unusual, but I think we have the same read of the law here.

I am not arguing that the DTA allows a review of the facts. Rather, if the appellant asks for this review, the DTA requires the DC Circuit to determine if the Tribunal followed the SecDef's rules of procedure.

If we are actually on the same page by some serendipity, then I would merely point out that the DC Circuit is going to have to perform a case by case review of the classified hearing transcripts to ensure that the Tribunal followed the rules. Despite being time consuming, this part of the DC Circuit's review should require the least intellectual heavy lifting and probably represents the least problem for the military.
 

Arne Langsetmo said...

"Bart" DePalma: After rewriting the habeas corpus statute, Kennedy has joined with the four libs to rewrite the Clean Air Act today. CO2 has just been judicially legislated from a perfectly natural element of our atmosphere necessary for life on Earth to a "pollutant." The democratic process has just been bypassed yet again by the Court.

Three words: Selenium. Mercury. Lead. I could go on, too: Petroleum, for one. Care for some antimony with your cupcakes, cupcake?


I know I am going to regret playing in the mud with you, but I am stuck in telephone hold purgatory...

One question: Exactly what part of "perfectly natural element of our atmosphere necessary for life on Earth" did you not understand?
 

Frank Fish: The fallacy in Hamdi was to confuse the procedure for determining habeas petitions themselves with whatever procedure a detainee might be entitled to, to test the validity of his detention.

I don't think that was a "fallacy" in Hamdi. But there has evolved a widespread myth confusing review with relief.

In fact, even bearing in mind that Hamdi involved the case of a U.S. citizen, the plurality suggested minimal guidelines for such process that are extremely generous to the government. Effectively the detainee only gets "a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker," and the court left open the possibility that such a standard might still be met by a military tribunal.

This process is nothing close to the get-out-of-jail-free-card it is portrayed to be in pro-administration talking points.

Only one Article III court -- the district court together with its magistrate in the Al-Marri case -- has attempted to craft a process designed to meet Hamdi's standard, and the detainee was denied relief. That case, involving habeas procedure for an alien "enemy combatant" undertaken before the MCA was passed, is under appeal in the Fourth Circuit. The government, while describing the process as all that would be due even to a citizen held as an "enemy combatant," now argues that the MCA stripping provision requires dismissal of the appeal.
 

"Bart" DePalma:

The democratic process has just been bypassed yet again by the Court.

Ummm, what's "democracy" got to do with science? We gonna repeal the law of gravity next to get around our energy problems?

Hell, it doesn't appear that the EPA even has to defend the science it will use to enact new regulations on CO2 because five Supremes have used their God like scientific expertise and proclaimed the science behind the global warming theory to be sound.

Where? Appropriate quote and cite, please: __________________

Speaking of made-up facts, you have no privileges there either, "Bart"....

Just to forstall the inevitable nonsense "Bart"'s going to spout in reply, the court noted that the EPA itself wasn't denying the scientific facts at issue:

"Indeed, the NRC Report itself -- which EPA regards as an 'objective and independent assessment of the relevant science,' 68 Fed. Reg. 52930 -- identifies a number of environmental changes that have already inflicted significant harms...."

"EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissionn and global warming."

"We moreover attach considerable significance to EPA's 'agree[ment] with the President that 'we must address the issue of global climate change,'' 68 FEd. Reg, 52929, and to EPA's ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, 'EPA would presumably not bother with such efforts if it thought emissions reducions would have no discernable impact on future global warming.' 415 F.3d at 66"

"Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it woudl therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgement as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty [...] is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding."

The cour relied in part on EPA's on statements and on uncontesed facts, not on their own ipse dixit scientific pronouncements.

Cheers,
 

One question for the purposefully obtuse "Bart":

One question: Exactly what part of "perfectly natural element of our atmosphere necessary for life on Earth" did you not understand?

What part of "pollutant" did you not understand?

"Bart" is (or at least should be, if he wants to talk about this stuff), that mercury and lead are clearly pollutants despite the efforts of businesses to avoid their regulation (not to mention that they are also atmospherically occuring ones). If he was just a little bit scientifically inclined, he'd also know that while selenium is an essential cofactor for enzymes necessary to life, it is nonetheless toxic pollutant at high concentrations, and subject to air pollution regulations.

Care for an chromium cupcake, dear "Bart"? Once again, chromium is also essential to life....

Cheers,
 

"Bart" DePalma:

I am not arguing that the DTA allows a review of the facts. Rather, if the appellant asks for this review, the DTA requires the DC Circuit to determine if the Tribunal followed the SecDef's rules of procedure.

IOW, no independent determination as to whether the facts justify the continued detainment or conviction of these people. This is the position I'd expect "Bart" to take, and the gummint to take as well.

What it boils down to is that if the maladministration arrests you, jails you, interrogates you, gives you its approved lawyers
for your "defence", trys you (using its own rules and evidence that only it sees), convicts you, and punishes you, you've had a fair deal. My, how American.....

Guaranteed though, that if the Clinton administraion had been so lawless as to assert this power, "Bart" and the other Dubya-butt-sucking sycophants would have screamed bloody murder.... Oh, yeah, right ... they did ... but that for a blow-job and a legally pathetic hoked-up civil suit for alleged sexual harassment.

Cheers,
 

Arne Langsetmo said...

"Bart" DePalma: The democratic process has just been bypassed yet again by the Court.

Ummm, what's "democracy" got to do with science? We gonna repeal the law of gravity next to get around our energy problems?


In our Republic, the People are supposed to elect representatives to the Government to make decisions of government policy. The Supreme Court just rewrote the Clean Air Act to bypass the People's representatives and grant nearly blanket authority to an unelected bureaucracy to enact whatever policy they wish in this area.

As for the science, if the Theory of Gravity had as many holes as the green house effect theory, we would all be floating around in space.

BD: Hell, it doesn't appear that the EPA even has to defend the science it will use to enact new regulations on CO2 because five Supremes have used their God like scientific expertise and proclaimed the science behind the global warming theory to be sound.

Where? Appropriate quote and cite, please


I have only been able to read the case syllabus so far at work. That syllabus starts off assuming that the green house effect theory is correct and makes several other conclusory opinions in the rest of the syllabus. I am sure that these conclusions are discussed at more length in the opinion.

Once I have had a chance to read the full opinion and what is certain to be an acerbic evisceration of that opinion by Scalia, I will be glad to discuss this opinion further.
 

This comment has been removed by the author.
 

BD: The only purpose to bring these terrorists into the US would be to compel criminal trials in federal court. That puts the military in the position of either releasing these terrorists or blowing their ongoing classified sources in open court.

The first obvious barb here is: "How do you know they're ongoing if they're classified?"

The second obvious barb is: "Actually, another reason to bring these terrorists into the US might be to keep them from carrying out more terrorist attacks."

However, in all seriousness, one can imagine a fantasy third possibility where the Government presents a wide array of damning evidence while simultaneously protecting their sources. Of course, in that kind of fantasy world, an administration might attempt to weigh injury to international reputation against loss of productive intelligence sources BEFORE making a decision on how to proceed with detainees.

6:25 PM
 

"Bart" DePalma:

["Bart" DePalma]: [The part "Bart" snipped, added back from just prior, for context: "After rewriting the habeas corpus statute, Kennedy has joined with the four libs to rewrite the Clean Air Act today. CO2 has just been judicially legislated from a perfectly natural element of our atmosphere necessary for life on Earth to a "pollutant."] The democratic process has just been bypassed yet again by the Court.

[Arne]: Ummm, what's "democracy" got to do with science? We gonna repeal the law of gravity next to get around our energy problems?

In our Republic, the People are supposed to elect representatives to the Government to make decisions of government policy....


Ummm, "Bart": You were claiming (although you did your best to conceal it) that the Court was going about rewriting what is essentially a scientific question. Sad to say, though, science is impervious to the wiles of both the maladministration and the judiciary, although the maladministration can attempt to restrict the proliferation of scientific knowledge (for whatever reason it thinks proper).

The Supreme Court just rewrote the Clean Air Act to bypass the People's representatives ...

How so? Was Congress party to the suit?

... and grant nearly blanket authority to an unelected bureaucracy to enact whatever policy they wish in this area.

Ummm, it was the EPA that was the respondents in this suit, resisting the requirements of the law that that said that CO2 should be regulated under certain findings (which the court said were admitted and uncontested by the EPA). The EPA resisted this regulation, not based on a finding that CO2 was not such a "pollutant" but rather on the basis that their alternative means of dealing with it would 'work better'. But the court said that they were not permitted to use such reasons to resist the requirements of the law (and I'd note in passing that this defence of theirs for not regulating implicitly acknowledges that CO2 is in need of action).

As for the science, if the Theory of Gravity had as many holes as the green house effect theory, we would all be floating around in space.

So "Bart" disagrees not only with me and the consensus of the scientific world, but also with the EPA. Lovely.

["Bart"]: Hell, it doesn't appear that the EPA even has to defend the science it will use to enact new regulations on CO2 because five Supremes have used their God like scientific expertise and proclaimed the science behind the global warming theory to be sound.

[Arne]: Where? Appropriate quote and cite, please

I have only been able to read the case syllabus so far at work. That syllabus starts off assuming that the green house effect theory is correct and makes several other conclusory opinions in the rest of the syllabus. I am sure that these conclusions are discussed at more length in the opinion.

Once I have had a chance to read the full opinion and what is certain to be an acerbic evisceration of that opinion by Scalia, I will be glad to discuss this opinion further.


OIC. Opining on cases you haven't read (see here also) yet? How unusual.

Say, speaking of Scalia, care to explain where in the Eleventh Amendment it says that states cannot be sued by their own citizens in federal court?

Cheers,
 

In the "words fail me" category, Scalia's dissent in Mass. v. EPA:

"No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgement of the responsible agency."

This is Dubya's EPA, Nino.....

Cheers,
 

arne:

The opinion was both better and worse than an initial reading of the syllabus would indicate;

Let's start with the worse....

In order to create standing for the appellants, the Court cited some of the worst green house junk "science" to conclude that ""EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is 'actual' and 'imminent.'" p. 18.

Of particular note was the MacCracken Declaration's parade of horribles he claims without any confirmed scientific evidence will befall the planet. In footnote 18, the Court added its own "scientific" judgment that Katrina was caused by green house emissions. Good heavens, I am surprised that this credulous group of five attorneys forming the majority did not also quote that eminent scientist Al Gore.

Something else that was amusing was the Court's recitation of the fractionally rising CO2 levels through the 60s and 70s as this was some sort of proof of causation, when in fact temperatures had been cooling during this period of time staring around 1940 and culminating with a series of severe winters which caused some of these global warming boosters to claim an ice age was imminent in the 70s.

In any case, you wanted citations to all of the "science" which the court assumes is true in order to arrive at its opinion. I give you pdf pages: 5-10, 18-23.

Now for the better than expected part...

While the Court rewrote the CAA to hold that EPA can regulate CO2 as a "pollutant" as if it were some sort of "impurity" which was alien to the atmosphere, the majority stopped short of ordering EPA to actually regulate CO2. There is this pesky provision in the CAA act which provides that EPA shall regulate air pollutants from motor vehicles "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." In short, the political head of EPA gets to decide if and when to regulate.

The Court created new requirements nowhere seen in the CAA requiring EPA to provide reasoning for declining to regulate, but declined to write out the clause giving the EPA head the power to make this decision.

Bush needs to have EPA write a tough opinion that there is no substantial evidence of causation between human green house gas emissions and warming.
 

"Bar" DePalma, boy scientist:

The opinion was both better and worse than an initial reading of the syllabus would indicate;

Let's start with the worse....

In order to create standing for the appellants, the Court cited some of the worst green house junk "science" to conclude that ""EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is 'actual' and 'imminent.'" p. 18.


As I pointed out in the quotes above, they cite the EPA's own words, "Bart". FWIW, the 2001 NRC Report is dated; the evidence of both injury and causation have both just gotten stronger and stronger in the interim.

But once again, Mr. "I'm not a scientist (I'm just a lawyer that repeatedly miscites milestone cases), I just play one on the Internet tubes", you're free to try and trot out any august scientific bodies -- like the National Academy of Sciences or the National Reserach Council that have concluded the opposite -- that have concluded en masse that global warming is just "junk science".....

Of particular note was the MacCracken Declaration's parade of horribles he claims without any confirmed scientific evidence will befall the planet....

Nope. What MacCracken did in his declaration (which, as you should know, is what happens in courts), is claim that others had come to such conclusions.

... In footnote 18, the Court added its own "scientific" judgment that Katrina was caused by green house emissions....

No, they didn't. They said no such thing. What they said was rather different. They said that MacCracken's comments on the increasing susceptibility to storm damage due to loss of buffer, land erosion and subsistence, etc. was "prescient", given what happened. And they stated outright that MacCracken's comments were that global warming "might" cause an increase in storm wind speed and precipitation.

... Good heavens, I am surprised that this credulous group of five attorneys forming the majority did not also quote that eminent scientist Al Gore.

As opposed to you, Mr. "Eminent Boy Scientist"? How many peer-reviewed papers have you published?

Something else that was amusing was the Court's recitation of the fractionally rising CO2 levels through the 60s and 70s as this was some sort of proof of causation, when in fact temperatures had been cooling during this period of time staring around 1940 and culminating with a series of severe winters which caused some of these global warming boosters to claim an ice age was imminent in the 70s.

Huh?

In any case, you wanted citations to all of the "science" which the court assumes is true in order to arrive at its opinion. I give you pdf pages: 5-10, 18-23.

No. I wanted cites to "five Supremes hav[ing] used their God like scientific expertise and proclaimed the science behind the global warming theory to be sound." They accepted the science put forth, but came to no conclusion themselves. One thing that seems to have tipped them is that even the EPA, the respondents here, seem to accept the science. I pointed this out to you. I'd note that not even Scalia is stoopid enough to call global warming "junk science".

Now for the better than expected part...

While the Court rewrote the CAA to hold that EPA can regulate CO2 as a "pollutant" as if it were some sort of "impurity" which was alien to the atmosphere, ....


You never answered my points about selenium (or chromium). Just because something is not "alien" doesn't make it not a "pollutant".

... the majority stopped short of ordering EPA to actually regulate CO2. There is this pesky provision in the CAA act which provides that EPA shall regulate air pollutants from motor vehicles "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." In short, the political head of EPA gets to decide if and when to regulate.

How Dubyaesque.

The Court created new requirements nowhere seen in the CAA requiring EPA to provide reasoning for declining to regulate, but declined to write out the clause giving the EPA head the power to make this decision.

They just said that if they thought that there was a valid reason not to reach a decision, they needed to come out with it and just say so.

Bush needs to have EPA write a tough opinion that there is no substantial evidence of causation between human green house gas emissions and warming.

They'd have to fire the scientists first. Perhaps after the US attorney scandal, they'll know how to handle the PR on that one better.

Cheers,
 

"Bart" is living proof that Evolution is "junk science".
 

Jao says:

In any event, I don't see why you are worried about any detainees being released if they were held in military detention. You and the government confidently assert that they are, in fact, "enemy combatants," and are being held for good reason. ... If these folks are truly "enemy combatants" the government should be able to demonstrate this easily given such a favorable playing field.

Jao,

It seems clear to me that the main reason the Bush Admin fears habeas proceedings is b/c they are likely to reveal widespread accusations of torture. See e.g. http://www.washingtonpost.com/wp-dyn/content/article/2007/04/02/AR2007040201260.html. The description of torture techniques in the transcripts of enemy combatant hearings are redacted--it is by no means certain that habeas transcripts will be. The magnitude of alleged torture at Guantanamo (whether it is exaggerated or not) will undoubtedly foment anti-US propaganda (in addition to calling into question the evidence upon which enemy combatant status rests).
 

Post a Comment

Older Posts
Newer Posts
Home