Infinite MonkeysAnthony Gregory worries about Scalia's totalitarian tendencies.
Scalia as well as Roberts accuses the Court of butting into foreign policy, yet his own reasoning is informed by definite opinions on foreign affairs, including a careless deference to executive power. Bush appreciated such deference, saying the dissent “was based upon . . . serious concerns about U.S. national security. ”Scalia refers to the president as “the Nation’s Commander in Chief.” This is wrong. Under the Constitution the president is only the “Commander in Chief of the Army and . . . and of the Militia . . . when called into the actual Service” of the U.S. The president does not command the whole country, and it is frightening that a Justice would say he does.
Why such blind trust for the governmental branch that insisted after 9/11 that all the Guantanamo prisoners were the “worst of the worst” and has in six years since released hundreds and convicted only one of terrorism—a man who served nine months and is now free in Australia?
And which is it? Is the decision perilously revolutionary, as Scalia insists, or vulgarly frivolous, as Roberts maintains? If frivolous, why is Bush now considering “additional legislation,” seemingly to get around the new ruling?
Oh, boy. In what way has Scalia -- using the power of the court -- butted in to America's foreign affairs, an aspect of U.S. policy that is almost entirely the purview of the executive in the Constitution, save the thumbs up or down by the Senate of treaties?
And let's look at the second paragraph of your Lew Rockwell excerpt:
Scalia refers to the president as “the Nation’s Commander in Chief.” This is wrong. Under the Constitution the president is only the “Commander in Chief of the Army and . . . and of the Militia . . . when called into the actual Service” of the U.S. The president does not command the whole country, and it is frightening that a Justice would say he does.
C'mon, Where -- anywhere in Scalia's dissent -- does he say that the president "command(s) the whole country."
One of Scalia's biggest beefs was that the president and Congress worked to create a structure in which these unique enemy combatants are fairly treated and have legal appeals. They did, with consultation with the Supreme Court -- twice. He was in favor of deferring to that democratic procedure.
If anyone is commanding the country, it's five lawyers sitting on the Supreme Court.
Gregory isn't accusing Scalia of butting in to America's foreign affairs. On the contrary, he says that is what Scalia has done to the other five members of the court. What Gregory does say, however, is that much of Scalia's screed is based less on a constitutional view of the Executive than it is on Scalia's perception of what the foreign policy effects of the decision will be.
As another commenter has pointed out, an appellate court's role is NOT to analyze the potential foreign policy (or domestic policy) impact of their judgment. It is, rather, SCOTUS's job to judge the constitutionality of the law being scrutinized, period. Kennedy's opinion is filled with the language of constitutional evaluation. Scalia's dissent, however, is an emotional rant about how much harder the Executive's job will be as a result of this judgement.
It's also ridiculously hyperbolic. The outcome of the judgment, at most, is that Guantanamo detainees will be able to demand to know on what legal basis they are being detained on de facto American soil. This is not an unreasonable request to make of the government of a supposedly free society.
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