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Senator Kyl and Deputy Chief of Staff Kaplan On Today’s SCOTUS Decision

Thursday, June 12, 2008  |  posted by Hugh Hewitt

From my interview with Senator Jon Kyl today (transcript here):

JK: I’m stunned. And in one sense, I mean, I knew there were four justices who were prepared to do this, I can’t believe Justice Kennedy did it, and I can’t…it’s just a stunningly bad decision with enormously negative consequences.

HH: Now Justice Scalia wrote this, “America is at war with radical Islamists. The enmity began by killing Americans and allies abroad, 241 at the Marine barracks in Lebanon.” He goes through and walks through all the attacks on us. He concludes, “Our armed forces are now in the field against the enemy in Afghanistan and Iraq. Last week, thirteen of our countrymen in arms were killed. In a game of bait and switch that today’s opinion plays upon the nation’s commander-in-chief, will make the war harder on us. It will almost certainly cause more Americans to be killed.” Do you agree, Senator Kyl?

JK :Absolutely correct. And you know, the irony here is the Court has given us a little bit, us meaning Congress, some direction. They basically challenged us to write the procedures for dealing with these detainees. We did. And then a case came along, and they said we don’t think you have it exactly right. So we went back and we made revisions. And they are, by the description of the dissenters, the most generous set of procedural protections ever afforded aliens detained by any country as enemy combatants. And yet, the Court, after inviting us to develop these procedures, and they are the most generous ever, anywhere, now strikes them down as inadequate. And as Justice Roberts said, it’s really hard to figure out why they’re inadequate based upon the test that the majority created.

HH: Now Senator Kyl, it leaves us in limbo again. It doesn’t release any terrorists, though I think we’re coming close to the day that a district court somewhere tells a killer he gets to go free from Gitmo, I don’t know where, to South Florida. But what do you do now?

JK: Well, let me just quote a little bit here from Justice Roberts. He says, “So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit, where they could have started, had they invoked the DTA procedure. That’s the procedure that Congress created. This thing is now, I mean, there aren’t any guidelines, there’s no decision by the Court that clearly spells out what needs to be done here, so it’s basically a free-for-all. Every one of these people that are detained will file a habeas corpus writ. A federal district judge is going to have to resolve them. He’ll get all kinds of different confliction decisions. The questions of what kind of evidence is permissible, and looking at classified, and the standard for review, and what kind of new evidence, if any, can be educed on review, and all of these things are brand new because these people have never had habeas rights before. So you’re literally making the law as you go along. And nobody can even begin to predict where it’s all going to end up.

Read the whole thing.

From my interview with Assistant to the President and Deputy Chief of Staff Joel Kaplan (transcript here):

HH: You know, I’ve read through the 70 pages, Mr. Kaplan, and I get to the end, and it seems like Anthony Kennedy’s apologizing for the havoc he has thrown us into, suggesting that one district court might manage all the habeas petitions, suggesting that intelligence has to be preserved, et cetera. But all I can see here is hundreds of lawsuits going on dozens and scores of years, compromising our security and encouraging our enemies. I mean, what happens next?

JK: Well, that’s a great question, and you know, I think you’re right that it’s not clear that the five justices in the majority here understand what the implications of this are going to be, or maybe they began to understand at the end of the opinion. But look, the bottom line, I think, was expressed by Justice Scalia in his dissent, where he said this decision, “will almost certainly cause more Americans to be killed.” And I don’t think, you can’t really get any more direct or explicit than that. There’s going to be literally hundreds of lawsuits brought in potentially district courts all over the country. And the Court made clear that the remedy that these district courts need to be able to apply is to release the detainees. I mean, imagine, imagine what the effect of that will be-individual district court judges around the country are going to get to decide that some member of al Qaeda, who today is safely imprisoned on Guantanamo Bay, can be released. It’s just a stunning, stunning decision by five justices of the Supreme Court.

HH: There is one line in the opinion, Joel Kaplan, that jumped out at me. It’s at the end, Justice Kennedy writes, “unlike the President and some designated members of Congress, neither the members of Court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people.” Actually, they do describe every single day, not only serious threats but imminent threats. And it seems to me that Justice Kennedy was admitting here at the end, he doesn’t know what he’s talking about when it comes to the war.

JK: Well, and you know, it didn’t stop them from basically turning the Constitution on its head. There are two branches, two elected, accountable branches, the Congress and the executive, who have these responsibilities of national security. And not only do they have the responsibilities, they have the authorities, they have the tools, they have the information necessary to protect the American people. And the Court admits that it doesn’t have it, but nonetheless, usurps that authority for itself. It’s just a terrible display of judicial activism, and one with real consequences for the safety and security of the American people.

Read the whole thing.

Representatives of the two co-equal branches of government are both candidly stating the obvious truth: This is a terrible decision rendered by five justices –and a raft of 25 year old clerks– unable to understand or unwilling to admit that they have no idea what the jihadists are doing or how this greatly complicates the war effort.

The only redeeming aspect of this decision is the clarity it brings to the choice between Obama –who would appoint justices like those in the majority– and McCain, who would appoint justices like those who dissented. With a McCain victory and one or two retirements, the stage will be set for the reversal of this deeply dangerous decision.

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