Have we "promised to treat them like the German General Staff?" "I don’t think we have," ... "Most people in Guantanamo were not captured in the United States, they were captured on a foreign battlefield," "Guantanamo is not part of the United States and habeas corpus doesn’t run there. ... "What happens in Guantanamo is still covered by American law, by the rules laid down by the president of the United States." The Geneva Convention... "applies to prisoners of war and prisoners of war are defined as people who are fighting in uniform under some organized group. That does not describe these people. The Geneva Convention covers pirates and I don’t think it covers terrorists who are not in uniform and not subject to organized command."
Justice Antonin Scalia at the recent Ottowa conference
Similar remarks by Scalia at a 2006 conference in Switzerland led to unsuccessful calls for him to recuse himself from the then soon-to-be-heard Supreme Court appeal of detainee Salim Ahmed Hamdan
"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break,"
Justice Antonin Scalia as quoted in Newsweek after his speech at Freiburg
asked by an audience member at the Swiss conference whether the estimated 380 Guantanamo detainees are protected under the Geneva or human-rights conventions.
...
"I had a son on that battlefield and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy,"
Hamdan made news when
in a stinging defeat for the U.S. administration, a majority of the court later agreed with Hamdan’s argument the Guantanamo military tribunals created by U.S. President George W. Bush were unconstitutional. Congress later passed a law creating new military commissions
Scalia was one of three dissenters. He argued the court had no jurisdiction in the matter and U.S. legal protections and habeas corpus — the legal requirement that authorities satisfy a court that a person in custody is lawfully detained — do not extend to detainees at Guantanamo.
In another Guantanamo case heard by the court in 2004, Scalia again dissented from a majority ruling that detainees should have some sort of recourse to challenge their detention, leading the administration to create an administrative process.
Last week’s announcement by the high court that it will hear the detainees’ new appeal comes three months after it rejected the same appeal.
Although it was issued without explanation, the Supreme Court justices reconsidered only after receiving a sworn statement from a U.S. intelligence official. That person reported facing pressure from military commanders to declare Guantanamo detainees enemy combatants even without proper evidence.
Lawyers for the detainees say the intelligence officer’s statement supports long-standing complaints that military hearings for foreign terrorism suspects are unfair and set up to favour findings that detainees were being legitimately imprisoned.
The latest appeal, to be heard this fall, is expected to challenge the Detainee Treatment Act.
The White House-backed bill, passed by Congress, strips foreign terrorism suspects at Guantanamo of the right to petition civilian U.S. courts to review their detention.
In February, a U.S. federal court of appeals upheld the provision.
In a separate legal decision last week involving Khadr, a military judge refused to reconsider a June 4 ruling that threw out all terror-related charges against the 20-year-old Canadian. Khadr is accused of killing a U.S. soldier during a firefight at a suspected al-Qaida compound in Afghanistan in 2002.
The case was dismissed on the grounds the Pentagon failed to prove the Canadian is an "unlawful" enemy combatant. By law, detainees can face U.S. war crimes tribunals only if it is found they were not legitimate fighters. Charges against Hamdan, of Yemen, were dropped for the same reason.
U.S. SUPREME COURT Opinions
Recent Cases:
BRENDLIN v. CALIFORNIA [06-8120]
Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop's constitutionality. Souter
Argued April 23, 2007--Decided June 18, 2007
CREDIT SUISSE SECURITIES (USA) LLC v. BILLING [05-1157]
Held: The securities law implicitly precludes the application of the antitrust laws to the conduct alleged in this case. Breyer
Argued March 27, 2007--Decided June 18, 2007
DAVENPORT v. WASHINGTON ED. ASSN. [05-1589]
Held: It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember's agency fees for election-related purposes
prohibits labor unions from using the agency-shop fees of a nonmember for election-related purposes
Scalia, J., delivered the opinion of the Court, Parts I and II-A and the second paragraph of footnote 2 of which were unanimous, and the remainder of which was joined by Stevens, Kennedy, Souter, Thomas, and Ginsburg, JJ. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Alito, J., joined.
Argued January 10, 2007--Decided June 14, 2007*
FEDERAL ELECTION COMM'N v. WISCONSIN RIGHT TOLIFE, INC. [06-969]
On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL), began broadcasting advertisements declaring that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster. WRTL planned to run the ads throughout August 2004 and finance them with its general treasury funds. Recognizing, however, that as of August 15, 30 days before the Wisconsin primary, the ads would be illegal "electioneering communication[s]" under BCRA §203, but believing that it nonetheless had a First Amendment right to broadcast them, WRTL filed suit against the Federal Election Commission (FEC), seeking declaratory and injunctive relief and alleging that §203's prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future. Just before the BCRA blackout, the three-judge District Court denied a preliminary injunction, concluding that McConnell's reasoning that §203 was not facially overbroad left no room for such "as-applied" challenges. WRTL did not run its ads during the blackout period, and the court subsequently dismissed the complaint. This Court vacated that judgment, holding that McConnell "did not purport to resolve future as-applied challenges" to §203. Wisconsin Right to Life, Inc. v. Federal Election Comm'n (WRTL I), 546 U. S. 410, 412. On remand, the District Court granted WRTL summary judgment, holding §203 unconstitutional as applied to the three ads. The court first found that adjudication was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its "functional equivalent" under McConnell, and held that no compelling interest justified BCRA's regulation of such ads.
Held: The judgment is affirmed.
Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III and IV, in which Alito, J., joined. Alito, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
Argued April 25, 2007--Decided June 25, 2007
HEIN v. FREEDOM FROM RELIGION FOUNDATION, INC. [06-157]
The President, by executive orders, created a White House office and several centers within federal agencies to ensure that faith-based community groups are eligible to compete for federal financial support. No congressional legislation specifically authorized these entities, which were created entirely within the Executive Branch, nor has Congress enacted any law specifically appropriating money to their activities, which are funded through general Executive Branch appropriations.
According to the court, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero.
Held: The judgment is reversed.
Justice Alito, joined by The Chief Justice and Justice Kennedy, concluded that because the Seventh Circuit's broad reading of Flast is incorrect, respondents lack standing.
Justice Scalia, joined by Justice Thomas, concurred in the Court's judgment, concluding that Flast v. Cohen, 392 U. S. 83, should be overruled as wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that are embodied in the standing doctrine.
Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy, J., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
Argued February 28, 2007--Decided June 25, 2007
LEEGIN CREATIVE LEATHER PRODUCTS, INC. v. PSKS, INC., dba KAY'S KLOSET ... KAY'S SHOES [06-480]
Held: Dr. Miles is overruled and vertical price restraints are to be judged by the rule of reasonKennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Argued March 26, 2007--Decided June 28, 2007
MORSE v. FREDERICK [06-278]
Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick
Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Breyer, J., filed an opinion concurring in the judgment in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
Argued March 19, 2007--Decided June 25, 2007
NATIONAL ASSN. OF HOME BUILDERS v. DEFENDERSOF WILDLIFE [06-340]
Held:
1. The Ninth Circuit's determination that the EPA's action was arbitrary and capricious is not fairly supported by the record.
This Court will not vacate an agency's decision under the arbitrary and capricious standard unless the agency "relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. Here, the Ninth Circuit concluded that the EPA's decision was internally inconsistent in its statements during the review process. Federal courts ordinarily are empowered to review only an agency's final action, and the fact that a local agency representative's preliminary determination is later overruled at a higher agency level does not render the decisionmaking process arbitrary and capricious.
The EPA's final approval notice stating that §7(a)(2)'s required consultation process had been concluded may be inconsistent with its previously expressed position--and position in this litigation--that §7(a)(2)'s consultation requirement is not triggered by a §402 transfer application, but that is not the type of error requiring a remand. By the time the statement was issued, the EPA and FWS had already consulted, and the question whether that consultation had been required was not germane to the final agency decision.
Thus, this Court need not further delay the permitting authority transfer by remanding to the agency for clarification. Respondents suggest that the EPA nullified their right to participate in the application proceedings by altering its legal position during the pendency of the transfer decision and its associated litigation, but they do not suggest that they were deprived of their right to comment during the comment period made available under the EPA's regulations. Pp. 10-14.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion.
Argued April 17, 2007--Decided June 25, 2007*
PANETTI v. QUARTERMAN [06-6407
Held:
- This Court has statutory authority to adjudicate the claims raised in petitioner's second federal habeas application]
- The state court failed to provide the procedures to which petitioner was entitled under the Constitution
- The Fifth Circuit employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined.
Argued April 18, 2007--Decided June 28, 2007
PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1 et al. [05-908]
Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a "tiebreaker" to allocate slots in particular high schools. The Jefferson County, Ky., district was subject to a desegregation decree until 2000, when the District Court dissolved the decree after finding that the district had eliminated the vestiges of prior segregation to the greatest extent practicable. In 2001, the district adopted its plan classifying students as black or "other" in order to make certain elementary school assignments and to rule on transfer requests.
Petitioners, an organization of Seattle parents (Parents Involved) and the mother of a Jefferson County student (Joshua), whose children were or could be assigned under the foregoing plans, filed these suits contending, inter alia, that allocating children to different public schools based solely on their race violates the Fourteenth Amendment's equal protection guarantee. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed.
Held: The judgments are reversed, and the cases are remanded.
Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III-B and IV, in which Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Argued December 4, 2006--Decided June 28, 2007*
POWEREX CORP. v. RELIANT ENERGY SERVICES, INC. [05-85]
Held: Section 1447(d) bars appellate consideration of petitioner's claim that it is a foreign state for FSIA purposes. Pp. 3-14.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion, in which Alito, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.
Argued April 16, 2007--Decided June 18, 2007
RITA v. UNITED STATES [06-5754]
Petitioner Rita sought a sentence lower than the recommended Federal Guidelines range of 33 to 41 months based on his physical condition, likely vulnerability in prison, and military experience. The judge concluded that the appropriate sentence was 33 months, the bottom of the Guidelines range. In affirming, the Fourth Circuit observed that a sentence imposed within a properly calculated Guidelines range is presumptively reasonable.
Held:
1. A court of appeals may apply a presumption of reasonableness to a district court sentence within the Guidelines. Pp. 7-16.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Souter, J., filed a dissenting opinion.
Argued February 20, 2007--Decided June 21, 2007
TELLABS, INC. v. MAKOR ISSUES & RIGHTS, LTD. [06-484]
Held: To qualify as "strong" within the intendment of §21D(b)(2), an inference of scienter must be more than merely plausible or reasonable--it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. Pp. 6-18.
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, and Breyer, JJ., joined. Scalia, J., and Alito, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion
Argued March 28, 2007--Decided June 21, 2007
TENNESSEE SECONDARY SCHOOL ATHLETICASSOCIATION v. BRENTWOOD ACADEMY [06-427]
The Sixth Circuit affirmed, holding that the antirecruiting rule is a content-based regulation of speech that is not narrowly tailored to serve its permissible purposes and that the TSSAA board improperly considered ex parte evidence, thereby violating Brentwood's due process rights.
Held: The judgment is reversed, and the case is remanded.
Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined, and an opinion with respect to Part II-A, in which Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Scalia, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment.
Argued April 18, 2007--Decided June 21, 2007
WILKIE v. ROBBINS [06-219]
Held:
1. Robbins does not have a private action for damages of the sort recognized in Bivens.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Part III. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined.
Argued March 19, 2007--Decided June 25, 2007
