Wednesday Open Thread

This is the first open thread since the new site launched Monday.  All topics are welcome.

For those of you who want to see the comment you are responding to in the same window as the one you are writing in, if your comments are set to "nested" or "threaded" there will be a "reply to this" button in each comment.  Click on the "reply to this" for the comment you want to respond to and that comment will be there when the commenting screen opens.  

So you can view and cut and paste from the individual comment you are replying to and view both in the same window.

Update: I deleted this post by accident (I'm learning Scoop too for the first time).  Let's start again.

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    Re: Wednesday Open Thread (none / 0) (#1)
    by scribe on Wed Oct 18, 2006 at 01:31:34 PM EST
    Hamdan has .filed a motion in the District Court to set a briefing schedule on the issue of the District Court's subject matter jurisdiction over his pending habeas petition.  Remember, only the part of his habeas petition dealing with the legality of the military commissions was adjudicated at the Supreme Court.  The remaining claims - re his indefinite detention - were held in abeyance pending the completed appeals.

    Remember also that the Torture Act purports to strip all courts of jurisdiction over habeas petitions.  Hamdan's papers set forth there are numerous reasons to state the Torture Act is unconstitutional, not the least of which are that habeas has not been lawfully/constitutionally suspended and that the distinction between aliens and citizens vis-a-vis the availability of habeas violates Equal Protection.

    So begins the next iteration.

    Re: Wednesday Open Thread (none / 0) (#6)
    by Edger on Thu Oct 19, 2006 at 09:16:58 AM EST
    Hamdan's papers set forth there are numerous reasons to state the Torture Act is unconstitutional, not the least of which are that habeas has not been lawfully/constitutionally suspended

    Will this end up creating or setting up the the first real constitutional challenge to Bush's Military Commissions Bill as well?


    Tasers do save lives (none / 0) (#2)
    by Patrick on Wed Oct 18, 2006 at 03:16:25 PM EST
    Something you won't see here very often

    MCA of 2006 (none / 0) (#3)
    by dutchfox on Wed Oct 18, 2006 at 04:33:16 PM EST
    Well, the President signed it. Who needs Halloween to be spooked (every day's a haunting with GW at the helm)? If this news infuriates you, please remain calm and refrain from revolting. I'd hate to see you considered an enemy for your grievances.

    Re: Wednesday Open Thread (none / 0) (#4)
    by scribe on Thu Oct 19, 2006 at 08:19:26 AM EST
    well, the D.C. Cir. entered an order, granting the habeas petitioners' motion for supplemental briefing.  Here's the   link to SCOTUSBlog's coverage , and here's the link to the orders proper.

    Short version - the petitioners' briefs are due Nov. 1, and the government's aren't due until after the election.

    Re: (none / 0) (#5)
    by Deconstructionist on Thu Oct 19, 2006 at 08:21:45 AM EST
      Is there a way to stop the subject line from automatically growing with each comment? It seems every time i post, i get a message saying the subject is too long and then have to manually delete from the subject line. it's not a huge deal but it is an annoyance.

    Voter intimidation in California starts early (none / 0) (#7)
    by roy on Thu Oct 19, 2006 at 10:24:31 AM EST
    Something to get mad about:

    State investigators have linked a Republican campaign to letters sent to thousands of Orange County Hispanics warning them they could go to jail or be deported if they vote next month, a spokesman for the attorney general said.


    The letter, written in Spanish, tells recipients: "You are advised that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail time."

    Re: Voter intimidation in California starts early (none / 0) (#9)
    by Edger on Thu Oct 19, 2006 at 10:55:55 AM EST
    Oh yeah, like threats and voter intimidation tactics are really going to help these guys this time around.

    The California AG's spokesman wouldn't identify the campaign the letters came from, but "The Los Angeles Times and The Orange County Register both reported Thursday that the investigation appeared to be focused on the campaign of Tan D. Nguyen, a Republican challenger to Democratic U.S. Rep. Loretta Sanchez."

    I wouldn't be surpised if Nguyen stays away from his campaign offices for awhile. You never know who's up on their history and has a good imagination and a fiery latin temperament.

    A huge, bloodthirsty mob marched to the Bastille, searching for gun powder and prisoners that had been taken by the unpopular and detested King, Louis XVI. Even elements of the newly formed National Guard were present at the assault. The flying rumors of attacks from the government and the biting truth of starvation were just too much for the angry crowds.

    Re: Wednesday Open Thread (none / 0) (#8)
    by scribe on Thu Oct 19, 2006 at 10:54:30 AM EST
    You can't make this stuff up - in Florida a stingray jumped into a boat and stung an 81-year-old man in the chest.  He's in the hospital, the stingray's dead.

    Just a note from those days we remember, when silly news items like that, were good for a few laughs around the watercooler.

    Back to the more depressing news of the day -
    in response to the earlier comment re the "Military Commissions Act of 2006", the proper name of which (so far as I am concerned) is the "Torture Act".

    Hamdan's motion practice in the District Court is one of the two (that I'm aware of) proceedings already underway which will test the Constitutionality of that Act.  The other is in the D.C. Circuit, which I also noted, somewhere on this site.

    Hamdan was in the Supreme Court on one issue, but the other issues about his habeas petition were still in the District Court, being held in abeyance pending the resolution of the other issues in the Supreme Court.  

    This is somewhat common, in that many times resolution of one issue will lead to the resolution of others.  Courts look for that first issue and try to resolve it.  For instance, a car accident case might be bifurcated into liability and damages portions.  If the plaintiff loses on liability, there's no reason to bring in the expensive damages experts (i.e., doctors, economists, etc.).  

    Something similar was going on in Hamdan - if the tribunals previously established were decided to be constitutional, then arguably the remainder of his habeas petition might have been resolved there. Since the tribunals were not constitutional, the remaining issues of his habeas petition were still waiting to be tried.  Hamdan was somewhat out of the ordinary, because the government sought, and got, an interlocutory appeal to the D.C. Circuit after losing on the tribunals issue in the District Court.  The usual rule in federal (and many state) courts is that an appeal will not be considered until all issues are resolved in the District (trial) court.  That prevents "piecemeal" appeals and promotes judicial efficiency.  

    Of course, the new Torture Act complicates this scenario, because now both issues are open, after a fashion.  The new tribunals are open for consideration as are the issues left over from before the appeals resolved this summer.  But, to get to either of these sets of issues, Hamdan has to get through the parts of the Torture Act which purport to take jurisdiction over habeas and detainees from the Courts.  If the Court has no jurisdiction, then the rest of the issues are irrelevant, because it would have no power to decide them.

    So, what Hamdan is moving to have considered now, is the issue of whether the Court has jurisdiction and this discussion implicates the constitutionality of the Torture Act, in part.  This, because open constitutional questions exist (to some degree) over whether Congress can strip jurisdiction over classes of cases from the federal courts, whether habeas is among those, whether this can constitutionally be done absent a valid suspension of habeas corpus (i.e., a suspension made on the grounds specified in the Constitution) and, ultimately, whether Congress can even limit habeas.

    That's a mouthful, but these are deep issues and deserve more than passing mention.

    Re: Wednesday Open Thread (none / 0) (#10)
    by Edger on Thu Oct 19, 2006 at 11:02:08 AM EST
    Thanks for the clarifications, scribe. I hadn't realized you had nicknamed the act. More appropriately, I might add.