Supreme Court Takes First Case on Guantánamo Detainees. The Supreme Court granted cert in and consolidated two cases relating to the Guantánamo detainees. Both raise purely jurisdictional issues.
In one case, Rasul v. Bush (No. 03-334) three detainees’ parents sought writs of habeas corpus. Here’s the cert petition.
In the other case, Al Odah v. United States (No. 03-343) (cert petition), relatives of twelve detainees sought to challenge the legality of the detention under the Alien Tort Statute, 28 USC § 1350, the Administrative Procedures Act (APA), and the 5th Amendment. They sought a declaration that the detention is arbitrary and capricious, and that the detainees should have an opportunity to speak to a lawyer.
The D.C. Circuit ruled in both cases at once, holding that “the courts are not open” to the detainees, 321 F.3d 1134, because Guantánamo is outside the sovereignty of the United States, and our courts thus lack jurisdiction to hear their claims. The court opinion, authored by Judge Randolph, comes with an interesting concurrence by … Judge Randolph, in which he really goes to town, not only rejecting the dominant reading of the Alien Tort Statute and offering one that effectively neuters it, but also finding that the APA provides no relief for the plaintiffs.
While I disagree vehemently with the view that there is no federal habeas jurisdiction, nor jurisdiction via the Alien Tort Act, I think at first glance that I do agree with Judge Randolph about the APA claims. The APA explicitly does not apply to the military.
The path of least resistance for the Supreme Court is to do what the lower courts did and follow Johnson v. Eisentrager, 339 U.S. 763 . I explained in an earlier post how Application of Yamashita provides an alternate approach under which the courts would have jurisdiction to hear this claim.
Let’s hope that the Supreme Court has the courage to step up to the plate on this one.
If it doesn’t, it becomes our collective moral obligation to demand that Congress extend its undoubted power to extend the jurisdiction of the federal courts to Guantánamo. Not that I’ll hold my breath, you understand.
The Florida Blog points to this stimulating but very high-bandwidth Flash animation about possible Florida GOP Senate candidate Katherine Harris: GRAND THEFT AMERICA.
I do have two and half beefs with the show. First, I’d have liked footnotes for the statistics. Second, it leaves out my favorite Katherine Harris story, in which she demonstrated ignorance of the laws she was supposed to administer. And (the half), there’s an explitive that may offend sensitive viewers, especially the sort not already sickened by electoral manipulations.
The radicals in the Republican Party are morphing the non-partisan civil service into something that more and more resembles the spoils system. This is one of those below-the-radar changes likely to have massive if obscure effects.
The political spoils system has some virtues. It makes accountability clear: no bureaucrats to blame if you can hire and fire them. It may make the bureaucracy more efficient, in that it makes firing the incompetent easier. To the extent that salaries are flexible, it may make hiring and retaining good people easier. The thought of government jobs may encourage more people to work in politics (I think that’s a good; some might call it a bad).
Of course, political hiring and firing has substantial disadvantages too. Good people may be less willing to work in government if they know that they can be fired by an incoming administration even if they’re doing a great job. It encourages featherbedding. Bad people with good political connections can stay in office where in a more merit-based system they might not. Whistle-blowers become an even more threatened species. Generally, politicizing the civil service means rapid turnover when administrations change. That tends to be bad for the quality of government administration: institutional memories are lost, wheels are reinvented, dumb things happen.
Although the Hatch Act of 1887 has been modified at the higher levels by the creation of the Senior Executive Service to permit political appointees somewhat more leeway as to who their top civil servants are, the basic idea of a non-spoils, non-political federal bureaucracy has been the American way for generations. There are also some Supreme Court cases holding political firing of lower-level employees unconstitutional, although I’ve always had my doubts about the correctness of those decisions.
This week’s changes don’t completely undermine the Hatch Act. They don’t make straightforward political hiring legal, but they remove some (but not all) of the existing obstacles to political firing and pay cuts (and pay increases) for about half the civilian workers in government. They’ll probably lessen the power of government unions.
Unless there’s some sort of immediate institutional bloodletting, which I think highly unlikely, it may take years to see the full effects of this one, be it good or ill.
These poll numbers do not add up. In the latest Marist poll 44%, say they’ll vote against Bush. Bush’s strong fans, 38% in number, are ready to re-elect him now. “The remaining 18% are not committed either way.”
It follows that if the election were today, in order to win Bush would need to get two votes out of the undecided column for every one his opponent got: a big gap, albeit not unbridgable. (And it’s early days anyway, and the Republicans are going to have 200 million dollars to make up the gap.)
But, despite the negative re-elect numbers, among those polled Bush’s “approval rating” is 53%. These numbers are not mathematically inconsistent, but they don’t make political sense.
It could be that of the 18% who are not ready to vote for Bush yet, 83% (15/18ths) are leaning to Bush. But that seems politically unlikely. What’s going on? Is it that lots of people “approve” of him but don’t approve of him enough to vote for him?
More coherent, although also slightly odd, are these numbers from Newsweek’s new poll . It too finds the “approval rating” at 52%. But, 50% of those polled (including persumably at least 2% who ‘approve’ of Bush’s on-the-job performance) don’t favor his re-election, while 44% do. As for independents, usually swing voters, “A majority of independents, 53 percent, said they oppose Bush’s re-election, while 40 percent favor it.”
I know that serious politicos treat the “re-elect” number as the one that matters, and that despite this the press usually focuses on the “approval” number. These polls suggest that the approval number means even less than I thought.