Teachable Supreme Court Moment

RUSH: There’s a teachable moment here. We have two audio sound bites from oral arguments yesterday at the Supreme Court. Lawyers are trying to get the inmates out of Club Gitmo. Lawyers and constitutional rights and all this sort of stuff. Here first is Justice Antonin Scalia, who just buries the lawyer for the terrorists, pointing out that they have no precedent in 220 years for giving foreign citizens and enemy combatants the right to trials in US courts.

SCALIA: Do you have a single case, in the 220 years of our country — or, for that matter, in the five centuries of the English Empire — in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England? In 220 years of our history, or five centuries of the British, do you have a single case in which it was not a citizen of England or a citizen of the United States in which a common law writ of habeas corpus issued to a piece of land that was not within the sovereign jurisdiction? You are appealing to a common law right that somehow found its way into our Constitution without — as far as I can discern — a single case, a writ ever issued to a noncitizen.

RUSH: Justice Antonin Scalia, and a teachable moment to a bunch of lawyers at the Supreme Court yesterday on the Constitution. Now, here’s Justice Breyer, Stephen Breyer, a portion of an exchange that he had with United States Solicitor General Paul Clement, and of course you’ll hear here that Justice Breyer does not talk about the Constitution or precedent. He makes up a hypothetical that fits his personal policy preference.

BREYER: Suppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped Al-Qaeda. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention. That’s the argument I want to make. I don’t see anything in this CSRT provision that permits me to make that argument. So I’m asking you: ‘Where can you make that argument?’

CLEMENT: I’m not sure that he can make that argument, Mr. Justice Breyer. I’m not sure

BREYER (interrupts): Exactly! If you cannot make that argument, how does this become an equivalent to habeas since that happens to be the argument that a large number of these 305 people would like to make?

RUSH: And so here the battle lines are drawn, and the libs on the Supreme Court want to make sure that prisoners of war, enemy combatants at Club Gitmo (where I have a thriving merchandise business) want to be given constitutional rights as though they are citizens of the United States of America.