The Torture Bill Is UNCONSTITUTIONAL and CAN NOT STAND if challenged

[berni_mccoy]

The Constitution STRICTLY calls out that the Court has the right to RULE ON LEGISLATION.

Unless the Torture Bill is an Amendment to the U.S. Constitution, it CAN NOT STAND if challenged. Here's the clause that makes it Constitutionally UNSOUND:

"Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who--

`(A) is currently in United States custody; and

`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

THE REPUBLOFASCISTS and the BUSH CRIME REGIME are trying to do an END RUN around the Constitution, or as Bush calls it, "That GOD DAMNED piece of paper".

Of course, this assumes that the Supreme Court and the entire Judicial System does not want to rule itself out of existence.

[razors edge]

1. The beauty of it for * is

there will never be a challenge to it. No detainee can bring suite and no other entity will have standing in the case, it will be thrown out before being heard.

[berni_mccoy]

2. The law can be challenged... it's up to a judge to determine if it can be

Even if a law says it can't be challenged, it doesn't mean that it can't be, especially if it is unConstitutional.

[razors edge]

9. check with the lawyers here but

from my recollection one must show harm to have standing, just as a court must have jurisdiction in a given case, I can't sue ford for a f***ed up car if I never owned one.

[berni_mccoy]

10. True, but in this case, everyone is harmed...

By allowing torture, all Americans are being put in harms way... it's definitely arguable.

Also, the courts are being harmed by this law by being told their Constitutional rights do not apply to a lesser federal statute.

I agree, I'd like to see some DU lawyers chime in...

[razors edge]

12. I agree we are all harmed by it

I served four in the corp and I would be pissed if I were in the military now, but what are your own feelings in your heart about chief justice roberts sharing our opinion on that point?

[berni_mccoy]

17. Well, that is a problem, but if he does not rule on this law

or if he rules that it is Constitutional, then the next step for the republofascists is to write EVERY law with such a clause... and Chief Justice Roberts will cease to be needed as a Chief Justice.

[razors edge]

20. as chief justice

he decides what will be heard and what won't. I don't think he will alow it heard and it will languish with no coverage of that by the media. wouldn't be the first time the supremes ignore a problem.

[Bjorn Against]

28. Remember lower courts will rule before Roberts can make that decision

If lower courts rule it unconstitutional and Robert's chooses to ignore it then the unconstitutional ruling will remain. I think in that case Roberts would likely choose to hear the case, but I am not convinced that Bush could win this case in the Supreme Court even though the court is tilted well to the right.

[razors edge]

29. but what court would have jusidiction

on a case involving harm done outside the US, I think they had this all worked out to divert any possible blowback before they started. If they didn't they face a bad outcome,(short of a presidential pardon, they always got that one) and I would love to see it come to that.

[gully]

3. So who would challenge the bill? Can a member of congress?

The senate?

[berni_mccoy]

4. It will require someone who is 'harmed' by the law... in this case,...

The courts themselves are being harmed... they could challenge it. But typically, it would be someone who is directly harmed by the law. For this law, it would mean someone who is tortured.

[gully]

5. Yikes.

I hope it happens asap.

[BuyingThyme]

21. "For this law, it would mean someone who is tortured" and

being denied access to the means by which a challenge could otherwise be brought.

[Hawkowl]

31. Retroactive means Already Harmed

Isn't there retroactive clauses in the bill? This means that it is trying to protect torturers from prosecution from past misdeeds. This means that there are people out there right now who HAVE ALREADY BEEN HARMED. Thus, claimants with standing already exist. No?

Why not bring suit the day the bill is passed?

[mom cat]

6. Who will be appointing members of the SC for the next two years.

I believe that SCOTUS might overturn this legislation now, but what about after a few more appointments. If the Dems can't get up the guts to fillibuster the torture bill, what gives anyone the assurance the dems would fillibuster more RW judges who would approve of the torture bill?

[berni_mccoy]

8. Technically, every American is harmed by this law, without being tortured

As the law violates the Constitutional establishment of the justice system.

I wonder if any American could challenge it.

[Bluerthanblue]

14. well, the NH state Constitution

which pre-dates the US constitution, reserves for us, the 'right of revolution'-
Sad frickin state of affairs this nation has become-

Give me a sexual affair between and intern and the prez over a power crazed despot and his rich powerful puppet masters, please?

[mom cat]

32. I am sure the ACLU will be on it!

[acmejack]

7. A Republiclown spoke at length about the Court

Usurping the authority of the Legislative and Executive branches and how this Bill was expressly tailored to prevent this from occurring in the future. I forget who the smug little SOB was, but I think it was Buyer from Indiana.

[dapper]

11. Ugg....Bayh?

I have to see how he voted.

Dap

[acmejack]

22. No this was in the House.

[TechBear_Seattle]

13. Alas, it is not

"The Constitution STRICTLY calls out that the Court has the right to RULE ON LEGISLATION."

On the contrary:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

United States Constitution, Article III, Section 2, para. 2.

In other words, the Constitution explicitly gives Congress the authority to decide what the Supreme Court (and by extension all other federal courts) do and do not have jurisdiction over, and has power to set regulations on how the Courts shall excersize that jurisdiction, provided that Congress can not infringe on the Court's original jurisdiction regarding ambassadors, other public ministers and consuls, and cases in which a state shall be party.

And to my knowledge, the first time this clause was directly invoked was under President Clinton, when he signed a bill that created a special "immigration court" which stripped all other federal courts -- including, in theory at least, the Supreme Court -- of the power to hear cases regarding immigration status. Having started down that slippery slope....

[berni_mccoy]

16. That's not what that means

The meaning of that clause is that the U.S. Supreme Court has APPELLATE jurisdiction, meaning the cases must bubble up from lower courts first. The Exceptions as regulated by congress dictate ways that the Supreme Court can rule on laws instead of going the normal APPELLATE route.

No law can rewrite the Constitution without being an Ammendment.

[TechBear_Seattle]

25. By prior court ruling, such a law is constitutional

Case in point: stripping the power of federal courts to hear immigration cases and vesting said power solely in a special immigration court. You may remember a year or two ago when Congress was considering a bill that would likewise strip from the Court any and all authority to rule with regards to "under God" in the Pledge of Allegiance. When that debate raged, legal scholars (real ones, not Faux "experts") were saying that such a law would probably be constitutional, given the existing precedent.

That doesn't mean that the precedent can't be struck down, but as things stand now, that part of the law would indeed pass constitutional muster.

[texpatriot2004]

15. Love this post, especially the "Republofacists" term nm

[annabanana]

18. Can the Canadian photog. sue?

HE surely was harmed by the policy as it stood...

[berni_mccoy]

19. Yes, under the traditional interpretation, he would be someone harmed

by the law (their own retroactive clause pulls that case in).

[Raskolnik]

23. You are mistaken

Article III, Section 1 of the Constitution grants Congress the power to establish "inferior Courts as the Congress may from time to time ordain and establish". Through the Judiciary Act, Congress can and does create and amend the structure of the federal judiciary as well as their jurisdiction.

Article III, Section 2 says "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." That's what Congress is doing here: creating an exception to the SC's appellate jurisdiction.

Ill advised? Definitely. Unconstitutional? No.

*edited for clarity*

[berni_mccoy]

24. See my reply #16 above...

[Raskolnik]

26. No, you are still mistaken

Congress ordains the federal courts through the Judiciary Act, and may amend their subject matter jurisdiction, Article III requirements notwithstanding.

If Congress wished to do so, it could strip federal courts of jurisdiction over any number subjects.

[Raskolnik]

27. Here is a helpful link:

http://www.ajs.org/cji/cji_jurisdiction.asp

[berni_mccoy]

30. Ok, I read the content there... it supports my point

That Congress can dictate how laws get heard (jurisdiction) but it also says Congress can not prevent a law from being considered through the prescribed jurisdiction...

For example, the immigration reform law... it says a federal court can't interfere with the INS, but it doesn't say that the Supreme Court can't decide the law is Unconstitutional. In fact, the article calls out that this is a bypass of Ammending the Constitution.

If Congress is allowed to say federal courts can not judge a law in the law's language itself, then they can attach such language to any law, thereby invalidating the Constitution. This is clearly bogus and the S.C. can strike it down on the mechanics of it.