This morning, in a brief session, the Supreme Court released a single opinion, granted two cases for argument next term and turned down seven different appeals by terrorist detainees being held at Guantanamo. As I mentioned in a previous post, most of this litigation stemmed from the Court’s decision in Boumediene v. Bush where detainees were granted habeas rights. Then, the Court stated that it must be “meaningful,” but left the parameters of “meaningful” up to the lower courts.
As a result, several detainees were actually granted their release pending appeal to the DC Circuit Court of Appeals. In the appeals court, they met with considerably less leniency than in the District Courts. In fact, the District Courts more or less, to make the habeas petitions “meaningful,” adopted certain aspects of American civil and criminal procedures and applied them to an analysis of each detainee’s individual petition. However, the DC Circuit has essentially over ruled the District Courts in practically every case it has heard.
Petitioners in this case argued that the Supreme Court should take the cases if for no other reason than to set some guidelines for the lower courts. In practical terms, these cases illustrate the problems of using a criminal investigation paradigm to fight the war on terror. For example, much of the evidence used by the government to detain these people is based on raw intelligence reports and information gathered from other detainees obtained during interrogations. Applying a criminal justice paradigm and all the rules that go with it, one can see some of the problems. The accused has the right to confront their accuser in court. One can imagine the serious implications this would have for national security and intelligence gathering capabilities if intelligence sources were dragged into a court room. Also, as many argued, the intelligence reports amounted to nothing but hearsay evidence against them. Generally speaking, hearsay evidence would be disallowed in a criminal proceeding. But what is intelligence gathering other than hearsay?
The problem is that a terrorist only has to be correct once in order to make their perverted point. Conversely, the government has to be correct all the time in order to thwart terrorists and terrorism. Essentially, the DC Court is ignoring those parameters set by the lower District Courts, no matter how well-meaning, and erring on the side of caution. It also speaks volumes that despite liberal groups crying about Guantanamo, not a single home country of these folks are willing to accept them.
Unrelated to this case, the Court also rejected cross petitions regarding the separation of church and state. In Morgan v. Swanson and Swanson v. Morgan, the issue evolves from the Plano School District and involves three different incidents. In the first, an elementary school student was forbidden from handing out a bookmark that relayed the religious origins of the candy cane. The candy cane distribution itself was fine, but not the bookmark. In the second, a student handed out free tickets to a church play. Again, the school objected since the play was religious in nature and they even confiscated the distributed and undistributed tickets. In the third case, as part of a birthday celebration, a child was prohibited from distributing pencils that said “Jesus loves you,” although the pencils that said “Moon” were perfectly acceptable.
If nothing else, this case illustrates the stupidity of school officials in engaging in Nazi tactics against elementary students all in an effort not to offend someone’s religious sensibilities. In the first case, does anyone really believe that the bookmark, given by a student-not a school official, is a state endorsement of religion? In the second case, although the tickets were distributed, does anyone honestly believe that attendance at the church play was guaranteed? And even if they did show up, how can that be construed as a state endorsement of religion? Finally, in the third instance, a pencil that says “Jesus loves you” carries about as much weight as a state endorsement of religion as the actual pencil itself. Even when the child was informed they could give out the pencils off school grounds, and they did on the sidewalk outside the school, the child was further reprimanded. It should also be mentioned that this school district made sure that when students made cards for our troops in Iraq and Afghanistan, they were not to say “Merry Christmas” (although “Happy Holidays” was acceptable) lest the school be held responsible for endorsing a religion.
The Supreme Court’s denial of the case let stand the Sixth Circuit Court of Appeals ruling against the students and their parents. Hence, stupidity rules another day on the church-state battlefield. Granted, precedents in other Circuits may have been the impetus behind the Court’s denial of these petitions. However, it clearly illustrates the lengths that liberal secularists will go in order to purge society of religion.
There is one church-state case that was held over for the June 14th conference involving the Mt. Soledad Veterans Memorial in San Diego. Part of the memorial is a large cross among secular symbols and plaques. However, someone is suing the Veteran’s Association as well as the federal government (they assumed ownership through an act of Congress) demanding removal of the cross. Mind you, the memorial as well as the cross has stood on Mt. Soledad for some 50+ years and only now offends someone. If this case sounds like a case from a couple years back (Salazar v. Buono) it should because that case was so narrowly decided and specific that it may not apply here. Even then, although siding with the government and retention of the cross in that case, it was largely a land swap case and the plurality decision allowed the Interior Department to make the transaction. They never really did get to the gist of the First Amendment implications in Buono. They have the opportunity in this current case. Nothing should be read into the fact the case was held over for another conference. Roberts and company have an opportunity to make a stand here and restore some commonsense in church-state separation litigation. Who knows? Maybe people won’t be made to feel guilty for saying “Merry Christmas” somewhere along the line.
Incidentally, the Court is behind its pace for grants for the upcoming October 2012 term. They have two or three more conferences set to consider petitions before they leave for the summer. From the June 14th conference, it is almost a guarantee that they take on the challenge to Citizen’s United from Montana. Given the number of briefs filed thus far and the fact the Court has basically denied the petitioner’s request to summarily reverse the Montana Supreme Court, who found that Citizen’s United was not controlling on their state campaign finance law, it seems likely the case will be heard next term. Here’s hoping the Supreme Court reigns in a somewhat rogue state Supreme Court and does the right thing.