Posted by
2spothipshot on Saturday, December 09, 2006 2:49:52 PM
In his own muddled way, Justice Breyer is drawing an analogy between interned Japanese Americans and terrorists in this exchange on last weeks Fox News Sunday.Isn't he ?
WALLACE: You have voted at least twice to limit the power of the president to fight terrorists.
You talk about consequences. How do you satisfy yourself, as a justice in that white marble building up there, that when you vote to strike down a tool that the president, as commander in chief, is using in the war on terror, that you're not endangering the country?
BREYER: I don't think it was argued in — well, perhaps — but the case, for example, that we had, which was several years ago, probably the main one, was whether a person who is held as a prisoner in part of the United States, even if he was an alien at Guantanamo, had a right to come to court. And we held that he did have a right to come to court.
And there are...
WALLACE: But there's also the interrogation of prisoners, there have been other issues.
BREYER: We haven't gone into the — there have been a lot of issues, but, I mean, you're asking what we, in particular, have taken...
WALLACE: What I guess I'm asking...
BREYER: But your basic question is, how does the judge know? And the answer is that the judge has to look at the record and the testimony and what's being elicited, just as he does in all difficult cases.
Ultimately we have a Constitution that guarantees a democratic system and that guarantees certain individual rights. I show that in this book. I discuss some of them. The rights are important.
Of course, as Justice Goldberg said, as Justice Jackson said, the Constitution is not a suicide pact. Everyone understands that. And that's why that Constitution in the Fourth Amendment uses words like "reasonable." There is flexibility in it.
The court has made terrible mistakes sometimes in its history, now recognized. Eighty thousand Americans, Japanese Americans, citizens of the United States, were brought during the early parts of World War II to camps, camps where they were held against their will, even though J. Edgar Hoover said there's no need to do that and even though every historian says there was no need to do that.
But it happened, and the court ratified it over three votes — Jackson, Murphy, Roberts — who said, "Don't do this."
So what you've done, Chris, which is correct, is that you've shown how difficult that problem is. We can't ignore the civil liberties aspect. You can't ignore — you can't ignore the security aspect.
And what judges try to do in that situation is to listen to what they're told by the lawyers, the witnesses and the others, and then they do their best not to make a mistake.
Not as mistake as to their personal opinion, by the way, but a mistake as to how those words that guarantee freedom in the Constitution apply to this situation. END
The above exchange led to this post.