Justice Scalia's dissents nearly always are a pleasure to read, even when they border on sheer fantasy. Boumediene, though, seems to have pushed him over the edge. This dissent is more like a tantrum.

It's hard to convey just how mad he is. You really need to read it for yourself to get a complete picture, but the part about the majority killing Americans is just the tip of the iceberg.

For instance, Ms. Lithwick omits that he's still really, really unhappy about Hamdan, a decision he characterizes, two years later, as "quite amazing[]." Yet his displeasure with that decision, expressed repeatedly and vehemently, is merely the foundation on which he constructs the real structure of his diatribe.

The gist is as follows: "Don't you idiots get that we're at war here!" He gets remarkably specific in explaining this (I'm cutting out the citations to make it more readable):

"America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed."

That's barely the beginning - he recites nearly every known incident of Islamic terrorist activity against U.S. citizens; lays out every actual and potential negative consequence of allowing detainees even a tiny bit more due process; and accepts without question all possible bad outcomes. In the process he heaps ridicule on the majority - saying they were "just kidding," describing them as unable to "resist striking a pose of faux deference" to the other branches; and arguing that they "blunder[] in" to question the judgment of the President.

Scalia also cites a legal memo prepared for the President by John Yoo (of all people) and the minority committee report on a piece of legislation that hasn't passed yet. These both are acts of legal desperation - neither has any legal bearing at all and the notion of Antonin Scalia, that scourge of legislative history, quoting a minority report from a commitee on a bill that hasn't even been passed by Congress, is almost incredible.

Taken together, it's quite stunning at first. And then I figured it out - Scalia is scared. He is, bluntly, frightened to death of those men at Guantanamo and their real and imagined cohorts in the Islamic world. That fear permeates the whole dissent, and gives the prisoners in Guantanamo frightful power: They could be let free and kill Americans; they could use the information they get in their hearings as intelligence to guide further terrorist actions; they could undermine democracy, truth and justice.

It's true that even at his most compassionate, Scalia doesn't have much sympathy for people who are accused of bad acts. It's also true that he is a very strong supporter of executive power generally. And this decision certainly goes against his views in both of these areas. But he's been on the losing side before, and his dissents have been churlish and cutting, yet still under control. This one is different, and when I read it, I smell fear.

He's a politician. Every one of his rulings is pre-scripted to advance republican interests. He has no concept of objectivity. He has no idea that judges are supposed to be impartial and consider both sides BEFORE making a ruling.

He's just a rubber stamp for the GOP.

Good thread, rk...Scalia can be a bombastic air bag when he doesn't get his way. Entertaining, though also sad, considering that he is supposedly an adult.

What is most troubling about today's ruling is that it passed 5-4. Scalia et al's basic understanding of who our country can wage legitiamte war against -- "terror?" "radical Islamicists?" -- is frighteningly naive & thus eerily similar to Bush/Cheney.

Me? I fear an unaccountable, permanently-at-war, unitary exective branch far more than any random act of terrorism. Scalia and his hand puppets should, too.

"when I read it, I smell fear." Perfectly put. Like you, I have always found Scalia's opinions entertaining, no matter how much I disagree with his conclusions. The wild accusations and blatant fear mongering in this opinion make it different. My biggest problem with Scalia is and always has been his absolute unwillingness (or inability) to see the world from any perspective other than his own. He cannot imagine himself or those close to him being held by the government without trial or even charges despite the fact that they are innocent, so the evils of such an imaginary danger should count little, if at all, in any analysis of what we should require of the government. But he can picture all too well the Supreme Court as the target of a terrorist attack. Far better to lock up a few innocent goat herders for life (really, how innocent can anyone from that part of the world really be) than risk mistakenly letting a real terrorist free. All perfectly logical--it just changes everything about what America is supposed to be.

What I find most interesting about this dissent is how Scalia, who is the strongest and most vocal advocate of originalism on the court, has gone to the other extreme. The majority have taken a direct constitutional tack in their opinion, and Nino is ranting against originalism in this case. That is so inconsistent that to me it not only supports the view that he has dissented from fear, but it also undermines any future position he takes that is supported by an originalist argument.

...and bought into their 'war with Islam' doctrine lock, stock, and barrel It's apparent he cannot deal with such issues without reference to this overwhelming idological bias, this (as you aptly put it) fear.

He should either recuse himself on cases involving terrorism, or leave the bench (preferably post-January 20th, 2009). I think he's lost it.

Woking:

What I find most interesting about this dissent is how Scalia, who is the strongest and most vocal advocate of originalism on the court, has gone to the other extreme. The majority have taken a direct constitutional tack in their opinion, and Nino is ranting against originalism in this case. That is so inconsistent that to me it not only supports the view that he has dissented from fear, but it also undermines any future position he takes that is supported by an originalist argument.

Nino's belief in originalism only applies when it benefits his party.

Woking:

The majority have taken a direct constitutional tack in their opinion, and Nino is ranting against originalism in this case.

You and the majority may think they have taken a "direct constitutional tack" but obviously Scalia disagrees. He is not ranting against originalism, he is pointing out the faux originalist arguments of the majority. Does the Suspension clause apply to the detainees? The majority says it does. And without any historical or legal support. Kennedy even admits that the history of the writ provides no clear evidence for either position. And in all the precedent they cite no court has ever opined that non-citizens held outside the country have a right to habeas. In fact they have done just the opposite. If I were a justice of this supreme court I'd be spitting mad too.

harold66, Scalia starts from the premise that he doesn't buy the decisions that essentially decide this case. That's his privilege, of course, but it's not particularly good legal reasoning.

I'm not an expert in habeas, but it's hard for me to figure how Rasul and Hamdan don't lead directly to this decision. Once the court decided that Guantanamo was effectively U.S. territory, the Constitution ought to apply and it's difficult to find room in the habeas provision for suspension as to these particular prisoners.

One thing I think is apparent here, in any event, is that the majority choked on the notion that they should permit a process that involves secret evidence that the prisoners can't see, no real counsel, no opportunity to present rebuttal evidence and, as if this weren't bad enough, the chance for the government to try again if it doesn't convince its hand-picked tribunal the first time around. It's like something out of Kafka or the Soviet Union and, truth be told, the most frightening thing about it as far as I'm concerned is that both the Administration and Congress were okay with it.