Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, June 12, 2008

Again the Court Speaks. Will Anyone Listen?

Once again, the Supreme Court has rebuked the Bush administration re Guantánamo. In a 5-4 ruling, the court threw out the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005. Again the court reinstated Habeus Corpus, the fundamental constitutional protection that Bush and the Republican Congress have tried to strip away time after time.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," wrote Justice Kennedy. (Incidentally, Scalia's dissent, where he claimed this decision would "certainly get more Americans killed" was insulting beyond belief. The next Congress should seriously consider impeaching that nasty little man.)

But the Bush administration has flouted the Supreme Court repeatedly--on this issue and many others--and surely will do so again. The Bush administration will complain, spin, quibble, and mostly just keep stalling. It has been over six yeas since this travesty began. Is there anything the Supreme Court can do to make them listen? Is there anything the new Democratic Congress can do? What does the "balance of powers" doctrine mean anymore if a rogue executive can effectively ignore the other two branches?


The Law Talking Guy said...

The opinion is marvelous because it begins with Magna Carta. It then traces the development of the writ of habeas corpus over centuries of English jurisprudence. This is our law. This body of law is, perhaps, the greatest achievement of the English-speaking peoples (to use Winston Churchill's phrase). It is wonderful because over time the courts came to see their task as, quite simply, expounding upon the nature of liberty. Never was this more evident when Law Lord Mansfield declared in 1772 in Somersett's case that slavery could not exist on English soil because it was anathema to the common law. Lord Mansfield wrote that slavery was "so odious" and repugnant to human nature. The law reports of the day used to include arguments of counsel as well, and counsel for the prisoner argued in a phrase to become famous that "The air of England was too pure for a slave to breathe [and remain a slave]."

Will Bush listen? No, but Congress now must act again. This time, Democrats are in charge.

The US Constitution does not "balance" liberty and security. Rather, it stands for the principle, learned in blood, that the only security is in liberty.

USWest said...

Here is the irony in all this: The British House of Commons voted today to allow authorities to hold terrorists suspects for up to 42days. It was a close vote, a 9 vote majority thanks, again ironically, to the Democratic Unionist .

It is what the LABOUR Prime Minsiter wanted! It is overturning the Magna Carta.

We try to correct ourselves, and are cousins do the opposite.

The Law Talking Guy said...

Well, 42 days is, at least, still a limited detention, so it's not totally out of line. But I agree that it's terrible. The reason for the act is, of course, that they lack probable cause to hold these people (that's all they would need to hold them). It makes you wonder why they are suspects.

The Law Talking Guy said...

I cannot believe my ears! George W. Bush pooh-poohed the decision as being from "a deeply divided court" with "strong dissents" that he agreed with. George Fucking Bush? Who owes more to the Supreme Court than he does? His whole election, that's what, an on a 5-4 vote, whar's more! And, as usual, the conservative, supine press corps will not call him on it.

The Law Talking Guy said...

Here is Senator Obama's statement on the subject, which is a breath of fresh air:

"Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values."

I have put in boldface the most excellent lines.

Raised By Republicans said...

Well, the British have never really done well by the Magna Carta. In part the British willingness to abuse people's liberties in this manner was exactly what our Revolution was about.

Dr. Strangelove said...

Justice Souter wrote an angry concurring opinion, in which he agreed "fully" with Justice Kennedy but wished also to answer Justice Scalia. He makes mincemeat of Scalia's arguments and then finally says something true, sadly true:

"After six years of sustained executive detentions
in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation." [my italics]

Raised By Republicans said...

We need more people like Souter and Kennedy on the bench. If you vote for McCain you'll get another Scalia.


The Law Talking Guy said...

We need more people like Souter on the Bench. Kennedy wrote the opinion only because he was the swing vote and the majority wanted a majority opinion in which all would join. I suspect the parts of the opinion that trouble me the most, as being the most results-oriented, came from Kennedy who is, well, a bit of a blowhard.

Raised By Republicans said...

Of course, even with a Democratic Senate, President McCain would give us people like Roberts or Alito at best.

The Law Talking Guy said...

Yes, McCain just denounced the decision. He agrees it will make us "less safe." He also thinks it's wrong to extend rights to terrorism suspects. I've said it before, but it bears repeating: Republicans have no understanding or respect for the rule of law. These right-wingers think that things like the constitution and civil liberties are just obstacles to getting bad guys, and that only naive, effete, ivory tower liberals don't understand that. They really think that courts don't work. That's why you need a Strong Leader.

The founding generation would be appalled. They trusted the law. They believed in it. I was reading a detailed history of Lexington and Concord and something struck me. In the week following the battles, towns all over eastern Massachusetts organized their justices of the peace and magistrates and sent them to take depositions under oath of as many of the combatants as possible. At least a hundred such depositions were smuggled on board merchant ships and sent to London ahead of General Gage's official reports. The effect on the London public and parliament was a crucial PR victory early in the war. Everyone knew who had fired first (the British regulars) and that the supposed colonial rabble was both well-organized and well-controlled. The taking of evidence under oath from friend and enemy alike was powerful.

Another comment about our military history. On Christmas Day 1776, as every American schoolchild used to know, Washington scored a big victory over the British at Trenton. The Hessian prisoners were sent to a prisoner of war camp in Pennsylvania. Apparently the enlistments for the Pennsylvania milita expired on January 1. So on that date, the militia captain leading the Hessian prisoners to the camp instructed them how to get there, then went home with his men. The camp, of course, was in a part of the country full of Pennsylvania Germans, some no doubt countrymen to the Hessians. So great was the importance of honor to these persons, and so good was the Americans' reputation for treating prisoners properly, that the Hessians completed their several days' march to the camp unguarded and reported. So good was their treatment also, that nearly half stayed behind permanently. Indeed, it turns out that they were often furloughed from the camp to work in the villages (for pay) and for other "good behaviour."

As few schoolchildren are taught, this tradition of good treatment was sullied in the civil war by the South (not the Union). In fact, the starvation of thousands of American prisoners at Andersonville prompted the first war crimes trials in American history. The pictures are still horrific today. I visited that site in the heat of summer, and it was oppressive. Imagine 50,000 people packed onto a football field with a single small brook for waste disposal and drinking, and almost no food. It should be noted that part of the reason for this tragedy was that Southerners had refused to take black prisoners (they killed them) and also killed their white officers. In retaliation, Grant stopped all prisoner exchanges (traditionally, a prisoner was exchanged on furlough and on his honor not to return to the fight - the mutual benfefits of this arrangement deterred defections). For that reason, prisons north and south became overcrowded. The South treated them cruelly; the north humanely. We forget these things sometimes.

The right wing response is that everything is different now. Of course, terrorists won't voluntarily report to a camp. And so forth. That's not the point. As John McCain used to say, proper treatment of prisoners is not about who they are, it's about who we are. We should be proud of our courts and our law. McCain should be proud of our Supreme Court that, even in the midst of the war on terror, calls us to obey our own laws and afford every person imprisoned on US soil access to the Great Writ.

The Supreme Court also said that there were no law-free zones, that if US laws did not apply at Guantanamo, it would only be because some other nation's laws did. The constitution is not a protection limited in extent by the governmnet - it is the founding document of government itself and controls the government everywhere.

Although McCain doesn't like torture, he doesn't get the fact that it isn't an elitist concept like military honor that prevents maltreatment of prisoners, it's the common people's respect for the rule of law.

Raised By Republicans said...

"wrong to extend rights to terrorism suspects."

What ever happened to innocent until proven guilty?

In Bush/McCain Amerika, if the state says your a terrorist, that's it for you. No trial (at least not anything we would normally recognize as a fair trial), no contact with lawyers for years etc.

The Supreme Court appointments have never been more important and abortion rights are just the tip of the iceberg!

The Law Talking Guy said...

Remember, due process is a sop to liberal consciences that is too costly and decadent to afford in wartime. You can't make an omelette without breaking a few (non-white) eggs. Etc.

Raised By Republicans said...

Of course. That's why Scooter Libby is rotting in jail...oh, wait...