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Roberts and Civil Rights

On Friday last, the federal appeals court in DC, headed by none other than John Roberts gave the administration a blank check as regards the detainees at Guantanamo. At issue was whether the detainees could be tried by military tribunal; two lower federal courts said they could not. As rulings go, this one was a slam dunk—no qualifications, no concessions of any sort to the plaintiff.

Here’s the gist of the court’s decision (which Roberts did not write; his was a silent assent):

1) The Geneva Conventions do not “create judicially enforceable rights,” so detainees cannot go to the courts to complain that the US government is ignoring those conventions. It does not matter that the Convention was ratified by the Senate.

2) In three resolutions dealing with terrorism after the 9/11 attacks, Congress authorized the president “to use all necessary and appropriate force.” Therefore, whatever the President decides is the proper course of action toward detainees—in this case, military tribunals—is OK.

3) And, I guess as a corollary of No. 2, it doesn’t matter that the tribunals at Guantanamo aren’t even following the procedures of military tribunals. (Notably, the defendant is not allowed to be present throughout the whole proceedings—on the grounds that classified information is presented that the defendant cannot hear.) The President can set the procedures of these tribunals in any way he desires.

This ruling grants the Administration what it has wanted all along: confirmation that the President stands above the law. What he says goes. That is what Alberto Gonzales told the Senate in his confirmation hearings for Attorney General. Their basic claim is that, as Commander in Chief, the President has the authority to do anything needful in this undeclared war. And their secondary point is always: we are the forces of righteousness and we are horribly hurt that you don’t trust us. Our good intentions are so obvious, as is our fundamental goodness. It’s the other side that is evil, remember?

The Administration, from Bush on down, either does not understand what the rule of law means, or does not think that the rule of law applies to bad guys (as identified by them outside of any legal procedure), or they simply hold the law in contempt as contentious and overly intellectual crap that stands in the way of getting done what needs to be done. I suspect it’s a combination of all three.

In any case, Donald Rumsfeld announced on Monday that the tribunals that the court ratified on Friday will now go forward. And Rumsfeld made it clear that the administration fully understands that it is acting outside the Geneva Conventions.

“The court’s ruling marks an advance in the global struggle against extremists and aids the effort to protect innocent life,” he said. “It vindicates the president’s determination to treat suspected terrorists humanely but not to grant them the protections of the Geneva Conventions as a matter of right.”

Not content to suspend all rights for non-citizen detainees, the Administration argued before the 4th Circuit Court of Appeals on Tuesday of this week that it can hold Jose Padilla indefinitely without charging him.  As Padilla’s lawyer put it to the judges:  “I must be the first defense lawyer ever to stand in front of you and plead for my client to be indicted.” Padilla, you will recall, is the American citizen arrested in Chicago shortly after 9/11 who has been held without charges as an enemy combatant for over three years now.  Two federal judges have already ruled that he cannot be so held, but the Administration has appealed the case. 

The Administration has already lost the case of Yaser Esam Hamdi, the other American citizen it attempted to hold without charging.  Hamdi was captured on the battlefield in Afghanistan, but the Supreme Court ruled he could not be held as an “enemy combatant.” Instead of charging him, the US government handed Hamdi over to the Saudi government. (So even winning his case before the US Supreme Court didn’t win Hamdi his freedom.  This Administration will ignore or circumvent the Supreme Court along with every other “check” to its desires.) The government clearly didn’t have a case against Hamdi that they felt could stand up in court. It’s fair to infer that the government also can’t have much of a case against Padilla, who they have accused—but not in court—of wanting to explode a “dirty bomb.” If they could get a conviction, they wouldn’t be resisting charging him with a crime.

In oral arguments for the Padilla case, Judge Michael Luttig (whose name was also on the short list of potential Supreme Court nominees) pressed the idea that, in the war on terror, every place is part of the battlefield.  Under that logic, Luttig suggested, it doesn’t matter where you are arrested.  Anyone can be an “enemy combatant” anywhere.  Obviously, this line of reasoning collapses any distinction between capture and arrest, between military and civil law, or between the President as Commander-in-Chief and the President as the chief executive officer in a constitutional government.  War is everywhere and everywhen now; we are all soldiers--or traitors--and the President is a full-time Commander-in-Chief.  That’s the conservative doctrine, as Karl Rove’s speech about the difference between conservatives and liberals a few weeks ago made clear.

Expect the Administration to win the Padilla case in the 4th circuit (the most conservative in the country), just as it won the tribunals case in DC.  Presumably, both cases are headed to the Supreme Court.  So far, and just barely (with obvious reluctance, bobbing and weaving, sending cases back to lower courts for re-examination etc. etc.), the Supreme Court has not given the Administration a blank check.  But, given Roberts’ acquiescence in last week’s decision, he does not figure to be a judicial bulwark against the Bushies’ attempt to ignore some of our most basic civil rights. If the Administration wins the Padilla case in the Supreme Court, we will have the first abandonment of the rule of law in relation to an American citizen.  (First abandonment in the sense of a court-sanctioned suspension of the law in favor of the President’s powers as Commander-in-Chief.  Of course, citizens’ rights have been violated all the time in the past, but not with a court’s approval.)

The one hopeful note in all this legal jostling also reminds us how crucial the Supreme Court is: a June 2004 Supreme Court ruling (6-3, with the terrible trio—you know who they are—in dissent) gave the Guantanamo detainees the right to “use the civilian court system to challenge their imprisonment.” Nearly 200 of the 520 detainees have started such proceedings. Of course, none of those cases has made much progress so far. The wheels of justice grind slowly.

Two tangential final comments:

Where did SCOTUS come from?  It speaks to me of the on-going militarization of our society, making the Supreme Court sound like the site of some military operation.

And do you think Laura Bush is pissed that she got used by her hubby and his White House operatives as part of their feint toward Clement?  They were determined to have their surprise, weren’t they?

Posted by on 07/21 at 09:41 AM

  1. Where did SCOTUS come from? 

    I first saw it used in 2000, in the wake of the decision in Bush v. Gore.  I considered it a somewhat contemptuous acronym, a vaguely dirty-sounding word for a court that could hardly be considered Supreme except in the sense of raw power, and used it that way myself.  It’s sort of an extension from POTUS (President of the United States), which had already been in use for a while.

    Posted by  on  07/21  at  10:06 AM

  2. The Washington Post reported yesterday on Padilla – the alleged terrorist and US citizen who was arrested at O’Hare Airport, then taken to a federal military brig in South Carolina without a hearing.  The government says that he can be locked up forever without counsel or trial. http://www.washingtonpost.com/wp-dyn/content/article/2005/07/19/AR2005071901023.html

    “[Judge] Luttig repeatedly pressed [Solicitor General] Clement, even after the solicitor general noted that Padilla’s alleged intentions as a soldier of al Qaeda—to target civilians—constituted “unlawful combatantcy” even if he were on a battlefield in uniform.

    “Those accusations don’t get you very far,” Luttig replied, “unless you’re prepared to boldly say the United States is a battlefield in the war on terror.”
    Clement answered, “I can say that, and I can say it boldly."”

    So you see how this works.  The entire United States is a battlefield.  Congress has no power to legislate over the power of the Commander in Chief when he is directing troops on the battlefield. Therefore the President and his underlings in the military – from the SecDef on down – can operate freely in the US without civilian oversight.  All they have to do is claim that you are an “unlawful combatant.” They don’t need any evidence.  They don’t even have to make the claim publicly - they can just put you down on an “enemy combatant” list.  It doesn’t matter that you’re a citizen.  They can kidnap you and make you disappear, and your family will have no legal recourse.

    They are not kidding about this.  They mean it.  They are fascists, and they want to make the US into Argentina under the generals.

    Posted by  on  07/21  at  10:57 AM

  3. How were they “headed” by Roberts, exactly?

    Posted by Anderson  on  07/21  at  11:30 AM

  4. I think that SCOTUS serves as a convenient acronym for the Goldstein and Howe blog.

    Posted by  on  07/21  at  12:26 PM

  5. Where did SCOTUS come from?

    I don’t know. Whenever I see it, I think “scrotum.”

    Posted by Roxanne  on  07/21  at  12:41 PM

  6. JR asserts that the Administration policy makers “are fascists.” I want to look at this a little more closely.

    I think it’s fairly clear that we’re not (yet) living under fascism. The prison conditions at Guantànamo are a lot llike those in fascism’s political prisons, but anti-government opinions (as here) are expressed without punishment, and anti-government actions (like the forthcoming demonstrations against the war) can be carried on.

    But are the Administration crowd fascists, who “want to make the US into Argentina under the generals”? I’m not sure. Even if they are, I think a case can be made that the Nixon crew were fascists too; the closest we’ve come to death squads on US soil, after all, was the killings of Fred Hampton and other Black Panther leaders by police with FBI connivance. (The contemporaneous Phoenix Program in Vietnam with a death squad without any effort at concealment.)

    I think an important question is whether the same mechanisms that ultimately undid the Nixon gang are still operable today. If so, we have a chance to survive this crowd. If not…

    Posted by  on  07/21  at  01:54 PM

  7. Of course we’re not living under fascism yet.  Destruction of democratic institutions takes time.  At the moment the free press is on the way out; the universities are under attack; the unions are moribund; the churches are passive or complicitous.  The main obstacle to open police state tactics is still the courts.

    Nixon was a bad man but he was not a fascist.  Fascists thrive on popular support and adulation; Nixon hated the people and worked in secret.  This crowd loves the masses and uses propaganda tools through the media and in-person rallies, and especially the churches, to manipulate them.  Nixon didn’t much care for corporate America, either - remember price controls? - while this crowd is completely incestuous with big capital.  And Nixon’s favored foreign policy was detente with the major adversaries and secret intervention with the smaller ones.  This crowd uses foreign adventurism to whip up mass patriotic hysteria.  These are fascist tactics.

    You can see where these people want to go by looking at where their outriders already are.  When Ann Coulter says that the way to talk to a liberal is with a baseball bat, she’s where Karl Rove wants to be in 5 years.  When Bill O’Reilly says that the FBI should raid Air America and lock them all up as traitors, he’s where Tom Delay wants to be in five years. These people are not kidding, they are not stupid, they do not exaggerate.  They mean precisely what they say.

    Posted by  on  07/21  at  02:49 PM

  8. "SCOTUS” sounds like Secret Service slang.  The Pres is “POTUS.”

    Posted by Anderson  on  07/21  at  04:00 PM

  9. JR,

    >>At the moment the free press is on the way out;
    What? The Press is as free as it has ever been, and better, there is more of it, and more variety too. These little blogs do have influence; cumulatively their impact is significant.

    >>the universities are under attack;
    Universities are doing fine. Right wingers denounce and mock, tedious, strident lefties, but so what? You don’t like it, mock them in turn.

    >>the unions are moribund;
    You got a point there. I’ll admit, right-wingers have gone up against unions and labor over the past 30 years, but so have lefties. I don’t see many democrats calling Walmart to task. I don’t see many democrats proposing legislation to curtail outsourcing. 
    Other than catering to well established realatively well off unions lefties don’t give a damm about labor. How so? Nothing undermines more the ability of the working man/woman to make a living in America to day than uncontrolled, excessive immigration. That’s the truth.

    >>the churches are passive or complicitous. 
    We are assuming an either/or proposition here. How can churches be both passive and complicitious? Oh, I get it, they are passive as far as lefty concerns go, but active in the agenda of the right wing. Well too bad, find a church that is active in left wing causes. Actually there are quite a few: Catholics, United Church of Christ, Afican American churces, most Jewish establishments…

    >The main obstacle to open police state tactics is still the courts.

    The courts are not yours.  They are supposed to be neutral arbiters. In any case, if the facts and law are on the side of the right wing fascists, well then they should prevail, they are owed process as much as the left.

    What are you worried about. Roberts will probably turn out to be another Souter anyway. I only wish that we had some real hard-ass right wingers in the white house, not these sensitive wimps.

    Posted by  on  07/21  at  04:09 PM

  10. Daniel:  I only wish that we had some real hard-ass right wingers in the white house. . ..

    Instead of these dumb-ass right wingers?

    Posted by  on  07/21  at  04:23 PM

  11. This is a very great post, John M.  I want to noodge other bloggers, who are too easily seduced by the media’s “it’s only about Roe smokescreen, to link to it.

    Posted by  on  07/22  at  04:46 AM

  12. "Fascism should rightly be called Corparitism, as it is the merger of corporate and government power”.

    --Benito Mussolini

    Posted by  on  07/22  at  12:14 PM

  13. “ ...or does not think that the rule of law applies to bad guys”

    Indeed. As they are amply demonstrating right now with respect to their own misdeeds.

    Posted by  on  07/22  at  08:58 PM

  14. the unions are moribund;
    You got a point there. I’ll admit, right-wingers have gone up against unions and labor over the past 30 years, but so have lefties. I don’t see many democrats calling Walmart to task.

    Please go to Walmarthemovie.com.  We are going to have showings all of LA and hopefully the nation on November 13th!  Brave New Films is taking on this giant.  Also, see today’s NY Times piece on
    Costco versus Walmart!

    PAINTERGAL

    Posted by  on  07/24  at  06:41 PM

  15. SCOTUS, of course, is wire service jargon, stemming from the days when the owners of the means of production, i.e., Western Union, charged by the letter or word. Thus, Supreme Court of the United States becomes SCOTUS. Similar for POTUS for President of the United States and SOS for Secretary of State.
    Many other strange words were “upworked” but are now mostly lost.
    Alums of the old UPI have a club known as the Downholders, after the continual demand by the central authorities for all buros to “downhold expenses.”

    Posted by  on  07/26  at  02:57 PM

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