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Thursday, July 21, 2005

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 John McGowan on 07/21 at 09:41 AM
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