Justice Isn't Justice If It Only Applies to Your Friends

On Thursday June 12, the Supreme Court restored habeas corpus to the accused persons detained by President Bush at Guantanamo. In doing so it set American laws again on the track of constitutional self-respect. But it also opened the grounds for a debate which is sure to be long and fierce, in which the American opponents of liberty, eager for the domestic regime that in 2002 seemed almost in their grasp, will spare no reproach against the Court and will speak openly of the "lack of realism" of the U.S. Constitution.

Two previous decisions, and two bad remedies by a servile Republican Congress and its Democratic enablers, led to Thursday's decision. The Supreme Court in Rasul v. Bush, in June 2004, recognized that the Guantanamo prisoners had statutory habeas rights. The response by Congress was the Detainee Treatment Act of 2005, which specified the harsher rules to which they were subject. In Hamdan v. Rumsfeld, in June 2006, the Court held that Guantanamo trials by military commissions were in violation of both the Uniform Code of Military Justice and the Geneva Conventions. Congress then offered up, and the president signed into law in October 2006, the Military Commissions Act, which gave legislative sanction to the Guantanamo commissions and stripped the prisoners of habeas corpus.

Now, in Boumediene v. Bush, the Court found the ad hoc Congressional remedy of the Military Commissions Act to be unconstitutional. Many who nominally voted for the bill had said early on that they knew it to be unconstitutional. Chief among these was Senator Arlen Specter, a lawmaker who has spoken as a dissenter but served as an accomplice to President Bush. The New York Times today backed the Court's decision, and so will some other papers; but it is well known the vice president doesn't take no for an answer. He and his lawyers will be back again to lock the prison doors on those who once couldn't consult lawyers, who still can't see much of the evidence against them, and who in many cases were never charged with a crime.

Yet Boumediene v. Bush has made the work of sophistry more tasking to the gulag apologists for Guantanamo, that prison-without-a-country where they threw away the rules and thought up reasons afterward. Thursday's decision, in substance, overturned the legislative assumption that the Military Commissions Act could deny habeas corpus actions pending at the time of the law's enactment. And by the reasoning of Justice Kennedy's majority opinion, the Court has now placed Guantanamo under the eyes of federal courts whose burden is to act within the Constitution.

Justice Kennedy quoted the statement by Hamilton in Federalist 84, that, along with crimes created after the fact, "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." He followed Hamilton in quoting Blackstone on the confiscation of property without accusation or trial, and Blackstone on an offense he considered worse: "confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten." Such arbitrary imprisonments without explanation and without appeal, Blackstone said, are a still "more dangerous engine of arbitrary government" than confiscations. The most appropriate remedy, for both Hamilton and Blackstone, was the habeas corpus act.

Justice Souter, in concurrence, ended his opinion with these memorable and somber words: "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."

For supporters of the idea of endless war and the aggrandizement of the national security state, Guantanamo has always been a necessary monument and a salutary menace. It is the symbol of the war party and they guard it with a solicitous care that borders on pride of possession. But what explains the conditional defense of Guantanamo by those, like the Secretary of Defense, who affect to deplore its necessity yet say that it cannot be closed? Part of the answer appeared in a story by William Glaberson in the New York Times on Friday June 13. "Some 80 detainees," writes Glaberson, "cannot be charged with war crimes, perhaps because the evidence is not strong enough, but are nonetheless considered too dangerous to release." Glaberson adds (with too much credulity and too little explanation) that there are supporters of the prison who believe the Court's decision gives "unrealistic protections for men captured during war." Yet some of those men were innocent. Many, in the first big sweep in Afghanistan, were turned in by neighbors because they had bounties on their heads. Others have names that sound like the names of somebody we might have been searching for, but, to be sure, you had to know the language. We were not sure and six years later they are at Guantanamo.

Justice Scalia's dissenting opinion leads with an op-ed formulation: "America is at war with radical Islamists." In plenty of mainstream outlets, you would find columnists to agree, but what exactly is the authority of the statement, coming, as it does, from a justice of the Supreme Court? The Scalia opinion begins with a presidential opinion that has no legal standing. The U.S. is, in fact, at war in Iraq, where our enemies are various, and in Afghanistan, where our enemies are the Taliban lately enlarged and invigorated by allies created by the fury against American acts of destruction. Justice Scalia could have pleased as many of the audience whom he wished to please had he said, "America is at war with Islamo-Fascists." Or he might have said: fanatical Muslims. Or have called it a "clash of civilizations." He could, with as much propriety, have said we are at war with Terror. That would have included all the present enemies at a sweep, along with all imaginable future enemies. The harder you fall for names that are vague and dark, the faster you can lower the standard of justice.

His astonishing opinion goes on to assert that the Court's decision "will almost certainly cause more Americans to be killed." And it concludes with a prophecy that is half a prayer: "The Nation will live to regret what the Court has done today." Notice the depth of the non-moral and non-judicial presumption of these statements. The Court, Justice Scalia is saying, exists to serve the pragmatic hopes and fears of the nation. It does not exist to mark the character and the limits of the law, which define the identity of the nation. If that is right, there is nothing wrong in his giving recent figures of American deaths in Iraq and Afghanistan as reasons why the Court's decision is mistaken. "Last week, 13 of our countrymen in arms were killed." And yet this was a patent play to the gallery. It comes to the crass debater's topic of "giving aid and comfort to the enemy," a tactic raised to the level of judicial demagogy.

Here is a fair wager. The Americans who have died in Afghanistan and Iraq did not think they were fighting to defend an authoritarian state with no limit on the forces operating the law. Yet Justice Scalia is troubled that Thursday's decision in favor of constitutional liberty will set "military commanders" the "impossible task of proving to a civilian court...that evidence supports the confinement of each and every enemy prisoner." He writes as if the concept of innocence were a luxury reserved for pleasant people in happy times. That the prisoners are rightly identified, that they are indeed correctly described as enemies: this is the very thing to be proved. And you cannot prove it without evidence. And the evidence isn't good if only the accuser can see it, or if it was altered in transit, or if it was extracted under torture.

Those, away from the battles, who have made the largest personal sacrifice for liberty today, are the army lawyers for Guantanamo inmates, and the civilian lawyers who have tried to assure that these cases would not disappear. Lt. Col. Stephen Abraham, in particular, informed the public of the corruption of the legal process after he saw summaries of evidence against detainees, which had been performed inside Guantanamo by unqualified people--indeed, people who are likely to have been chosen for their lack of qualification. Abraham found the same pattern in the vetting of the information supplied by government agencies. He was a witness--as others have been, though few as yet have testified--to one of the signal accomplishments of the Cheney-Bush administration, the gutting of the civil service and the foreign service and the purge of government agencies.

"I suggest," wrote Felix Frankfurter in a letter to a patriot a good deal like Justice Scalia, "that you consider what law really means. Anybody can give law to his friends. It's the essence of law to give it to our enemies." Frankfurter wrote those words at a time of national panic around the Sacco and Vanzetti trial; but they reveal a principle he kept in mind when he served on the Supreme Court, from 1939 to 1962. The law, he summed up, is "all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling." It remains the same unbridled feeling whatever enemy it designates and whatever Heimat or homeland it clutches as its present excuse.

Comments

[gadfly55]

Outstanding statement with obvious consequences for public action in the general election. For anyone with a microgram of historical sense, the Republicans and complacent Democrats who enabled the flouting of fundamental constitutional balance in favor of effective executive tyranny must be removed from office in the third arm of government. There is no compromise with liberty and the rule of law based on fundamental principles of human rights.

[tompoe]

"The New York Times today backed the Court's decision, and so will some other papers; but it is well known the vice president doesn't take no for an answer."

The author fails to recognize that the NYT and "other papers" have long since used up their ride on their reputation as news organizations. What they back or don't back is nonsensical at this point.

[Angelaaaa]

Indeed the measure of any society is how it treats its minorities, the unwanted, the powerless and the despised. It is easy to love your powerful friends but dispensing justice to the rest is the essential definition of justice - for all.

[johninoregon]

Excellent piece, Mr. Bromwich. One of the best I've read at HuffPost. Some of the stuff I've read at conservatives sites about this court decisions is truly frightening. Clearly there are fellow citizens among us who would feel far more comfortable in a country where people do the bidding of some tinpot generalissimo who makes his own laws and employs an oligarchy to prop him up. Oh, wait, that sounds like.....

[xrepublican]

And it's hardly 'Justice' if only those you label 'enemies' are convicted.

"Where Law Ends, Tyranny Begins" is engraved on The Department of Justice. One has the feeling that too few of this President's appointments have ever looked up to read that sentiment. The Department of Justice has been turned into a private agency of the Presidency that complies with any whim of our UberExecutive. It has become a tool for voter suppression and character assassination under this President while preventing valid investigations into violations of law by the Executive Branch. Too many people - including our current and former Attorney Generals need to be held accountable for their misuse of the law and failure to uphold our Constitution.

[Redrover666]

This stuff tickles me. If Obama gets to be president, he will likely do as Clinton did about terrorism, little or nothing. However, radical islam has sworn that they are going to hurt us even worse next time.

I live in one of those little podunk, bitter, bible hugging, gun toting, NASCAR towns. I figure the next time they strike, it ain't gonna be here. Want to see a bunch of liberals piss themselves and become instant conservatives, wait for the next bomb to go off. ON Obama's watch!!!

[Plisko]

This conservative became a liberal after watching the world trade center fall with my own eyes and then watching how they used our shock and grief to push through an un-american un-conservative agenda.

You are the one who is hopelessly out of touch here.

[oldwiseone]

Have you ever used a hammer to pound down a nail?

[Redrover666]

You know..... somehow I doubt you were ever really a conservative. But if you think it lends your remark more weight, then it's OK with me.

[Durango]

Wow, you just can't wait to see the next terrorist attack.

That kind of makes you a terrorist doesn't it?

Or at least a terrorist sympathizer.

You are certainly hoping to see a partisan political advantage from the murder of fellow citizens.

That makes you a heck of a guy.

[Durango]

P.S. 911 happened on George W. Bush's watch, not Bill Clinton's.

Remember that simple fact? Apparently not.

[Redrover666]

Oh! It's going to happen sparky, it's just when and where.

But I have every confidence that democrats will have done everything in their power to prevent it. News flash, radical Muslims aren't scoping out NASCAR races. They tend to target heavily democratic urban areas.

Good luck with that.

Anyway got some fishing to do. See ya.

[Kahni]

Hi folks
Well, every day brings us someone dropping with something other than real dialog on their mind. Today it's ol' Rover. Please do not let him soak up the energy of this thread. He's here to distract or his posts would actually have information. Stay focused, ignore him.

Red: your posts are simple reruns of stuff most of us have seen here for ages. I would suggest you either bring real information / honest questions to the table or stay quiet.

[cadawa]

The right wing are the ones who realism. They think they can persuade the rest of us that torture and frivilous resource wars are acceptable human behavior; that those of us who create their wealth are not entitled to share in it.
They think we haven't noticed that they put justice out of our reach and their friends out of the reach of justice.
There is nothing unrealistic about history and history reflects a totally different reality. People like the neocon corporatists never last. Their legacy of hatred and murder will brand them as some of the worst people on the planet. They will continue to be despised as long as human history continues.

[Redrover666]

I don't want to pry but are you commenting from one of the eastern block, communist countries?

[Plisko]

I don't want to pry but are you commenting from Burma?

[lastams]

Just what is up with Antonin Gregory Scalia? Here"s a Justice of the Supreme Court of the United States of America who just doesn"t seem to get the IDEA behind this country.
Scalia seems to be intent on creating a Nationalist government complete with torture, wiretapping, censorship, and an all-powerful unitary executive.
I mean really! isn"t it the job of a Supreme Court Justice to Interpret the Constitution, not rewrite it?

[Mike789]

It is noted that Justice Scalia is an originalist when it suits him.

[JBryan]

“The price of freedom is eternal vigilance” no truer words were ever spoken. Regardless if the quote is Thomas Jefferson’s or another of our founding fathers, the warning is clear. The danger to our freedoms requiring our watchfulness was the potential for tyranny by our own government.

The framers of our constitution created a system they thought best suited to combat the government’s tendency to oppress its citizens. Power would be dispersed between three branches of government. The ability to accumulate power and thereby take our freedoms was greatly diminished. For this system to work however, we the people need to be on constant watch. If we allow ourselves to be driven by fear, if we chip away at The Bill of Rights in the name of security, if we allow unrestrained lust for power go unchallenged, we will loose our freedoms.

Though the system is bruised and battered it, for the moment, worked. 5 to 4. In a time of unprecedented overreach of power by the Executive branch. Coupled with a Legislative branch unable or unwilling to exert its constitutional duty of oversight, and faced with a court packed with hand picked ideologues, five brave patriots spoke truth to power. Freedom transcends the need to feel secure.

The narrowness of this decision should remind us all of how important the coming election is. Each and every one of us has the power to be vigilant and to protect and defend the constitution when we make our choice in November.

[DietrichMoody]

This is why there needs to be a Democratic President and Executive Branch. The nexus isn't between a "servile" Republican Congress and their Democratic Congressional enablers. Remember, there is now a Democratic Majority Congress and there is still a hesitancy on their part to do anything that would truly challenge Executive Authority. It took the Judicial Branch, to challenge Executive Authority.

All we need to know is that McCain agrees with Justice Scalia. Just think, McCain will have the power to form a Judiciary in whatever way he wants. Leaving Congress weak. Homeland Security is still on the minds of many in Congress and will distort their feelings on Constitutional Rights. If McCain is elected, Congress no matter whether it is a Democratic majority or not, will tow McCain’s Executive Branch line. Period. Rot, does come from the top down, as we've seen over the last eight years, Or a lot of good can come from the top, there is a choice.

An authoritarian state isn't built in a day. And remember, if there is a Republican Executive Branch it will appoint a Judicial Branch more in line with Republican thinking, think Scalia and Roberts. Roberts, who hides his Judicial demagogy pretty well, unlike Scalia.

[Ephemera]

Forgive my ignorance, but is there any way "we the people" can have a Supreme Court justice removed from office? By this author's statements, one might draw the conclusion that Scalia is not defending and protecting the Constitution -- didn't he swear to do that when he took office? Therefore, if he is not doing that, don't his action warrant removal from office along with Bush, Cheney, Rice, and the host of other's who have failed to fulful their oath?

[Durango]

The United States of America was created and the Constitution written specifically to prevent the actions that the Bush Administration has been taking.

We are not a Monarchy. The President, under no theory of American government, could ever have unlimited power.

The Right to Habeus Copus was included in the heart of the Constitution (not in the Amendments) to protect "the People."

The fact that 4 members of the highest Court of the land do not understand the most basic premise of America is frightening in the extreme.

[Redrover666]

The United States of America created three branches of government that must agree, they did.

We are a Republic. The president hasn't.

Habeas corpus is for "the people". Not prisoners of war.

Interesting a knucklehead presumes to think a Supreme Court Justice doesn't understand the issue.

[ceu]

But they're NOT "prisoners of war", 'cause then the Geneva Conventions would apply. They are a class of prisoner invented by the Bush admin so that they couldn't have access to the courts. They are PEOPLE being held indefinitely without charges being filed against them. By thinking that that's ok, you are abetting a system where any one of us could find him/herself locked up with without recourse to the courts. Isn't that a pleasant prospect to imagine?
BTW, the clause in the Constitution does NOT say that it applies only to "we, the people" and does not apply to detainees. It's very simple:
Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Neither of those conditions exist and therefore a writ of habeas corpus is available to ANYONE under the control of the US government.
As for a Justice not understanding the issue - I think it's pretty clear that when one of them states that we are at war with radical Islam, he doesn't understand the issue!

[Kahni]

This is an excellent example of why some posters are best ignored. Red, here, states as fact (in very confusing sentences) things that are simply not true. He is not here for dialog but to harangue. Don't get sucked in.

[ComicBookGuy]

People need to rememeber that giving someone a fair trial is not the same thing as just letting them off the hook. It's unfortunate that we let four people onto the Supreme Court who don't seem to get that.

And even if we did release all the detainees tomorrow, are we really afraid that they'll immediately rejoin their terrorist associates and resume their evil schemes? Really?

Some of those guys have been in Guantanamo for 5-6 years now. Any of their terrorist associates would have to assume that we're keeping them under surveillance. They aren't getting back in the loop now.

"Too dangerous to release"? The real "danger" that our leaders are afraid of is that they'll tell reporters what they've been through.

[NetWeasel]

Let's start by assuming that Scalia believes what he's saying to be true.

He said that the Court's decision "will almost certainly cause more Americans to be killed."

Now, how could that possibly be true? The decision was specifically that the remaining prisoners at Guantanamo had the rights of Habeus Corpus, that they can find out what charges, if any, they are being held under. It doesn't demand the release of anyone UNLESS they are being held illegally.

Thus, Scalia believes that there are Guantanamo prisoners being held illegally.

[batguano]

BRAVO David! You see through the Bush/Neocon lies & deceit to the truth of it.

We can do something about the SCOTUS "gang of four" , & it is possible, given a sweep of the WH, Senate & House & an unassailable majority in the coming elections. As FDR began to do, we can enlarge the court to 11 or more Justices to dilute the power & influence of the Bush clones, who were chosen specifically for their youth & extremist pro-corporate "Con" ideology. We cannot afford to have the decisions of these narrow-minded bigots dictate our future for potentially 35 years they might be on the court. Witness the politically driven ranting in dissent of the GITMO ruling by "Justice" Scalia. For our Republic to be held to a narrow manipulated so-called "Conservative" view, when we evolve to a higher understanding, is unacceptable & self-destructive. From questions of war, militarism, torture, illegal imprisonment & impeachment, to corporate excesses & greed, to the poisoning of our environment, to our planets health, species exploitation & extinction, the issues that will come before the court will be critical to our survival. Again, the Bush Justices were chosen for their views. The greatest coup of the Bush/Neocon Regime will have been the SCOTUS and the agents of Corporatism/Fascism deliberately placed there.....with the collusion and participation of many Dems..........by Bush&Co unless we reverse this threat to our Republic; & the Constitution allows a larger SCOTUS, possibly just for such clear & present dangers and

[HeevenSteven]

On 60 minutes, when asked if torture during interrogation was cruel and unusual punishment, Scalia answer was basically that it wasn't the punishment phase, it was discovery. Yeah, got it. Torture all ya want before sentencing; after that it's cruel and unusual. Ya don't wanna crimp Jack Bauer's style.

[freedomjoe]

This is a disingenuous argument on your part. The question before the court was not torture. Facts are inconvenient, are they not?

[CyrusBeaucephus]

Freeperjoe, if you are into facts so much why can't you prove that these detainees committed a crime??? To much trouble for you? Well lets just trust the judgement of the paid Afghan bounty hunters then. After all none of the people being detained and tortured are people you know personally. It might be different if it was you being falsely accused, huh?

[HeevenSteven]

I am referring to the interview he gave on 60 minutes. Before you argue with me, go watch the video.

The question was whether torture was considered cruel and unusual punishment, which is forbidden under the constitution as punishment for crime. Go watch his answer then explain what he meant.