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.
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Beautifully reasoned. But nothing that we all don't already know. The issue is what is to be done about it. We are all drifting along in a dream of constitutionality, assuming that some "people's magic" will occur in five months time to reverse all of this. But we have seen that magic fail in the face of a still existing SC majority in 2000. We have seen that magic fail in the face of a mysterious and uninvestigated electronic voting machine irregularity in 2004. And still we hope for the magic to work in 2008. Maybe it will. Maybe the entrenched interests who have control of the power to commit crimes and get away with it will voluntarily relinquish that power. But maybe they will not. Maybe we have another chapter in our ongoing slow motion coup waiting for us. We will all wait and see, but the gauntlet has still been thrown and the question is now in the back of everyone's mind: "what do we do when they take over and our constitution is gone?"
The revolutionary question is closer now than it has been for 250 years. It is breached and the effects of this new idea will be around for a long while.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Guess where from.
Why do you support the terrorists?
". . .But maybe they will not. Maybe we have another chapter in our ongoing slow motion coup waiting for us. We will all wait and see, but the gauntlet has still been thrown and the question is now in the back of everyone's mind: "what do we do when they take over and our constitution is gone?"
Be alert, be very alert, for these next months are full of danger. The "neo-conservatives" or whatever these leaders who are willing to jettison the Constitution should be called, are desperate. In order to "protect the United States" they have already proved themselves willing to attack the Constitution, spy on US citizens, break US and International laws, and use torture whether it works or not.
If the past predicts the future, then the democratic enablers in the congress may not have the guts to act even in a constitutional crisis.
I have a nagging feeling a war with Iran, launched before the elections in November, could possibly be a wonderful excuse to suspend the elections and declare Martial Law... Many say that is far fetched and I pray that it is just a ficticious nightmare of my own devising. What do you think Congress would do about it? Exactly nothing, cowards that they are.
When I have posted similar opinions on the upcoming unpleasantness I've been hounded as a tinfoil hat-wearing wacko. HuffPosters must like you better. (It's all about me, ya know.)
For every issue there are persons on both sides who take an extreme view. This is one of those instances where the extreme views of one side were illicitly and illogically used to formulate American policy.
In spite of the Bush administration efforts to divide the nation and promote an extreme view Americans and the Supreme Court reject the position. We are not a nation of extremists. We are fundamentally centrist.
This is reflected by consistent polling results stating that a solid majority of Americans think we are on the wrong track. The majority understands we need to find a compromise that protects America and preserves our freedoms. The conflict between these two goals is obvious for most of us but is far less so to persons who take an extreme view.
Bush has taken us on a tour of extremism and we are now well informed of what it produces. The Supreme Court has acknowledged this by their ruling and also acknowledged that the result of the policy is fundamentally in conflict with democracy. Getting the country back on track is about finding our center and paying a little less attention to extremists on the left and right.
you fail to mention in your analysis that the court was casting judgement the legistlative branch as well as the executive. The President and Congress did what the Court asked of them a couple of years ago. If you read the dissenting opinion, you will discover that the Court short circuited the process it put in process. Bush as anti-christ argument does get tiresome rather quickly when confronted with the facts.
Sen. Arlen Specter, ranking Republican member of the Senate Judiciary Committee, said at the time he voted to approve the legislation you approve of so much, that it was unconstitutional and "the Supreme Court will clean it up."
Specter's votes are often abominable (and inexplicable), but his understanding of the Constitution is second to none. He filed an amicus brief supporting the plaintiff's motion in this case, and has called the Court's an excellent decision.
"court was casting judgement the legistlative branch as well as the executive"
Of course it was. That's its job. Do you think it is only a check against the Executive?
Again, this writer has gotten to the crux of the matter. I agree with those suggesting that the four dissenters, as violators of the oath to preserve the constitution, would be impeachable if congress had any cojones. Actually, the GOP and Democratic enablers have all violated their oaths. The cynicism is breathtaking. It is good to see that Obama is not retreating on this issue. Mccain is revealing his hostility to constitutional rule even as he twists Obama's words to cynically suggest that McCain is the true defender of the constitution. This claim is revealed as a travesty by McCain's own record as an enabler of torture, crimes against humanity and war crimes.
What this election is really about is whether we want the rule of law or arbitrary rule, constitutional government or absolutism; freedom or fascism. McCain's reaction shows that this election really will be about whether constitutional government shall continueor some form of fascism shall triumph.
In my opinion, the grounds for impeachment are now set in place. My husband is a lawyer and he doubts you can impeach SC judges on the way they vote on a certain issue. If Bush violates the
Supreme Court ruling, I think the House should proceed with the Kucinich request to impeach, perhaps amended to now include his ignoring the Supreme Court finding. I think we all need to write to our congress critters. No matter if there are not enough Democrats in the Senate to convict on the Impeachment charge. If the Administration fails to let the detainees have their day in court as ordered, then they are in clear violation of the law. Imagine a bill of impeachment against Clinton on a personal indiscretion and now this nonConstitutional behavior by Bush. Also if he just slows the court process to let his administration time run out, impeach the guy and get it over with.
My goodness! I daresay ... perhaps we should tear down the Lincoln Memorial! That man violated the Constitution afterall! Tsk, tsk! When the Taney court ruled that his suspension of Habeas Corpus against american citizens was unconstituional, he did what!? Ignored them. Oh, but no matter ... he was a Republican afterall (who freed the slaves and kept the country together; but who's keeping score?).
Friend, who exactly has violated the Constitution? Examples please.
Article III. - The Judicial Branch
Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..
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Depending upon the definition of "good behavior" it could be argued that some of the Justices should no longer hold their offices.
Not arguing for or against this one, just stating it.
Now, I like it when people ask questions. Implies the possibility of a real conversation. But this question above is silly. The Supreme Court decision we are talking about said that the Constitution had been violated. Why would Joe need any more examples at all. Are we going for two-out-of-three here?
The present dissenting position of Just us Scalia along with his statement on the public record on his definition of what does and does not constitute torture, are sufficient evidence on their face to Impeach this radical and remove him from the bench, and his humble obligation to interpret Our Constitution. This man has such a perverse view and lacks even a basic understanding of these truths we hold dear.
There is no place of honor, in a Nation of laws for men such as these.
The Constitution states: "The Judges . . . shall hold their ofices during good behavior. . ."
So I agree. Scalia's opinion and what he said on 60 Minutes fully justifies his impeachment.
"Good Behavior" meaning of course: upholding and defending the Constitution.
McCain calls this opinion one of the worst in US history. I wonder if he read the opinion.
Why is Bush afraid to label the detainees POW's?
How will it harm national security if they are protected under the Geneva Conventions?
Perhaps those who voted for the big-government Republicans last time will reconsider their choice next time in view of this faction's demented aversion to individual rights. And those who believed in "conserving" our best traditions with integrity and honesty might well be searching for political representatives who have an adequate education in such matters. The decent conservatives of the past appear to have gone the way of the passenger pigeon, and their reasoned tradition is now mocked by this rabble of money-grubbing imbeciles. I devoutly hope we have no more successful judicial appointments by this executive branch.
The world must seem so difficult to deal with, if you are so incompetent that you have to act like a Gestapo Officer to cover for you ineptitudes.
Here is a suggestion if you suffer from that issue: Do not aspire to leadership positions in America.
Go to some corrupt little backwater and actually make an improvement there. You will not only be able to feel better about yourself, you will affect the world positively.
We liked America, or at-least the belief that there was an America with freedoms and justice, rights and free men.
When you endeavor to take away even the pretense of freedoms existence, you make all men who believe in the Constitution want to tar and feather you, and ride you out of town on a rail, Mr Bush, Mr McCain. I understand that you even fear and conspire against people because they are "Constitut
Americans think it's all right to kidnap, torture and permanently imprison people, as long as you don't use those words. Just say "rendition," "harsh interrogation" and "enemy combatant detainee," and you can do whatever the hell you want to anyone, any time.
There is no statute of limitations on war crimes in international law. We have not heard the end of this yet. I expect that in the end, some people will find themselves in a box at the Hague, at least if they are ever foolish enough to leave the US.
It amazes me that these neocons, McCain included, have so little faith in our justice system that they would be so adamantly against a person having access to it and being tried under it. And to hear Lindsay Graham refer to the Supreme Court as some group of freelance morons who weren't elected and yet think they are better than the president or the congress just shows Senator Graham's utter misunderstanding of how the three branches should work equally to keep each other in check. It's disgusting.
Also, brilliant article, Mr. Bromwich.
What's scary is that these guys that believe that crap are supposed to be lawyers and understand the Constitution and abide by it as well as other laws. They believe they're above the law and so is any decision they make. Nothing they do should be questioned according to them because they know what's best for all of us supposedly. The problem that they're having is that there may not be much if any evidence against the majority of these guys that are detained and wouldn't that be embarassing if most of them were sent back to their countries after having been found innocent by our courts?
Unfortunately, the Supreme Court will not be subject to deBushification.
It is possible to impeach members of the Supreme Court. The Supreme Court has periodically drifted away from its mandate and taken a position as a political arbitrater in times of intense political polarization. (For example: the 1850's and the Dread Scott decision.) The devisive political atmosphere of the last 20 years has had its effect on the court as well. The last time this happened it took a civil war to right the situation and restore balance to the court. Perhaps this time we can use the constitutional tool of an impeachment hearing to question and remove a Justice before they are allowed to drag the country into an insurrection. The Justices are allowed an extreme latitude in their decisions but they are not allowed to base them on fundamentally unconstitutional grounds. I think all the justices are safe except for Scalia who has repeatedly and publicly acted as a partisan instead of a judge. He has brought the court into disrepute and weakened our constitutional system. We may not be able to oust him from the position but the very act of exercising the impeachment hearing would restore some of the respect for the institution that he has taken away.
I would suggest that Scalia, Roberts, Alito, and Thomas study the Nuremberg "Judges Trials" carefully.
http://en.
Herein is listed, for all to see, what happens to JUSTICE when it is made subservient to the whims of the STATE. These men gave legal cover to the crimes of the Nazis, and millions paid the price.
The indictments read as such;
1. Participating in a common plan or conspiracy to commit war crimes and crimes against humanity;
2. War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property.
3. Crimes against humanity on the same grounds, including slave labor charges.
4, Membership in a criminal organization, the SS or the NSDAP leadership corps.
With very minor tweaks, these same charges could be files against any of these four "judges" and their masters in the White House.
I noticed that scalia did not quote any law precedents but just went off on a neocon political rant.He is an embarassment as lawyer and a judge.Tony
Interesting analysis of Justice Scalia; wrong, but interesting. When one actually reads his opinion, one will find the following precedents:
1. Johnson v. Eisentrager
2. the 1995 prosecution of Omar Abdel Rahman
3. Hamdan v. Rumsfeld,
4. Department of Labor v. Triplett,
5. United States v. National Dairy Products Corp.,
6. American Communications Assn. v. Douds,
7. Rostker v. Goldberg,
8. Department of Navy v. Egan,
9. Regan v. Wald,
10. Ex parte Quirin,
11. U. S. 1 (1942), and In re Yamashita,
12. United States v. Verdugo-Urquidez,
13. Reid v. Covert,
14. Balzac v. Porto Rico,
15. Crawford v. Washington,
16. McNally v. Hill,
17. INS v. St. Cyr,
18. D’Oench, Duhme & Co. v. FDIC,
19. The Law of HabeasCorpus 188 (2d ed. 1989)
20. On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896)
21. King v. Cowle, 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599 (K. B. 1759)
22. Blackstone, Commentaries on the Laws of England 131 (1768)
23. And if you made it this far, here is a gem from Justice Scalia: "The Court purports to derive from our precedents a“functional” test for the extraterritorial reach of the writ, ante, at 34, which shows that the Military CommissionsAct unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager, 339 U. S. 763, conclusively establishes the opposite."
Wow! That is a long list!
Joe, my friend, most of those cites actually are in defense of HabeasCorpus as an absolute right. As we know from Ms. Coulter, sticking in a reference does not mean the writer has a grip on what the reference means.
Take your "gem" for instance. The current decision of the Supreme Court addresses Judge Scalia's concern here by pointing out that Gitmo is in fact US territory and therefore Johnson v. Eisentrager applies in the negative. To wit, in J v. E:" it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-admin
In my opinion, one of the major mandates of whomever we elect as President should be to restore the constitution to its rightful place where it was even before this last onslaught by the Bush administration.
There has been a concerted effort to weaken our constitution by many different groups and ideological misfits. As a result, we have things like the last 7+ years where the criminals are in charge.
We must never allow this to happen again. Even if we are attacked, on our soil, our constitution must stand firm.
One presidential candidate has promised to make that the priority of his first hundred days in office, and it ain't John McCain.
perhaps you should read "On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896)" before you bestow constitutional rights to non-citizens outside the united states. all hail the imperial court of the united states. truly constituional my friend.
But in this case we're talking about bestowing the right of habeas (which does not require being a citizen) to someone being detained by the United States government. Regardless of where they are the govt is acting as a representative of the people, and thus must follow the law. If not then we could technically us the military to conquer and enslave other nations so long as no one is brought back to U.S. soil. We can't make exceptions of where the law applies just because it is convenient to what we want to do.
Perhaps you should read my comments closer. I was speaking to the protections of U.S. citizens, which have been eroded over the last 7+ years, so your argument is moot.
Having said that, however, it is imperative that the U.S. maintain habeas corpus to protect all of those under U.S. jurisdiction and control. Maybe if that had happened, we would not have held innocent people for all these years, and under-age minors, either.
I wish you would write for the New York Times. Your analysis and insights are so clear and relevant in heartbreaking contrast to the rubbish they now sell as op-ed.
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