Friday, June 13, 2008

Habeas Corpus and Bush-bot Bulimics

Swallowing that would hurt, at least twice: Stevie Starr is an illusionist who performs under the stage name "The Regurgitator." Here he prepares to swallow a billiard ball that will (apparently) return via a reciprocal route, which would be the (slightly) less painful alternative.

Thanks to the miracle of YouTube, Scottish illusionist Stevie Starr has been made known to hundreds of thousands of people once tragically ignorant of his existence.

Mr. Starr performs under the stage name "The Regurgitator," which lacks a certain subtlety but displays the virtue of candor: Nobody properly advised of the act has moral standing to protest if offended by the spectacle of someone swallowing and then disgorging large, unpleasant objects -- or at least appearing to.

A typical performance by Mr. Starr (who claims to have refined his gift for selective, on-demand regurgitation as a survival skill at an orphanage) might feature the performer swallowing, and then retrieving from his stomach, a light bulb, nails and coins of various sizes, live fish, and a billiard ball. His routine is embellished by sundry creative sound effects and a winsome line of patter intended to sell the audience on an act that depends on exceptionally cunning sleight of hand, tongue, and

It is important to recognize that Starr is not actually swallowing solid objects much too large to pass through his esophagus, nor does he have the ability to select items from his stomach and evacuate them at will: This is a trick. (If you can stand to, pause the video and play it back very slowly from 2:48-2:50 and you'll see that the billiard ball was stored inside his left cheek.)

Convincing as Starr's act may be, it is humanly impossible to swallow something so big, and regurgitate it on cue. Impossible, that is, to everyone other than devoted Republican apologists, who routinely ingest and throw up falsehoods so large and unpalatable that they would make Stevie Starr retch. And in their case, there's no illusion involved -- ample self-delusion, to be sure, but where Starr is harmlessly fooling people who paid to be fooled, Republican slogan-spewers are engaged in a deadly campaign of public deception -- beginning, in many cases, with themselves. I'll examine one heartrending case study of this condition below.

The most recent outbreak of mass ideological bulimia among Republican apologists was triggered by the June 12 Supreme Court decision
Boumediene v. U.S. (.pdf), which held that Congress had exceeded its constitutional authority by destroying the habeas corpus guarantee through the Military Commissions Act.

was the result of lawsuits filed on behalf of several men detained as "unlawful enemy combatants" at Guantanamo Bay. Counsel on their behalf contended that the Military Commissions Act (MCA) nullified the habeas corpus guarantee in a way not provided for in the "Suspension Clause"(Art. I, sec. 9, clause 2 of the Constitution); that provision allows Congress to suspend the writ of habeas corpus in the event of invasion or insurrection. Those challenging the MCA were involved in neither invasion nor insurrection; Congress has neither declared war nor suspended habeas corpus in constitutionally legitimate fashion. But the MCA was designed to prevent individuals designated "unlawful enemy combatants" by presidential decree from mounting judicial challenges to their detention. That would be true whether or not the person thus designated is a U.S. citizen.

Except for the right to armed self-defense, there is no guarantee of individual liberty more elemental than the habeas corpus guarantee. If the Chief Executive -- be he or she a monarch, dictator, or president -- can summarily imprison
anyone indefinitely without a trial or independent judicial review, then all of us are free only by the grace of our Dear Leader.

"The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom," wrote the majority in
Boumediene. They likewise note that "protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights." In the debate over the MCA, Pennsylvania Senator Arlen "Magic Bullet" Specter described the MCA, with its provisions eviscerating that foundational due process guarantee, as a measure that would "set back basic rights by some 900 years." He then voted for the measure.

This must be understood: The MCA was not a counter-terrorism measure. It was an instrument of a claim to absolute executive powers that can only be called dictatorial. This was understood by its supporters in Washington, if not by those who dutifully devoured the relevant soundbites and slavishly spewed on command in defense of Bush's dictatorial ambitions.

The Bush Regime insists that 1) Gitmo, located on Cuba, is outside U.S. jurisdiction, and thus not subject to constitutional due process guarantees; and 2) that foreign "enemy combatants" are not protected by the U.S. Constitution.
The Court dealt with the first objection by demonstrating that the Regime's denial of the Constitution's extra-territorial application was selective and self-serving, and that Gitmo -- a military base under essentially permanent lease to Washington, over which flies the federal flag -- is very much part of U.S. jurisdiction. In answering the second objection, the majority offered a detailed recap of the relevant history -- both in British and American law and practice -- to support its conclusion that "at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief."

Appeaser! Defeatist! Dhimmi! Thomas Jefferson pointed out that habeas corpus protects everyone within our government's claimed jurisdiction, citizen and alien alike.

Interesting and edifying though the majority's historical tour may have been (they drew comparisons, for instance, between Bush's claims and those of the tyrant Charles I, a theme explored in this space as well), they could have saved themselves some trouble by merely quoting that notorious appeaser and coddler of Islamic radicals, Thomas Jefferson.

It was Jefferson's understanding that the habeas corpus guarantee must apply to everyone wherever our government claims jurisdiction.
Habeas corpus, wrote Jefferson in 1798 (during an earlier war frenzy during which another despotic president was tearing great, gaping holes in the Bill of Rights), "secures the rights of every man here, alien or citizen, against everything which is not law, whatever shape it may assume." (Emphasis added.)

The issue was not the identity of the individual claiming the right, but rather the legitimacy of the government's act in depriving him of liberty. This is why Jefferson, in his first Inaugural Address, described habeas corpus as one of the "essential principles of our government."

The majority opinion in Boumediene repeatedly struck Jeffersonian notes in its demolition of the Bush Regime's claim that the president, in wartime or any time, has supreme, unqualified, and unaccountable power to imprison anyone at his discretion for as long as he sees fit. "The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the independent branches," noted the majority decision. "This design serves not only to make Government accountable but also to secure individual liberty.... That the Framers considered the writ [of habeas corpus] a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension...." (Like Jefferson, I would prefer that the Constitution not permit the writ to be suspended at any time.)

Anticipating objections that the Court was intruding on the exigent powers of a wartime presidency, and thereby undermining "national security," the majority offered an elegant reminder that true "security" in the American tradition begins with protecting the rights of the individual, rather than the supposed prerogatives of rulers:
"Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to to separation of powers..... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." So spoke the five-member "liberal" majority of the High Court.

"Don't ask me about that point of law; Jack Bauer hasn't yet shown us the way": Antonin Scalia, reality-challenged voice of neo-fascist "conservatism" on the Supreme Court.

To which the designated spokesthug for the four-member "conservative" minority, Antonin Scalia, replied, his voice thick with ignorance and glazed with contempt: "Yeah, but there are, like, weirdly dressed guys with beards tryin' to kill us and stuff, and have you forgotten 9-11?" Or words to that effect. At one point in his career, Scalia was regarded as a serious jurist with a taste for writing caustic dissents.

In recent years, he has apparently decided to abandon the
Federalist Papers and other original documents as a source of wisdom regarding constitutional questions, choosing instead to consult the wisdom of Jack Bauer regarding the legality of torture, and -- apparently -- Republican-aligned talk radio regarding the open-ended conflict with "Radical Islam."

As a result, Scalia didn't so much write his dissent as regurgitate it, thereby inviting second-generation agitprop bulimics (I'll turn to a suitable specimen of the same anon) to retail selected samples to those within their sphere of influence.
While Chief Justice Roberts wrote a separate dissent, it was written at a level of diction beyond the reach of the intended audience, for whom the statement "Muslims suck!" is a masterpiece of the polemical art.

Pancake makeup artfully applied to the forehead conceals the "vacancy" sign: Sean Hannity, whose unfortunate lack of higher cerebral functions gives him the ironic blessing of being zombie-proof.*

Scalia's dissent, on the other hand, was written in a key that the Hannity set could understand. It is a work of pugnacious sophistry, replete with rallying cries to the dead-ender Bu'uhists who still gather in their Mega-Church madrassas to feast on fear of the "Islamo-Fascists" and marinate in their untutored hatred of those who supposedly live for the sole purpose of hating us "for our freedom" -- while the government purportedly protecting us from the Mohammedan hordes destroys what remains of our liberties and prosperity.

"Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war," lied Scalia at the beginning of his dissent.

Every element of that statement is a conscious falsehood: The decision "confers" no right, but recognizes one long guaranteed by Anglo-Saxon law; those affected by the decision include civilians who have never taken up arms against the United States; and the base at Gitmo is as much United States territory as any embassy abroad.

Not content to leave wretched enough alone, Scalia emitted another pre-digested outburst that indicates his clerks have been researching his legal opinions by reading Republican-created chain e-mails (go
here for a representative sample): "America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Daran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.... On September 11, 2001, the enemy brought the battle to American soil...."

It goes on like this for some time, sentence after sentence of
sententious dicta intended to pre-empt rather than provoke critical thinking. (In reciting the history above, for example, Scalia could have usefully asked why Marines were stationed in Lebanon in 1983, or run the clock back to disastrous U.S. interventions in the Arab world beginning in the 1950s, were he possessed of a molecule of intellectual honesty.)

When he finally gets around to quoting "authorities," one of his first citations is to a brief co-written by John C. Yoo and William J. Haynes III, two of the chief architects of the Bush Regime's torture policies.
After countless paragraphs of adolescent trash-talking and tendentious history, Scalia concludes with another ready-for-Hannity harangue.

After lamenting that the decision will allegedly tie the hands of "our military commanders" on the battlefield, Scalia darkly intones: "The Nation will live to regret what the Court has done today."
Over to you, second-hand bulimics. Tragically typical of that cohort is Bryan Fischer of the Idaho Values Alliance, a man of short acquaintance for whom I have no small amount of respect.

Bryan Fischer of the Idaho Values Alliance: He's just as kindly as this picture would suggest.

In his organization's newsletter, Mr. Fischer -- who in this case was actually a third-hand bulimic, passing along twice-regurgitated soundbites by way of the demented and dishonest Hugh Hewitt -- literally picks up right where Scalia's gorge-casting left off. He refers to the Boumediene decision as an "incomprehensible" ruling "giving constitutional rights to terrorists who have never set foot on U.S. soil"; he recaps a handful of selected soundbites from Scalia and Roberts without so much as citing a syllable from the majority decision, which he apparently didn't deign to read.

In fact, Fischer displays no symptoms of first-hand familiarity with either the majority opinion, the concurring opinion, or the dissents; all he needs to "know" about the matter is what was pre-chewed on his behalf, and then shoved down his eager gullet, by apologists a little higher on the GOP's propaganda food chain.

Mr. Fischer, who yields to nobody in his concern over the distant and diffuse threat of "Islamo-Fascism," offers an unqualified endorsement of the real, immediate, and tangible practice of the all-American variety by way of brazen, dictatorial presidential lawlessness: "The ruling of the majority in this case has no constitutional, legal, rational, ethical or historical legitimacy and could and should properly be ignored by the Commander in Chief."

Once again, let this be understood: What Fischer is endorsing here is the notion that the president is, quite literally, our Living Constitution -- an individual whose word, will, and whim is law, not subject to checks and balances or the limits of any written charter of government. This is, in a precise and unmistakable sense, fascism.

Not surprisingly,
this appears to be the course the Bush Junta will follow; they will proceed with the military "trials" at Gitmo -- which have been denounced as "show trials" in the totalitarian tradition by Col. Morris Davis, the man once assigned to serve as chief prosecutor therein -- and then simply ignore the decision for the rest of term. Their transparent hope is that Bush the Bloody will be succeeded by John "War Without End" McCain, who denounced the Court's decision and would appoint judges determined to kill the Great Writ for good.

That outcome is much to be desired, insists Fischer, because to do otherwise would be to set back "the rule of law beyond my lifetime and perhaps forever."

By "rule of law," Mr. Fischer apparently means the unaccountable, illimitable rule of the "Commander-in-Chief" -- at least this particular one, whose relationship to Mr. Fischer is roughly that of Imam to disciple.
And in this Mr. Fischer is, once again, heartbreakingly representative of millions of genuinely decent Christian people who dutifully swallow any excuse for demolishing constitutional restraints on presidential power as long as the "right" politician is the immediate beneficiary. For such misguided souls, only the prospect of such powers falling into the "wrong" hands can trigger the long-dormant gag reflex.


*This diagnosis and observation comes courtesy of William Wallace Grigg, age 10.

On sale now!

Dum spiro, pugno!


D.L. said...

This Fischer guy sounds like a member of the Family Security Council, which advocates Bush as "president for life"

"Conquering the Drawbacks of Democracy" by Philip Atkinson of the "Family Security Foundation" (in its publication "Family Secuirty Matters")]

They also advocate killing every last Arab in the Middle East, praises genocide by Israel against Palestinians, and claims,

"The wisest course would have been for President Bush to use his nuclear weapons to slaughter Iraqis until they complied with his demands, or until they were all dead. Then there would be little risk or expense and no American army would be left exposed. But if he did this, his cowardly electorate would have instantly ended his term of office, if not his freedom or his life.

"The simple truth that modern weapons now mean a nation must practice genocide or commit suicide. Israel provides the perfect example. If the Israelis do not raze Iran, the Iranians will fulfill their boast and wipe Israel off the face of the earth. Yet Israel is not popular, and so is denied permission to defend itself. In the same vein, President Bush cannot do what is necessary for the survival of Americans. He cannot use the nation's powerful weapons. All he can do is try and discover a result that will be popular with Americans."

D. L.

Anonymous said...

"pugnacious sophistry" -- TOUCHÉ!

British MP David Davis has resigned over the latest UK assault on habeas corpus, which provides for 42-day detention without charges. His incandescent declaration against the destruction of English liberty is applicable to the Bush Administration's fascist crime spree, in all but the smallest details. Sorry for the long quote, but this is important, and Davis's rhetorical skills approach those of Will Grigg:


The name of my constituency is Haltemprice and Howden – [which] is derived from a medieval proverb meaning noble endeavour. Until yesterday I took a view that what we did in the House of Commons – representing our constituents was a noble endeavour because for centuries ... we defended the freedom of people. Well, we did, up until yesterday.

This Sunday is the anniversary of Magna Carta, a document that guarantees the fundamental element of British freedom, habeas corpus. The right not to be imprisoned by the state without charge or reason.

But yesterday this house allowed the state to lock up potentially innocent citizens for up to six weeks without charge. The Counter-Terrorism Bill will, in all probability, be rejected by the House of Lords very firmly. After all, what should they be there for, if not to protect Magna Carta?

But because this is defined as political, not security, the Government will be tempted to use the Parliament Act to overrule the Lords.

It has no democratic mandate to do this since 42 days was not in its manifesto. Its legal basis is uncertain ... but, purely for political reasons, this Government is going to do that. Because the generic security argument relied on will never go away – technology, development complexity, and so on – we'll next see 56 days, 70 days, then 90 days.

But in truth perhaps 42 days is the one most salient example of the insidious, surreptitious and relentless erosion of fundamental British freedom.

And we will have shortly the most intrusive identity card system in the world. A CCTV camera for every 14 citizens, a DNA database bigger than any dictatorship has, with thousands of innocent children and millions of innocent citizens on it.

We have witnessed an assault on jury trials, a bolt against bad law and its arbitrary use by the state. And short cuts with our justice system, which will make our system neither firm nor fair and a creation of a database state opening up our private lives to the prying eyes of official snoopers and exposing our personal data to careless civil servants and criminal hackers. The state has security powers to clamp down on peaceful protest and so-called hate laws to stifle legitimate debate, whilst those who incite violence get off scot-free. This cannot go on... and for that reason today I feel it is incumbent on me to take a stand.

I will be resigning my membership of this House and I intend to force a by-election... I will fight it, I will argue this by-election against the slow strangulation of fundamental British freedoms by this Government.

Now, that may mean I have made my last speech to the House ... But at least my electorate and the nation ... would have had the opportunity to debate and consider one of the most fundamental issues of our day... And if they do send me back here, it will be with a single message – that the monstrosity of a law that we passed yesterday will not stand.


To us in the U.S., one David Davis would be worth a thousand Nancy Pelosis and Arlen Spectors.

Anonymous said...

"The ruling of the majority in this case has no constitutional, legal, rational, ethical or historical legitimacy and could and should properly be ignored by the Commander in Chief."

I find this quote surprising coming from Bryan Fischer since he applauds Supreme Court conforming Murder without due possess "laws" on the state level.

He says it's proper for the president to ignore a Supreme Court opinion in order to justify the violation of suspect’s due process rights. On the other hand he says " Great News" when a state establishes Murder without due process in “law” in conformity to the Roe v Wade opinion (or subsequent similar opinions).

The Parental Consent for Murder law that he promotes allows and established into state "law" the murder of an innocent unborn baby without due process as long as permission is granted by a parent or a judge in conformity with the Supreme Court.

Evidently if a Supreme Court opinion protects due process rights then we are to ignore that opinion but when it violates due process rights then we are to slavishly obey it.

I would like to give Bush the right to due processfor himself. Check out this radio show in support of this idea. I think if Bush had his due process that would be “Great News”.

zach said...

Another thing that's sick about all this is that the informed, thinking individual, jealous of his rights and suspicious of government and the powerful interests that rule it, would sensibly question the events of 9/11 and the reasons(the official ones delayed indefinitely)given for the collapse of the buildings. Imagine if the basis for all this cowering over Muslims were even weaker, fatally so.

WorthNoting said...

Thank you for another GREAT column! My GOODNESS, you sure can WRITE !

Considering I went to sleep last night fretting about my own inability to write knowingly on this very topic - your column today - MADE my day.
This is an email I sent off last night to Tom Fitton of Judicial Watch in response to his remark that:
"You probably know that the terrorists won and the American people lost."
which sums up his viewpoint on this issue in the "Update" I received.
Re: Supreme Court: Terrorist Detainees to Have Their Day in Court

Am I getting this correctly?

You SUPPORT the use of torture by the U.S. as long as it's done off American soil? You support human rights violations being committed and justified by our government?

Sorry. I do NOT feel the American people "lost".

I believe in America being FOREMOST a nation of HONOR.

We do not live under a dictatorship.

The executive branch does not get to create loopholes to bypass Constitutional limitations to it's power and then make up it's own rules as it goes along.

What on earth are you thinking?

We do NOT "protect" our freedom by "becoming" that which "we fight against".

I have supported some of what you've written me about - but, if I've understood this correctly - I'm appalled.

For the U.S. government to commit these atrocities is revolting.

Do you mean to tell me you are cheering on the "governmental ability" to "torture" and "detain people indefinitely without charges or evidence"?

Please respond, as I don't understand this from you at all.

Wonder if I will get a reply?

Christopher said...

In dissent. This seems subpar compared to the rest of your oeuvre.

Griggs: “The Bush Regime insists that 1) Gitmo, located on Cuba, is outside U.S. jurisdiction, and thus not subject to constitutional due process guarantees; and 2) that foreign "enemy combatants" are not protected by the U.S. Constitution. The Court dealt with the first objection by demonstrating that the Regime's denial of the Constitution's extra-territorial application was selective and self-serving, and that Gitmo -- a military base under essentially permanent lease to Washington, over which flies the federal flag -- is very much part of U.S. jurisdiction. In answering the second objection, the majority offered a detailed recap of the relevant history -- both in British and American law and practice -- to support its conclusion that "at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief."”

Yes, but, 1) Selective and self-serving or not, the Court’s majority admitted there was no clear precedent on point, and 2) So what? So it’s not a categorical bar. Does that make it a categorical right, here, for these particular aliens? The question is whether these particular aliens were entitled to habeas corpus relief, the full protections against government tyranny contained in our Constitution’s separation of powers principles. Why no, of course not. They’re not our guys. If they want protection from our tyranny, such as it is, and let us stipulate that it is a disgrace, there are two solutions: Either we cure ourselves or they, by their government, tribe, clan, family or whatever political unit, cure us of it by dealing with our government. How shall we cure ourselves, rid ourselves of our own tyrannical policies? Simple: vote out or impeach our government. That we become tyrants to aliens is a disgrace, but it’s a disgrace not to be cured by extending the writ to the entire world and thereby treating all as our subjects and citizens. How presumptuous, fantastic, unworkable. Classic case of apparently good result, bad law.

The majority wrote: “Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien [21] detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction.

"Both arguments are premised, however, upon the as- sumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halli-
day & White 14–15 (noting that most reports of 18th-century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov-ered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result) (argu-
ing constitutional adjudication should not be based upon evidence that is “too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution”). Majority at 22.
“Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indi-cated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsis- tent with our precedents and contrary to fundamental separation-of-powers principles.”
Majority at 25.

Thus since there’s no clear precedent on the jurisdiction issue, a combination of that lack AND fundamental separation-of-powers principles yields this result.

Meanwhile, Scalia in dissent:

“In light of those principles of deference, the Court’s conclusion that “the common law [does not] yiel[d] a defi-nite answer to the questions before us,” ante, at 22, leaves it no choice but to affirm the Court of Appeals. The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States. See ante, at 22–23; Rasul v. Bush, 542 U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-gether, these two concessions establish that it is (in the Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-ers. If that is so, the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed [7] the considered judgment of the coequal branches.2” Scalia at 8.”

Scalia’s Footnote, 2:
“The opinion seeks to avoid this straightforward conclusion by saying that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not foreclosing the possibility that they have expanded is not the same as demonstrating (or at least holding without demonstration, which seems to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its application to aliens abroad, or acknowledge that it has no basis to set aside the actions of Congress and the President. It does neither.” 8.

Note Scalia’s phrase “coequal branches.” Recall the Court is the branch that gave us abortion. When the court uses the word “fundamental,” watch out: you’re about to go on a trip.

And Roberts’ dissent:
“So who has won? Not the detainees. The Court’s analy-sis leaves them with only the prospect of further litigation to determine the content of their new habeas right, fol-lowed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit— where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the [27]security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Na-tion’s foreign policy to unelected, politically unaccountable judges.” Roberts, 28.

My reading: Again, this is a bad decision. What the executive branch has done and is doing, and what the Congress has and is letting them do; let us stipulate that it’s a disgrace. Nevertheless, the cure may be worse that the disease, if one branch of our supposed separate but co-equal branches of government has usurped its authority. Our government’s treatment of these aliens should wake us up. Instead we get judical soma. Which judges are then really on the side of the Regime? You are looking for a technical fix, in that you wish a new legal precedent, when, in truth, all the means are already there for fixing this situation: elect, impeach, etc.

Thank you for indulging this long post.

billyjoeallen said...

If a foreign military base should not be recognized as American soil for jurisdictional purposes, then it stands to reason that Senator John McCain, who was born on a military base in Panama, is foreign born and therefor not eligible to be President.

Anonymous said...

billyjoeallen - Bingo! How Clintonian of McCain, to want Guantánano inmates treated as offshore, while his Panamanian-hatched good self is considered 'natural-born.' [Does this prohibit those who emerged by C-section from serving? Just asking.] The NY Times wrote about it in February, and conceded that it's a serious issue:

As to whether it will make any difference, consider the case of Bush and Cheney, both of whom reportedly held Texas drivers licenses in 2000, although Cheney claimed to be from Wyoming. But Cheney was living in Dallas and working at Halliburton.

Amendment XII specifies that "the Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves."

Practically, this has been interpreted to mean that the two nominees should be from different states (as Bush and Cheney claimed to be). But if they were both Texans, then there was a constitutional problem. For sure, the electoral votes of Texas would be disqualified, and then the election result would have changed.

Yet, this issue was never litigated. Probably because of the "professional courtesy" which exists among the Depublicrats. The Bush administration didn't prosecute the Clintons' "bribes for pardons" scandal; the Democrats didn't challenge Bush/Cheney's same-state residency vulnerability.

So McCain will brazen it out. And if necessary, he'll get a retroactive dispensation from Congress or the Court that the Canal Zone was in the good-ol' USA. Whatever it takes. The cake is already baking; don't try to mess with the ingredients now.

Doc Ellis 124 said...

um....July 12? Did you mean June 12?

Doc Ellis 124

Anonymous said...

What's interesting is that the totalitarian morons are totally ignorant of one of the lessons of history: the repression machines they create always consume their creators first in the orgy of power-grabbing subsequent to making that power available for grabs.

I would say that it would be right and good to feed them to their own Moloch, but, alas, it does not stop with eating his own.

William N. Grigg said...

Doc Ellis -- Thanks for the correction!

Anonymous said...

Probable future DECIDER McCain wasn't happy with the majority decision either. Although Bush has publicly stated that he intends to bow to the ruling, the neocons are infamous for doing end runs around constitutional clear intent and getting away with it. My guess is that in the future those accused of being enemy combatants or terrorists will be held only in foreign countries that can't be regarded as American territory. To some extent this is already being done through extraordinary rendition or "torture" flights to other nations whose regimes are skilled at "advanced" interrogation techniques. If prisoners should ever receive trials I doubt that they would be fair. Out of site, out of mind as the saying goes.

Anonymous said...

christopher has cited some thoughtful references within the decision. None address why we got into this legal lacuna in the first place -- namely, the Bush administration sought to avoid calling the detainees "prisoners of war," in which case the Geneva Convention would have dictated their treatment.

If, on the other hand, the detainees are regarded as common criminals (the direction the Court seems to be edging), then they are entitled to trial in civilian courts. U.S. courts routinely try, convict and incarcerate criminal aliens.

But instead, Bush sought to create a new, unprecedented category of "enemy combatant," denied P.O.W. status for being "subnational" and not wearing a uniform.

Does this category really make sense? If military forces overseas are taking prisoners, usually it is a war. Bush has called it a war. If it's not a war, then the first course of action should be to try the "enemy combatants" under local law. Bush was content to try Saddam Hussein under local law, for instance.

The fundamental problem here is that Bush has tried to carve out a 'sui generis' approach in which those captured on the battlefield are neither treated as P.O.W.'s, nor tried in local courts, nor brought to U.S. justice. Taking them to an offshore military base and trying to fashion a military trial procedure from whole cloth is clearly a massive, risk-fraught enterprise. Three rebuffs from the Supreme Court show that it has been done badly.

So error is piled upon error: Bush wants to call it a war, but refuses to declare war. Bush says he wants to democratize Iraq and Afghanistan, but refuses to submit prisoners to local justice. Bush uses the unique territorial status of Guantánamo to muddy the waters of applicable law.

Bottom line, the U.S. founding documents proclaimed universal rights; special provisions applied to captured enemies during wartime. Numerous options existed for treating the detainees within this existing framework. But the fundamental illegality of the U.S. invasion and occupation forced Bush into a paroxysm of legal dodging and weaving which got him into his current, richly-deserved predicament. His treatment of Jose Padilla, an American held without charge on American soil, constitutes proof positive of bad faith and calculated attacks on the principle of habeas corpus.

If Bush exiled himself to Paraguay to evade war crimes prosecution and got kidnapped by a guerrilla group, what legal rights would detainee Bush have? WHO GIVES A SH*T?

Doc Ellis 124 said...

billyjoeallen 11.33 am & anon 1.23 pm:
If McCain is in fact elected and sworn in, why couldn't the supreme court justices declare that he cannot be president because he was born in Panama, thereby elevating his VP?

Who would Republicrat president makers want as President? So, why not push McCain and their real choice in the hope that McCain is evicted from the position after being sworn in? The new guy could then pick his VP.

If the justices rule before McCain is sworn in, could Obama become president?

Doc Ellis 124

Christopher said...

Anon at 5:21 AM,
Thank you for your comments alerting me to the more fundamental problem of this "'sui generis' approach in which those captured on the battlefield are neither treated as P.O.W.'s, nor tried in local courts, nor brought to U.S. justice." Here here!

At first blush, I guess neither of the two litigants put, or even could put, this issue before the court, so it probably wasn't addressed. I further guess that even if raised by the parties, the court would have dismissed those points for the parties' lack of standing and the court's lack of jurisdiction over such "political" questions.

Re Bush, I believe I am in vehement agreement with your points and Mr. Griggs' post (as well as his past posts). But your comment, and Mr. Griggs' post here, focuses on Bush and leaves Congress out of the equation.

Error was piled on error; what was the court to do?

I now wonder if the court might have done better to raise and dismiss those principles of standing and the court's jurisdiction to issue a broader, more explicit decision addressing the fundamental issues you raise. I should like to read more.

Anonymous said...

Interesting that the Junta would seek to redefine US military outposts of the empire as being somehow outside of the "law" of the land. At least where and when it could get THEM in trouble. Where would that put embassies and the like? They would all, essentially, be illegal entities operating under some sort of fiction. Doubly ironic that the empire deigns anyone and anyplace it sets its sights or boots on as being under its "control". If that control is argued "legally" then it sets my head to spinning! Lies upon lies upon lies.

billyjoeallen said...

Doc Ellis,

With the SCOTUS operating under "living document" jurisprudence, they can reinterpret the Constitution to mean anything they want or ignore it altogether (as they currently do with the 10th amendment). The only catch is they have no provisions for enforcement without the complicity of the other two branches of government.
That's a long way of answering your question with a "yes, unfortunately."

Anonymous said...

Oh, Will, another thing, isn't it sad that kindly faced people, like Mr. Fischer, should spew the sort of ignorant clap trap propaganda without nary a hiccup or pause to reflect on just what they "regurgitated"?

I can't even begin to count how many folks I've crossed paths with who never put gray cells to work when it comes to the hypocrisy they support. They never once think that the powers they fitfully and fearfully hand over to their overlords will inevitably be used against themselves. It has always been this way and because it has always worked you can see the playbook from miles off... if you have eyes to see and ears to hear.

There, again, so called Christians, have been to a large degree silenced. Its that deafening non-outcry from this wing of society that proves just how dead they really are.

Anonymous said...

The inherent difficulty with a three-ring circus is keeping track of events in each ring all at the same time.


Farmers are being pressured (extorted) by USDA to 'Premise Register' their land thus forming a strange legal partnership with the state. In addition, every animal will eventually be mandated to don an rfid tag or embedded chip. Advances in the rfid industry make possible the tracking of every sheep, cow, or horse in the field by way of satellite. Better yet, the device described in the following USDA research page has the capability of creating 'annoying sounds' and even somewhat painful 'shocks' in order to eliminate the burden of bringing the cows home the old fashioned way.

The following link to recent USDA research is sometimes fitful.


One can almost imagine where this technology could go given a backlog of 'enemy combatants' and 'homegrown terrorists' awaiting a habeas corpus hearing.


Anonymous said...

If we want a constitution that actually means something, we have to be willing to shed the blood of our own countrymen to restore it.

There are those amongst us who would stoop to any atrocity in service to Leviathan, and - unfortunately - history shows only one one way to resolve the issue. We haven't evolved as a species to the point were reason rules.

Feed at the tax trough . . .

Sic Semper Tyrannis

Anonymous said...

According to Wikipedia, "Using this authorization [of the use of military force against terrorists] granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." The administration chose to call those who it detained under the Presidential Military Orders "enemy combatants."

Then in 2004, the Supreme Court ruled on a trio of 'enemy combatant' cases [Padilla, Hamdi and Rasul]. The Court essentially accepted the 'enemy combatant' designation, and started parsing the details of what habeas corpus rights the 'enemy combatants' were entitled to.

Thus is revealed the sequence of Congress authorizing military force, Bush proposing the 'enemy combatant' designation (eerily, well before many of the Guantánamo detainees were captured), and then the Supreme Court rubber-stamping the 'enemy combatant' designation, while disputing the level and quality of legal review to which they are entitled.

The squabbling continues to this day. That is, unless it's all kabuki theater, designed to run out the clock until new players can take the floor. Under the 'living constitution,' anything can happen. Your guess is as good as mine.

Anonymous said...

The fact that J. Scalia dissented, whereby those who generally ignore individual rights were in the majority, gives me great pause as to the correctness of the ruling. (I've been a legal analyst for 25 years and this has generally proven to be an excellent guidepost.) With that in mind, isn't it generally true that any government's relation to foreign citizens invokes principles of sovereign-to-sovereign, rather than sovereign-to-subject, relations?

I'm firmly opposed to the ways of the Neo-con/third-way-liberal fascists now in power, but when we begin extending our sovereignty in protection of those outside our borders then another step in the erasure of those borders has occurred. And haven't we seen enough of that?

Anonymous said...

1957human -- sovereign-to-sovereign procedures are exactly what is provided in the Geneva Convention for prisoners of war. That is one legal way this could have been handled.

Anonymous said...

Anonymous @ 4:33AM: Seems to me that the reason the U.S. warmakers and the courts are performing legal gymnastics is because they don't want to admit what's really going on... we're invading foreign lands and capturing civilians. What we're calling "enemy combatants" are people who might otherwise be simply called criminals (at least presumably). But if they're criminals, then they should be tried in their home courts. If they've committed crimes against our citizens, and if their homeland refuses to put them on trial for those acts, then we should declare war on that nation. (Which in a way we have, but won't admit to as much.) But what we're doing is invading sovereign borders to capture individuals and, in doing so, disregarding the sovereign nature of their homeland.

For example, if Johnny Taliban is caught setting an IED along a roadway in Afghanistan, he should be tried by the courts of Afghanistan for his crime. If Afghanistan refuses to try him, our gripe is with the government, even more than with Johnny. And if there is no government of Afghanistan, we hold Johnny while a new government is formed and then turn him over for his crimes. Of course, if the new government is unfriendly to the U.S., we won't get our way. But too bad... that was also the case after WW II when we turned over captured prisoners to the Russians.

The only difference today, with the current "enemy combantants," is that we now have an empire in which the citizens of other lands are now under the U.S. rule of law.

And the instant Supreme Court decisions says so.

Of course, in the end, when all is finished, this will have been simply one more brick in the contruction of the "bigness" of the empire that will ultimately have led to its doom. So we have that going for us too.

Anonymous said...

Most Christians in America are intellectually incompetent when it comes to defending, or even understanding, republican institutions. Our Revolutionary forefathers would be staggered at the crude, childish authoritarianism that passes for political reasoning in the typical church. Listening to the typical sermon on government today, you would never know there was a Magna Carta, an American Revolution, a John Locke, or a Thomas Jefferson.

Anonymous said...

To robin 5:26

Listening to the typical sermon on government today you would never know there was a......Bible!

Hopefully sermons in a Christian church are not based on John Locke, Jefferson, the War for Independence, or the Magna Carta.

Anonymous said...

Anonymous writes: "Hopefully sermons in a Christian church are not based on John Locke, Jefferson, the War for Independence, or the Magna Carta."

This is the reflexive response of most Christians when you suggest that pastors: (1) get up to speed on political philosophy and history, and; (2) employ this knowledge to teach discernment of biblical truth versus modern state propaganda. It virtually equates the above mentioned intellectual competence with ungodliness and rationalism. Why?

Let us agree that all Christian sermons must be Bible based. Better yet, let's stipulate an expository, "line by line, precept upon precept" teaching method. Do you still see a spiritual problem with pastors discoursing on the documents, events, and leading personalities of Anglo-American constitutional thinking? If so, please explain and provide scriptural support for your position.

Anonymous said...

Will, I did a search for your name on the website of Idaho Values Alliance. I found the quote below from Bryan Fischer.

"I argue that the roots of Islamic hatred of Christian infidels such as ourselves does not go back 25 years as Will argues, but 1400 years to the teaching of Muhammad himself, and that Will’s position represents a dangerous illusion that will make American citizens vulnerable to more 9/11 attacks."

Have you really argued for the illusion that Islamic hatred of Christians goes back only 25 years?

Is this a fair assessment of what you believe?

He doesn't provide any quotes from you as a basis for his assessment. But does link to the audio of debate that you took part in the fall of 2007.

Here is Ron Paul commenting on the fact that the US has prisoners all over the world

William N. Grigg said...

T2T, Mr. Fischer is well aware that his summary misrepresents my views of radical Islam. Most of the people among whom he circulated his version of "my" views won't listen to the recording of our debate. Besides, they're not the kind of people who "do" nuance, as it were.

I'm at a loss as to where Mr. Fischer got the "25 years" timeline. I pointed out that Arab and Muslim hostility toward the U.S. really began in the 1950s, owing largely to Washington's intervention in the Muslim world.

To illustrate I pointed out that Washington underwrote many of the most radical, anti-Western elements in Iran to bring the Shah to power in 1953, and those same radicals supported Khomeni in 1978-79. I documented how Washington supported the Muslim Brotherhood, the KLA, the worst elements in Saudi Arabia, Bosnia, and Afghanistan, etc.

Sure, Islam and the West, as I stated in the debate, have always been antagonists.

Hatred of the "infidel" is taught with insistent clarity in the post-Haj suras of the Koran (Muhammad was much more congenial to non-Muslims prior to that period). There are plenty of Christians whose views of "heretics" and "apostates" are just as vicious, of course. But even if that weren't the case, militancy is very much a part of Muhammad's religion.

But our contemporary problems are as much a creation of Washington's intervention, as a reactionto it.

Brother Fischer didn't misunderstand or disagree with that assessment in our debate. This makes his subsequent depiction of my views all the more puzzling.

Christopher said...

"But our contemporary problems are as much a creation of Washington's intervention, as a reaction to it."

I've been wrestling with this type of observation and its implications off and on now for 7 years or so; have observed many, and taken part in a few, mostly fruitless, debates --the discussions usually get heated and devolve into exchanges of insults really. Recently, the catalyst for this type of debate has been Patrick Buchanan's book. My most recent formula for trying to make your above point is to argue that while it is difficult to determine intent and motivation, or what is on someone's mind, merely from circumstances, we actually make such judgments everyday in places like trials in criminal court. Therefore, I argue, we should be able to make reasonable judgments about whether a muslim is attacking us because of normal, natural, cross-cultural, cross-religious, time-honored human motivations, or is attacking us because his errant religious views mandates such attacks. In the former category, I would put attacks motivated by our occupying of his country or homeland and offending his women, his home. In the latter I would put attacks motivated by a wrongful belief that Islam should rule the world. Of course, however, it is no easy task to tease these motivations apart, even in one man. Christian charity, however, and prudence, I imagine, would dictate we then do all we can to remove the beam from our eye, to remove the former motivating factors. Perfection, of course, will be unattainable. But Ron Paul seems to be talking sense to me when he advocates removing our troops and cutting our foreign aid. (Here I, and others who make this point, usually get accused, in the most charitable sense, of misunderstanding or misapprehending the muslim Islamic threat. Uncharitably, we get a dose of character assassination: allegations of nihilism, anti-semitism, cowardice, same-sex attraction, want of patriotism, being a traitor.)

How have you addressed any accusations of misapprehending the threat? Or any insults?

Anonymous said...

In fact Jefferson was, in a sense, a Dhimmi, when he authorized the payment of protection money to the Muslim pirates who were enslaving American traders.

However, after becoming president, he went to war (without congressional approval, BTW), commanding Robert Dale to "protect our commerce and chastise their insolence-by sinking, burning or destroying their ships and Vessels wherever (he should) find them."

Dale was authorized to take prisoners. He didn't, because he couldn't afford to feed them, so they were just killed. However, if he had taken prisoners, I seriously doubt that Jefferson would have granted them any habeus rights, even if they had been held in some Virginian gaol house.

Also, when Jefferson expressed his goal of invading and conquering Canada and Cuba, it's not clear exactly what he intended to do about the souls already resident in those territories.