Supreme Court v. Bush
I think it is hard to overstate how important the Supreme Court decision was to force George Bush to restore Habeus Corpus to our system of justice. Since September 12, 2001, the phrase "9/11 changes everything" has been the mantra flowing out of Dick Cheney's mouth into George Bush's ears and thus into our national policy. In the great dystopian novels like 1984 and Brave New World, there is always an unnamed war going on overseas that justifies the government to spy on its people and curtail their basic freedoms. The citizens have lost track of just where this war is, because it has lasted their lifetime.
The Global War On Terror was becoming just such an excuse for an unending suspension of the constitution. But in Justice Kennedy's majority opinion, he spoke truth to power: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
Now of course the matter gets much dicier.
It is very clear from the Pew Global Survey that Guantanamo Bay is one of the major impediments to improving our image in the world.
Reports about U.S. prison abuses at Abu Ghraib and Guantanamo have attracted broad attention in Western Europe and Japan - more attention, in fact, than in the United States. Roughly three-quarters of Americans (76%) say they have heard of the prison abuses, compared with about 90% or more in the four Western European countries and Japan.
Clearly, closing Gitmo would help in our effort to restore Brand America. But we cannot have any illusions of what a disaster this policy has laid at the feet of the next President. Both Obama and McCain have said they will close Guantanamo, though McCain seemed to support Bush against the court yesterday. Many of the prisoners are very dangerous. But as they get access to the courts, much more concrete evidence of their torture will inevitably emerge. Some, for whom we have no evidence will be shipped back to their home countries. But do we do with the Saudi crazies that are in Gitmo? Will the Saudis take them back and try them? Very complicated.
Comments (37)
Can a person even get a fair trial in Saudi Arabia?
June 13, 2008 1:07 PM | Reply | Permalink
In any case, there is no need to kill them secretly. After what they've endured, they are most likely in need of psychiatric care. Maybe the U.S. government could pay for indefinite care of the victims in locked psychiatric wards?
Give them some Haldol and your problems are solved. If it worked for the Russians, why not try it again?
June 13, 2008 1:09 PM | Reply | Permalink
Not maybe. Get serious.
We do know there are some serious terrorists at Guantanamo. We're not taking that at "face value." Some names have been released which are known people.
The problem is there are also large numbers of people who may be innocent and who were swept up in dragnets, sometimes from very sketchy paid informants.
Aside from the moral dilemma, the failure to differentiate between real threats, which most of the world would support our incarcerating, and the innocent, has hurt our international image immensely.
Which ultimately has very real consequences for alliances, intelligence sharing and joint operations, cultural influence, and trade.
We need to protect our safety, but we don't want to be seen as the world's hicks shotgunning people off the front porch either.
June 13, 2008 9:57 PM | Reply | Permalink
The Republican Party has morphed into a Facist movement.
They are all for the rule of law, and letting the courts decide until a ruling goes against them.
Then you hear this from them:
http://blogs.wsj.com/washwire/2008/06/13/mccain-condemns-supreme-court-guantanamo-ruling/
McCain Condemns Supreme Court Guantanamo Ruling
Elizabeth Holmes reports from Pemberton, N.J. on the presidential race.
John McCain weighed in on the U.S. Supreme Court decision on the rights of Guantanamo Bay prisoners to challenge their detention in U.S. courts at a town hall meeting Friday, calling the 5-4 decision “one of the worst decisions inthe history of this country.”
http://www.mcclatchydc.com/244/v-print/story/40899.html
Graham: Amend Constitution to overturn court's ruling
James Rosen | McClatchy Newspapers
last updated: June 12, 2008 08:18:19 PM
WASHINGTON — A dejected Sen. Lindsey Graham blasted the Supreme Court's ruling Thursday on Guantanamo Bay detainees, calling it "dangerous and irresponsible."
The South Carolina Republican, who's also a military lawyer and a colonel in the Air Force Reserve, helped craft the Military Commissions Act and had confidently predicted that it would pass high court muster.
The Supreme Court repudiated Graham in a 5-4 decision, ruling that the 270 alleged terrorists being held at the U.S. military prison in Cuba have a constitutional right to challenge their detentions in federal courts.
"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said. "Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact."
The high court's decision was its third ruling in four years against the special powers that President Bush has claimed the executive branch has to detain and try suspected terrorists since the Sept. 11, 2001, attacks.
With Graham in the lead, Congress passed the Military Commissions Act in September 2006 after an earlier Supreme Court ruling that the Bush administration couldn't set up a new system for prosecuting alleged terrorists without congressional approval.
The fresh Supreme Court decision is a major blow for Graham politically, eviscerating a law that he recently cited as one of the three achievements of his first Senate term that he was most proud of.
"To the extent that Lindsey Graham wanted to get the federal courts out of the process (of prosecuting detainees) altogether, this ruling is an absolute loss for him, and it's one that Congress can't go back around," said Thomas Crocker, a University of South Carolina law professor.
Graham said he'd explore the possibility of drafting a constitutional amendment "to blunt the effect of this decision."
June 13, 2008 2:31 PM | Reply | Permalink
We should leave Gitmo open until we take care of Bush, Cheney, and Rumsfeld there, then close it.
June 13, 2008 2:40 PM | Reply | Permalink
I would prefer to rent Rudolf Hess' suite in Spandau Prison for these scumbags.
June 15, 2008 7:18 PM | Reply | Permalink
"Now of course the matter gets much dicier."
I'll tell you when things will get a lot dicier - if John McCain wins the election and gets more cuckoo Justices like Scalia and Thomas on the Supreme Court.
June 13, 2008 3:14 PM | Reply | Permalink
How does the constitution work with respect to non citizens? This seems to be the heart of the argument. If you are a tourist in Florida from Germany, what are your human rights?
June 13, 2008 3:28 PM | Reply | Permalink
No, that's not really it.
It's about the crazy notion of the "unitary executive" endorsed by kooks like Yoo and supported by Scalia.
The "unitary executive" notion is basically the notion the executive has carte blanche to even "crush the testicles of children" if they feel the need, and may do it secretly, without even notifying law makers.
It's truly sick and not a good faith effort to uphold the law or constitution. It's a weasely argument and exploitation of loop holes to abuse power in secret without respect for law makers or democracy. It's a proto-fascist power grab and the rebuke has been long in coming.
June 13, 2008 10:10 PM | Reply | Permalink
btw, Guantaunamo is clearly not in Florida. Deliberately.
The prison is at Guantanamo specifically to exploit loopholes and circumvent the constitution and US law. Similarly the Administration has been using "extraordinary rendition" to transfer prisoners to torturing dictatorships.
That's clearly a deliberate and prolonged effort to circumvent the law in bad faith. It's sick and fundamentally anti-democratic.
It's also widespread in this culture of executive power bending rules further and further till they become megalomaniacs and systems collapse. ENRON, TYCO, Arthur Anderson, and countless others all failed from this fundamental breakdown of core principles. Each destroyed systems of checks and balances believing they could self police and maintain integrity while assuming ever increasing power and becoming ever increasingly corrupt.
We can't say "Democracy is messy" and export it at gunpoint while the Administration cherry picks the laws they like and abuses others at home.
If you don't get that, you're missing the whole picture.
June 13, 2008 10:21 PM | Reply | Permalink
Nerox3 asked: "How does the constitution work with respect to non citizens? This seems to be the heart of the argument. If you are a tourist in Florida from Germany, what are your human rights?"
It's not the point - the Constitution says nothing about who is entitled to the Great Writ. The Constitution simply says, "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." It is imperative that the 'privilege' be available to everybody who may come under the thumb of the government, citizen or not, for the Writ to mean anything.
What scares mme is that four Supreme Court justices do not get that.
June 14, 2008 3:23 PM | Reply | Permalink
This from Scalia:
This from Thomas Jefferson:
Not all citizens, not all WASP's, not all supporters of the current regime. One is a humanist, the other a bigot.
By the way Scalia has definitely caused more Americans to be killed when he supported reinstating the death penalty.
June 13, 2008 3:34 PM | Reply | Permalink
Since when has anyone with a brain thought Bushies cared about 'saving Americans lives' or the rule of law, they want unrestrained power.
June 13, 2008 9:15 PM | Reply | Permalink
Scalia should concern himself with the Constitution and not the results of Bush's policies.
Oh gee, isn't that what non activist, Conservative judges do?
June 13, 2008 5:04 PM | Reply | Permalink
The Constitution and all laws work the same way for a German Tourist in Florida as they do for a US Citizen tourist in Germany. You are expected to obey the laws in the Jurisdiction you are in.
Most tourists do not run up against huge differences in local laws between the US and Europe -- but when you get a passport you get a notice that you are responsible for asking questions if what you are doing might be questionable. US Embassy is where to go and ask any such question should you need assistance. A German in Florida would be expected to ask their embassy if they had a question.
June 13, 2008 5:55 PM | Reply | Permalink
Let's realize what the decision really means.
The reason the Court decided this way is because the Court no longer trusts Bush not to incarcerate massive numbers of innocent people.
June 13, 2008 7:35 PM | Reply | Permalink
The way I read this, the short version of the decision is: we really meant what we said in Rasul v. Bush four years ago.
June 14, 2008 1:24 PM | Reply | Permalink
Unfortunately, it only means a 5-4 majority feels that way.
June 14, 2008 3:26 PM | Reply | Permalink
I'd like to address this to my fellow "friends of Hillary" out there:
if you EVER have a weak moment and think about voting for John McCain, please re-read this article:
http://www.ft.com/cms/s/0/68bdeeb4-3987-11dd-90d7-0000779fd2ac.html
the Gitmo Supreme Court decision yesterday was “one of the worst decisions in the history of this country"? (really? worse than "separate but equal"?) he thinks allowing suspected terrorist prisoners to have LAWYERS and LEGAL RIGHTS is a "terrible" decision. nothing could show the difference between McCain and Obama so clearly as this comment.
also: the Court was divided 5-4 again. imagine if a McCain-appointed justice had been that toss-up vote. chilling.
Democrats and independents must come together and make sure this man does not win in November.
OBAMA (WE STILL LOVE YOU TOO HILLARY) IN 2008!
June 13, 2008 8:44 PM | Reply | Permalink
Taplin, another great post. Also, thanks for following this issue regularly.
June 13, 2008 9:49 PM | Reply | Permalink
Back to the question about whether any of the detainees - POW's - are truly dangerous people. The simple fact is that we citizens have no way of knowing. Our only source of information about those POW's is our corrupt government, which rarely, if ever, tells us the truth about anything. Just because we have heard of some of their names, doesn't mean anything except that our government propaganda minister may have blackened those people's names for reasons unknown to us. Don't ever assume something said by this administration is in any way related to the truth.
All people engaged in warfare commit terrible acts. They kill other people. They assist their fellow fighters to kill other people. They destroy property without a thought about who they are harming by doing so. In other words, they are members of an armed force.
The Geneva Conventions dictate the permissible ways to treat those captured during wars. None of those ways differ for captives who committed terrible acts - killing people - versus those who simple cooked the meals. Is this so hard to understand?
June 13, 2008 10:27 PM | Reply | Permalink
If the Gitmo prisoners are dangerous, who can blame them? Are they supposed to forgive and forget being tortured? Many of them were swept up using a bounty system that paid big dollars for bodies, and any body would do to show progress in "the war on terror." Ergo, none of the prisoners has ever been tried for his "crimes" and hundreds have been released as "no longer a threat."
Gitmo isn't the only US hellhole. Reportedly there are thousands more detainees secretly held in foreign prisons and on floating prisons. This finding is just a small blip on the fascist screen.
June 13, 2008 10:45 PM | Reply | Permalink
to me the harm here is not only what we do to the prisoners, it's the harm that torture and denial of human rights does to us. I don't want to believe that I live in a country where these things are ok.
we should be able to say, "we don't torture. we're America--we're the good guys." with Gitmo and the other "hellholes," as it was put above, we can't in good conscience say that anymore.
June 14, 2008 12:06 AM | Reply | Permalink
Many of the prisoners are very dangerous.
I spent this morning reading the 134 page decision. Mr. Taplin shows no evidence he has even done this. This comment above shows this. How the hell does Mr. Taplin know these prisoners are 'dangerous' if they have never been even given a trial?
This ignorant spew is below TPM's usual standards.
June 14, 2008 1:31 AM | Reply | Permalink
Clearly, closing Gitmo would help in our effort to restore Brand America.
And not beating your wife in public will help you get elected to president of Rotary.
As if that's the most important reason to not beat your wife.
This post is puerile.
June 14, 2008 1:39 AM | Reply | Permalink
A question for those who know more than I about this: does our constitution adequately clarify when criminal process applies (and therefore all the protections of the bill of rights) and when the rules determined by congress governing "Captures on Land and Sea" apply? And, does the constitution make it clear, if, when the rules governing captures apply, the protections guaranteed by the bill of rights also apply?
In my mind, there's great ambiguity here--and that ambiguity is what Bush and Cheney have so effectively exploited. Do we need some amendment to remove the ambiguity? Or do our laws and past court rulings sufficiently clarify what protections apply or don't apply in all situations?
June 14, 2008 10:00 AM | Reply | Permalink
The Supreme Court, in BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. covers the question of where the Constitution applies, which is basically any place under US sovereign control, as is Gitmo. Prisoners kept elsewhere, like the tens of thousands in Iraq, Afghanistan and probably in foreign prisons and on reported 'ghost ships' would not therefore be eligible for habeas corpus rights. In these situations the Congress exercises its power, which it has done. It has allowed the Pentagon complete freedom to keep tens of thousands of Iraqis and Afghanis in prison without any due process and to torture them at will. In regard to Gitmo, Congress passed the Detainee Treatment Act of 2005 which said that habeas corpus would not apply to Gitmo, but that has been overturned by the Supreme Court.
June 14, 2008 10:57 AM | Reply | Permalink
It's funny, though, the Constitution doesn't say specifically where it applies or doesn't applie. But if all of the federal government's power to act derives from the constitution, why wouldn't the constitution apply to all actions of the federal government, whether they occur on territory under the soverign control of the United States or elsewhere? It seems to me that restricting the constitution's application to certain regions--rather than to all the activities and actions of the federal government wherever they occur--requires a rather radical and dangerous kind of judicial activism.
June 14, 2008 1:49 PM | Reply | Permalink
The Constitution applies to the United States and its sovereign territories. "We, the people of the United States, in order to form a more perfect Union,. . . do ordain and establish this Constitution for the United States of America [not for Americans anywhere in the world]." It does not apply in other countries, where their governments are sovereign.
One aspect of this has been illustrated lately by the SOFA controversy in Iraq. In a SOFA the host country gives up some of its sovereignty relating to US troops. Another aspect is where a host government grants diplomatic immunity to foreign diplomats.
An interesting situation arises in those countries where the US has military basing rights. (The US has 700 bases in 120 countries.) Do those agreements permit the US military to imprison and torture citizens from that country, or any country, without due process? Probably not. Under BOUMEDIENE the Court might say don't do it, as for Gitmo. But they haven't yet, and the probably won't.
The US has tens of thousands of prisoners in Iraq and Afghanistan. These countries are "sovereign." There are no basing rights. The Pentagon rules, subject only to permissive Congressional "oversight." Where did I leave that waterboard, anyhow.
And then there are the US prisoners in Syrian and Egyptian prisons, and on ghost ships, and we haven't even gotten to Blackwater yet.
So is it "hard to overstate how important the Supreme Court decision was?" Not for me.
June 14, 2008 3:33 PM | Reply | Permalink
So is it "hard to overstate how important the Supreme Court decision was?" Not for me.
You're a whiner. The case at hand was specifically about prisoners at Gitmo -- the Court's ruling in this case could not specifically address other prisoners.
June 15, 2008 12:37 PM | Reply | Permalink
Exactly - the Constitution doesn't say the the privilege of habeas corpus only applies to citizens, or those seized on US territory. It is a rule under which the government of the US is supposed to function at all times, barring invasion or revolt. The military is an organ of the US government, so anyone seized by the military or any other organ of the government is entitled to challenge the goverment to show why they are being detained. Due process has to belong to evewryone - that's what we are supposed to stand for, and that what severe damage the administration has done to us. No longer can we say we stand for the principle of due process.
June 14, 2008 3:35 PM | Reply | Permalink
My "exactly" was echoing Purple State, BTW.
June 14, 2008 3:38 PM | Reply | Permalink
Practically speaking, can you see a US detainee in a US military prison in Iraq or Afghanistan, or in a Syrian dungeon, or in a Navy brig at sea, petitioning a US District Court for a writ of habeus corpus, and appealing to the Supreme Court if he doesn't get it?
The US now holds tens of thousands of people in foreign prisons (mostly in Iraq) besides Cuba (there are only several hundred at GITMO). The US is trying to transfer many of these wretched souls to host country prisons, and then what.
People talk about war as a noble cause, and perhaps they don't realize, or don't want to accept, that with war you get the whole package: murder, massacre, rape, forced displacement, arbitrary imprisonment, dismembership, sickness, severe mental problems and torture. Did I leave anything out? But now habeus corpus has been restored to our system of justice so everything's fine again.
June 14, 2008 6:43 PM | Reply | Permalink
The central issue in all of this is to find the point of equilibrium between protecting American citizens and preserving our freedoms. There can be little doubt the two ideas are in conflict. Ultimately the need for a compromise won't please persons who have opinions at the extremes of the two ideas but we can't allow for persons with extreme views to set the agenda. I suspect most Americans understand the nature of this conflict and realize that a compromise is in order. Given the last eight years we are well informed that exercising an ideal based upon either of the opposing extremes isn't going to provide a satisfactory result. I feel confident that the consistent polling that indicates Americans think we are on the wrong track has its genesis in this idea. It indicates that most Americans are centrist in their views. Bush is no centrist and took us on a tour of what extremism looks like and Americans have soundly rejected the view.
June 15, 2008 2:00 AM | Reply | Permalink
I'm a little surprised by the posts on here. am I alone in thinking idealistically that this is about what we believe as Americans, and not legal maneuvering or "dangerous prisoners"?
it was obvious to me when Guantanamo was first opened that this was a gross miscarriage of justice. In fact, I remember rereading newspaper articles about it because I thought I must have gotten it wrong: everyone gets a trial in America...don't they? everyone gets a lawyer and is innocent until proven guilty...right?
I firmly believe that American IS one of the good guys. it should be unacceptable for us to treat prisoners in the "war on terror" any differently than we'd treat other prisoners. it should be unacceptable because that's not who we are...not because some narrow interpretation of a law indicates that we MAY do this if we like...
McSame didn't just say "I disagree with the ruling," which would have been bad enough. he ranks it as "one of the worst" decisions in the history of the Court. that's just downright scary.
June 15, 2008 1:12 PM | Reply | Permalink
At least E.J. Graff, in her contentless post, spelled "habeas" correctly.
June 15, 2008 7:16 PM | Reply | Permalink
Y'know, it's interesting. I've been reading many of the posts on this subject, both here and on HuffPo, and the general attitude is that these detentions are bad. Very bad. They violate human rights. They move us from the ethical high ground to the moral depths inhabited by every two-bit, torture-loving, gangster regime in the world. Bad America! Bad, bad America!!
Yeah. Bad, bad America. Problem is I'm not reading a single post addressing the real danger here. It isn't simply the fact that our government has been thugging down on defenseless prisoners in violation of both US and international law. It's the fact that we have no way of knowing which of those innocent "detainees", America’s Desaparecidos, who were falsely accused, arrested, tortured and held without trial, will become the terrorists of tomorrow.
In other words, how many of those hundreds of innocent prisoners are terrorists-in-waiting because of what we, ALL of us, did to them. And don’t kid yourselves. In the end, we are all responsible.
Our children will die because of what good American citizens and their governmental "leaders" (so-called) permitted a relative handful of neocon sociopaths to inflict on helpless Muslims and Arabs in the name of "defending" America.
It reinforces what most folks have come to accept after more than seven years of the Fourth Reich. America is in greater danger because of George “Fuehrer” Bush and his fellow Nazis. Don’t believe me? Come back in ten years.
June 15, 2008 7:40 PM | Reply | Permalink