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Wednesday, October 04, 2006

Bush's only Legal Argument for the Detainee Bill; The Supreme Court Doesn't Exist

The Mark Foley scandal has been media wallpaper lately. I watched yesterday as Foley's lawyer dropped the 'bombshell' that he's gay. This ranks right up there among earth shattering revelations like Bush's observation, "The United States and China are two nations divided by a vast ocean."

But, beyond all of this, other things are happening in Washington or, in this case, not happening. On September 21, Bush announced, "I want to thank the members of the United States Senate for working with my administration to meet our top legislative priority, and that is a law that will help us crack the terror network and to save American lives." Bush had his legislation to torture detainees and keep them locked up without trial. Huzzah for freedom...

On the 29th, congress sent Bush the bill, which Associated Press said, "...he was expected to do very soon." Most expected him to sign it over the weekend.

So where is it?

Sure, the media spotlight has shifted to Foley, but why would that make any difference? If the bill is needed to save american lives, as the President tells us, why is he sitting on it?

Part of the problem may be that there's almost no way the law will stand up in court. Before the bill passed, Sen. Russ Feingold delivered his statement of opposition to it.

Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.

Mr. President, that is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation.

It looks like Feingold may have been overly pessimistic. Where Russ sees a life expectancy measured in years, others see it much closer to death.

The Capital Times:

WASHINGTON - Both of Wisconsin's U.S. senators voted against President Bush's plan for prosecuting terrorism suspects, and the Supreme Court might eventually do the same, according to UW-Madison experts.

"This could be challenged in court by the end of the year," said Howard Schweber, associate professor of political science at UW-Madison.

The bill defined terror suspects as enemy combatants who do not have protection under the U.S. Constitution. Specifically, detainees do not have the right to habeas corpus - that is, to know their reason for imprisonment and have the ability to challenge it. The accused can only appeal their status to military judges in "combatant status review tribunals."

Wells Dixon, attorney at the Center for Constitutional Rights, said the tribunals would not allow detainees access to counsel, or give them the power to call witnesses, the right to know their accuser and the presumption of innocence.


"What is amazing about this law is that Congress is explicitly excluding the courts," said UW-Madison law Professor Heinz Klug. "This is on its way to the Supreme Court - I have no doubt about it."

According to TCT, Bush and his pet congress critters' argument rests on a ridiculous claim; "Article I, Section 9 of the U.S. Constitution reads, '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.' At a Senate Judiciary Committee meeting this week, Bradford Berenson, who has provided counsel to President Bush, argued that the U.S. has been in a state of invasion since Sept. 11 [emphasis mine]."

Show of hands, who think the Supreme Court is stupid enough to buy that? When Lincoln suspended habeas corpus during the Civil War, the courts shot him down. "Martial law... destroys every guarantee of the Constitution," the Supreme Court found, "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." If an actual civil war didn't qualify, what does?

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law," the Court found, "Then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

In other words, you can't pull this kind of thing unless things are so bad that courts don't really exist and you need to impose order over anarchy. It'd be a damned good trick to stand before the SCOTUS and convince them that they're not really there and government in Washington has been scattered by foreign invasion.

To go back to the TCT article, "University constitutional law professors agreed with [the assessment that the bill will be challenged because of habeas corpus]. 'Habeas corpus may be just the issue that would get the courts to act,' Schweber said, adding that habeas corpus is the most basic right in English and U.S. law. 'Even the king must explain to the prisoner why he is in prison.'"

So, it seems likely to me that the White House is madly trying to come up with a better argument.

In the meantime, Bush's assertion that this is necessary becomes more and more hollow with every hour he sits on this 'urgent' legislation.


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