Monday, June 16, 2008

Wingnuttery and Dishonesty Abound

"...the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction."

--BOUMDIENE v BUSH (p 5-6)

The opinion section of always serves up a treasure trove of blatant dishonesty and wingnuttery, and todays edition is no exception. Right on cue, the wingnut chorus has risen to shrill heights, denouncing the decision of the US Supreme Court to restore Habeas Corpus. Today's wingnut is someone named Peter Wehner:

I have now read through the Supreme Court’s decision, as well as the dissents, in Boumediene v. Bush, in which the Court held that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention there in U.S. courts. In doing so, the Court, in Chief Justice Roberts’s words, “strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

It’s worth considering what needed to be done in order to achieve this outcome.

The Court decided that for the first time in American history, non-American enemy combatants detained abroad, in the course of an ongoing war, had a constitutional right to habeas corpus (a proceeding used to review the legality of a prisoner’s confinement in criminal cases).

In order to confer habeas-corpus rights on unlawful enemy combatants, the Court - in an opinion written by Justice Anthony Kennedy - had to break from precedent, including the 1950 case Johnson v. Eisentrager, in which the Court ruled that non-citizen enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.

Unfortunately, that's not really the case, as Glenn Greenwald explains:

In a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision..., declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus -- the means by which a detainee challenges his detention in a court -- despite the fact that the Constitution permits suspension of that writ only "in Cases of Rebellion or Invasion."

As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.

In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.

In effect, when the wingnuts argue against this decision, they don't argue against it from any basis that understands the rule of law. They don't argue it from the position of having a better understanding of the law. They argue it from a purely political point of view--using fear to protect the Bush Administration. The court held that we need not fear "rebellion or invasion."

What "protects" us from terrorism is not our military alone, nor is it the woefully inadequate port inspections, the border guards, the Department of Homeland Security or the FBI. What protects us is the rule of law, which isn't there to give a free ride to terrorists. It's there to protect us from ourselves.

Wehner goes on to conflate post-war Germany, Nazi war criminals, and today's problem with detaining suspected terrorists indefinitely at Guantanamo Bay:

The Court’s majority opinion includes a section in which Kennedy attempts to fundamentally reinterpret Eisentrager. The problem for the majority is that Eisentrager conclusively establishes the opposite of what the majority opinion held. In Justice Scalia’s words:

Eisentrager thus held - held beyond any doubt - that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign…. [The majority opinion] is a sheer rewriting of the case.… By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled. More broadly, and relevant to the Kennedy opinion, English common law has never held that the writ of habeas corpus extended beyond the sovereign territory of the Crown.

Unfortunately, that's not the case, either.
Johnson v. Eisentrager, 339 U.S. 763 (1950), was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison. The prisoners had at no time been on American sovereign territory.

Now, is Guantanamo Bay US sovereign territory? Not exactly. But the Supreme Court addressed this in a way that is far more devastating to the Republican Party's shrill claims to the contrary:

The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of,and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” [SNIP] These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers.
although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction.

This pretty clear language and wording--the government didn't make its case. The Bush administration didn't argue effectively or base its actions in the rule of law. The Bush administration has traditionally relied upon a veritable who's who of incompetent lawyers and hacks and has sent, time after time, the wrong people with the wrong ideas to argue against the ideals of the United States of America. It does every single thing in a political context and has never acted in a legal or moral context. And it does them incompetently, sloppily and with a deranged glee. Who, in their right mind, would rise to defend such people?

This is the result of their brazen incompetence--a result that says that when you act from a craven political position, with no basis in the rule of law, you will get smacked down hard by institutions which exist to protect us from ourselves.

Wehner's article is just a failed attempt at making an argument that was settled long ago by people who would not recognize the intellectual dishonesty of today's sad parade of hacks and fools. Fortunately, we still have a Supreme Court which is actively protecting us from them.

Wehner goes on to make two more shrill points:

What Boumediene v. Bush is really all about, as Justice Roberts wrote, is control of federal policy regarding enemy combatants. That is another way of saying this case was about power - and Thursday’s decision was a power grab.

Upholding the rule of law and the writ of Habeas Corpus is not a "power grab." It is the explicit denial of the Bush Administration's power grab. Even the British in the time of Edward I could tell you that.

But if one is going to invent Constitutional rights out of thin air, it’s worth asking: What moral universe do Justices Kennedy, Breyer, Ginsburg, Stephens, and Souter inhabit when they are willing to manufacture constitutional rights for unlawful enemy combatants who want to slit the throats and watch innocent Americans bleed and die while at the same time uphold manufactured constitutional rights that allow people to abort innocent unborn children?

Curious that someone who wants to take away life would cite abortion to make their case, but when all you have left are shrill arguments that have no basis in the law, this is what you do--you demagogue, you shriek, you pound your fists, and you come up with some dishonest little argument that you hope--hope--will appeal to people who aren't paying close attention. If you're desperate to make your case, throw anything against the wall. Why stop at bringing up abortion? Why not bring Plessy v Ferguson into it? Bush v Gore? Brown v the Board of Education? Something has to stick, right?

The Justices in the majority invented no such constitutional rights--they merely upheld rights the Bush administration tried to take away. They protected us from ourselves. Deal with it.

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