Friday, January 13, 2006

Woodsman, spare that law!

Sir Thomas More: There's no law against that.

William Roper : God's law!

Sir Thomas More: Then God can arrest him.

William Roper: While you talk, he's gone!

Sir Thomas More: Go he should, if he were the Devil, until he broke the law.

William Roper: Now you give the Devil benefit of law!

Sir Thomas More: Yes, what would you do?

William Roper: Cut a road through the law to get after the Devil? Yes. I'd cut down every law in England to do that.

Sir Thomas More: And when the last law was down, and the Devil turned on you...where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast...Man's laws, not God's, and if you cut them down...and you're just the man to do you really think you could stand upright in the wind that would blow then?

Yes. I give the Devil benefit of law for my own safety's sake.
--Robert Bolt, "A Man for All Seasons". I'd say it was a cliche, but then I saw this at First Draft:

The Bush administration took the unusual step yesterday of asking the Supreme Court to call off a landmark confrontation over the legality of military trials for terrorism suspects, arguing that a law enacted last month eliminates the court's ability to consider the issue.

In a 23-page brief, U.S. Solicitor General Paul D. Clement said the justices should throw out an appeal by Yemeni national Salim Hamdan, an alleged driver and bodyguard for Osama bin Laden, because a new statute governing the treatment of U.S. detainees "removes the court's jurisdiction to hear this action."
Sen. Patrick Leahy tried to get Judge Alito to agree with former Chief Justice Rehnquist, that Congress lacked the power to remove the Court's First Amendment jurisdiction. Judge Alito did so reluctantly. Now I understand better what Sen. Leahy was driving at.

The Administration also wants to ignore the legislative history, and, reminiscent of precisely what upset the FISA judges, they want to blatantly mispresent the situation to the Court:
"Congress made clear that the federal courts no longer have jurisdiction over actions filed on behalf of Guantanamo detainees," [U.S. Solicitor General] Clement wrote [in a brief to the Court].

Levin, in a statement issued yesterday, said that "the Justice Department is in error. Far from deciding that the relevant statutory language applies to pending cases, Congress specifically considered and rejected language that would have stripped the courts of jurisdiction in cases that they had before them."
Burt Neuborne, a New York University law professor who wrote a friend-of-the-court brief in the Hamdan case, said the government's brief ignores the fact that if Hamdan's case is dismissed, he and other detainees will have no avenue to challenge the legality of Bush's power to detain enemy combatants and create military trials.

"The government's basic argument is: You can't hear it now, but you can hear it later," Neuborne said. "What they don't say is that the other route doesn't let Hamdan raise the question of the president's authority in these cases. . . . They're not telling the Supreme Court the real consequences of their motion."
This also explains why there is some consideration to giving Congress a separate advocate before the Courts, especially is the "Unitary Presidency" theory becomes established as a new tradition of governance.

Habeas corpus is the most basic of our legal principles. It is, as no less an authority than the Supreme Court has noted (in Harris v. Nelson, 394 U.S. 286, 290-91 (1969) ), "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." As the Court observed in McCleskey: "[t]he writ of habeas corpus is one of the centerpieces of our liberties." McCleskey v. Zant, 499 US 467 (1991) And it's purpose is entirely, and fundamentally, to resolve a question of Constitutional law:

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991).
In brief, it doesn't get more fundamental than habeas corpus; and now the Bush Administration wants to remove it, entirely for their convenience. AS I said at First Draft: "If Congress can remove the Court's jurisdiction to hear habeas corpus appeals, it can essentially gut the court system entirely. There is no right more fundamental to our legal traditions and system than habeas corpus."

We have reached the point where they would cut down every law in America to get at the Devil. Will the Supreme Court permit this? Well, with Samuel Alito on the bench, the risk of that seems to be more real than it might have been. Equally frightening is that this Administration will not back down one inch from its extreme legal positions. The Supreme Court ruled in 2004 that Guantanamo detainees are entitled to hearings. In 2006, those same detainees are still on hunger strikes to protest their incarceration, and are being treated in brutal and inhumane ways, in violation of international law as well as U.S. law. And yet that treatment continues.

As Robert Bolt understood, in avid pursuit of the Devil, we catch him. And the Devil ends up being whoever has the power.

And the law is no longer available to defend us, or to adjudicate the question.

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