Monday, October 02, 2006

We have met the enemy....

When Garrison Keillor says:

If the government can round up someone and never be required to explain why, then it's no longer the United States of America as you and I always understood it. Our enemies have succeeded beyond their wildest dreams. They have made us become like them.
This is what he means:

“The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers.Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of thePresident. . . . Congress cannot direct the conduct of campaigns, nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legislature.”
Ex Parte Milligan, cited in Hamdan v. Rumsfeld. And the Court in Milligan means, essentially, this:

In our three-part system of government, the Legislative branch passes the laws, and the Administrative branch enforces them. But they enforce them by bringing the law-breaker before the Judicial branch. The Legislative can control what laws the court uses; the Administrative can control who the court tries. The court "balances" the legislative and administrative branches with the power to decide if a law is constitutional or not. But it has one other power over the Administrative branch: habeas corpus.

The Administrative branch (the police, usually, but in the case of the Federal government, the White House) cannot simply arrest someone and put them in a prison (which the Administrative branch also operates). The power of habeas corpus means that person must come before the Judicial branch, and be given a defense, which means an opportunity to know the charges, and be given a fair trial (due process). But the Bush Administration has opened up secret prisons and imprisoned people precisely with the intent of never bringing them to trial, and of keeping them out of the reach of the court's jurisdiction (which is set by the Legislative branch).

That was the issue of the Rasul case. The Administration argued that Gitmo was as outside the court's jurisdiction as the secret prisons it is still (so far as we know) operating. The Court disagreed. In fact, the Court in Rasul held that being in federal custody is enough to engage the Judiciary's habeas authority. And it specifically applied that authority over 14 foreign nationals; none of the petitioners in Rasul were U.S. citizens.

Why is this important? Because habeas corpus is the basic check on Administrative abuse of power that the courts have. This is why it was written into the Constitution. Without it, the Administrative branch can detain and imprison anyone with impunity, and deny them access to the courts on the simple principle that no trial of that person is ever contemplated. This, of course, is precisely what the Bush Administration has done. The right to a trial is fundamentally the power of habeas corpus. The Judiciary does not arrest, and it does not imprison. But without habeas corpus, the Administrative branch is free to do both at will to whomever it chooses.

Which is the way the Administration didn't want Congressional approval of its military commissions:

In a nine-page memorandum, the two officials, Gordon R. England, the acting deputy secretary of defense, and Philip D. Zelikow, the counselor of the State Department, urged the administration to seek Congressional approval for its detention policies.

They called for a return to the minimum standards of treatment in the Geneva Conventions and for eventually closing the detention center at Guantánamo Bay, Cuba. The time had come, they said, for suspects in the 9/11 plot to be taken out of their secret prison cells and tried before military tribunals.

The recommendations of the paper, which has not previously been disclosed, included several of the major policy shifts that President Bush laid out in a White House address on Sept. 6, five officials who read the document said. But the memorandum’s fate underscores the deep, long-running conflicts over detention policy that continued to divide the administration even as it pushed new legislation through Congress last week on the handling of terrorism suspects.

When the paper first circulated in the upper reaches of the administration, two of those officials said, it so angered Defense Secretary Donald H. Rumsfeld that his aides gathered up copies of the document and had at least some of them shredded.

“It was not in step with the secretary of defense or the president,” said one Defense Department official who, like many others, would discuss the internal deliberations only on condition of anonymity. “It was clear that Rumsfeld was very unhappy.”
I love the image of a Secretary of Defense so angry with the truth he thinks he can destroy it. It fits, too, with the picture of the White House in Bob Woodward's book. And now we know why the White House was shocked by the Hamdan decision, and why they still don't like it:

Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.
Anytime an Attorney General is arguing against Marbury v. Madison you know they know they've run out of legal options. And when the argument is no stronger than "Judges have personal opinions but President's have prerogatives...." Well, let's just be kind and say that's not a legal argument at all. Not only did Hamdan rule against it, but the line of rulings against it goes back to at least the Civil War, and Ex Parte Milligan.

Nor does the new law on torture and detention of "enemy combatants" fare any better:

But even as the White House negotiated with Congress in recent weeks, administration forces led by the vice president’s office reasserted themselves. Officials said Mr. Cheney’s staff and its government allies played crucial roles in guiding the negotiations, while their adversaries in the administration scrambled to keep up with details of the bargaining.

In the end, the White House pressed Republican senators to accept a broad definition of “unlawful enemy combatants” whom the government can hold indefinitely, to maintain some of the president’s control over C.I.A. interrogation methods and to allow the government to present some evidence in military tribunals that is based on hearsay or has been coerced from witnesses.

“Basically, they were left to get back whatever they could from Congress,” one senior administration official said, referring to compromises that officials led by Mr. Cheney made before the president’s announcement. “And they did.”
In other words, if the White House is happy with its "victory," it's because the new law is basically the Detainee Treatment Act of 2005 Redux. And the Supreme Court has already ruled on that legal position. But Dick Cheney didn't like it, and he got his position rammed through Congress, again. Unless the composition of the Supreme Court changes before the new law is brought before it, the result will not differ much from Hamdan.

Interestingly, little of the President's public position on this recent law was truly new. The push against Common Article 3 of the Geneva Convention, for example:

At the Pentagon, Mr. England continued to pursue the idea of adopting Common Article 3 of the Geneva Conventions in a directive that would set guidelines for prisoner treatment and interrogations. In late August, he called a meeting with some of the vice chiefs of staff of the armed forces and senior uniformed and civilian lawyers to consider adopting the standard.

According to officials who attended the meeting, several of those present spoke in favor of the Geneva provision, including the senior Army lawyer, Maj. Gen. Thomas J. Romig. In an unusual move, Mr. England called for a show of hands. All but two of those present endorsed the provision. But those two officials were among the most influential in the room: the department’s under secretary for intelligence, Stephen A. Cambone, and its general counsel, William J. Haynes II.

Their concerns, which were later echoed by aides to Mr. Cheney, started with the fact that the president had explicitly rejected the Geneva standard in February 2002. They also disputed the idea that Article 3 would necessarily give clear guidance to soldiers, citing what they called its vague prohibition on “outrages upon personal dignity.”
Which makes us all Dick Cheney now, at least for a little bit. This may well be what government is for the next few years: a see-saw battle back and forth between the Administration and the Courts, with Congress as the battleground. November will decide which side Congress tips to for the remainder of the Bush Administration. But there is no doubt the courts will stand by their prerogative as deciders of how laws are enforced, since they are the arm of government that tries the cases brought by the government against persons (not just citizens). However, if the composition of the Court changes, that could change, too. As Nina Totenberg observed this morning, the doctrine of stare decisis used to be a conservative one, but now the conservative position has become, well...the personal opinion of the Justices.

And the fact is, the forces of law have to keep pressing the point, because the opposition will, too:

“There have been so many times when we thought we had broken through and turned things around, and then the forces on the other side kept charging back,” said one administration lawyer who has supported such changes. Now, the official added, “even after what was supposed to be this major legislation to resolve these issues, we are going to be back at it.”
And they really are from a different planet:

The element of the new legislation that raised the sharpest criticism among legal scholars and human rights advocates last week was the scaling back of the habeas corpus right of terrorism suspects to challenge their detention in the federal courts. But in dozens of high-level meetings on detention policy, officials said, that provision was scarcely even discussed.

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