From today’s LA Times:
It was also five months after Kennedy, in the case of the Yemeni prisoners, issued an order requiring that the U.S. preserve and maintain "all evidence and information regarding the torture, mistreatment and abuse of detainees now" at Guantanamo Bay. According to court papers, government lawyers said at the time that a formal order was not necessary because they were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation."
[...]
In court papers filed last week, the Justice Department argued that the videos weren’t covered by the order because at the time Zubaydah and al-Nashiri were being held in secret CIA prisons overseas. The men were later transferred to the Guantanamo Bay prison.
The court order not to destroy evidence of the torture of detainees at Guantanamo doesn’t apply because... Zubaydah and al-Nashiri weren’t yet at Guantanamo when the order was given.
Uh...huh.
The "administration's" idea of the faithful execution of the law, ladies and gentlemen. No better than a six year-old's.
Now here’s a blast from the past. Something from Glenn Greenwald that's just about the only thing I ever took exception with:
There seems to be a common perception among many Bush critics — one which is a not-very-distant relative of all-out defeatism — that something as weak and unmuscular as a lofty Supreme Court ruling isn’t going to have any effect on the Bush administration, and that they are just laughing at the idea that what the Supreme Court says matters.
[...]
Anyone who suggests that that is a meaningless development and that Bush officials are unaffected by them has embraced a cartoon super-villain version of the administration which is just not real.
In the above quote, Glenn was referring to the then recently-issued Hamdan decision, and specifically the point then thought to be obvious among actual lawyers -- i.e., that the case's rejection of the theory of the "inherent powers" wielded by the "unitary executive" would, by extension, spell certain doom for both the warrantless wiretapping and torture programs.
It didn't work out quite that way, did it?
In fact, the "administration" almost immediately went into court in a different case and simply ignored the decision.
Shortly thereafter, the "administration" denied Hamdan had implications for domestic spying, too.
And that it would take just a minor tweak to make it inapplicable to all other cases of torture besides Hamdan's, too.
And finally that the tweak might even render Hamdan inapplicable to Hamdan himself.
Who could’ve guessed that something as weak and unmuscular as a court order would have no effect on the Bush "administration?"
Who could’ve guessed that the "administration" really was full of "cartoon super-villains?"
Jack Balkin could:
What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.
I could:
[T]he reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.
That reality is absolutely critical to understanding what's going on here.
"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?
"Well, then, it's not murder," you say.
Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.
So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.
"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.
"Says you," answers Alberto Gonzales.
And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."
And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.
Always keep in mind the basic operating principles. General Orders Number One, Two and Three of the Bush "administration":
The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." ... "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors...and you, all of you, will be left to just study what we do."
As Addington articulated the administration's general strategy, "We're going to push and push and push until some larger force makes us stop."
In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."
But then again, this will probably all go away by itself, if we just stick to talking about jobs and the economy.