It shouldn't be necessary for the Supreme Court to tell the president that he can't have people taken into custody, spirited to a remote prison camp and held indefinitely, with no legal right to argue that they've been unjustly imprisoned -- not even on grounds of mistaken identity. But the president in question is, sigh, George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays while clearing brush at his Texas ranch.
So begins today's Washington Post column by Eugene Robinson, whose title I used for this diary. Th imagery of Bush taking a chainsaw to the rule of law so captivated me I wanted to be sure it was seem more broadly.
I will explore the column in this diary, and per my practice offer some commentary of my own.
But let me begin with some words of my own, offered a comment on another thread yesterday:
four members of SCOTUS would fail a basic test
on the Constitution. They seem to be following the logic of Alberto Gonzales that in this case the Constitution does not mean what it says. For supposed originalists like Alito, it is hard to see how can ignore this plain language. Article I Section 9, which addresses limits on the powers of the Congress, states:
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.
There is no current rebellion - unless you want to argue as some in the Republican party and this administration have posited that opposition to the president equals treason, and even then treason does not equal rebellion. Since ratification of the Constitution we acknowledge only two rebellions, that in Pennsylvania called the Whiskey Rebellion and the period we normally label the civil war.
There is no invasion. One set of attacks on 9-11-01 does not equal an invasion, anymore than the naval aircraft that bombed Pearl Harbor represented an invasion. And invasion would apply to the actions of a sovereign nation against our nation, and Al Qaeda is not and was not a sovereign nation and despite the best attempts of the administration to mislead there was no evidence of involvement of any foreign government in the actions of almost 7 years ago.
It is hard to imagine supposedly well-educated people who normally advocated a position of original intent as being able to honestly uphold the position represented by the four votes in the minority on this case.
Although I am not a lawyer, and although I am also not at all surprised at the reaction of the four who dissented from the decision, it is almost inconceivable to me that any honest jurist could reach a position other than that contained in Kennedy's opinion and Souter's concurrence. Thus I am very predisposed towards a writer such as Robinson who reacts as he does, and am not likely to be totally dispassionate in my own response.
Robinson finds it "amazing" that any president would need to have explained to him that the Constitutional principles are supposed to remain in effect even in extraordinary times. Given that the dissenters often argue original intent and plain text, I will below explore how intellectually dishonest the position they take is, even though one person who responded to the comment just quoted noted that the constitutional text does not say that the invasion must be into the United States, and our having invaded Iraq and remaining there might, under conditions of extreme snark, therefore qualify as the basis for suspension of Habeas.
Let me return to Robinson, whose entire column is, as usual, worth the time to read. He reviews the previous rulings by SCOTUS which rejected the "legal" reasoning of this administration and its minions. He notes the high probability that some portion of those who have been held at Gitmo for more than six years may be guilty of nothing more than being in the wrong place at the wrong time, yet have been denied the legal support and access to be able to demonstrate their innocence - although I would rephrase it differently, that the government has failed to meet its burden to demonstrate it has a legal right to hold them: that of course is why habeas exists, especially in a nation one of whose basic legal principles is,supposedly, that we are presumed innocent until the prosecution can demonstrate that we are guilty beyond a reasonable doubt, and whose Fifth Amendment states clearly that no person (not only citizen or legal resident)
hall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger
We should remember that some of those held in Gitmo were seized by our supposed allies in the Northern Alliance in order to obtain the substantial bounties we were offering when supposed terrorists were rendered into our custody. These were not even offered the minimal screening processes and protections given prisoners of war under military rules and international agreements.
Robinson says it is amazing that some of these have been held as long as six years.
I say "amazingly" because it's still hard for me to believe that arbitrary arrest, indefinite detention and torture continue to be debated, as if there were pros and cons. The Supreme Court has now made clear that while justice and honor may be mere inconveniences for Bush, they remain essential components of our national identity.
essential components of our national identity - it has until this administration largely been accepted that we do not act like this as a nation, that we punish our military when they violate such basic principles. Our history on this is far from perfect: after all, we did use techniques that would be considered torture in our occupation of the Philippines during the early years of the 20th century. But such occurrences draw our attention precisely because they are exceptional in the sweep of our history, or at least have been until the current administration began to rationalize taking extralegal and extraconstitutional actions.
Scalia's blistering dissent claims that American lives will be lost as a result of this decision. Robinsons response is pertinent:
Everyone hopes he's wrong, of course. But if the only thing that mattered were security, why would we bother to have an independent judiciary? Why would there be any constitutional or legal guarantees of due process for anyone? We could just lock up anyone who fit the demographic profile of the average armed robber, say, or anyone with psychological traits often displayed by embezzlers.
And that response gives me reason to quote something that has been basic to our understanding of the Constitutional principles upon we are supposed to operate since 1803, when Marshall wrote in Marbury v Madison the following:
The question, whether an act, repugnant to the constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited, and that those limits may not he mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it were a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which according to the principles and theory of our government is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be given to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.
Marshall offers a number of clear examples of how the Constitution specifically limits the powers of the legislative branch. Two examples (bills of attainder and taxes on exports from states) come from the same part, Article I, Section 9, in which the restriction on suspending habeas are found.
Before stating that the portion of the Judiciary Act in dispute must be discharge, Marshall builds to his conclusion as follows:
Why does a judge swear to discharge his duties agreeably to the constitution of the United States if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
This administration has sought to ignore ratified treaties, themselves part of the Supreme Law of the land according to Article Vi, specific Congressional passed statutes (also part of the Supreme Law), and explicit provisions of the Constitution itself, rationalizing by positing doctrines of unitary executive power, unlimited power of the president as commander in chief during a time of war (although no war has in this case been declared by the Congress), or a situation they would argue not conceived of by the Founders. The first two arguments are on their face ridiculous, and one need only remember the abuses of the British Government listed in the Declaration to understand why this Constitution, even as it created a stronger central government and an executive with some powers somewhat undefined because the Founders trusted that George Washington would not abuse his powers, was created in such a fashion as to clearly limit the powers granted the national government, regardless of branch. And since some conservatives used to quote the Tenth Amendment when they wished to reject Federal legislation they found distasteful under their philosophy of government, perhaps Scalia and the other dissenters should remember that brief change to the Constitution, one of ten amendments which were considered necessary to fulfill the promise to ensure that the central government did not violate the rights of the people or the states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
They are not reserved to the Commander-in-Chief, the Unitary executive, or anyone else.
Some will argue that the decision yesterday will create problems for our courts and our society. That may well be the case. If people think the decision does not address the current needs of the nation, perhaps they ought to give the Founders some credit for recognizing that they did not have perfect foresight, which is why they provided in Article V two methods for proposing amendments to modify the Constitution and two methods for ratifying such proposed amendments.
In the meantime, I find myself very much in agreement with Robinson's final paragraph, which also addresses this concern:
The Guantanamo decision will create headaches for the federal courts. The process of granting hearings to the detainees will be messy, imperfect and at times frustrating. I'm confident that in the end the system will work. George W. Bush may not trust America's basic values and highest ideals, but I do.
It is America's highest ideals that I teach my students. It is those which in large part motivate my active participation as a citizen in then political processes that are a necessary part of a democratic republic. It is why I choose a life of service, broadly defined, over one more narrowly tailored to meet my own needs and desires.
I trust America's basic values and highest ideals. It is amazing to me that we can have elected public officials who seem to think otherwise, and it is horrifying to me to have to acknowledge that we have four justices on the Supreme Court who seem willing to abandon those values and ideals for some other purpose, ideological or otherwise.
We are supposed to have a government of laws and not of men, and those laws are circumscribed by the Constitution which defines our government and our nation. To do ought but fully respect that founding document is to demonstrate a smallness of mind and of vision, and in the deepest sense of the word to act in a fashion that I can only describe as UnAmerican.
Peace.