The United States Supreme Court has agreed to decide whether the president enjoys the right to scoop people off US soil and imprison them indefinitely Because He Says So.
This most recent case involving George II's invocation of The Divine Right Of Kings--discredited in Anglo-American jurisprudence for some 793 years--concerns Ali Saleh Kahlah al-Marri, a native of Qatar and Illinois graduate student who has been held in a Navy brig without charges for more than five years.
George II has decreed that al-Marri is an "enemy combatant," and may be held indefinitely under "the administration's unilateral detention powers"--i.e., The Divine Right Of Kings.
On July 15 of this year, a divided en banc panel of the Fourth District US Court of Appeals, the federal circuit court most deeply corrupted by Federalist Society-style "true believers," hallucinated that congressional passage of the September 18, 2001 Authorization for Use of Military Force conferred upon George II the power to confine al-Marri in one of his several Bastilles.
The high court will most likely hear oral arguments on al-Marri's appeal from the Fourth Circuit's decision in March of 2009, with a ruling due by the end of June.
Al-Marri was arrested on December 12, 2001, in Peoria, Illinois, where he was living with his wife and five children, and pursuing a graduate degree in computer science.
The government has lied that al-Marri was part of an Al Qaeda "sleeper cell" intent on mass murder and the disruption of the US banking system. It has lied that he frequented an Al Qaeda training camp and met with Osama bin Laden and Khalid Sheik Mohammed. It has lied that he was "al-Qaeda's senior operative in the United States" and that he "offered to be an al Qaeda martyr."
Because these claims are lies, al-Marri has never been charged with any such crimes. Instead, he was initially charged with credit-card fraud and lying to federal agents. When, in June 2003, his trial on these charges drew near, George II signed a one-page order declaring al-Marri an "enemy combatant" and directing his transfer to, and indefinite imprisonment in, a Navy brig in South Carolina. There he was held incommunicado and interrogated for more than a year. There he was tortured.
On June 11, 2007, a three-judge panel of the Fourth Circuit Court of Appeals ruled 2-1 that George II lacked legal authority to imprison al-Marri without charges.
Judge Diana Gribbon Motz wrote the majority opinion. Motz had previously written an impassioned dissent to the Fourth Circuit's embarrassing mangling of Hamdi v. Rumsfeld; her view would prevail when the case, in 2004, reached the United States Supreme Court.
Now, in her majority opinion in Al-Marri v. Wright, Motz inscribed right words:
For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since--without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper . . . .
In an address to Congress at the outset of the Civil War, President Lincoln defended his emergency suspension of the writ of habeas corpus to protect Union troops moving to defend the Capital. Lincoln famously asked: “[A]re all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?” The authority the President seeks here turns Lincoln’s formulation on its head. For the President does not acknowledge that the extraordinary power he seeks would result in the suspension of even one law and he does not contend that this power should be limited to dire emergencies that threaten the nation. Rather, he maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the Presidency, which he
and his successors may exercise as they please.
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution--and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power--were a court to recognize it--that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.
One would think that Motz' decision would be the end of it. One would be wrong. For one would not consider that the Fourth Circuit is honeycombed with Republican-appointed appartchiks, and that George II's appeal for en banc review--a rehearing before all the court's active judges--would thus result in the phantasmagorical finding that the AUMF permits the president to lock away whom he pleases until the cows, Rip van Winkle, or even the Wandering Jew, comes home.
A lesson I soon learned when I entered the law game is that the more pages a judicial decision consumes, the more mendacity you will find concealed therein. My ideal as a writer of judicial opinions remains Supreme Court Justice William O. Douglas, who--like the US Constitution--boldly sketched rights and responsibilities in brief, sweeping lines. Conversely, there are the opinions of a William Rehnquist, or an Antonin Scalia, opinions that consume page after page, fell tree after tree, to obscure the wrong that is being done.
Last time I looked, the longest opinion ever handed down by the United States Supreme Court was still Dred Scott v. Sandford, which held that black people were property, rather than human beings.
So all you really need to know, about the July 15 en banc 5-4 Fourth Circuit ruling in Al-Marri v. Wright, that overturned Motz' opinion, and held that George II enjoys The Divine Right Of Kings to lock away a man forever, is that it eats up 216 pages.
In June of next year the US Supreme Court will overturn the Fourth Circuit's opinion in Al-Marri v. Wright. The high court will rule that the president does not enjoy an unfettered right to scoop off of US soil a human being and imprison him or her without charges for an indefinite period of time. The court will refuse to time-travel back to 1214, and there embrace again The Divine Right Of Kings. It will command that some decently clothed semblance of the "Spirit of Justice" be appointed to oversee al-Marri's case.
Why? Because the high court has four times previously shied away from George II attempts to disinter The Divine Right Of Kings. This case--far more egregious than the previous foursome--will in no way change their minds.
Four members of the court--Breyer, and especially Souter, Stevens, and Ginsburg--can't even really believe they're sitting on these cases, like some sort of becursed bewigged throwbacks sentenced to some atavistic upbubbling of the 14th Century.
It matters not a whit if Alito, Scalia, Roberts, and Thomas cast their lots with The Divine Right Of Kings.
Because the deciding, fifth, vote, is Captain Kennedy. And there is no way on earth, sea, or air, that Tony Kennedy will bless The Divine Right Of Kings.
Because Tony Kennedy is a mediocrity, who has found love pretty much only with the Continental jurists of Europe. Where he travels every summer, to lecture on, and get lectured about, international law. This love is why we no longer execute juveniles in this country, why we no longer in this country prosecute sodomy, why we still have habeas corpus. Because Tony Kennedy cannot bear to cross his lovers cross the pond.
And so Tony Kennedy will not cast the fifth vote to bring to this country The Divine Right Of Kings, to erect on this land The Bastille. 'Cause he just can't.
well i'm caught one more time
up on cypress avenue
well i'm caught
one more time
up on cypress avenue
conquered in a car seat
and i'm lookin' straight at you