For supporters of the Bush administration's crusade against civil liberties in its war on terror, today's rulings in the 2004 Madrid bombing case will no doubt provide more justification for detainee torture, the suspension of habeas corpus, military commissions and other clearly extra-constitutional measures.  In Madrid today as in so many terrorism prosecution trials in the U.S., sometimes the suspects are not found guilty.

The constitution is under assault.  Neo-conservatives, christian theocrats, and the current administration are all attacking the very reasoning that has underpinned our society for over two hundred years.  The most critical principles of a free society under the rule of law are enshrined in the Constitution of the United States:  that people should be free to live the way they wish, free of unjustified persecution, free from indefinite imprisonment.

The Bush cabal, however, feels it has been gifted with a historical opportunity to reverse centuries of laws established to protect these freedoms.  In fact, the administration continues to make the case for ignoring such protections because the president should not be hampered by laws in a time of imagined warfare.  These arguments are more and more falling on deaf ears, as the country overwhelming rejects any notion that our civil liberties must be infringed based on the word of a few chickenhawks.

The chairman and ranking member of the Senate Judiciary Committee have offered legislation to correct abuses by the administration.  The Leahy-Specter amendment should come up for debate tomorrow.

Crossposted from Truth & Progress

So, why weren't you there last night?  Busy blogging?  Tuning in to Countdown only to find, much to your dismay, no Keith Olbermann?  Well, last night he was mine.  Mine, and that of 800 Boston liberal legal types at the ACLU's sold-out "Bill of Rights" dinner at the Boston Park Plaza Hotel.  It was such a megadose of hope in such constitutionally bleak times--all while the ghost of Molly Ivins hovered overhead.  Do you think we've just defined Hell-on-Earth for Bill O'Reilly?

It is said that Bush uses the Constitution as toilet paper.  That our government runs like the fictional authorities in Orwell's 1984 and Kafka's The Trial.

Do Bush's maxims include "Ignorance is Strength", and "Freedom is Slavery"?  Does he want to eliminate language so as to constrict thought?

The scandal is over a year old, and perhaps it does not belong here. If it doesn't, it doesn't. However, since Attorney General Gonzalez will be under oath in front of Leahy's Committee in the near future, perhaps he could ask Alberto if he knew of the existence of the Amicus Brief filed by Senator's Graham and Kyl when it was originally filed in Hamdan v. Rasul. And, did he know about it being used in another case after it was uncovered that the Brief contained lies and omissions of material facts.

If Gonzalez knew that the Brief was used in the second instance, knowing, or should have knowing, of its disputed parts, did he violate any relevant laws.

For the record, Senators Feingold, Leahy, Kyl, Durbin, Specter, and Graham never responded to any of my series of letters. As far as I know, the issue is dead. Two United States Senators lied to the Supreme Court and misrepresented the words of two of their colleagues. They tried to repeat the lie in the District Court, and, at least, that Court did not consider their brief in their deliberations.

What did Alberto Gonzalez know, and when did he know it? Was he involved in the lie? Senator Leahy, why don't you simply ask him?

When it comes to wars, Congress has the power to declare and to halt them under the Constitution.  Congress also has the power to define the enemy, and to limit the definition of enemy combatants to states, groups or individuals that it, alone, may specify.  The President doesn't have power, express or inherent, to independently initiate or expand war.  

Further, the President doesn't control the military as part of a "unitary executive", and may not withhhold constitutional protections by Executive fiat.  That is what the Constitution says, and that’s what the U.S Supreme Court reaffirmed in the Hamdan decision.  Hamdan v. Rumsfeld, U.S. Sup.Ct. 415 F. 3d 33, (June 29, 2006).

The irony is that for 25 years the courts tried to avoid facing these war powers issues head on.

After Hamdan, much of the legal basis for Bush's Global War on Terrorism (GWOT) has been cast into doubt. The President has been stripped of power to attack targets except those expressly covered by Congressional resolutions authorizing the use of military force in Iraq and Afghanistan.

Without a Congressional resolution, any order to initiate a preemptive bombing of Iran would be treated as an illegal order.  

This explains why that is so . . .

The fight over habeas corpus is not a normal political battle.  These are no longer normal political times.  We political activists must understand what we're up against so that we can figure out how to prevail.

This diary became long enough in composition that I'm dividing it into four parts, each a melange of my academic specializations in psychology, political science, law, and wild unsourced speculation.  Here today is a primer on suspension of habeas corpus and the constitutional order, focusing on jurisdiction stripping.  Tomorrow, I'll look at executive authority.  (These were originally one diary, but evidently it's so long that the system won't accept it.  Live and learn.)

My plans for Saturday and Sunday won't fit in the intro box, so they're below the fold.  Please see Jay Elias's introductory diary and other "Restoring Our Constitution" diaries for much more.

In a divided 2-1 ruling,  Boumediene v.  Bush, a panel of the DC Circuit Court of Appeals has ruled that the "enemy alien" detainees at Guantanamo do not have a Constitutional right to a writ of habeas corpus. The decision is an exercise in disengenuity. It accepts as undisputed fact, without the merest discussion - that the detainees do not have Constitutional habeas rights because (1) Guantanamo is outside of the control of the US government (contradicting the Supreme Court holding in Rasul) and that (2) the detainees are "enemy aliens" for habeas purposes (though that is "irrelevant", see paragraph below.)

The DC Circuit concedes at fn. 8 that in fact the detainees are NOT enemy aliens, but that it does not matter anyway - thus standing Eisentrager on its head. And this is not insignificant  - for the reasoning could be read to allow the Executive to detain American citizens outside US territory as well.

From TalkLeft:

Glenn Greenwald and Scott Lemieux, in their analyses of Judge Robertson's decision in Hamdan (pdf), seem to me to miss a glaring flaw in the opinion. Robertson's reasoning on why Hamdan does not have a constitutional right to seek the Great Writ is flawed in its focus. It accepts that an allegation by the executive that a detainee is an enemy alien is sufficient to strip a person of his constitutional right to seek habeas relief.

This is decidedly NOT a good result. More.

In the HUGE blow against those of us for Human Rights Judge Robertson threw out Hamdans case today. He said because of the new law he could no longer hear the case.

Though Robertson originally sided with Hamdan, he said that he no longer had jurisdiction to hear Hamdan's case because Congress clearly intended to keep such disputes out of federal courts. He said foreigners being held in overseas military prisons do not have the right to challenge their detention, a right people inside the country normally enjoy.

http://news.yahoo.com/...

Under both the Geneva Conventions and the newly passed Military Commissions Act, hearings are required for each detainee to determine if they are in fact an "Enemy Combatant" or not.  With the virtual revokation of Habaes Corpus under the MCA these Status Tribunals are currently the only measure of justice that these detainee's are likely to see. But a university review of 390 of such hearings has found that they are little more than a "Sham".

SAN JUAN, Puerto Rico - The U.S. military called no witnesses, withheld evidence from detainees and usually reached a decision within a day as it determined that hundreds of men detained at Guantanamo Bay were "enemy combatants," according to a new report.

Their report, based on an analysis of records of military hearings of 393 detainees, comes as the U.S. government seeks to severely restrict detainee access to civilian courts, arguing that the Combatant Status Review Tribunals should be their main legal recourse.

Update: Link to Full Report (PDF). More over the flip...

This week President Bush in his head-long rush for Jack Bauer Justice signed the "Military Commissions Act of 2006 (pdf)", and act which essentially ends the great Writ of Habeas Corpus, allows for coerced and hearsay evidence and codifies various forms of torture as authorized under the law.

But the most shocking element of all of this is the very strong likelyhood that we just might not see the return of Habeas in our lifetimes.  

Why not?

Because under the Consitution the Congress actually does have the authority to do what they did - Suspend Revoke Habeas.

In Hamdi V Rumsfeld the SCOTUS stated:

Likewise,we have made clear that,unless Congress acts to suspend it,the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance,serving as an important judicial check on the Executive 's discretion in the realm of detentions.

Continued...

So, the deed is done. The Congress has passed McCain's Torture Enabling bill, the president and Donald Rumsfeld are empowered to imprison anyone of their choosing indefinitely, and Ann Coulter and Michelle Malkin are regularly on TV saying you are a traitor and should be arrested.

But hey, CTFD! (A new acronym for the ages here at Daily Kos.) The Supreme Court won't stand for this crap.

Right?

Well, if you're a Republican, the answer is, "Who cares?"

That's right. "Who cares?"

Maybe you missed it yesterday, but the raw, unvarnished Republican megalomania that's behind this unprecedented power grab, was presented to you on a silver platter, courtesy of Rep. Steve King (R-IA). I have transcribed his speech for your enjoyment, below.

In Hamdan v Rumsfeld, the US Supreme Court declared that the president does not have the power to redefine torture or to unilaterally create kangaroo courts with secret evidence that the accused can never see.

Hamdan was a landmark of judicial modesty. By forcing Bush to seek changes to the law from Congress in order to justify his policies the court said, in essence, "You can't just do this on your own, Mr. President. We don't care what your lawyers told you, this is too big for you to decide on your own; you must ask the American people."

This is exactly how democracy is supposed to work.

 Here are some of the issues and stories that have been weighing heavily on my mind, and they all tie together with a BIG RED BOW ...  

(1)  WHEN WILL THIS COUNTRY GROW UP? The past few days, I've heard pundits say that Tennessee Senate candidate Harold Ford, a four-term Congressman, has an uphill battle in his race against former Chattanooga mayor Bob Corker for the seat vacated by majority leader Bill Frist -- simply because Ford is black. The pundits mentioned this in passing, more as rumor than fact, so it was depressing when I ran across this paragraph in the Wikipedia bio of Ford:

If elected, Ford would be the first ever popularly elected African-American Senator from the South since Reconstruction. A Rasmussen poll shows 13% of respondents report that friends or family members plan to vote against Ford because he is African-American.

Most Americans assume that democracy is an on-going process, refreshed on an almost daily basis by the interaction of citizens with their representatives in a variety of venues (forums, hearings, personal meetings, and periodic elections).  Bush/Cheney, however, have adopted the neo-con notion that Democracy is a one-off event involving the ballot box.  Which is why they are fixated on the elections in November, lest a new Congress put a crimp in their agenda for the American people.

At the least, they are alert to the fact that the implications of recent Supreme Court rulings will severely limit the powers the executive has claimed, if a majority of rubber-stamp supporters of the imperial presidency isn't maintained in the Congress.  Which is why the American people who might heed Justice Kennedy's call to enforce the rule of law are now being attacked.

We've all heard it before, so many times we know the refrain by heart.  Come on - why don't we all just sing along...ok?

CHENEY: "If you don't vote Republican - We may get hit again".

"The Al-Qaeda Types will grow encouraged..."

J.C. Watts: "Democrats don't care about national security,"

HANNITY: "We can't give Constitutional Protections to Terrorists"

MATTHEWS: Suppose you are homeland security secretary, and you find out that there may be a suspicious group of people doing things, but you want to honor their civil rights and you don't want to tap their phones. Can you explain the deaths of thousands of people because you were honoring civil rights after the fact?

Over and over again, from not just Republicans but members of the media the dichotomy of Safety Vs Freedom is repeatedly put before us as mutually exclusive.

But is that same ole' song and dance began to lose some of it's luster and will Republicans change their tune before it's too late?

Well, we already knew that the Bush administration and congressional republicans have been working feverishly ever since Hamdan to change the War Crimes Act of 1996, so as to immunize themselves against future prosecution for war crimes,  and probably so as to generally protect their policies and their legacy. Been diaried here, here, and most recently here - among a slew of other diaries actually. A report today on NPR's All Things Considered confirms all this, but adds a new twist: apparently Bushco is trying to make sure that nobody will be able to litigate on the basis of the Geneva Conventions in the U.S. court system. More below the flip.