Rule of law vs. rule of flaw
“[Chief Justice] John Marshall has made his ruling,” President Andrew Jackson famously blustered after the US Supreme Court overruled him on the issue of US treaty obligations with the Cherokee. “Now let him enforce it.”
We’ve come a long way, baby — these days, presidential revolts against the Court are advertised as “disagreements” and carried out with procedural foot-dragging and visits to the Hill in search of legislative workarounds. The Court’s third rebuke of the Bush administration on the rights of prisoners at DoD’s Guantanamo gulag is the premier case in point.
Attorney General Michael Mukasey claims that the Court’s ruling — which upholds the right of Gitmo detainees to appeal their detentions in the US courts — won’t affect ongoing illegal “trials” before “military commissions.” Senator Lindsey Graham (R-SC), apparently forgetting the prohibition on ex post facto laws, proposed a constitutional amendment to legalize the Gitmo operation. Even more baffling as amnesia goes is the reaction of GOP presidential standard-bearer (and ex-”unlawful combatant” per Hanoi) John McCain, who expressed “concern” that the Court might prevent the US from treating its prisoners as poorly as his captors treated him.
Three “knock it off” orders from the Supreme Court; three “drag it out” operations from the War Party … and no end in sight for more than 200 victims left trudging along on the Treadmill of Tears.
liberranter
June 13th, 2008 at 8:58 am
Lindsey Graham (R-SC), apparently forgetting the prohibition on ex post facto laws…
“Forgetting?” Oh, no, not at all. The operative word here is ignoring. These people aren’t (quite) as ignorant as they’d have us believe and are damned well aware of what they’re doing.
Perhaps Spencer Gifts or one of their contract suppliers could provide the Senate and House rest rooms with roles of toilet paper printed with a copy of the Bill of Rights or various sections of the Constitution on each square.
KYJurisDoctor
June 13th, 2008 at 10:21 am
While I AGREE with the U. S. Supreme Court’s “GITMO” majority opinion that “all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises ‘absolute and indefinite’ control, may seek a writ of habeas corpus in federal court,” I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, “as the Constitution surely allows Congress to [wield].”
hardtruth
June 13th, 2008 at 12:15 pm
Gitmo is just the tip of a veritable iceberg of gulags maintained by The Disgusting Nation around the globe.
Skulz Fontaine
June 13th, 2008 at 3:39 pm
“We have seen the enemy and he are us!” Pogo I believe.
anti-neocon
June 13th, 2008 at 6:53 pm
What are you talking about, KYJurisDoctor? Nay, let us hear it for the Supremes this time.
anti-neocon
June 13th, 2008 at 6:56 pm
I think McCain’s response is al; the more proof that indeed he did not have it as bad in prison in Vietnam as he has claimed. Look it up.
A. G. Phillbin
June 13th, 2008 at 10:40 pm
Just what kind of “war” is this “war on terror?” Is it a declared war, with a nameable enemy? It is simply a slogan, not a “war,” and the enemy is omni-definable, and therefore undefinable, so that we can never know if we’re winning or losing, or even who we are fighting. Your argument, and Chief Justice Roberts’ argument, essentially means that whenever the President says the bogeyman is coming, whoever the President says the bogeyman is, the Writ can be suspended on Presidential whim, nothing more. If this is the kind of “judicial” garbage that we can expect from our Chief “Justice,” then the Republic is in serious danger from within it’s elite governing caste. This is doubly true, since Chief “Justice” Roberts appears not to understand that only CONGRESS, not the President, has the right to declare war. And since the “war on ‘terror’” is neither declared nor even meaningful, it contains no justification for suspension of the Writ. Plain and simple, and I didn’t even have to go to law school. The “war on terror” is no more a justification for suspending the Writ than LBJ’s “war on poverty” would have been. Read the Constitution.
Eugene Costa
June 13th, 2008 at 11:50 pm
Dennis Kucinich’s 35 Articles of Impeachment against George W. Bush, June 9, 2008:
http://chun.afterdowningstreet.org/amomentoftruth.pdf
So far only one media outlet has bothered to report it.
Eugene Costa
June 14th, 2008 at 12:22 am
Actually Americans have some simple choices ahead of them.
Impeach or don’t impeach–that will decide whether there is a Constitution still in effect.
Annihilate the Republican Party once and for all, as well as its Neo-Con Imperialism and warfare.
Not that the Democrats are much better but that leaves a bit of breathing space.
We liked you better when you were a Republic
June 14th, 2008 at 3:25 am
“Even more baffling as amnesia goes is the reaction of GOP presidential standard-bearer (and ex-â€unlawful combatant†per Hanoi) John McCain, who expressed “concern†that the Court might prevent the US from treating its prisoners as poorly as his captors treated him.”
There is reason to doubt the truthfulness of McCain’s account of his alleged torture by the North Vietnamese.
See http://www.counterpunch.org/valentine06132008.html
paulite
June 14th, 2008 at 6:23 am
And Lindsey Graham is a lawyer? Don’t make me laugh. And Lindsey Graham is the only congressman who still serves in the National Guard? Where? In the Green Zone for a week?
Where was he when the military is sworn to uphold the Constitution? Oh, that’s right, it doesn’t apply to him.
Eric
June 14th, 2008 at 8:19 am
This is par for the neocons course. After the 1999 Israeli high court ruling supposedly banning torture, there was a little hiccup of a pause in their torture mill, until they figured out their own “workarounds”. Nowadays, Human Rights Watch and other such organizations agree that Israel is back to torturing Arabs like its 1998. Now the Israel-centric neocons are giving us the benefit of this well-earned wisdom and resourcefulness.
Vassili
June 14th, 2008 at 8:45 am
I’m AMAZED how brainwashed people in the US became! First of all – all this language of WARS is sickening. Why people (and politicians) in Russia AVOID this W-word? Because they still remember what The War really is.
I believe, that population of the US does not deserve not only Freedom (that is gone lond time ago), but as well Peace – but deserves War. And those that deserve usually get it.
“War on Terror”
“War on Drugs”
“Cold War” – as a matter of fact that is a GROSS example of this word abuse
and many many other similar phrasings.
Now – what kind of reasoning is that “POW’s should be treated badly”. Does not THAT bring US to the times before Chingiz Khan? Does not McCain understand that the way US prisoners are treated would be mirrored by the way captured US soldiers would be treated?
liberranter
June 14th, 2008 at 10:25 am
Why people (and politicians) in Russia AVOID this W-word? Because they still remember what The War really is.
That’s exactly it, Vassili. Because Americans (those in the uniform of the military who have witnessed and tasted it first hand, on foreign soil being the sole exceptions) have never, in the modern era, fought a bloody war on their own soil or suffered the destruction of their cities and homes, they have a romanticized conception of war that bears no relation to reality. Only when Americans in great numbers suffer a siege of Leningrad or a Stalingrad, or even a tiny taste of what the Russian people (or those of other countries who suffered the worst of the war) went through during the last world war will they even begin to lose their love of militaristic violence.
Lear K
June 14th, 2008 at 10:31 am
When the Us does it is “enhanced intergations?,when others do it is torture?
When the US invades a defensless country it is libration,when Sadam invaded Kwait it was unproved and unaccepetable aggression!
And the list goes on and on!
Eugene Costa
June 14th, 2008 at 12:48 pm
Link to a video clip of a Congressman who has, unlike Ron Paul, has stood up courageously, as part of his duty, to defend the Constitution:
http://www.youtube.com/watch?v=kiIn3ytaUjI
Scott
June 14th, 2008 at 1:47 pm
Congress only has the power to suspend the writ “when in Cases of Rebellion or Invasion the public Safety may require it.” So unless you want to argue that we are currently undergoing either an invasion or a rebellion then Congress has no such Constitutional power.
Eugene Costa
June 14th, 2008 at 2:14 pm
[Gary Leupp December 14, 2005 ] Doug Thompson, publisher of Capitol Hill Blue, says he’s talked to three people present last month when Republican Congressional leaders met with President Bush in the Oval Office to talk about renewing the Patriot Act. That act, passed by legislators who hadn’t read it, in the immediate aftermath of 9-11 (when most people were shell-shocked and lawmakers in particular disinclined to use their brains), has of course been criticized as containing unconstitutional elements. All three GOP politicians quote their president as saying: “Stop throwing the Constitution in my face! It’s just a goddamned piece of paper!”
At least one of Thompson’s sources says the president, when told his insistence on preserving some provisions of the act could further alienate conservatives following the Harriet Miers Supreme Court nomination disaster, stated, “I don’t give a goddamn: I’m the President and the Commander-in-Chief. Do it my way.”
[http://www.counterpunch.org/leupp12142005.html]
Ali
June 14th, 2008 at 3:44 pm
One would think that “Laws”, constitutional or whatever, are there to regulate social behavior and referred to in times of differing opinions, so to speak. As it turns out the American idea of the “Law” is that it is there for the times that there is no need for it. I am not sure if I am getting it right, but apparently Bush and McCain and almost half of the Supreme Court of America, is of the opinion that laws are only effective in times of absolute prosperity, absolute safety and absolute generally bright outlooks on the future. Which, mind you, is not really far from the reality of the Western world. A little trouble, or deficit in any of the above and it will start eating its own children. What a mess.
Lear K
June 14th, 2008 at 4:03 pm
ex post facto laws did not stop the Bush regime from shutting down many Muslims charities for supposdly giving to groups that were later designated as terrorist groups!If they couldn’t any offense after the designation was inacted ,they went on fishing expedition looking for any in the past!
Lear K
June 14th, 2008 at 4:14 pm
Americans love the word war!
“war on the drugs”
“war on poverty”
“price war!”
Since its inception in 1776,the US has been at war ,in one way or another,far too many times.
Eugene Costa
June 14th, 2008 at 4:35 pm
Apparently for many “Constitutionalists” on the Right (and also for many on the other side), John Yoo’s prescriptive view of the Constitution and Federal law in general is now widely accepted. Scott Horton’s analysis is worth close reading:
Of course, while Yoo cites Clausewitz, he seems to have another German thinker in mind: Carl Schmitt. As the “crown jurist†of Germany in the thirties, Schmitt is famous for a number of flashes of dark lawyerly brilliance that supported the deconstruction of the Weimar Republic and hastened the rise of an authoritarian, and then totalitarian dictatorship. One of these was the use of external threat to justify a “state of exception,†followed by a transposition of the external threat to the internal political dynamic. This was done with a purpose: collapsing the careful allocation of powers in the Weimar Constitution in favor of one all-powerful Leader. John Yoo would call him the “commander in chief.†Curiously, for John Yoo the commander-in-chief has narrowly circumscribed powers when he’s a Democrat, and robust and dictatorial authority when he’s drawn from John Yoo’s own political party. But then a foolish consistency is the hobgoblin of little minds, as Emerson teaches us.
Another Schmittian trope used by Yoo is the friend-foe distinction. It posits that if you can isolate your foe as an “enemy,†you would be justified in stripping him of all rights and privileges, including any legal protections. Thus those interned in the system of concentration camps which opened as early as 1933 had no more right to be heard in court than—in John Yoo’s thinking at least—the detainees in Gitmo. Note that Padilla is, throughout this piece, an “al Qaeda agent†who was “plotting a dirty bomb attack.†And the people criticizing Yoo are the “anti-war left.†Yoo is extremely faithful to the basic techniques of the Schmitt approach. But more than two-thirds of the nation oppose the torture techniques that John Yoo pioneered with his memoranda. If that’s the “anti-war left,†then the country has seen a seismic shift in its politics. This is a conservative country, and John Yoo and his thinking are alien to traditional conservatism.
But we should focus on the Yoo technique. He stigmatizes Padilla and builds him up as a threat. But in fact, as one of the prosecutors confirmed to me and the judge stated at sentencing, there was no viable evidence to sustain suggestions that he was involved in a plan to attack Americans with anything, much less a dirty bomb. Padilla is not an innocent lamb. At his trial, prosecutors offered persuasive evidence linking him to terrorist cells and they showed that he obtained training in terrorist tactics. The coup de grâce in their evidentiary chain was a membership application form hauled off a truck in Afghanistan that linked Padilla to al Qaeda. So Padilla was justifiably recognized as a threat and seized. But then the propaganda machine went into overdrive, grossly overstating the case against him.
[http://harpers.org/archive/2008/01/hbc-90002226]
Seemingly the great Constitutionalist Ron Paul has the same view in regard to impeachment.
Nor does he, it seems, have any problem trying to save a “party” whose highest elected officials are war criminals, or even attending their convention.
Eugene Costa
June 14th, 2008 at 4:52 pm
If indeed US is, after the estimable Mr. Horton, veritably filled with conservative Constitutionalists, it is rather a strange fact that Kucinich stands so solitary in his motions to impeach Bush and Cheney.
As for John Yoo, in light sleep and dreaming an antic imp suggests one may be underestimating the fellow.
Given the right regime, how quickly would he turn the tables and become the country’s foremost authority on expropriating property, jailing without trial Second Amendment “terrorists”, policing political correctness with speech codes, and so forth?
For a fee naturally.
Lester Ness
June 14th, 2008 at 5:15 pm
We are not at war. Congress has declared war on no country. Declaring war on a tactic such as “terrorism” is only a metaphor, and a tired one at that.
Frankly, I don’t think that kidnapping random individuals and torturing false confessions out of them will stop with foreigners. People with funny names, brown skins and unpopular religions will not be the only inmates of the torture gulag. You may end up in the brig of the USS Benewah yourself, signing some confession to “terrorism”, if you annoy someone richer and more powerful than yourself.
Lester Ness
Kunming
China
Eugene Costa
June 14th, 2008 at 5:47 pm
Indeed–Yellow Peril and Red Scare, the Irish (the Green Peril?), Demon Rum and even bootleggers as “terrorists”, the Germans during World War I, the Bund and the Nazis, the Japanese foreign and domestic (Yellow Peril II), the un-Americans of McCarthy (Red Scare II), Kennedy’s Missile Gap, Communist China (Red & Yellow Peril I) and Castro (Red Scare II.i subtitle a), Civil Rights (Black Scare)–the Neo-Cons merely stumbled upon the obvious.
The only real flaw in the BBC documentary, “The Power of Nightmares”, is the idea that the politics of fear culminating in the present “War on Terror”, began in 1949.
Actually, it is an ancient American institution.
Add AIDS, and Gay Marriage, and Abortion, and the various developing Brown Scares and Language Perils–there’s something very Victorian and Francis Ford Coppola Dracula about it all.
Why hasn’t Mel Brooks made the movie yet?
Or has he?
Eugene Costa
June 14th, 2008 at 6:21 pm
Annals by definition tend to be brief. Perhaps in some future still unflolding will appear that overarching giant, Nikita Krushschev, who panicked the whole continental United States with a cheap beep-beep sent into inner space, followed shortly by an equally intimidating bow-wow.
In the years following the American “Capitalists” stumbled over one another destroying the country, not only financially but educationally and politically and culturally.
Somewhere in the unreleased sections of the KGB archives too, there may be an account of how Nikita’s bubbly and admiring visit to Disneyland was cagily staged.
Actually he hated the place–the archive reveals–but rightly marked Americans as frightened prepubescents, and pretended to envy their infantile technological fantasies as a diversionary tactic.
“Actually we won’t bury them”, the secret memo reads, “I just said that to terrify them. They will bury themselves with television, newspapers, and entertainment.”
DJ
June 14th, 2008 at 6:53 pm
And then they would simply be literally doing what they’ve been figuratively doing to the Constitution and Bill of Rights for decades on end.
DJ
June 14th, 2008 at 6:58 pm
Hear! Hear! I was going to make a pointed reply to that guy…but you’ve done it so well.
kirk a hayes
June 15th, 2008 at 7:19 am
The Declaration of Independence states that ALL MEN are created equal and have unalienable rights, NOT just those born within the boundaries of the United States. We are again doing what we so often do – ignore our founding documents to facilitate some scheme today that is in violation of our founding ideas. Hypocrisy is on display for all but the intentionally blind to see.
Tim R.
June 15th, 2008 at 1:34 pm
Two Points: First, a legal one. The first three words of the Constitution of the United States are “We the People.” America is a representitive democracy, and ultimatly it is the American people, not unelected judges, that are sovereign. Any part of the Constitution can be amended, including the provision on ex post facto laws so if Senator Graham mentioned something like that, from a legal standpoint he is absolutly correct.
Second point: I think the people at Gitmo should be treated like Prisoners of War and protected by the Geneva conventions. This is a war after all and they were picked up in battle. The problem and real difficulty is this: It is a new kind of war. When is it over? Normally, when a war is over the POW’s are given back to the country from where they came. But in this case, the IslamoTerrorists don’t plan on accepting defeat any time soon, (hell we are too politically correct to even admit who we are fighting) so it is a very difficult question as to what to do with them. I don’t have an answer or solution exce[t to say that I do think they ought to be treated as POW’s and have all the rights POW’s normally get under the Geneava Conventions.
Lear k
June 15th, 2008 at 3:26 pm
The majority(99%) were not picked in battle but far from any!The majority had nothing to do with any terrorism.The horror stories about how people were kiddnapped and handed over to the US which paid a lot of money for them.
Eugene Costa
June 15th, 2008 at 5:21 pm
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…
Hear the one about the seamstress who voted for Dr. Paul because she couldn’t amend straight?
Eugene Costa
June 15th, 2008 at 5:59 pm
Another puzzle.
Say, just for example, Senator Graham, by virtue of being two thirds of the Congress or a Constitutional Convention, proposes various Constitutional Amendments, and then, in his capacity as the Legislatures of three fourths of the several States, ratifies such Amendments.
Okay–here’s the puzzle: if Senator Graham amends the Constitution to allow ex post facto law, would the amendment apply ex post facto ad initium or only to law made after the nullification of the prohibition against ex post facto law?
JustAsking
June 15th, 2008 at 7:34 pm
We’re too politically correct to admit that we should be fighting Israel and her operatives in the U.S., starting with the entire “U.S.” Congress.
Gitmo is too small to fit all of them, we’d have to reserve a state to put all of them in. Florida, California or New York? Or should we just ship all of them, including the “Rapture Christians” to Israel, give anyone sane 30 days to get out, then nuke the whole place?
That’ll solve about 50% of the world’s current problems, and about 70% that have to do with war.
anti-neocon
June 15th, 2008 at 11:29 pm
Justasking is just kidding, right!
A. G. Phillbin
June 16th, 2008 at 9:20 am
Funny thing about Kruschev’s “we will bury you” remark: it doesn’t mean what dumbass, easily frightened Americans thought it meant. They took it to mean something like “we will destroy you,” when, according to a friend of mine who knows Russian, it should be glossed more like, “we will be the pallbearers at your funeral.” Shades of “Israel will be wiped off the map” and Ahmedinajed, no?
Eugene Costa
June 16th, 2008 at 8:22 am
…en strateuetai epi Persas, megalen archen min katalusein
Eugene Costa
June 16th, 2008 at 3:10 pm
Krushchev himself supposedly later expanded–”I did not mean with a shovel”, which seems consonant with with what your Russian-speaking friend says.
Indeed, “We will bury you”, even in English doesn’t necessarily mean with a shovel, does it?
All of which reminds of Saddam Hussein’s “Mother of Battles” in regard to the First Gulf War, which the Americans, apparently under the influence of their own current slang, took to mean some huge and monumental battle.
The gist in Arabic was rather genetic, one supposes, to wit: “A battle which will give birth to many battles.”
In that sense, it is also prophetic.
Joe
June 18th, 2008 at 2:14 am
The only problem with your logic is that there has been no declaration of war since 1941. This is a war outside of the authorization required by the constitution. So your argument does not apply to this illegal action.