Thursday, June 29

Score Three for Liberty

In the last few days the Supreme Court has issued a pair of decisions which - coupled with a third from 2002 - have been significant blows to BushCo.

In 2002 while Justice Sandra Day O'Connor was still on the Court, the SCOTUS ruled in Hamdi V Rumsfeld that the President does not have unlimited war powers.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation ’s citizens. Youngstown Sheet &Tube ,343 U.S.,at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict,it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v.United States, 488 U.S.361,380 (1989)(it was “the central judgment of the Framers of the Constitution that,within our political scheme,the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty ”);Home Building &Loan Assn.v.Blaisdell,290 U.S.398,426 (1934)(The war power “is a power to wage war successfully,and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.But even the war power does not remove constitutional limitations safeguarding essential liberties ”). 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.

This decision was one of the first major SCOTUS defeats by the Bush Administration, and many felt that with the retiring of Justice O'Connor and the appointment of Samuel Alito for her seat, things would begin to swing Bush's way -- but apparently not.

This week the Texas Gerrymandering by Tom Delay was found Unconstitutional. From Democratic Underground.

This case is significant, because it is one of the few instances in which the Voting Rights Act has been enforced in this country since W. took office. The Department of Justice under John Ashcroft and then Al Gonzales has chosen to pretend that the Voting Rights Act does not exist. Ashcroft did not prosecute Katherine Harris for using a felon's list in Florida which contained the names of tens of thousands of people entitles to vote (even though she was informed that the list was flawed in this way--a violation of the Act). He did not prosecute the thugs who crossed state lines to threaten and intimidate poll workers into stopping a lawful vote recount, even though that is clearly against the law. He did not step in when Diebold inserted an illegal patch called "" into the softwear of of its voting machines in 2002, resulting in surprise upset victories over Democratic incumbents who had double digit leads in the polls.

It's not by coincidence that the House has recently chosen not to vote on reauthorization of the Voting Rights Act. Voter Suppression is their bread and butter, and so is authoritarian brutality.

Today the SCOTUS ruled in Hamdan v Rumsfeld against the use of both Military Tribunals for detainees as well as upheld the requirements to uphold the Geneva Conventions as a addendem to U.S. Law. Frontpaged on Kos.

In a 5-3 decision this morning (Hamdan v. Rumsfeld), the United States Supreme Court ruled that neither Congress's post-9/11 Authorization for the Use of Military Force, the Uniform Code of Military Justice (UCMJ), nor the inherent powers of the President gave the President the authority to establish military tribunals on Guantanamo Bay to try and convict alleged enemy combatants in the war on terror. The Court found the commissions illegal under both military justice law and the Geneva Convention.

Justice Stevens wrote the majority opinion, supported in its entirety by Justices Breyer, Ginsburg and Souter. In a separate opinion, Justice Kennedy joined enough of it to count. Justices Alito, Scalia and Thomas all dissented, with the Chief Justice sitting out because he ruled in this case when it was previously heard by the D.C. Circuit.

The core of this decision indicates that before setting up his own private personal kingdom of terror on Cuba, the President would have to first gain the approval of Congress. He can't just make shit up on the fly.

From Scotusblog

As I predicted below, the Court held that Congress had, by statute, required that the commissions comply with the laws of war -- and held further that these commissions do not (for various reasons).

More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"--including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes). If I'm right about this, it's enormously significant.

The downside is that further suits of this nature are unlikely to further clarify exactly what should be done with the estimated 400 detainees at Guantanemo who the government has shown no intention of charging with a crime (Not to mention the unknown number of "Ghost Detainees" still unaccounted for). The Levin-Graham Amendment of the McCain "anti-torture" ban included a prohibition for detainees - like Hamdi and Hamdan - to sue in civil courts over over their status or even if they were tortured.

Does this recent SCOTUS decision make that ridiculous amendment a moot point? We'll have to wait and see.

In addition to Levin-Graham the Justice Dept has previously claimed that the McCain doesn't even apply to Gitmo. From the Washington Post:

U.S. Cites Exception in Torture Ban
McCain Law May Not Apply to Cuba Prison

By Josh White and Carol D. Leonnig
Washington Post Staff Writers
Friday, March 3, 2006; A04

Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.

In federal court yesterday and in legal filings, Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as "systematic torture."

Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.

If the McCain bill wasn't trying to prevent torture at Gitmo - where was it supposed to prevent torture, Scranton New Jersey? Will they now then claim that the SCOTUS doesn't apply to Gitmo either, even though this decision was specifically about Gitmo?

The one shining light in this tunnel is the fact that a increasing number of legal scholars are finding umbrage with BushCo in general, and their use of Signing Statments in particular.

In a hearing today, the Senate Judiciary Committee heard testimony on presidential signing statements, which Ranking Member Leahy called "a grave threat to our constitutional system of checks and balances." Recent reports have highlighted how Bush has issued these orders in record numbers and exercised unprecedented overreach by giving himself the authority to ignore certain parts of the laws he signs.

Because of the extralegal nature of the signing statements, there is nothing for Congress or the Supreme Court to actually overrule. Nevertheless, the statements are binding for policy implementation.

Bruce Fein, attorney and renowned legal scholar, told the committee that Bush has essentially given himself a line item veto power by declaring portions of new laws unconstitutional and offering his own revisions.

The Supreme Court has previously struck down the Actual Line-Item Veto power that was granted under President Clinton as extra-constitutional. There is little likelyhood that the Bush Administration could survive a direct challenge to his use of this authority before the SCOTUS, even with the presence of Samuel Alito on the court. If such a decision falls along lines similar to this one - it would still by 5-4 against the President.

His only hope of maintaining the power he has grabbed, is for Bush to push for a Line-Item Veto Amendment - which he's been doing vigorously. But since his re-election Bush hasn't been able to get a single one of his agenda items pushed through, other than the confirmation of Alito, and that was brutal dogfight. His chances of having a Line-Item Veto passed are somewhere south of slim and nil.

I'm sure the Bill O's of the world will claim that the "Far Left" and Activist Courts are undermining the Presidents ability to fight the War on Terror (tm)- and that we'll 'lose" if they had their way. I would argue that if we blithely toss aside who we are, if we ignore the true promise that this nation holds by shredding our own Constitution (particularly the 8th Amendment which clearly bans "Cruel and Unusual Treatment"), if we have to start using Saddam's Tactics -- even if we defeat the terrorist, we've still lost the war. We will have become them, which is exactly what they've been accusing us of being all along.

I think we need to take a more noble and principled path. Yes, it may be more difficult, but it will be well worth it.

As far as Bush goes it's going to take a common citizen or citizens group to look at some of the 750 signing statements the President has made and directly challenge them in court. Make him justify his attempts to circumvent the law and the Constitution, because the truth is - he can't, but he'll go down in flames trying just like he has on Hamdi and Hamdan.

I plan to bring marshmellows.


Update: Oh, and by the way -- if the AUMF didn't authorize Gitmo, torture or Military Tribunals, it didn't authorize the NSA Spying program either! Tee hee.

Update 2 Glenn Greenwald strongly agrees that this decision effectively demolishes BushCo justifications for the NSA Programs as being authorized by the AUMF, but points out that all it would take is for Congress to Change the Law to allow this type of action to continue. To invalidate Geneva, they would have to void the treaty - which is less likely, but we are talking about the "Rubber Stamp Congress" here. Just abot any wingbat bullshit is possible for them to try after Gay Marriage and Flag Burning - decertifying Geneva could be next before they get their asses handed to them in November.

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