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June 13, 2008

We're All Americans, Now

For some reason Scalia's dissent seems to be the one making the news. Scalia has a gift for dashing off memorable quips, but I thought Chief Justice Roberts' dissent gave a clearer picture of what was wrong with the majority opinion in Boumediene v. Bush. It begins on page 82. I excerpt it here, but it should be read in full:

The Court’s opinion makes plain that certiorari to review these cases should never have been granted. As two Members of today’s majority once recognized, “traditional rules governing our decision of constitutional questions and our practice of requiring the exhaustion of available remedies . . . make it appropriate to deny these petitions.” Just so. Given the posture in which these cases came to us, the Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case. The political branches created a two-part, collateral review procedure for testing the legality of the prisoners’ Status Review Tribunal (CSRT) followed by review in the D. C. Circuit.

As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with “the Constitution and laws of the United States.” No petitioner, however, has invoked the D. C. Circuit review the statute specifies. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess.

Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners’ rights. Instead, it not only denies the D. C. Circuit the opportunity to assess the statute’s remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled with Article III review, satisfy due process.

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi v. Rumsfeld, explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon military conflict.” This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.

If the CSRT procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed.

This is why the Court should have required petitioners to exhaust their remedies under the statute. As we explained in Gusik v. Schilder, “If an available procedure has not been employed to rectify the alleged error” petitioners complain of, “any interference by [a] federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion.” Because the majority refuses to assess whether the CSRTs comport with the Constitution, it ends up razing a system of collateral review that it admits may in fact satisfy the Due Process Clause and be “structurally sound.” But if the collateral review procedures Congress has provided—CSRT review coupled with Article III scrutiny — are sound, interference by a federal habeas court may be entirely unnecessary.

The only way to know is to require petitioners to use the alternative procedures Congress designed. Mandating that the petitioners exhaust their statutory remedies “is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile.” So too here, it is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate to protect the detainees’ rights. (“An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State”). Respect for the judgments of Congress — whose Members take the same oath we do to uphold the Constitution — requires no less.

In the absence of any assessment of the DTA’s remedies, the question whether detainees are entitled to habeas is an entirely speculative one. Our precedents have long counseled us to avoid deciding such hypothetical questions of constitutional law. (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such[questions are] unavoidable”); see also Ashwander v. TVA, (Constitutional
questions should not be decided unless “ ‘absolutely
necessary to a decision of the case’” (quoting Burton v. United States, This is a “fundamental rule of judicial restraint.”

The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. It is, however, precisely when the issues presented are grave that adherence
to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.

I could well be wrong, but when I read this decision, I felt a chill run through me. Most opinions I've read seem to say it won't have that much of a practical impact. I'm not sure I agree. I think this is one of those decisions whose impact may initially be slight but which will reverberate for decades, picking up momentum as it goes. I think it may well fundamentally change the meaning of what it means to be an American. The key to this, in my non-lawyer's opinion, lies in Chief Justice Robert's statement here:

The plurality in Hamdi v. Rumsfeld, explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon military conflict.” This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.

What SCOTUS has done here, if I understand it (and I may not) is stunning.

They have done two things:

1. They have arrogantly bypassed the legislature without even ruling on the adequacy of the statute passed by Congress or requiring the plaintiffs to resort to it; and

2. They have given non-U.S. citizens greater rights under the U.S. Constitution than what they decided U.S. citizens have under Hamdi. And what was the justification for this?

Not law, not precedent, but an end-justifies the means argument. In other words, they manufactured a legal argument to satisfy a predetermined outcome because they were impatient. Essentially, they gave in to fear. I suppose when you are the highest court in the land you don't have to worry about being overturned.

Grim has a rather odd video up at his place about the proclivity of many Americans to mate only with those who share their political sensibilities. I found it amusing. Many moons ago when I first dated and married the spousal unit, he was fairly conservative.

I, on the other hand, was pretty much a flaming liberal.

I stayed that way for years before (if you listen to the tolerant left, whose respect for diversity and openness to alternate modalities is a hallmark of their superior mental health) my life experiences led me to slowly succumb to the twisted psychosis that is conservatism. But in my more liberal days I was impatient. I wanted government to step in and help people who were hurting. This was because I still believed government intervention would have a beneficial effect. It was my experiences as an adult that changed my mind about the efficacy of social programs.

It wasn't so much that I stopped caring. It was more that once I became an adult, I saw why such efforts so often backfire; how so many social engineering experiments not only fail to achieve their goals but end up creating unintended second-order problems that are far worse than the ones they set out to remedy.

I don't think I truly became a conservative, though, until 9/11. It was the backlash that did it to me; listening to the constant jabbering about fear-mongering from folks like Zbigniew Brzezinski. This is an almost surreal experience: it's a bit like standing in a hall of mirrors, having Zbigniew Brzezinski tell you we have absolutely nothing to fear from the terrorists who have (at least twice that I am aware of) tried to kill us, but that we should be very, very afraid of the bad, corrupt, evil and wrong/bad (did I remember to say they are bad?) men in the White House who keep fear mongering and trying to scare us.

Because the only thing we as Americans have to fear, is fear itself.

And Fear is Bad.

As we constantly eschew the politics of fear, we should be remember to be very, very afraid. But not of the terrorists, mind you.

No, we should be afraid of Fear Mongers. You know, people who tell us to be afraid of the Wrong People. So unpleasant, fear. Harshes the mellow.

By fear mongers, of course, I mean bad men like George Dubya Bush who hasn't, last time I checked, actually carted off any American citizens in the middle of the night other than Jose Padilla, about whom we've all read approximately 90,000 gazillion frothing-at-the-mouth articles (kind of hard to argue that was a "secret abduction", isn't it?). Question of the day: how many pending lawsuits are there in which American citizens asking where their unnamed husbands/wives/brothers/sisters/etc. disappeared to?

Isn't this what a habeas corpus suit is for? Even if such a suit were denied, if the NY Times and the WaPo can leak classified documents about vulnerabilities in Marine body armor, the SWIFT terrorist tracking program, the NSA wiretapping program, and how Anbar province was "irretrievably lost" to al Qaeda (thank God for that news flash!) with zero repercussions from the Fear Mongers, surely such horribly wronged plaintiffs could manage to get word to brave truth-to-powerers like Bill Keller, don't ya think?

Because I do.

Yet we hear all the time from Zbigniew, Tim Robbins, Sobbing Sue Saradone and countless others non-fear-mongers who seek to reassure us that we have nothing to fear from the Bad Men Who Are Trying To Destroy Amerikkka about our vanishing habeas rights, and how this is the End of the Republic As We Know It.

But we should not be afraid. Of anything except the fear that we aren't supposed to be afraid of. Because if we are afraid, we're being manipulated by Evil Men. Or something like that. Whatever.

The truth of the matter is that Guantanamo bay is a mess. But it's a mess because we are doing what we are doing out in the open, where everyone can see it in the light of day. What the critics like to gloss over is that the Clinton administration both supported and committed extraordinary renditions before we were at war:

Snatches, or more properly "extraordinary renditions," were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgement of the host government.... The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."

The odd thing is, Al Gore didn't give two figs for international law or the human rights of terrorists, back then. He only began to care when George W. Bush was installed in the Oval Office and we were attacked on September 11th, and the main reason he is able to use our rendition and detention policies against the Bush White House is that, unlike the Clinton/Gore White House, the Bush White House has at least attempted to follow U.S., not foreign law in the treatment of detainees. As Alanis Morrisette might say, isn't it ironic? The result was not only a more effective and humane program, but one that drew the wrath of the much vaunted "international community". Funny, isn't it?

The Rendition Program was initiated because President Clinton, and Messrs. Lake, Berger, and Clarke requested that the CIA begin to attack and dismantle AQ. These men made it clear that they did not want to bring those captured to the U.S. and hold them in U.S. custody.

1.) President Clinton and his national security team directed the CIA to take each captured al-Qaeda leader to the country which had an outstanding legal process for him. This was a hard-and-fast rule which greatly restricted CIA’s ability to confront al-Qaeda because we could only focus on al-Qaeda leaders who were wanted somewhere. As a result many al-Qaeda fighters we knew were dangerous to America could not be captured.

2.) CIA warned the president and the National Security Council that the U.S. State Department had and would identify the countries to which the captured fighters were being delivered as human rights abusers.

3.) In response, President Clinton et. al asked if CIA could get each receiving country to guarantee that it would treat the person according to its own laws. This was no problem and we did so.

--I have read and been told that Mr. Clinton, Mr. Burger, and Mr. Clarke have said since 9/11 that they insisted that each receiving country treat the rendered person it received according to U.S. legal standards. To the best of my memory that is a lie.

...Under President Bush, the rendered al-Qaeda fighters held in U.S. custody have been treated according to guidelines that were crafted by U.S. government lawyers, approved by the Executive Branch, and briefed to and permitted by at least the four senior members of the two congressional intelligence oversight committees.

By bringing the detainees to Gitmo, the Bush administration did the exact opposite of what it has been accused of - it let more sunlight into the rendition process than had ever existed under Clinton-Gore. Congress granted more rights to rendered detainees with the DTA - rights they certainly would never have been granted under Clinton-Gore.

The Supreme Court has now completed the process. For all intents and purposes they have American Constitutional rights and access to the federal courts. SCOTUS bypassed the legislature entirely. If this is not judicial activism, I do not know what is.

It is often tempting to engineer a result we want to see made real, but in doing so, we do violence to the law and to the very fabric of our republic. The ends do not, and cannot, justify the means.

Not if we mean to remain a nation of laws, and not of men.

Under Bill Clinton's watch, we were attacked in 1993. He chose to go after al Qaeda, but in a manner which was both less effective and less respectful of international law and the human rights of the men who were apprehended and detained under the rendition program that began under his tenure. The real irony here is that George Bush tightened up the legal protections for detainees AND made the program more effective, and in return he has been reviled by the international community.

This is not exactly a positive incentive for providing transparency into executive branch dealings during time of war. That's a sobering thought for those who believe in the power of unintended consequences to shape future events.

Posted by Cassandra at June 13, 2008 06:35 AM

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Hmmmm. I always suspected your conservative bona fides, hippie! Prepare to be oppressed!

-- The Man

Oh, wait. Did you really mean that, or are you trying to show what a "maverick" and a "straight talker" you are? If the latter, please accept the Republican Nomination for POTUS.

Posted by: a former european at June 13, 2008 12:46 PM

Well, we may all be "Americans" now, but I also think we are all royally screwed.

This is a preposterous overreach by the Supreme Court. There is nothing like this sort of decision and its expected messy aftermath than to lessen the respect of the people for law and the court.

Its overtly intended effect is to embarrass the Bush administration, impugn the Justice Dept., and perhaps retroactively make them guilty of "warcrimes", which will delight those people on the Left that you speak so warmly of.

That is the shortsighted intellectual justification for it.

Long term, it will undermine any notions of waging counter insurgency warfare, because now it will be nigh impossible for the Army or Marines to take "prisoners" of non-uniformed combatants, without first reading them their Miranda rights and providing legal counsel. Can you imagine this? Lawyers embedded with combat platoons to make sure we don't violate US Constitutional rights of people who are trying to kill us?
Is this any way to run a war?

Posted by: Don Brouhaha at June 13, 2008 01:02 PM


Whoopie. I'm doing the happy dance now.

Posted by: The Sternly Wagging Finger of International Consensus at June 13, 2008 01:11 PM

Essentially I think they have pretty much guaranteed a 'take no prisoners' policy from here on out.

Anything less is sheer madness.

Posted by: The Sternly Wagging Finger of International Consensus at June 13, 2008 01:13 PM

Under Bill Clinton's watch, we were attacked in 1993.

Bill Clinton was in office 35 days when the World Trade Center was attacked in 1993. George Bush was in office more than 230 days when we were attacked in 2001. What is your point?

Posted by: alessi at June 13, 2008 01:15 PM

"Essentially I think they have pretty much guaranteed a 'take no prisoners' policy from here on out."

I suspect what you'll see is a refusal by Americans to take formal custody of prisoners. When doing COIN, we'll make arrests 'in the name of the host nation government,' according to some diplomatic arrangement that preserves their sovereignty over the prisoners, but where we -- simply to assist them, mind you -- retain practical custody, etc.

We've had such custody of Saddam's jackals for quite a while. They're out of range of the SCOTUS, because they're technically Iraqi prisoners; but they're in our custody.

I'm glad you liked the video. I didn't really know what to say about it, other than, this seems like a shallow approach to seeking a mate.

Posted by: Grim at June 13, 2008 01:22 PM

My point was that the renditions program that Al Gore keeps yammering on about was conceived of before we went to war, during the Clinton administration, alessi.

Do try to follow along.

And that (if you bothered to read the link provided) despite Al Gore's fulminations, under Clinton the CIA detained suspected terrorists and then handed them over to known human rights abusers to be imprisoned.

There were no guarantees of their "rights". They had no "rights".

Posted by: The Sternly Wagging Finger of International Consensus at June 13, 2008 01:36 PM

I love to remind folks who complain that we're not treating detainees at Gitmo "according to the Geneva Convention" that they're right. According to the Geneva Convention, we can execute them on the battlefield without trial. Most folks don't bother to actually read the Geneva Convention, but it's pretty clear what you do to combatants who engage in military action without uniform or governmental sanction.

Posted by: MikeD at June 13, 2008 01:38 PM

In some ways I suppose I can see the rationale for wanting a mate who shares your values.

It's just that I'm not sure sharing a political party affiliation is a proxy for sharing "values". My youngest son is a Republican and his wife is a very liberal Dem. And yet, their bedrock values are very similar. It's just that on some issues, they weigh things differently and this causes them to come down on different sides of the issues. Many of my closest friends are Dems. I think our root values are the same. We differ on the particulars.

Grim and agree on the big stuff. We differ on a lot of smaller issues. So I don't buy the "I only sleep with Democrats". Kind of dumb. And close-minded. But whatever floats her boat.

Posted by: The Sternly Wagging Finger of International Consensus at June 13, 2008 01:39 PM

Gee, I guess this means that next president is truly &^%$#@ when it comes to wielding executive power against irregular troops at war with the United States. I sure hope that those terrorist folks are willing to conduct diplomacy before they blow up Macy's on Christmas Eve. Otherwise, as we say in the futures-biz "In God we trust, 'causse we've run out of other options."

Posted by: Pax Obama at June 13, 2008 02:50 PM

If elected, I promise to initiate unconditional negotiations with terriers.

Posted by: Barak Obama at June 13, 2008 03:09 PM

Well, as long as its JUST terriers, and not Livid Terriers!

Those people can SO unreasonable!!

And just so we can all follow along; besides the WTC attack of 1993, there was also the twin embasssy bombings of 1998. Embassies are generally thought of, in normal diplomatic circles, as 'soverign territory' of the nation who possess them, so yes, that was an attack, by terrorists, on the United States. I think that Mr Clinton had been in office for over 5 years at that time.

And then there was the terrorist attack on the USS Cole in 2000. 7 years in. Pretty effective, that Bill Clinton.

Posted by: Don Brouhaha at June 13, 2008 03:33 PM

"Essentially I think they have pretty much guaranteed a 'take no prisoners' policy from here on out."

Works for me. How soon can we make that the ROE?

Posted by: DL Sly at June 13, 2008 04:02 PM

Back to what MikeD said:

I've known we aren't treating these people according to the GCs. For those "complaining" about that, would they be more happy if we did, and DID actually shot them on the spot? I doubt it - they'd then be accusing us of war crimes...

Posted by: Miss Ladybug at June 13, 2008 04:05 PM

You dare to muddy the pristine waters of our jurisprudence with reference to the despised and underhanded business of common politics?

We are offended, and thereby remand you to permanent incarceration of the mouth.

Posted by: The Five-o-Nine at June 13, 2008 04:09 PM

But we should not be afraid. Of anything except the fear that we aren't supposed to be afraid of. Because if we are afraid, we're being manipulated by Evil Men. Or something like that. Whatever.

That entire line of thinking is simply nonsense, but nonetheless widespread.

I was looking at a news website today about the "hot pursuit" incident into Pakistan, complete with the video from the UAV. A colleague discredited the vid because it came from the US government and could be of "anything", but the "fact" is we killed 11 Pak soldiers.

When asked for proof of that "fact", he pointed to a photo of 11 coffins in the same article.

Whatever is right!

Posted by: MaryAnn at June 13, 2008 05:13 PM

Silence, woman!

You must stop promoting the politics of fear, and embrace the warm, gushy politics of not-fear while fearing the fear-mongers!

Which is not anything like fear, mind you. Or fear mongering, either.

I just wanted to make that perfectly clear.

Posted by: Barak Obama at June 13, 2008 05:26 PM

"Works for me. How soon can we make that the ROE?"
Got no further in the comments and had to say that I'm all in with that...

Hey you, Obamalam, I find your lack of apprehension, disturbing.

And as fair warning, I have to say that some of you are really pushing for an interrogation by those functionaries from the Water Board. That unexpected gang formerly from the plains of Spain. Yes, let's give it up for those paragons of brutality, our favorite Men in Red.

Posted by: Darth Shredder at June 13, 2008 06:40 PM

Silence, woman!

Waaahhh! I can't even accuse you of being sexist because that would make me a racist.

Posted by: Hillary Clinton at June 13, 2008 06:47 PM

...the...politics of not-fear while fearing the fear-mongers!

Do we fear the fear-mongers merely because they are mongers of fear or just common mongers? Because if they *are* just common mongers, it has been my experience that most have some terrier in their ancestry, which means we can negotiate unconditionally with them while still maintaining our fear of them.

I hope, therefore I change. Actually, I hope I *have* change -- I need a cup of coffee so I'll be primed...

Posted by: BillT at June 14, 2008 10:01 AM

There are known enemies, unknown enemies, and enemies that you think allies.

One might say AL Qaeda occupies our front and the transnational progressives occupy our back with the unknown enemies somewhere in between to the sides.

Posted by: Ymarsakar at June 15, 2008 08:30 PM

"Oh, you think so, monsieur?" the colonel objected. "I can see you've never done much fighting. In war the real enemy is always behind the lines. Never in front of you, never among you. Always at your back. That's something every soldier knows. In every army, since the world began."

—Jean Raspail, The Camp of the Saints

"And plenty of times they've been tempted to turn their backs on the enemy—the so-called enemy, that is—and give it to the real one, once and for all. . . . No, my friend, in war the real enemy is seldom who you think."

—Jean Raspail, The Camp of the Saints

Beware of the thing that is coming, beware of the risen people,
Who shall take what ye would not give.
Did ye think to conquer the people,
Or that Law is stronger than life and than men's desire to be free?

—Padraic Pearse, "The Rebel"

Against the slave and exploitation policies of the Leftist statist totalitarians and anti-Americans, the Law has been and always will be stronger than the free of individual men and women.

Posted by: Ymarsakar at June 15, 2008 08:33 PM