Habaeus corpus: a hopeful development

From today’s New York Times:

“Finally, after nearly six years, the Supreme Court is going to rule on the ultimate question: does the Constitution protect the people detained at Guantánamo Bay?” said Neal K. Katyal, a Georgetown University law professor. …

The new case sets up a test of one of the central principles of the administration’s detention policies: that it can hold “enemy combatants” without allowing them habeas corpus proceedings, which have been used in English and American law for centuries to challenge the legality of detentions.

The Justice Department declined to comment in any detail on yesterday’s order, which it had strenuously opposed. “We are disappointed with the decision, but are confident in our legal arguments and look forward to presenting them before the court,” said Erik Ablin, a department spokesman.

The administration has argued that permitting habeas corpus suits by foreigners who are held as enemy combatants outside the United States would paralyze the military during wartime by giving courts the power to review commanders’ decisions. In response, Congress passed a law last year stripping the federal courts of the power to hear such habeas corpus cases filed by Guantánamo detainees. …

Lawyers for detainees had filed some 300 habeas cases, which were working their way through the courts when Congress passed the law last year. Democrats in Congress have been pressing to explicitly grant the detainees habeas rights. Some supporters said yesterday’s decision would increase political pressure for such a measure, although administration officials have said the president would probably veto it.

Even so, the court’s decision yesterday could increase momentum within the administration to find a way to close the Guantánamo detention center. …

Lawyers on both sides of the issue also said the Supreme Court’s review was likely to focus on the fairness of the military hearings that the administration has established to determine whether detainees are enemy combatants and should be detained. In the closed hearings, conducted by what are known as combatant status review tribunals, detainees are not permitted lawyers and cannot see much of the evidence against them.

What is this “new case” that has created such a stir? Actually, it’s an old case. The Court has taken the extraordinary step of reversing an earlier decision, taken in April, not to review a federal appeals court decision on the issue described above:

The court rarely grants such motions for reconsideration. Some experts on Supreme Court procedure said they knew of no similar reversal by the court in decades.

Cheney, Bush, and the rule of law

I expect most of my readers are familiar with the Washington Post’s exposé (part 1, part 2) on Dick Cheney’s machinations. The Post has done a great public service here, lifting the veil on an extremely secretive man who wields tremendous power. As Marty Lederman observes,

for all practical purposes the [Office of the Vice President] is the Bush Administration, and its views become the official views of the Administration, no matter what others in the Administration think.

What about Colin Powell and Condoleezza Rice, two of the public faces of the Bush Administration? Cheney didn’t win arguments against them so much as he bypassed them entirely. On critical issues, they weren’t even “in the loop”.

We’re talking about some of the most deplorable decisions the Administration has taken. For example, the "torture memo":

The Justice Department delivered a classified opinion on Aug. 1, 2002, stating that the U.S. law against torture “prohibits only the worst forms of cruel, inhuman or degrading treatment” and therefore permits many others. Distributed under the signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed the definition of “torture” to mean only suffering “equivalent in intensity” to the pain of “organ failure ….. or even death.”

 

 
Powell and Rice first learned of the memo’s existence two years later, from an article in the Washington Post. Hilzoy at Obsidian Wings is justifiably shocked:

Stop and think about that for a moment. A memo making an absolutely radical, 180 degree change in US detention and interrogation policy in ways that will predictably have an enormous impact on our standing in the world is signed, and neither the Secretary of State nor the National Security Advisor finds out about it until two years later? From a newspaper article?

Lederman says that an obvious question arises at this point: Why does the Bush Administration function that way?

After all, there are extremists and hard-liners in every Administration, and they are often at the table, and even influential. But the internal Executive branch process is designed to ensure that multiple perspectives are considered, and therefore the most extreme and most uncompromising positions rarely prevail. In this Administration, the [Office of the Vice President] almost invariably wins. Indeed, the VP wins after cutting everyone else out of the loop altogether. …

Cheney always wins because, for some reason, the President has decided that that is how it should be. Which only clarifies that the real question is why the President allows this to happen.

I think Lederman is right. Many people dismiss President Bush as a stupid figurehead:  a puppet for Rumsfeld and Cheney in particular. But I think Bush is better understood as a “big picture” type, who determines broad policies then delegates the details to others. Barton Gellman, one of the authors of the Post articles, comments on another Cheney triumph:  the decision to suspend habaeus corpus:

It’s perfectly plausible, and from all the circumstances seems likely, that Bush told Cheney (whoever brought it up) that yes, he’d like to make sure captured terrorists are kept out of criminal courts where they’d have access to lawyers and technicalities. And that yes, sending them to Guantanamo Bay sounds like a great answer. I doubt that Bush proposed a particular legal mechanism, but it’s not uncommon for a president to tell a subordinate to “find me an answer that achieves this result.”

It’s important to note that nothing is ever done on Cheney’s authority. Indeed, Cheney is scrupulously careful not to leave his fingerprints on these initiatives. It’s all done on President Bush’s authority.

Cheney maintains that Bush is above the law. The US Supreme Court has begun taking bites out of these controversial detainee policies, but Cheney pays no mind. Hilzoy explains:

The article also makes it clear that Cheney regards the President as completely above the law:

According to participants in the debate, the vice president stands by the view that Bush need not honor any of the new judicial and legislative restrictions. His lawyer, they said, has recently restated Cheney’s argument that when courts and Congress “purport to” limit the commander in chief’s warmaking authority, he has the constitutional prerogative to disregard them.

Or, in short: there are no legal limits at all on the President’s power. In wartime, he can do literally anything.

This is also clear from the article’s accounts of Cheney’s discussions of legal strategy. Time after time, various people say to Cheney and his staff: look, you need to realize that this line of argument will never be accepted by the courts. And every time, Cheney’s response is: we insist on everything; we concede nothing; screw them. There is, as far as I can tell, no acknowledgement of the fact that the Courts have an independent role in setting out the legal limits on the actions of the Executive, or that they are anything more than an annoying hoop that has to be jumped through. Similarly with the Congress.

For this reason, it’s not surprising that Cheney treats reversals of his policies in the Courts, or Congressional action overruling them, not as setting limits on what he should do, but as minor setbacks in a bureaucratic war, setbacks that he can overturn through deviousness and persistence.

In sum, America is no longer governed by the rule of law. Not while Cheney and Bush are holding the reigns. And what will future Presidents do with such unlimited authority — for example, if Americans should elect the autocratic Rudy Giuliani in 2008?

The ironies have been pointed out many times before, but they bear repeating.

The Bush Administration has set out to spread democracy to the undemocratic countries of the Middle East. At the same time, the Bush Administration shows a total failure to comprehend what “democracy” means at home. The very foundations of democracy, worked out centuries ago, have been casually brushed aside.

The terrorists’ goal is to destroy Western values, according to President Bush. But Al Qaeda hasn’t accomplished much since 9/11/2001. Bush and Cheney have seized the opportunity to take it from there.

Diamonds’ Eternity Debatable

My girlfriend, Rose, passed this interesting article on slate.com on to me. I thought it was worth posting for some of you to read. It’s not exactly my cup of tea (I still am pro-marriage and even pro-mother-being-the-primary-child-rearing-parent, for reasons I suppose I could elaborate on at a later date…) but it certainly struck a chord on the financial end.

As far as the anti-institutional note goes, I think this article is actually not quite as bad as I feared it would be. I didn’t get the impression that they were trying to shoot down marriage so much as the tradition of the engagement ring, which is positive by me. The fact that it questions the validity of the ring itself in an age of “equitable marriage” is fair by me. I still like the idea of the symbolism, but the case is made that it could be taken as a sign that the woman is now sexually restricted while the man is still free, since only the woman receives it. I tend to think that the ring is a sign of commitment to the woman, as well, but since it’s not always present on his hand it could be seen in a more malicious light.

But the comments the author makes concerning the financial end are astounding, right from the get-go. The comment is made that “more than 80 percent of American brides receive a diamond engagement ring (at an average cost of around $3,200) before they get married.” Only one word can cover that figure: “Wow!” When I price a ring for my future fiancée, I look at $500, perhaps $800-1000 realistically, since it’s hard to get much cheaper than that if you want something with actual gold/silver/gems. I want something that will last a long time, but something that’s more subtle than a giant diamond. The fact that the average cost of one in America is $3200 strikes me as ridiculous. Are these diamonds the size of boulders? Presumably not (which makes me sweat, honestly, since that could mean my figures of $1000 are completely unrealistic!), but nonetheless there has to be some doubt as to the necessity of this price tag.

And the author makes a case that truly hits home for me:

“But behind every Madison Avenue victory lurks a deeper social reality. And as it happens there was another factor in the surge of engagement ring sales—one that makes the ring’s role as collateral in the premarital economy more evident. Until the 1930s, a woman jilted by her fiance could sue for financial compensation for “damage” to her reputation under what was known as the “Breach of Promise to Marry” action. As courts began to abolish such actions, diamond ring sales rose in response to a need for a symbol of financial commitment from the groom, argues the legal scholar Margaret Brinig—noting, crucially, that ring sales began to rise a few years before the De Beers campaign. To be marriageable at the time you needed to be a virgin, but, Brinig points out, a large percentage of women lost their virginity while engaged. So some structure of commitment was necessary to assure betrothed women that men weren’t just trying to get them into bed. The “Breach of Promise” action had helped prevent what society feared would be rampant seduce-and-abandon scenarios; in its lieu, the pricey engagement ring would do the same. (Implicitly, it would seem, a woman’s virginity was worth the price of a ring, and varied according to the status of her groom-to-be.)

On the face of it, the engagement ring’s origins as a financial commitment should make modern brides-to-be wary. After all, virginity is no longer a prerequisite for marriage, nor do the majority of women consider marriageability their prime asset. Many women hope for a marriage in which housework, child-rearing, and breadwinning are equitably divided. The engagement ring doesn’t fit into this intellectual framework. Rather, its presence on a woman’s finger suggests that she needs to trap a man into “commitment” or be damaged if he leaves. (In most states today, if a groom abandons a bride, she is entitled to keep the ring, whereas if she leaves him, she must give it back.) Nor is it exactly “equitable” to demand that a partner shell out a sixth of a year’s salary, demonstrating that he can “provide” for you and a future family, before you agree to marry him.”

The notion that a ring that expensive is a way of suggesting that somehow the man is financially capable of providing seems pretty easy to accept. Once again, the whole equitable marriage thing is not what I am aiming at here — I think that it’s perfectly acceptable for a man to be the primary bread-winner while the woman cares for the children and — and this part is key, by me — continues to live a free life with time away from the house the same that the husband does not spend his entire time at work. But rather, the fact that it is a symbol of something other than the man’s emotional commitment strikes true, to me. If you are spending $3000+ on the ring, somehow it seems to me to be more of a statement that “real men are rich”, not “real men devote themselves to their partner.” It seems to go hand-in-hand with the notion of a trophy-wife covered in jewelery standing next to him. Money is the societal statement being made with this price tag; Money is the new commitment factor, not sex or children or living together. The man with the most money is the one who can best “provide” and thus the most worth “trapping.” That, to me, is what stood out about this excerpt.

Thanks, Rose, for a neat read. As I said, while I don’t agree with all of the notions therein, the fact that the price tag for engagement rings is outrageous gets full support from me, after reading those initial figures alone!

Canada’s Afghan mission to end in 2009?

Lawrence Martin thinks he detects a shift in the position of the Government of Canada. From the print edition of yesterday’s Globe and Mail:

At a press conference Friday, Stephen Harper declared he would seek an all-party consensus before extending the combat mission in Afghanistan. Make no mistake: These were code words for the end of our war mission. [Because the opposition parties will never agree to extend the mission.] He was essentially saying that in a year and a half, other North Atlantic Treaty Organization partners can take their turn at the combat role. Canada will refocus on its humanitarian role.

It’s one of the smarter things the Prime Minister has done in a while — and it will win him public favour. According to polls, two-thirds of Canadians want the combat role to end in February, 2009. But Mr. Harper and Defence Minister Gordon O’Connor had been stubbornly suggesting that the fighting could go on for years. …

On the matter of war, the Canadian people have demonstrated good judgment. In signalling to Jean Chrétien’s government that they did not wish to join the invasion of Iraq, they made the right call. Mr. Harper and his Conservative flock were leaning the other way. In Afghanistan, a similar scenario looked to be taking shape. The public, the Liberals and the other opposition parties wanted to adhere to the 2009 deadline. Not so the Harperites. …

Canadians aren’t quitters. They don’t want an immediate withdrawal. But they feel that by 2009, they will have done their part.

Will any of our NATO partners step forward to do their part? I doubt it. We’ve made overtures before, without finding any takers.

Google Gets Groupchat

The Google Talk Gadget is now able to do group chats! This to me is one of those developments that would be great — if Google would hurry up and make their downloadable client able to do half the things the online tool can!

Google Talk is Google’s equivalent of MSN Messenger or other such Instant Messaging tools. For me, it is ideal because I am a Gmail user, and the downloadable client offers such functionality such as checking your e-mails and logging your chats to your e-mail storage. To me, those are great! But the simplistic tool is taking its time in developing past the point that it started at — that is to say, nothing more than a bare-bones communications’ tool. Some people like their chats to be simple. I respect that. But the fact that it is difficult to connect to the people I have on my MSN list, that there are scarcely any smileys, that the program is unable to perform a group chat, and that it cannot perform most of its more powerful functions with clients other than Google Talk makes me shy away from it. They have slowly been fixing these problems with the online client, but the truth is that there is no sign of them making the download better — and since the aforementioned Gmail functionality doesn’t come along with the web client, it would seem that for now Pidgin is the tool of choice for me!!!

Connecting the dots

This is the George Dubya Bush legacy edition of that old standby, connect the dots.

How many people has the USA detained in the last twelve months?

Colin Powell’s former Chief of Staff Lawrence Wilkerson estimates that the US administration has arrested between 30,000 and 50,000 suspects during the past year. Eighty-five percent of them were innocent, according to Wilkerson. “We really have created a mess here. A terrible mess,” Wilkerson says.

How many of the Abu Ghraib detainees were innocent?

Seventy to ninety percent of the detainees at Abu Ghraib, according to an October 2003 International Committee of the Red Cross report and sworn statements made by members of the 470th Military Intelligence Group, the 519th Military Intelligence Battalion, and the 304th Military Intelligence Battalion, were arrested by mistake or had no intelligence value.

How many of the Guantanamo Bay detainees were innocent?

• Fewer than 20 percent of the Guantanamo detainees, the best available evidence suggests, have ever been Qaeda members.
• Many scores, and perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone Qaeda terrorists. They were innocent, wrongly seized noncombatants with no intention of joining the Qaeda campaign to murder Americans.
• The majority were not captured by U.S. forces but rather handed over by reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability.
• Detainees who had no information — because they had no involvement in or knowledge of terrorism — have been put through “humiliating acts, solitary confinement, temperature extremes, use of forced positions” in a systematic effort to break their wills that is “tantamount to torture,” the International Committee of the Red Cross complained in a confidential report to the government, excerpts of which The New York Times obtained in November 2004.

If we connect the dots, what picture emerges?

The groundwork is being laid for a new kind of government where it will no longer matter if you’re innocent or guilty, whether you’re a threat to the nation or even if you’re a citizen. What will matter is what the president — or whoever happens to be occupying the Oval Office at the time — thinks. And if he or she thinks you’re a threat to the nation and should be locked up, then you’ll be locked up with no access to the protections our Constitution provides. In effect, you will disappear.

A very ironic picture indeed:

The president who vowed to lead America in a moral crusade to win hearts and minds around the world has so inflamed anti-American sentiment that America’s moral standing in the world is at an all-time low. The president who vowed to defend the Good in the world from the forces of Evil has caused the United States to be held in deep contempt by large segments of virtually every country on every continent of the world, including large portions of nations with which the U.S. has historically been allied. The president who vowed to undertake a war in defense of American values and freedoms has presided over such radical departures from the defining values and liberties of this country that many Americans find their country and its government unrecognizable. And the president who vowed to lead the war for freedom and democracy has made torture, rendition, abductions, lawless detentions of even our own citizens, secret “black site” prisons, Abu Ghraib dog leashes, and orange Guantánamo jumpsuits the strange, new symbols of America around the world.

Hat tip to Andrew Sullivan for providing the various dots.