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One for the Constitution

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Posted on Jun 12, 2008

By Eugene Robinson

    WASHINGTON—It shouldn’t be necessary for the Supreme Court to tell the president that he can’t have individuals taken into custody, spirited to a remote prison camp and held indefinitely, with no legal right to argue that they’ve been unjustly imprisoned—not even on grounds of mistaken identity. But the president in question, sigh, is George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays in clearing brush at his Texas ranch.

    So Thursday, for the third and apparently final time, the high court made clear that the Decider has no authority to trash the foundational principles of American jurisprudence. In ruling 5 to 4 that foreigners held at Guantanamo Bay have the right to challenge their detention in federal court, the court cited the Constitution and the centuries-old concept of habeas corpus. Justice Anthony Kennedy’s majority opinion seems broad enough and definitive enough to end the Kafkaesque farce at Guantanamo once and for all.

    “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Kennedy wrote. Again, it’s amazing that any president of the United States would need to have such a basic concept spelled out for him.

    That reference to “extraordinary times” takes care of a specious argument that Bush and his legal minions have consistently tried to make—that when the nation is at war, as it has been since the 9/11 attacks, the president has extraordinary powers that allow him to do, well, basically anything he wants.

    The Bush administration also has argued that the Guantanamo prisoners are “enemy combatants” who have no legal rights; that while U.S. citizens detained in the “war on terror” may have some rights, foreigners do not; and that Guantanamo is foreign soil, beyond the reach of U.S. judges. The court had no trouble seeing through all this smoke.

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    Twice before, the court has ordered Bush to respect the rule of law. In 2006, after the second ruling in favor of Guantanamo inmates’ rights, the administration convinced Congress to pass a law stripping the inmates of any right to file habeas corpus petitions in the federal courts. Thursday’s ruling struck down this law—and since the decision was based on the Constitution, it seemed to eliminate the possibility of new legislation that would let Bush continue his program of arbitrary, indefinite detention without judicial review.

    The court also deemed inadequate the kangaroo-court tribunals that are held for Guantanamo inmates in lieu of proper court hearings. In the tribunals, an inmate is allowed to have a “personal representative” but not an actual defense lawyer—and the inmate has no right to see the evidence against him or confront his accusers. Is it conceivable that the evidence against certain inmates might consist of witness statements that were obtained through the use of interrogation techniques involving painful coercion that international agreements classify as torture? Amazingly, that scenario is highly conceivable. Amazingly, it’s also highly conceivable—even probable—that some of the estimated 270 inmates at Guantanamo, imprisoned for as long as six years, are innocent of any involvement in terrorism and just happened to be in the wrong place at the wrong time.

    I say amazingly because it’s still hard for me to believe that arbitrary arrest, indefinite detention and torture continue to be debated, as if there were pros and cons. The Supreme Court has now made clear that while justice and honor may be mere inconveniences for George W. Bush, they remain essential components of our national identity.

    “The nation will live to regret what the court has done today,” Justice Antonin Scalia wrote in a dissent, warning that the ruling “will almost certainly cause more Americans to be killed.”

    Everyone hopes he’s wrong, of course. But if the only thing that mattered was security, why would we bother to have an independent judiciary at all? Why would there be any constitutional or legal guarantees of due process for anyone? We could just lock up anyone who fit the demographic profile of the average armed robber, say, or anyone with psychological traits often displayed by embezzlers.

    The Guantanamo decision will create headaches for the federal courts. The process of granting hearings to the detainees will be messy, imperfect and at times frustrating. I’m confident that in the end, the system will work. George W. Bush may not trust America’s basic values and highest ideals, but I do.
   
    Eugene Robinson’s e-mail address is eugenerobinson(at)washpost.com.
   
    © 2008, Washington Post Writers Group


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OzarkMichael's avatar

By OzarkMichael, June 15, 2008 at 8:21 pm Link to this comment

from JNagarya: The obvious point: not everyone knows—or respects the fact—that dissents ARE NOT THE LAW.  As result, they try to advance the view expressed IN THE DISSENT/S as if having legal weight, as if relevant.

I hope in the future when the liberals are in the dissenting minority and folks on Truthdig want to have an intellectual discussion about the dissent, that you will stop them from having a discussion about “irrelevant” material. Make sure they dont advance those views expressed in the dissent!

But in fact dissents are relevant for a few reasons. First, the dissent is mentioned in the article. Second, the dissents were made by Supreme Court Justices whom you and your kind want to impeach or jail. Such a serious charge should be discussed. Quote the dissent and show us the crime. That is something you cant do. So why did you steer your argument in that direction? Sure, it impresses the parrots here at Truthdig, but its a dead end. 

Your first answer to me started so well, with something substantive about habeas, but then you veered off into liberal parrotland. Its so silly. Why dont you back out of that and just argue that the dissent is wrong? It would be a discussion. I will let you off the hook on your ‘impeachment’ remarks.

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mackTN's avatar

By mackTN, June 15, 2008 at 4:36 pm Link to this comment

...if these people are as dangerous as Bush clearly knows they are, they why not just kill them?  Clearly he believes he can do anything with anybody he deems a security risk.  Don’t we have a black ops force for just this reason, for killing people?

In place of killing them, why not try them?  Surely there is evidence against these people.

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By JNagarya, June 15, 2008 at 1:41 pm Link to this comment
(Unregistered commenter)

“By OzarkMichael, June 15 at 11:04 am #

“from JNagarya: Their “rationale” is a misrepresentation of the Suspension Clause by adding a general “in times of war” which DOES NOT exist in that clause.  There are expressly only TWO instances during which suspension of habeas is authorized:

1.  Rebellion—which doesn’t exist.

2.  Invasion—which doesn’t exist.

“The coalescence of real thought. Hope arises. But then:

“Aside from the fact that there is NO REASONING—unless you consider falsification of the Constitution “reasoning”—

“I hoped for better.”

You hoped for DIFFERENT.

“But ok, I will take you seriously. Falsification of the US Constitution is a serious charge. And by Supreme Court justices no less. Which ones?”

The four in dissent.

“What should be the penalty for that?”

Impeachment.

“in the dissents, this is the standard:

Dissents are NOT LAW;

“Dissents are not law… got it. But you would state the obvious to make what point?”

The obvious point: not everyone knows—or respects the fact—that dissents ARE NOT THE LAW.  As result, they try to advance the view expressed IN THE DISSENT/S as if having legal weight, as if relevant.

“Are you saying that since dissents are not law you dont have to think when you attack them? Are you saying that dissents are meaningless?”

I am saying they are IRRELEVANT to what the LAW IS.

READ what I said ABOVE—in quoting from the dissents.

“they are, rather, the LOSING ‘ARGUMENT’”—in quotes because lying is not legitimate argumentation.”

“You use the word ‘lying’. Fine, which dissent contains lying?”

See the above.

“or are all “LOSING ARGUMENTS” at the Supreme Court automatically turned into lies because they are the minority opinion? Not good. You cant mean it.”

Whether lies or not, they are IRRELEVANT as to THE LAW.  In this instance—see my quote therefrom abouve—they are also lies. 

““Lying is not legitimate argmentation”… true, but neither is ignorance.”

And you’ll be reading the dissents when?  And when you finally do, WILL be seeing the falisfications of the law which have (also) been widely reported (even while not being called that)?

“JNagarya, the beginning of your post was fine.”

Who are you to judge?  Let us know when YOU have read the dissents.

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OzarkMichael's avatar

By OzarkMichael, June 15, 2008 at 12:04 pm Link to this comment

from JNagarya: Their “rationale” is a misrepresentation of the Suspension Clause by adding a general “in times of war” which DOES NOT exist in that clause.  There are expressly only TWO instances during which suspension of habeas is authorized:

1.  Rebellion—which doesn’t exist.

2.  Invasion—which doesn’t exist.

The coalescence of real thought. Hope arises. But then:

Aside from the fact that there is NO REASONING—unless you consider falsification of the Constitution “reasoning”—

I hoped for better. But ok, I will take you seriously. Falsification of the US Constitution is a serious charge. And by Supreme Court justices no less. Which ones? What should be the penalty for that? 

in the dissents, this is the standard:

Dissents are NOT LAW;

Dissents are not law… got it. But you would state the obvious to make what point? Are you saying that since dissents are not law you dont have to think when you attack them? Are you saying that dissents are meaningless?

they are, rather, the LOSING ‘ARGUMENT’”—in quotes because lying is not legitimate argumentation.

You use the word ‘lying’. Fine, which dissent contains lying? or are all “LOSING ARGUMENTS” at the Supreme Court automatically turned into lies because they are the minority opinion? Not good. You cant mean it. 

“Lying is not legitimate argmentation”... true, but neither is ignorance.  JNagarya, the beginning of your post was fine. But maybe I was wrong and you are just parroting someone else.

Truthdig is supposedly a place where people get to the bottom of issues. One gets the impression that many people here attack without understanding or even reading the documents involved. If you want to criticize something, first be curious about what it really means, and if its really important you should read it yourself.

The finale of JNagarya’s post on the dissent in this recent Supreme Court decision:

Torture is a war crime, illegal always and everywhere.  It cannot be made legal; and it is illegal to ATTEMPT to make it legal.

Now if JNagarya would explain how the dissent propounds the legality of torture, we will be getting somewhere. We could put the bad Supreme Court Justice on trial for the “ATTEMPT to make it legal”,  But show us where the dissent did this or…if not… admit you arent talking about the dissent at all. Its like Nixon talking about his dog ‘Checkers’ and remaining as Vice President. Too often people just fall for the smokescreen. Arent we better than that here?     

I have a liberal atheist friend who says truth is never arrived at by just trusting authority and I am beginning to realize that she is right. Some of you trust the Truthdig authors to the point where you dont think for yourselves.

Circular reasoning is not ‘legitimate argumentation’, nor are charges of lying, charges of falsification, nor charges of anything unless you show the proof and reasoning. To have a chance of finding the proof you will have to read the dissents, which no one will do. JNagarya, please prove me wrong. 

If anyone wants to discuss this the dissents are at the bottom of the document:
http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf

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By tony Duncan, June 15, 2008 at 9:46 am Link to this comment
(Unregistered commenter)

in reading extreme conservative websites the basic issue is that the Supreme Court has given rights to non American citizens. This is characterized as giving the terrorists the rights of US citizens, and that somehow this puts the US in great Peril.. I have yet to receive a coherent explanation as to HOW this is dangerous. But their point is that the US Supreme court is setting a precedent by giving rights to non americans, and terrorists who are trying to behead us all too boot!

The one clear down side to this is the same as with regular criminal proceedings. There are going to be instances where real terrorists get released because there is not enough evidence against them. There are actual cases of this that are being touted as proof of the insanity of this judgement. Of course these are people who were released without the benefit of habeas corpus apearances, so I am not sure waht the argument is, unless it is that once someone is detained for wahtever reason, they should never be released

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By JNagarya, June 14, 2008 at 9:48 am Link to this comment
(Unregistered commenter)

What is to be gained from reading the dissents? 

One: knowledge of the fact that the dissenters falsify the Suspension Clause in the Constitution in effort to protect Bush from the rule of law. 

Two: Nothing.

“By OzarkMichael, June 13 at 5:32 pm #

“How easy it is to trash the dissenters on this Supreme Court opinion without quoting their rationale(except for a one liner about consequences there was nothing about reasoning).”

Their “rationale” is a misrepresentation of the Suspension Clause by adding a general “in times of war” which DOES NOT exist in that clause.  There are expressly only TWO instances during which suspension of habeas is authorized:

1.  Rebellion—which doesn’t exist.

2.  Invasion—which doesn’t exist.

“Eugene Robinson, at least familiarize yourself with the reasoning on the dissenting side so you understand what the hell is going on. Then you can criticize them intelligently.”

Aside from the fact that there is NO REASONING—unless you consider falsification of the Constitution “reasoning”—in the dissents, this is the standard:

Dissents are NOT LAW; they are, rather, the LOSING ‘ARGUMENT’”—in quotes because lying is not legitimate argumentation.

“I for one am not satisfied with this article, although the other reader’s comments show they couldnt be happier for another chance to rant about impeachments etc.”

Torture is a war crime, illegal always and everywhere.  It cannot be made legal; and it is illegal to ATTEMPT to make it legal.  We already knew of the efforts to make it legal, and Bushit has publicly admitted APPROVING that war crime.  That in itself is sufficient grounds for impeachment, though there are numerous obvious other grounds for impeachment.

“Truthdig… implies that this is a site where everyone tries to get past just the superficial and one sided arguments. Would be nice if we lived up to the name.”

How about you beginning that process by CEASING to substitute political ideology for RULE OF LAW?  Torture is a war crime, and an impeachable offense—even when YOUR guy does it.

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Paolo's avatar

By Paolo, June 14, 2008 at 9:06 am Link to this comment

One angle of the problem of an out-of-control executive is linguistic. Whenever we let politicians play linguistic tricks with the word “war,” we are in trouble.

Most of us understand the concept “war” to mean: a dispute between two countries, which is brought to an end with a formal truce, or the military of one nation taking the other nation’s capital and capturing that nation’s leader(s).

If we made war against Iraq on those terms, the war would be over, and our soldiers would long ago have come home. Ah, but it’s not a war on Iraq—it’s a “War on Terror.”

One nation can defeat another nation. No nation can “defeat” terror. Terror is an emotion, or a desperate tactic by a hopelessly outgunned enemy. Thus, a “War on Terror” can go on literally forever. This is the administration’s actual intent in playing with the linguistics.

One can argue that prisoners taken in an actual “war” against another nation can be held until the cessation of hostilities. But once the war is over, they are released and sent home. But in a “War on Terror,” which by definition can never end, such hapless folks can be held until they die of old age.

Another, related linguistic trick is creating new categories of prisoners. In conventional “war,” captured soldiers are granted humane care under the Geneva Conventions: you cannot beat them, starve them, sexually humiliate them, or torture them. All they are required to tell you is name, rank, and identification number.

In the shoddy linguistics of the “War on Terror,” however, the administration creates new categories of “prisoners” to get around these civilized conventions. Prisoners are called “unlawful combatants”, a concept separate from “prisoner of war” [which gives them certain rights] and “accused criminal” [which also gives them certain legal rights, such as habeas corpus]. The administration wants such prisoners to be at the mercy of their captors, with no redress available from any other authority.

Linguistics, folks. He who defines the terms of the debate, wins the argument. Whenever you hear phrases such as “War on Terror,” or “unlawful combatant,” you can be sure you are listening to someone who twists the linguistics to gain an advantage. Don’t let them get away with it.

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By Jim Yell, June 14, 2008 at 6:36 am Link to this comment
(Unregistered commenter)

Maybe there is hope. After the outrageous lying of this current administration, this ruling gives some hope that reason will prevail, against the fear mongering.

It has never been a case that the government was helpless if it followed the law. The process for much of what they want to do includes oversight, which is necessary to block the over reaching and the abuse of power that military and politicians are so likely to indulge in if there are not rules and enforceable procedures.

It should be obvious even to those who lean towards authoritarianism that holding people prisoner and then not taking the time or bother to prove the need for imprisonment places everyone at risk of the whims of arrogant and ambitious people. It should be no surprise that not letting defendants know what the charges are against them or the proof that there is reason to suspect them, is in fact wrong and again leads to mischief. It should never have taken this long for the court to demand these simple procedures be obeyed as they have been our core values. We can not preach fairness to others if we do not practice fairness ourselves and besides it will eventually turn upon ourselves if we continue to allow these high handed and impulsive behaviors by the self appointed elites.

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OzarkMichael's avatar

By OzarkMichael, June 13, 2008 at 6:32 pm Link to this comment

How easy it is to trash the dissenters on this Supreme Court opinion without quoting their rationale(except for a one liner about consequences there was nothing about reasoning)

Eugene Robinson, at least familiarize yourself with the reasoning on the dissenting side so you understand what the hell is going on. Then you can criticize them intelligently.

I for one am not satisfied with this article, although the other reader’s comments show they couldnt be happier for another chance to rant about impeachments etc.

Truthdig... implies that this is a site where everyone tries to get past just the superficial and one sided arguments. Would be nice if we lived up to the name.

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By WriterOnTheStorm, June 13, 2008 at 4:09 pm Link to this comment

At this point, I fear Bush’s Errorism much more than I fear the detainee’s terrorism.

What do the detainees have to say that Bush doesn’t want us to hear?

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By heavyrunner, June 13, 2008 at 2:48 pm Link to this comment

I am expecting that what will be revealed is that there is no evidence, other than torture induced confessions, linking anybody at Gitmo with 9/11/2001.

They wanted us to think it was Saddam Hussein, but that didn’t quite sell.

So, then, to Cheney’s dread, perhaps the corporate media will be forced to ask questions like “Who actually did this?”

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By David, June 13, 2008 at 6:51 am Link to this comment
(Unregistered commenter)

According to a DOJ official, a memo has been uncovered, written by John Yoo, that states the legal rational for the Unitary Executive, in a time of war, for not following any Supreme Court ruling that might possibly infringe on Article II war powers.  President Bush said that he intends to follow Supreme Court ruling ‘as much as he can’.  AG Mukasey added that the DOJ would not enforce any restriction on Unitary Executive powers siting the Yoo memo.

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By AT, June 13, 2008 at 6:24 am Link to this comment
(Unregistered commenter)

The report on telecommunication companies drew a lot of flies, but not this one. Why?

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By Aegrus, June 13, 2008 at 5:53 am Link to this comment

This is what American pride looks like. When it is proved we still have people who understand the Constitution and uphold the real American values of its principals. Scalia needs to be impeached along with Alito. There should be no residual mandate or policy from this terrible administration. All must be wiped clean to begin the process of taking our country back!

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By Inherit The Wind, June 13, 2008 at 3:54 am Link to this comment

Did you notice that Il Duce, aka, President Mussolini, aka Chimpy McFlightsuit virtually said he intends to IGNORE the decision, based on the fact that it was 5-4?  That he’s going to push legislation to get around it? (as if..)

As much as I think Dennis the Menace is a clown, I do agree that any responsible Congress would be removing this bum and his hatchetman from office STAT!

Of course, nothing will happen. But hopefully, he will actually vacate on Jan 20, 2009 and face the legal music, and President Obama will cut off any discussion of a pardon for a traitor who deserves to have to set up his “Presidential Library” inside Marion or Leavenworth, ‘cuz he’ll be there the rest of his life.

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By SamSnedegar, June 13, 2008 at 1:17 am Link to this comment

what is totally incredible is that this “landmark” decision is 5-4. Just less than HALF of the court thought that suspected terrorists should HAVE NO RIGHTS, even if their connections to terrorism are nebulous and unproven.

Dozens if not hundreds of the detainees at Gitmo have been released because not only were they not guilty of a crime, someone somehow PROVED that they were being held wrongfully because they had done nothing illegal OR immoral.

I wouldn’t be at all surprised to hear that authors such as Stephen Coonts have been arrested by the Bushitter gang of thugs for WRITING FICTION stories about terrorist plots that MIGHT give terrorists ideas on how to do something sick and wrong.

The thought police are out there among us, and 4 of them sit on our supremely corrupt court.

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