Supreme Court Trifecta
by Stephen J. Ryan
I am not as relieved as most people about the three recent Supreme Court ("SC") decisions involving the rights of those held without charge (and without access to counsel) in the war on terror. These decisions ultimately rebuked the Bush Administration's position on abandoning Habeas Corpus (i.e., the government's obligation to charge a crime and the detainee's right to answer the charge) and restores basic due process rights for detainees. Since two of the three cases involved the rights of American citizens, SC's decisions on those cases directly impact each and every one of us and our own right to Habeas Corpus. As I type this, the Bush Administration is hastily convening war tribunals for secret trials, again circumventing American laws and institutions.
Jose Padilla, the alleged "dirty bomber" from Chicago, was arrested here in America and was declared an enemy combatant which means he has not been charged nor has he received access to counsel. Padilla spent two years in a Navy isolation brig in South Carolina without benefit of an attorney until very recently when he then sued Rumsfeld. SC refused to rule, saying that Padilla should have sued the brig commandant. The Supreme Court ignored the obvious chain of command that puts the brig commandant under Rumsfeld's authority. Result? Padilla will keep his enemy-combatant status, remain in the brig, and will have to re-file against the commandant. This is a ridiculous requirement given the SC's blindness to genuine technical flaws in the government's case last week when it barred the release of information emanating from Cheney's 2001 energy task force meetings. At the soonest, SC will hear Padilla's case during the Court's next decision cycle, and it will hear the same arguments it heard this time around, but it will be after the election.
At least in the case of Yasser Hamdi, an American citizen arrested on foreign soil and dispatched to multiple brigs over two years, SC, after much anguish, decided he and the Gitmo detainees had a right to be charged and to answer those charges. However, the Court, in rejecting the Bush Administration's argument for total denial of review, failed in its most basic function: setting forth the required procedures and failed to send the cases down to the Circuit Court of Appeals to make that determination. Thus, there's need for subsequent legal action to establish procedural due process involving those designated as enemy combatants thanks to Congress’s rubber stamp of the Bush’s policy after 9/11. Again, all of this will be decided after the election. How did we get to this point? Georgetown Law Professor Jonathan Turley, considered by most as a judicial moderate, blames Bush for not upholding his sworn oath to uphold the Constitution, blames Congress for abandoning its duty to provide a check to the Executive Branch, and blames the SC for its disfunctionality and its clear political bent. As to the latter, let us remember the amazing speed with which the SC responded to the Florida recount in 2000 in order to limit the collateral damage to its chosen candidate and let us consider the full two years that the SC allowed two American citizens to languish in their Kafkaesque hell.
Turley left off others from his list of blame. Of course there's the 9/11 perpetrators who set the wheels in motion for us to turn to the abhorrent and they provided the justification for things like declaring somebody an enemy combatant. Their actions provided the cover for those waiting for the opportunity to consolidate power which necessitates reducing the Constitution to a vestigial remnant of earlier times. Of course, there's Big Media, fresh from its eight-year assault on everything Clinton and ready to be Ron Popeil to Bush's KTEL.
Ultimately, though, the Numero Uno has to be the populace. First we were bored by the Florida recount fiasco ("let's move on") , then stunned by 9/11, then vengeful ("whatever it takes"), then blissfully ignorant ("we've never been in this position before"), then hopeful ("we'll pull through all this and straighten out the mess later"), and then blissfully ignorant ("we've got all this other stuff going on and I've never been arrested anyway"). Meanwhile, the "great uncharged" continue to waste away in Gitmo and countless brigs while our noble war on terror adds to their rolls. If Bush is re elected, what then?
My question: what do we tell our children?
