[A-List] Shredding the Magna Carta

[Bill Totten <shimogamo@xxxxxxxxxxxxx>]

Comment from The Progressive (June 2004 issue)

The Bush Administration wants to rip up not just the Bill of Rights.
It's going after the Magna Carta, too.  It wants to do away with habeas
corpus, the essential, 800-year-old right that allows the accused to
appear before a judge and plead.

But the Bush Administration can't be bothered with that.

The foreign enemy combatants it is holding in Guantanamo have no due
process rights at all, according to the Justice Department.

And enemy combatants who are US citizens, such as Jose Padilla and Yaser
Hamdi, barely have any, either.  They are not entitled to counsel, they
are not entitled to appear in court in person, and they are not entitled
to a speedy trial.  In fact, they can be held indefinitely without
charge.

What is stunning is how brazen and weak are the arguments the Bush
Administration has put forward in these cases.

Some of the arguments are downright laughable.  In the Hamdi case, the
government asserts in its brief that it is acting in a "humane" way,
even though Hamdi has been in solitary confinement for two years.  The
President, the brief says, has "the authority to engage in the time-
honored and humanitarian practice of detaining enemy combatants
captured in connection with the conflict, as opposed to subjecting such
combatants to the more harmful consequences of war". (Italics in
original throughout.)

What would those be?  Torture and dismemberment?  According to the
Justice Department, Hamdi should be grateful for his little cell.

Then there is the claim that the President and only the President can
determine whether someone is a prisoner of war, who has certain rights,
or an enemy combatant, who has none.  "The President has conclusively
determined that Al Qaeda and the Taliban detainees are not entitled to
[Geneva Convention] privileges", the government writes in its Hamdi
brief.  "Neither the [Geneva Convention] nor the military's own
regulations provide for any review of the military's determination that
an individual is an enemy combatant in the first place".  Or, as the
Administration put it in the Padilla brief, "There is no warrant for
second-guessing the President's judgment" in these designations.

As to why the enemy combatant may not have the benefit of counsel, the
Administration is quite clear: It wants to be able to extract
information from the detainee under interrogation, and granting counsel
would interfere with that.  "The military has learned that creating a
relationship of trust and dependency between a questioner and a detainee
is of 'paramount importance' to successful intelligence gathering", the
Administration writes in its Hamdi brief.  "This critical source of
information would be gravely threatened" by access to counsel.

Justice John Paul Stevens tore this claim apart during oral arguments
before the Supreme Court on April 28.  He asked Deputy Solicitor General
Paul Clement: "Are there any cases in the international field or the law
anywhere, explaining that the interest in detaining a person
incommunicado for a long period of time for the purpose of obtaining
information from them is a legitimate justification?"

Clement: "I don't know that there are any authorities that I'm aware of
that address exactly what you're talking about".

Clement also claimed that Hamdi had already received the benefit of a
neutral process, including the opportunity to present his side.  How and
when did this happen?  When the military screened him on the battlefield
and when the interrogators were questioning him.  "The interrogation
process itself provides an opportunity for an individual to explain that
this has all been a mistake", Clement said.

This did not sell well with Justice Ruth Bader Ginsburg, who repeatedly
asked about it.  Nor did Justice Stephen Breyer take kindly to it.  "The
words in the Constitution are 'due process of law'. And also the words
in the Magna Carta were 'according to law'.  And whatever form of words
in any of those documents there are, it seemed to refer to one basic
idea that's minimum: that a person who contests something of importance
is entitled to a neutral decisionmaker and an opportunity to present
proofs and arguments", said Breyer.

To claim, as the government does, that a detainee can present such
proofs and arguments to his own interrogator strains credulity.

Clement also failed to come up with any logical distinction between
those whom the Administration gave access to the courts (Zacarias
Moussaoui and John Walker Lindh) and those whom the Administration has
labeled enemy combatants and tossed into the brig (Hamdi and Padilla).

Justice Ginsburg asked, "Does the government have any rhyme or rationale"
for distinguishing between the two?  She added: "How does the government
justify some going through the criminal process and others just being
held indefinitely?"

Clement: "Justice Ginsburg, I think that reflects the sound exercise of
prosecutorial and executive discretion".  Again, it's all up to the
President.

Nor could Clement assure the justices that there was any limit to the
length of detention, a problem that concerned several of them.  Justice
Anthony Kennedy asked if there was any "outer bounds", and Justice
Breyer said: "Let's say it's the Hundred Years' War.  Is there no
opportunity for a court, in your view, to say that this violates, for an
American citizen, the elementary due process that the Constitution
requires? ... It seems to me your answer boils down to saying, don't
worry about the timing question, we'll tell you when it's over".

The government's argument in the Hamdi and Padilla cases rests on two
assertions: First, that the President has the constitutional authority
as commander in chief to designate and hold people as enemy combatants
indefinitely, and second, that Congress granted the President additional
authority to do so when it passed a law on September 14 2001, granting
the President the right "to use all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11".

Both of those assertions are false and deeply troubling.  While the
President as commander in chief certainly has the right to capture and
detain enemy soldiers and irregulars, nowhere does he get the blanket
authority to do whatever he wants, including detaining US citizens
outside the court system for as long as he deems necessary.

Justice Breyer asked Clement about his interpretation of the "necessary
and appropriate" language in the Congressional authorization, wondering
whether "appropriate" might impose some limit on the President's actions.
Clement would have none of that. "I certainly wouldn't read ... the term
'necessary and appropriate' as an invitation for sort of judicial
management of the executive's war-making power".

This assertion made at least two of the justices uncomfortable.  One
asked: "If the law is what the executive says it is, whatever is
necessary and appropriate in the executive's judgment ... unchecked by
the judiciary, so what is it that would be a check against torture?"
Clement responded by mentioning treaty obligations, the military code,
and the President's intentions.

But he was then asked again, "What's constraining? That's the point. Is
it just up to the goodwill of the executive? Is there any judicial check?"

Clement responded: "The fact that executive discretion in a war
situation can be abused is not a good and sufficient reason for judicial
micromanagement".  He said that because Padilla and Hamdi are citizens,
they could have some very limited access to habeas corpus.  But that
does not include the right to appear in court themselves or the right to
have their own attorneys or the right to stand trial.

"You have to recognize that in a situation where there is a war, where
the government is on a war footing, that you have to trust the executive",
Clement said.

A huge problem for the government's case, however, is that a law exists
on the books that expressly prohibits the President from doing what Bush
has done to Padilla and Hamdi.  In 1971, in revulsion at the internment
of Japanese Americans during World War II, Congress passed a law, known
as 4001, that says, "No citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of Congress".
This law overturned the 1950 Emergency Detention Act, which "established
procedures for the apprehension and detention, during internal security
emergencies, of individuals deemed likely to engage in espionage or
sabotage".  Clement said this applied only to civilian courts, not to
military proceedings.

But Padilla's lawyer pointed out that Congress, when it gave Bush the
authorization of force, did not toss out 4001.  "There is simply no
indication that when Congress passed the authorization for use of
military force ... the Congress also thought that they were authorizing
the indefinite military detention without trial of American citizens on
American soil", said Jennifer Martinez, who argued Padilla's side of the
case.  Martinez added that shortly after the authorization of force
Congress took up the Patriot Act.  "It extensively debated a provision
that allowed the detention of aliens for seven days", she reminded the
court.  Congress did not assume the President already had that power,
much less the power to hold citizens indefinitely.

Martinez illustrated how vast the Administration's power could be under
its own interpretation.  "Mr Padilla's mother, because she is associated
with her son, may be argued to have associated with Al Qaeda, and
clearly that's not what Congress had in mind, to allow that person to be
locked up with no right to a lawyer, no right to a hearing for as long
as the war on terror lasts", she told the court.  "That's simply not
consistent with our nation's constitutional traditions. It's a limitless
power."

But just to be clear on the vastness of the Bush Administration's claims,
Clement confirmed during oral argument that even without that
Congressional authorization of force, the President still would assert
the right to hold Hamdi and Padilla as enemy combatants.  Clement added
that the President could detain people like them even when there is no
war.  "The President had that authority on September 10th", Clement said.

The government's argument in the Guantanamo case was equally
overreaching.  The 650 foreign nationals whom the Pentagon is detaining
in Cuba have no access whatsoever to US courts, Solicitor General
Theodore Olson argued on April 20.  Though the Fifth Amendment says "no
person" shall be denied due process of law, Olson asserted that foreign
nationals have no right to due process.

As in the Hamdi and Padilla cases, here the government claimed that the
President has the sole authority to determine whether the detainees are
enemy combatants.

And the Bush Administration maintained the fiction that the US
government does not exercise sovereignty at Guantanamo, and so it's a no
man's land for noncitizens - a "lawless enclave", as one attorney for
the detainees put it.

The plaintiffs characterized the Bush argument as saying it "may
unilaterally strip the federal courts of their statutory power to review
the indefinite detention of foreign nationals without legal process,
simply by deciding to detain them in an offshore prison".

Justice Ginsburg saw through this Administration claim.  At Guantanamo,
"American law is - and for a century has customarily been - applied to
all aspects of life", she said during oral argument. "We even protect
the Cuban iguana".

Justice Breyer wasn't buying the argument, either.  "It seems rather
contrary to an idea of a Constitution with three branches that the
executive would be free to do whatever they want, whatever they want
without a check", he said to Olson.

Olson's response was to say it's up to Congress to take care of any
perceived problem.  "Whether there is a check on the executive, there is
a Congressional check through the power of legislation, through the
power of oversight, through the power of appropriations".  But there is
no judicial check.

This is a frontal assault on our basic liberties.  Frank Dunham,
representing Hamdi's side of the case, said in closing his oral argument
on April 28: "Who is saying trust us? The executive branch. And why do
we have the Great Writ? We have the Great Writ because we didn't trust
the executive branch when we founded this government ... Saying trust us
is no excuse for taking away and driving a truck through the right of
habeas corpus and the Fifth Amendment that no man shall be deprived of
liberty except upon due process of law."

The Supreme Court will decide these cases by July.  These are among the
most momentous decisions to face the court in decades.  If it rules for
the Bush Administration in all three, our freedoms as we have known them
will be a thing of the past.

http://www.progressive.org/june04/comm0604.html

Please also see "What Do We Do Now?" by Howard Zinn, The Progressive
(June 2004) http://www.progressive.org/june04/zinn0604.html

Bill Totten     http://www.ashisuto.co.jp/english/