From the Folks Who Brought You the Common Law

From the London Telegraph, December 8, 2007: "Meanwhile, in an interview with BBC Radio 4's Today programme, the former Attorney General Lord Goldsmith said that whether or not the men were dangerous was less important than the rule of law. 'I don't know [whether they're dangerous or not]', he said. 'I do think that [there is a] principle here which is more important. It is not the question of assessing danger or not, which we have to deal with as we have to deal with other people in this country. The principle is fundamental civil liberties. You cannot have people detained for years on end and with no end in sight on the basis of the philosophy the US uses.' He also said that Guantanamo Bay prison should be closed, as it is a 'recruiting sergeant' for terrorists."

Such were the comments of a learned British lawyer asked to comment on the release of four British subjects from the Guantanamo prison camp. Three of the prisoners (from Algeria, Libya and Jordan) will return to Britain; the fourth will be repatriated to his native Saudi Arabia. Lord Goldsmith refers to the "philosophy the US uses" without explanation, but presumably he means the converse of the philosophy he supports: the question whether the men are dangerous "is less important than the rule of law."

I think that used to be the American position on civil liberties prior to the Bush Administration. I have opined before that the concept of the "presumption of innocence" was an application of the scientific method, and Enlightenment ideas generally, to the field of criminal law. As in science, one begins in common law criminal jurisprudence with the idea that the outcome is unknown, and that therefore, in order to assure fairness and to avoid inflicting punishment in advance of the proof, society hazards a little danger in permitting suspects the presumption of innocence. If, in some cases, the danger of allowing the suspect to remain at large seems too great, the defendant is nevertheless assured, by the Fifth Amendment's due process clause, to a speedy trial and determination of his guilt. Overall, this approach served us well for the first 212 years of our nation's history. Not perfectly, but I would say that in the pre-Bush years, our legal system was second to none in the world.

It does not seem hyperbolic to equate the religiosity of the Bushians with their rejection of such Enlightenment ideas. Indeed, the growing theocratic movement in the U.S. does not bode well for the Bill of Rights. As with the a priori assumptions of religion in general, Bush proceeds on the premise that the arrest of the inmates at Guantanamo implies their guilt; if they weren't guilty, why were they arrested? What are they doing in a prison camp like Guantanamo if they're not dangerous? That's about as far as the U.S. "philosophy" goes. Essentially, it is the philosophy of not caring much one way or the other. Since the war on terror is "generational," and since nothing in the Guantanamo enabling legislation (the Detainee Treatment Act or the Military Commissions Act) actually requires a trial, at any time for anyone, the fact of arrest may mean perpetual incarceration in a prison camp without recourse.

If there is a distinction between this approach to "enemies of the state" and the Stalinist gulags, where prisoners were sent to Siberia forever, it must be very subtle. Perhaps a smart British jurist could figure it out. The silence from Congress, or from the presidential candidates, on these problems is complete. Arguing for civil liberties for prisoners Bush has labeled "terrorists" is a kind of political third rail in America. That's a very dangerous sign for all of us. It is not coincidental that coverage of such matters is found on the front page of a British newspaper, and not here at home.

Boumediene under Submission, American Due Process on Trial

Oral arguments were presented yesterday in the Supreme Court case of Boumediene vs. Bush, a case which tests the tenacity of the "Great Writ" of habeas corpus in the wake of Congressional stupidity in passing the Military Commissions Act. Seth Waxman, who was Bill Clinton's Solicitor General back in the era of American Enlightenment, appeared on behalf of six Bosnians who have spent the last six years of their lives in Guantanamo cages, looking for a forum to present the argument that they are not members of al-Qaeda, never fired a shot at an American, and certainly never had plans to blow up the U.S. Embassy in Sarajevo, the putative reason that American government agents gave for kidnapping them in Bosnia and flying them to Guantanamo. As Mr. Waxman stated in his brief, these six Bosnians had been cleared of all charges by a European commission and by Bosnian courts, but were betrayed by Bosnian police acting under pressure from American forces on January 17, 2002, the day of their official, and very short-lived, Bosnian exoneration.

One gets the impression from the indifferent American press and the indifferent American Congress that the inmates at Guantanamo must indeed be the "worst of the worst," as Donald Rumsfeld once described them. In fact, we have no way of knowing if they are or not, and the reason we don't is because the Bush Administration, with the collusion of Congress, has systematically removed the avenues of due process which would lead to a speedy determination of their culpability, if, after six years, one can employ such an adjective without morbid irony.

So that was the question presented: is it Constitutional to maintain a system of indefinite detention in Guantanamo, where the prisoners have no legal recourse other than the kangaroo system of Combatant Status Review Tribunals to test their innocence? Or should they be allowed the writ of habeas corpus in federal court, as provided by the Suspension Clause of Article I, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The United States is not in rebellion and we're not under invasion, other than in the perfervid nightmares of George W. Bush. So two questions remain: should the Bush Administration be allowed to get away with locating its dungeon in Cuba, outside the supposed territorial reach of American courts? And does the court review provision in the Detainee Treatment Act provide an adequate substitute for habeas corpus, if the answer to the first question is "no?"

Mr. Waxman answers the first question "no," and the earlier case of Rasul vs. Bush seems to back him up; however, his case was made much harder by the excision of habeas corpus by the Military Commissions Act. I recall that Arlen Specter, the self-proclaimed great champion of the Constitution, denounced this move as "unconstitutional," then proceeded to vote for the bill, which makes me wonder about his interpretation of his oath of office. The second question is more difficult and gives the hard Right wing of the Supreme Court (Scalia, Thomas, Alito and Roberts) a way to deny the petitioners any hope without ruling on the habeas corpus question. If a prisoner waits long enough and he eventually gets tried for some "war crime" (a term which has never been exactly defined for the Guanatanamo inmates), then at long last he can appeal the decision to the District of Columbia Court of Appeals, who can review, in a limited manner, what the military commission decided. Maybe that's ten years, maybe that's twenty years after initial arrest, and after twenty years of living in a cage on the hot and dusty eastern end of Cuba; and maybe then the D.C. Circuit decides the prisoner never should have been jailed in the first place. Sorry about that; you're a casualty of the Great War on Terror, and after all, you are a Muslim.

Bravo to Mr. Waxman, for his strenuous efforts pro bono publico. He operates in the noble legal tradition of John Adams, who defended the British soldiers tried for the Boston Massacre, as a guarantor of fundamental due process. Sadly, the remedies at this point can never undo the lost six years for those Guantanamo detainees who have been wrongly detained. For make no mistake about it, do not be fooled by the grand references to the "Great Writ," and the eloquent descriptions of "habeas corpus as it existed in 1789," and the august solemnity of litigation in the Supreme Court, with all its "may it please the Court" stuff, and its Roman-numeraled briefs, and the rest of the fancy dress-up. George Bush is running a dungeon in Guantanamo for the same reasons that tyrannical kings in England threw their political opponents in the Tower. As a demonstration of power and to satiate the blood-lust of his foaming-mouth base. It has nothing to do with protecting America; that could be accomplished best by capturing Osama bin Laden and bringing him to trial in a federal court in New York City for crimes against humanity. Osama bin Laden had no right to kill innocent people because of his ideological fantasies; it was a form of collective punishment that is expressly outlawed by the Geneva Conventions. War, to the extent it can ever be legal under international law, is to be fought by the soldiers of one nation against the soldiers of another. But neither should Bush imprison Muslims arbitrarily, forever, without meaningful recourse in American courts, simply to demonstrate that he's "tough on terror," for just as assuredly, that is collective punishment as well.

Mr. Waxman closed his argument (you can hear the recording by going to www.Scotusblog.org) with a heart-rending description of how this "system" leads to perversions of justice. He discussed a former Guantanamo inmate, named Kurnaz, who was held for two years without charges. He was told at his Combatant Status Review, where he had no counsel (since none is permitted) that he had associated with a German terrorist named Bilgen, who, during Kurnaz's detention, had blown himself up. Kurnaz was lucky; ordinarily the detainees not only have no lawyers, they are not told the names of their "accomplices." Such information is "classified." "Kafka-esque," as Mr. Waxman describes it, is not too strong a word. But a lawyer working for Kurnaz on the outside obtained a transcript of the CSRT hearing and within 24 hours produced Mr. Bilgen, who was not only alive and well in Dresden, but had nothing to do with terrorism. The question that hangs in the hot, humid air over Guantanamo, where perhaps hundreds of men wait to see if the Supreme Court still believes in due process as envisioned by Thomas Jefferson: how many more Mr. Kurnazes are being denied a chance to prove their innocence?

Showdown at the Supreme Court

I actually think it works something like this: George W. Bush, whining and petulant, shows up for another day of "hard work" in the Oval Office. He'd rather be on his elliptical trainer, he'd rather be on his custom Trek bike, he'd rather be in a bar in Dallas, he'd rather be just about anywhere than where he is. He's done this job. He has an IQ of about 115, one standard deviation above the population mean, and sure as shootin', that wasn't enough to deal with the complexity of this office. Smart guys like Clinton revel in this whirl of detail and power; it just gives George a headache. He doesn't really like thinking. He never has. He was never a student, never a big reader, and he doesn't like coming up with "creative" ideas. He doesn't write Pulitzer Prize winning histories or paint beautiful watercolors, like his "hero," Winston Churchill. He can't play the sax like Bill Clinton. He is, pure and simple, a bullshitter, and always has been. The reason he was a pretty good jogger and a fair bike rider (when he doesn't fall off) is because the one thing he can do is the same thing over and over and over and over and over and over. Take today's "press conference:" he had to go out there and say that he didn't hear anything about the National Intelligence Estimate declaring Iran's nucular program suspended as of 2003 until one week ago, although the report's been around for a year. He's the President, fer chrissake! Oh, he knows. Karl told him it was best to play it that way, because Fitzgerald is going to wind up giving those Plame transcripts to Henry Waxman, and they're going to be full of Bush's pathetic insistence that although the leakers were his own staff that he met with every day, he still didn't know anything about their identity until...well, you see. You need precedent for the President being treated like a cipher by his own aides. How humiliatin'. But George is good at that, say that for him. Repeating nonsense over and over and over and over and over.

So once in a while, I think Bush just gets fed up with the whole business, storms into the Oval Office, and demands to do something shitty. And the best people to subject to shitty treatment are those Arab-looking people down in Guantanamo, because if there's one group he can beat up on with complete impunity, it's that ragtag bunch of whoever-they-are. So you, Alberto, or John Yoo, or David Addington, or whoever's left around here, get me a goddam memo that says I can throw them in a cage in Cuba and forget about 'em. And, as with torture, black sites and illegal wiretapping, his mouthpieces produced just the authorization he needed.

And then that Hamdan vs. Rumsfeld case. Sheesh. Now they're telling me all these Arabs are human beings with Geneva Convention rights. Which means while we were half-drowning them and beating the shit out of them, we may have committed "war crimes?" What the hell?! We're the war criminals? Okay, get that flighty fat-butt Lindsey Graham on the phone and tell him we need a full-court press on this one. Give these animals their "trial rights" in front of some military brass, but exonerate the hell out of this "war crime" shit, and by the way, get rid of this habeas corpus crap, which another one of these crazy cases, Rasul vs. Bush (how come I wind up in the title of these things?) says these terrists have a right to. And a compliant Senate, wowed by the specious reasoning and sophistry of Lindsey, saw that it was done.

Whew. But now comes Boumediene vs. Bush (me again!). This one says that despite Lindsey's fast one, these ragheads still have a right to habeas corpus. What in the goddam hell? And based on Rasul, and counting noses despite my stacking of the Supreme Court, it looks like Souter, Ginsburg, Stevens, Breyer and Kennedy are going to prevail over Alito, Roberts, Thomas and Scalia. Missed by that much. And you know what happens then? Every one of these untermenschen (Karl taught me that word) is going to have a lawyer, and every one of them is going to file one of the Great Writs (yeah, real great), and then the world's going to know that a whole bunch of 'em, maybe most of 'em, ain't war criminals, ain't terrists, ain't the "worst of the worst" like I done said they were, but were humanitarian aid workers, opium farmers, teachers, tourists, and lots of other people who happened to have an "al" or "bin" in the middle of their names, and suddenly some Kuwaiti cab driver is going to have a high-priced shyster from a white shoe law firm claiming "illegal detention" and lack of probable cause.

Oh Lord. This gets to be too much. I don't even have anyone to bomb. Where'd my Axis of Evil go? Is it January 2009 yet? I'm going down to the gym.

Ist es nicht schon zu spät?

The headline is from today's Frankfurter Allgemeine. Is it not already too late?, it asks. Accompanying the front page story are many full color pictures about Klimatforschung, providing detail on global warming patterns in anticipation of the Bali conference on climate change, beginning today.

From the front page of today's Le Monde: "On ne pouvait envoyer un signal plus positif : lundi 3 décembre, le jour même de l'ouverture à Bali (Indonésie) de la conférence des Nations unies sur le changement climatique, le nouveau premier ministre australien, Kevin Rudd, a annoncé que son pays ratifiait le protocole de Kyoto." I rely here upon a rusty French first learned in Dwinelle Hall 41 years ago: "One could not envision a more powerful signal: on Monday, 3 December, the same day as the beginning of the United Nations Bali Conference on climate change, the new premier of Australia, Kevin Rudd, announced that his country ratified the Kyoto Protocol."

You will not find anything on the front pages of the New York Times or the Washington Post about the Bali conference. Although the latest IPCC report confirms that scientists have probably underestimated the speed of global warming, and that mankind may have as little as three years to implement heavy-duty changes to avert serious consequences, the American media are still entranced with the mental problems of Britney Spears. To the extent I can follow along with the German article, the data and analysis presented are of a technical quality which presuppose an educated and numerate reading public. This presumption, of course, makes sense in a country where the president is a theoretical physicist.

I consult the foreign press because it reassures me that someone, somewhere, is taking the problem seriously and endeavoring to do something about it. The Bush Administration has dug itself such a deep hole on climate change that its attendance at these conferences is now simply about warding off the most damning accusations by fainthearted references to half-baked measures which Bush claims to have taken. We have now achieved sole possession of the International Pariah Trophy, given to that industrialized country with its head inserted the farthest up its ass. With Australia's nod toward reason and decency, we are now the only advanced nation on the face of the earth which has failed to cooperate internationally.

So take heart, my fellow Americans. Other adults, in other countries with more mature values and with more concern for their lineal descendants, are trying hard to overcome American resistance to enlightenment. We are officially a "work-around" at this point, a speed bump on the path of progress. Do what you can locally; California, for example, is cited favorably by delegations at the conference, as if it were a separate country from Bushland, which, in every way but legally and constitutionally, it probably is.