Post No. 400: Another Milestone

I only wish I had something highly significant to say. I could talk about the Boumediene decision again (establishing habeas corpus for Guantanamo prisoners), and how John McCain's reaction to the decision ("the worst in U.S. history") convinced me that he's (a) preposterously ignorant about American judicial history, (b) a racist and (c) disturbingly similar to Joe McCarthy in his xenophobia.

Actually, it's not a bad topic for a post, but I don't know...how much can you say? Dred Scott vs. Sandford established that an erstwhile freed American slave (Dred Scott) could be returned to his "owner" because an African-American slave was not actually a person at all, but property. Because it undermined the Missouri Compromise, the Dred Scott decision has been cited by many historians as a precipitating cause of the Civil War, the bloodiest war in American history. Could that have been, maybe, a worse decision than a case holding prisoners held indefinitely without charges in a concentration camp can file a piece of paper in a federal court asking, why am I here?

How about Korematsu vs. United States, which affirmed President Franklin Roosevelt's decision to intern Japanese-Americans living on the West Coast during World War II, and to deny them due process rights to (a) challenge their detention or to (b) recover all of their confiscated real and personal property, leaving them penniless, although not a single instance of disloyalty or sabotage was ever committed by a Japanese-American during the entire war?

Here's my guess: John Sidney McCain would approve of the Dred Scott decision (if he knew about it, a huge assumption) for the same reason he voted against the Martin Luther King, Jr. national holiday. Korematsu? They looked like the enemy. Boumediene? They're Arabs. It's simple, really, once you get the hang of the decision-making process.

I like what the great Supreme Court Justice Felix Frankfurter had to say about due process and civil liberties. The greatness of a nation is measured by the justice it affords its enemies, not just its friends. That's a concept that is lost on John McCain for the same reason it's lost on George W. Bush. They don't really know how to think. They can't make elementary distinctions between situations which are presented as analogous.

Take the Guantanamo situation, for example. Contrary to popular belief, many of the inmates who have cycled through there, or are incarcerated there now, were not captured by U.S. forces on foreign battlefields. In fact, only a small percentage of them were. Most were turned over by foreign bounty hunters, police or military forces. They're not just "Taliban" or "al-Qaeda," either. Many of them deny an affiliation to any terrorist organization. Thus, if the argument is made that the United States has not historically granted the right of habeas corpus to enemy soldiers captured during war (an argument made by Justice Antonin Scalia in his willfully stupid dissent), one can rejoin that this "war" bears no resemblance to the wars it is being compared to. And the first rule of distinguishing putatively analogous situations is to note differences in the facts of each case.

So follow along, John Sidney, as well as you can with your class rank #894 out of 899 at Annapolis (Barack has already finished the test, nailing it, and his pen lies atop his blue book). In World War II, for example, the United States fought Germany and captured German soldiers who were held in POW camps in the United States. There was no reason to grant them the right of habeas corpus because they were uniformed soldiers captured on the field of battle and served a nation-state which could, when the war concluded, sign a treaty covering such matters as the repatriation of POWs. And that's what happened.

Contrast that situation to Lakhdar Boumediene. He's a Bosnian. The United States is not in a state of war with Bosnia. He's not a uniformed soldier in the Bosnian army, and there is no treaty between the U.S. and Bosnia on the horizon which will deal with his fate. The United States "says" that he is a foot solider in the "war on terror." The war on terror has no end-date and no clearly defined parameters. We do not identify any particular nationality as the enemy (if we did, Congress would have declared war on Saudi Arabia in September, 2001). Someone thrown into Guantanamo, as Boumediene was, thus has to "hope" that he's "tried" before a Military Commission and is exonerated. But he's never been charged with anything, the same situation which pertains to hundreds of other Guantanamo prisoners, now and in the past.

This is completely unjust, particularly when we know from empirical data that the United States has wrongly imprisoned many Guantanamo inmates and released them without ever charging them. So there cannot be any reasonable claim that an infallible system exists for holding men in a concentration camp without recourse (other than the Combatant Status Review Tribunals, which do not allow a full factual exploration on the merits, and deny the effective assistance of counsel). In other words, the Guantanamo inmates are denied a fair hearing, even though they may be completely innocent.

Mouth-breathing simpletons like George W. Bush and John Sidney McCain equate the existence of detention with proof of guilt. When you think about it, so many of the problems they cause stem from this style of a priori thinking. It is a profoundly unscientific and undisciplined way of analyzing situations. A Guantanamo inmate who files a writ in federal court demanding to know the basis of his incarceration has not been set free. The jailer is simply required to demonstrate that probable cause exists for detention, meaning, would a reasonable person believe that it is more likely than not that this person has committed a crime on the facts presented? Why is the Bush Administration afraid of such a right? Why is the "creation" of such a right (which has only been around since Magna Carta) the result of the "worst case in U.S. history"?

It's regarded as the worst case in United States history by someone who wants to succeed the worst president in U.S. history and become the new worst president in U.S. history. We really ought to deny him the opportunity.