Edgewise

Lawless presidents

Since when do we have a system of Government where the President can simply “waive” away laws?

That’s from Glenn Greenwald in a well-considered and comprehensive commentary, “An Ideology of Lawlessness” at digby’s blogspot. Take a read and educate yerself.

I have to comment myself, however, on lawless precedents of American presidents since this ain’t the first time we have been confronted with suspensions of civil liberties by rogue operators. Most prominent of the lawless presidents was Lincoln who suspended the right of citizens to challenge their imprisonment in a court of law (the right to a writ of habeas corpus). The Supreme Court disagreed with him but he did it anyway - for three years (and as many as 13,000 citizens were arrested and imprisoned). By the way, the Civil War was also an undeclared war - begun with what was considered to be “an act of war”—the firing on Fort Sumter.

Second most prominent was Franklin Roosevelt, who denied rights to citizens of “Japanese ancestry”, initially imposing a curfew on them and then ordering their “removal” from “military zones on the West Coast.” The Supreme Court upheld those actions, and 100,000 Americans of “Japanese ancestry” were imprisoned for the duration of World War II.

Lincoln’s and Roosevelt’s actions were anti-constitution and denied legimate rights to citizens. We somehow allowed them to happen in that “mob mind” we get into during times of civil crisis. The extreme circumstances of the Civil War and World War II post-Pearl Harbor seem to justify the extreme attacks on civil liberties. But the question we have to ask now is what are the extreme circumstances that could possibly justify imprisonment without charges, denial of recourse to courts of law, subjection to physical torture and psychological abuse, abduction in secret and secret imprisonment, and espionage on non-combatant civilians?

The extreme circumstances appear to be coming from extreme beliefs (religious and political) verging on paranoia held by our president and his vice president and their legions of (civil) servants and officials. Even our military lawyers (Judge Advocates General or JAGs) are horrified by their lack of respect for the law. The CIA, itself a questionable institution in a civil society, has questioned the use or necessity of torture to obtain information from “enemy combatants”.

But the American people are confused. We think our safety is at risk. We want guns, big houses, and the confiscation of nail clippers on airline flights. We also don’t think we will ever end up labeled an “enemy combatant” and shoved into a cell on a razor-wire fenced beach in Cuba.

One thing that might actually arouse us to defend our civil liberties is the thought that some bureaucrat in Washington is reading our email or tracking our web browsing. Now that’s an outrage! The real issue, however, is that we just might end up being secretly abducted and spirited away to an extra-U.S. territorial prison camp on the basis of an email message which happens to include the words “bomb”, “spy” or variations on the word “Allah” (ala, alla, allen, ella, al…etc.).

Habeas Corpus Suspended in the District of Columbia

A single paragraph in Harper’s Weekly on November 9, 1861 said this:

On 23d the President instructed the Marshal for the District of Columbia not to serve writs on the Provost Marshal, but return them to the Court with the explanation that the President has, for the present, suspended the privilege of the writ of habeas corpus in cases relating to the military for reasons of public necessity.

…the administration is moving swiftly to take advantage of an amendment to the military bill that President Bush signed into law last Friday. The amendment strips federal courts from hearing habeas corpus petitions from Guantanamo detainees…Mr. Graham, along with Senators Carl Levin, Democrat of Michigan, and Jon Kyl, Republican of Arizona, sponsored the amendment to the Defense Act eliminating habeas corpus jurisdiction in federal courts.

It was President Lincoln who in 1861 denied a Maryland resident the right to appear before a court of law to protest his abduction by military officers in the middle of the night and imprisonment in Fort McHenry. No less than the Chief Justice of the Supreme Court, Roger B. Taney, declared Lincoln’s action illegal and unconstitutional, declaring that only Congress had the power to suspend the writ of habeas corpus.

Taney, in his opinion upholding the right of John Merryman to appear before the court, and overturning Lincoln’s action, reminds us that,

From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the court of king’s bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta (if indeed it is not more ancient), that the statute of Car. II. was enacted, but to cut off the abuses by which the government’s lust of power, and the servile subtlety of the crown lawyers, had impaired so fundamental a privilege.’

American law does not allow imprisonment for debt and we don’t have crown lawyers (though congressional lawyers often exhibit the same ‘servile subtlety’) but in the founding documents of our nation we embraced the right to have “the body of the prisoner brought” before a court of law in order to review the circumstances of arrest and imprisonment and to be judged whether those actions were reasonable, right, and lawful.

In spite of Taney’s ruling, between 1861 and 1863 over 10,000 citizens, including so-called “copperheads” or “peace Democrats” who opposed Lincoln’s policies, and others accused of being southern sympathizers, spies or traitors, were arrested without recourse to judicial review. In 1870, Ulysses Grant also suspended habea corpus in South Carolina to squash the KKK.

In 2004 the Supreme Court visited the ancient writ once again, in Hamdi v. Rumsfeld. Justice O’Connor wrote for the majority opinion that affirmed the right of Hamdi, an American arrested by the military in Afghanistan and held first in Guantanamo and then in the U.S, to have the circumstances of his arrest and imprisonment reviewed in a court of law. She said:

Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.

Only in the rarest of circumstances has Congress seen fit to suspend the writ… [in 1863 and 1871]… At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law…. All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention.

…it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

This is what O’Connor said about what Hamdi faces without a review of his case:

If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

The Graham-Levin Amendment and its suspension of habeas corpus for “enemy combatants” held in Guantanamo prisons, unlike Lincoln’s suspension of habeas corpus in 1861, is authorized by Congress and therefore “constitutional.” Unlike Grant’s suspension of the right in South Carolina, the civil rights of Americans harassed, threatened, and murdered by the KKK are not at risk by imprisoned “enemy combatants”.

But a Congress largely perceived to be in thrall to a despotically inclined President, his secretive cabinet, and his secretive troops of appointees and assistants has now suspended the right of habeas corpus for persons not clearly identified, and without verified cause, held on American-governed territory but not accessible to anyone but the military, for the duration of a war that may have no end.

John Yoo's Opinions: Discuss

I have to ask how someone as obscure (until recently) as John Yoo, former law clerk to Justice Thomas, currently a law professor at UC Berkeley’s Boalt law school, is in the position of writing innovative legal rationales for the U.S. Justice department advocating denial of legal rights to U.S. prisoners at Guantanamo Bay, Cuba, and allowing torture of anyone deemed to be a “terrorist”. President Bush would rather not discuss these grave matters with us but we are still free to discuss them among ourselves. Here is a beginning…

A memo written by John Yoo, circa 2001, on why prisoners at Guantanamo Bay military prison are not legally privileged under U.S. law:

We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC [Guantanamo Bay, Cuba].

Yoo’s “great weight of legal authority” is this: Johnson v. Eigentrager, 339 U.S. 763 (1950). According to Yoo, this case supports his case that an “enemy alien” held outside the United States has no right to legal proceedings of the United States civil courts. In that case it was German nationals accused of war crimes for assisting Japan after the surrender of Germany, but prior to the surrender of Japan. They got a military trial but claimed Fifth Amendment violations.

Interestingly, three of the Supreme Court Justices (Black, Douglas, and Burton) dissented in the majority opinion. Here is what Justice Black, writing for the dissent, had to say about granting “enemy aliens” the right of habeas corpus….

Not only is United States citizenship a “high privilege,” it is a priceless treasure. For that citizenship is enriched beyond price by our goal of equal justice under law—equal justice not for citizens alone, but for all persons coming within the ambit of our power. This ideal gave birth to the constitutional provision for an independent judiciary with authority to check abuses of executive power[my emphasis] and to issue writs of habeas corpus liberating persons illegally imprisoned.

and further….

Despite these objections, the Court now proceeds to find a “war crime” in the fact that after Germany had surrendered these prisoners gave certain information to Japanese military forces. I am not convinced that this unargued question is correctly decided. The petition alleges that when the information was given, the accused were “under the control of the armed forces of the Japanese Empire,” in Japanese-occupied territory. Whether obedience to commands of their Japanese superiors would in itself constitute “unlawful” belligerency in violation of the laws of war is not so simple a question as the Court assumes. The alleged circumstances, if proven, would place these Germans in much the same position as patriotic French, Dutch, or Norwegian soldiers who fought on with the British after their homelands officially surrendered to Nazi Germany. There is not the slightest intimation that the accused were spies, or engaged in cruelty, torture, or any conduct other than that which soldiers or civilians might properly perform when entangled in their country’s war. It must be remembered that legitimate “acts of warfare,” however murderous, do not justify criminal conviction.

And one might ask, would those French, Dutch, or Norwegian soldiers fighting against the Nazis be considered “terrorists” in some alternate universe where the definition of war has been deemed to be a state of mind?

Even some conservatives can't get behind presidential law-breaking

In a long well considered post, Glenn Greenwald posits that the illegal wiretap scandal might be one that resists the usual tamping down by the Bush cult of personality (Breaking the Daou Cycle: Conservative opposition to Bush’s law-breaking):

Former Bush loyalists are now, in droves, expressing discomfort or worse with George Bush generally and specifically with his claimed right to break the law, and that is something we have not seen before. It is a clear and hopeful deviation from the scandal-suffocating cycle described so astutely by Peter Daou.

Conservatives who still believe in something beyond George Bush ascribe, genuinely, to a belief in the rule of law and to real limitations on the powers of the Federal Government — the two principles most directly under assault by the Administration’s illegal conduct and by the accompanying Yooian theories of the Omnipotent Unchecked Executive who wields the right to break the law.

And beyond that, Americans of every ideological stripe have an instinctive aversion to political leaders who claim the right to break the law. That is not a naive aspiration. These are deeply ingrained political principles, drummed into us from the time we first attend school. Those are the values which pervade every discussion of “America,” the founding fathers, the Constitution. Even Americans who agree on nothing else know, even if only on the most submerged and basest levels, that what distinguishes America from other countries and what keeps us safe and secure in our liberty is that nobody, including the President, is above the law. People know that the claim that someone should be above the law is the mark of a tyrant claiming a power that is as arrogant and dangerous as it is un-American.

Did they spy on Bill Richardson?

New Mexico Governor Bill Richardson suspects that the NSA intercepted some of his phone calls discussing his negotiations with North Korea (The Albuquerque Tribune: Local / State Government).

Richardson’s name often comes up as a possible Democractic presidential or vice-presidential candidate.

Kingly prerogratives

Perhaps I’m humorless or old-fashioned but I’m still not over the cavalier way the President and all of his men are defending their decision to spy domestically without seeking warrants.

Last week Christopher Brauchli put it thusly in a post to Spot-On called Presidential Prerogatives:

When asked by Jim Lehrer of “The NewsHour With Jim Lehrer””about the eavesdropping he said: “We do not discuss ongoing intelligence operations to protect the country. And the reason why is that there’s an enemy that lurks, that would like to know exactly what we’re trying to do to stop them.” He went on to say it was being done to fulfill his obligation to “protect the civil liberties of the American people.” By spying on thousand of citizens he is making those on whom he is not spying safer. Leaders of many third world countries would find that a compelling argument.

The following morning Mr. Bush had a new answer to the question asked by Mr. Lehrer the preceding day. He said the practice was a “vital tool in our war against terrorists” and said he had authorized the spying more than 30 times since the events of 9/11. He did not mention that by acknowledging the existence of the program he was contradicting the previous day’s statements when President Bush said he did not want to help lurking terrorists by responding to questions about N.S.A surveillance. Why? When protecting his image competed with protecting the country, George Bush’s image won out. Self interest also manifested itself in an interview with Fox News.

On Friday David Brooks had another spin on George’s changing tune. He suggested that when Lehrer sprung the question on Bush, the story had just broken that morning and he did not yet know what his response should be. In other words, without a Rove-crafted spin, without talking points, Bush hid behind his national-security boogeyman redoubt.

I suppose the press and public have behaved like children and the administration has become used to treating us like children.

The madness of kinging George

The capacity for Bush defenders (I can't call them conservatives -- not even sure they're really Republicans anymore) to argue that up is down and black is white and violating the law is not violating the law has reached a crescendo. Glenn Greenwald explains cogently just how far out of line the defenses of warrantless wiretaps have drifted (Unclaimed Territory: The Bush justifications for law-breaking).

I don't know whether to laugh or cry. David Brooks argues it's smart politics to violate separation of powers and Charles Krauthammer argues it's not against the law for the president to break the law (just poor politics). Is this how It Can't Happen Here finally happens here?

Maybe I'll just retreat into cognitive absurdity with the rest of the nation. Maybe Fafblog has the right idea.

Osama's satellite phone

With so many lies flying around about Bush’s warrantless wiretaps — even the lies have lies — one caught my ear the other day during Bush’s press conference and repeated by 9/11 commissioner Lee Hamilton in an article in today’s Times.

The anecdote (much like Reagan’s false - but - still - believed - to - this - day tales of welfare queens and other colorful folk) asserts that “in the late ’90s” we were tracking Osama bin Laden by his satellite phone but that reports “in the media” or “in the Washington Times” tipped him off and he stopped using it.

Strangely, though, I have a clear memory of being in an airport a year or so into the Afghan war and watching CNN in the lounge when a Republican legislator (a senator, as I recall) bragged that we were tracking bin Laden through the use of his satellite phone. I remember thinking that it was ridiculous to mention this to the media for the exact reason that it would tip off al Qaeda. “Great,” I thought to myself, “now that won’t work anymore.”

So when Bush claims a similar incident happened in “the ’90s” (meaning, I suppose, “not under my watch”), it struck me as strange. If we tipped off bin Laden about tracking his satellite phone back before 9/11, then how was it that we were still tracking him that way in 2003?

Did I remember it all wrong? To be sure I did a little Googling and turned up, among other things, this story from CBS News: Osama’s Satellite Phone Switcheroo | January 21, 2003.

So, we were still tracking bin Laden by his satellite phone as late as 2003. In fact, if anything, we were overrelying on that method, if the CBS story is correct.

OK, that’s one little lie among many big ones but I thought it was worth noting, as a small gesture against the overwhelming wave of outrage fatigue I’ve been feeling lately.

UPDATE: Looks like I was right — the story is an urban myth.

Weighing Justices

Justice may be blind and that's for the good but what about those scales? When it comes to weighing one side against another I'm worried about size and heft overpowering brevity and thrift. Another way of imagining this concern is to place a bible on one side of the scale and the U.S. Constitution on the other. Both speak to the law but in entirely different ways.

I have nothing against Christians, per se. I happen to be one-- by baptism (not my choice) and by an adolescent era decision to become one (via the United Methodist church). However, I haven't set foot in a church for the purpose of worshiping since I was eighteen. That said, I have no particular beef with the church I joined as a youth (against my father's adamant objection) nor with those who choose to worship in whatever manner or in whatever religion they choose.

But I do object, and in this way I think I am a strict constructionist here, to the injection of specific religious doctrine (belief, covenant, more, scripture--whatever you prefer to call it) into the procedures of civil law. I so fervently came to this view of things over several decades of intellectual and not-so-intellectual engagement with the burning topics of American society from the Movements (civil rights, peace, women's lib, gay rights, yadda yadda) to the Issues (abortion rights, health care, living wage, drugs, Darwin, blah blah blah) to the Wars (remember Granada? etc, etc, etc). So fervent, in fact, that I had to give up playing the game Civilization when I discovered that all my civilizations crashed after Phase I because I refused to let them invent religion.

Why am I going on about this anyway? How can I hold a certain fondness in my heart for "That Old Rugged Cross" sung by a bunch of off-key warblers in an old smelly movie theater (new church under construction) and yet get red-eye and ear steam over School Prayer? I am reminded of another story....When My High School Science Teacher Was Asked About God. Now I adored this guy. He was soft spoken and patient, never making me or anyone else feel stupid for asking a stupid question. His classroom was decorated with innumerable jars of pickled wonders and he got me through my first dissection (med school was definitely not for me) with humor. And when asked if he believed in God he replied in the most comforting way possible that he did but that God had nothing to do with Science. So, he became sort of my Minister of Science.

Separating Religion and Science, the Bible and the Constitution, Faith and Reason, and all those complicated dualities of daily life is one of the basic tenets of American life. It's why we have and discuss and fight over our Constitution. It's the basis of our civil life and the reason we have any religious liberty at all, including the liberty to not have a religion.

So, getting back to the Scales of Justice, the question in my mind today is what book of laws tips the scale in the heart and mind of the current Christian president's Christian Supreme Court nominee? Can one wear an American flag lapel and a Christian cross on the same suit and be trusted to be a supreme judge of American constitutional and civil law? The answer may be yes. But you will have to prove it to me.

language

what today is dismissed derisvely as "politically correct" used to be called "being considerate."

Chilling times

According to an article on MSNBC.com, 44% of Americans "believe the U.S. government should restrict the civil liberties of Muslim-Americans." Further:

The survey showed that 27 percent of respondents supported requiring all Muslim-Americans to register where they lived with the federal government. Twenty-two percent favored racial profiling to identify potential terrorist threats. And 29 percent thought undercover agents should infiltrate Muslim civic and volunteer organizations to keep tabs on their activities and fund-raising.

It's hard to dismiss these numbers. Tens of millions of Americans support requiring a particular religious group to register where they live.

These are chilling times.