AND LET SLIP THE LAWS OF WAR*


* See Shakespeare, Julius Caesar

Today brought and end to the 2005-06 Supreme Court term proper. As per its custom, the Court issued a major decision this day – the last of the term proper – as it typically does on the last day proper of terms.

Two major decisions were actually announced today. One, Clark v. Arizona, basically held that Arizona’s insanity defense – which is exceedingly restrictive in terms of what a defendant must prove (and remember – a defendant must prove insanity – and duress, for that matter, as the Court just held, by a preponderance of the evidence) and whose definition bears no logical relation to the clinical definiton of “insanity” – is constitutional. 6-3 vote; Kennedy (whose voting pattern and authorship have been outright fascinating this year) dissented.

Of course, the major major decision was Hamdan v. Rumsfeld. Hamdan, a Yemeni national who was Osama bin Laden’s driver at some point (bin Laden now drives himself using the latest portable dialysis/colostomymobile), was captured in Afghanistan, labeled an enemy combatant, and in 2002, was placed in confinement in Guantanamo Bay. The only reason he is allowed to challenge his detention therein at all – in other words – the only reason his case ever got to a District Court (which, by the way, held that the military commission that eventually tried him for the offense with which he was charged, an unheard-of-law-of-war-offense called “conspiracy to commit war) is because of the holdings in the Court’s 2004 Hamdi and Rasul rulings. Collectively, these cases held that U.S. citizens, and foreign nationals held at Guantanamo, must be given a meaningful opportunity to challenge their status as enemy combatants. This, Justice O’Connor said, could be done either in a federal district court, or via a “properly constituted military tribunal.”

So, the Bush administration, deciding to indulge its jolly old hatred of federal courts, chose to try foreign “enemy combatants” at Guantanamo through the use of military commissions. The Constitution requires that the President cannot undertake certain acts without Congressional approval (i.e. cannot act unlawfully), and, as it happens, for reasons too complicated to explain, for a military commission to be properly constituted, at a minimum, such commission must be legislatively authorized by Congress.

So, the Court today, 5-3, in holding the commission that tried Hamdan to be unlawful, found that the first unlawful aspects of the commissions were that they were not authorized by Congress. Thus, the commissions, as constituted, had no authority. The Court noted that the September 2001 Authorized Use of Military Force, a piece of legislation allowing the President to use all “appropriate force” to deter enemy attacks, did not create or authorize such commissions by its plain language (duh, you would think, but some Senators think the AUMF ACTUALLY and TEXTUALLY makes the wiretapping program legal. “Hi. This is Sprint. How may we use force against you – er, your enemies – today?”)

But pointing out this flawed aspect of the commissions was just essentially letting out some gas for the majority author, Justice Stevens. He also noted – in fact he addressed beforehand – a threshold issue that the government forced upon the court through some astonishingly bold sequences of subterfuge late last year.

Late last year, Congress passed the Detainee Treatment Act of 2005 (the Act to which the McCain anti-torture amendment was applied – to which President Bush’s signing statement was appended. I’d like to see him, without advance notice that he has to do so, READ OUT LOUD, on camera, the contents of a bill before he appends a signing statement to it. There are rumors there are always rumors) that he is at least partially illiterate. I’ll be a conspiracy theorist for a moment, and say: what have you seen him see or do that DISPROVES this theory? This is not an example of “it’s impossible to prove something never happened.” The theory can be disproven. But, alas, I’m afraid it never will be. The Amazon reader reviews of “My Pet Bloat” make clear that Bush hasn’t been into reading out loud since Sept. 11th).

The DTA contained two parts. Part 1 said: no enemy combatant can bring a habeas action challenging the lawfulness of the commissions. This part was silent as to whether individuals who already brought one (such as Hamdan) could continue to pursue a claim up through the circuit court into the Supreme Court. Part 2 said, “The only thing people who think the commissions are unfair can do is wait until the commission has rendered a decision, and then appeal to the D.C. Circuit. This part applies to pending cases.” Stevens quite sensibly held that reading the two parts in pare materia, Part 1 controlled Hamdan’s case because it did NOT state it applied to pending cases. Part 2 LITERALLY did not apply to Hamdan because at the time the DTA was passed, Hamdan had already LOST at the DC Circuit. The subterfuge part: Senators Graham and Kyl created a fake colloquy (a talk between them not in the well of the Senate, but in one of their offices, which was transcribed for “official” purposes, in which one “questioned” the other, and asked,”So, does the ENTIRE DTA mean to apply to pending cases such that no court other than the DC Circuit can hear any of them?’ The other said “Yes.” The two men put this phony legislative history into the record and then filed an amicus brief citing this “history” as evidence of legislative intent. Turns out, though, that the ACTUAL legislative intent was specifically to NOT make Part 1 apply to pending cases. Senator Kyl is a piece of shit, by the way, and is quite ugly).

So, with the threshold issue out of the way, Stevens then proceeded to whip Bush like the corporate-rented mule that he is. Stevens held that not only must Congress authorize commissions, but that such commissions must comport with the procedural and substantive standards of the Uniform Code of Military Justice – 10 U.S.C. et. seq. The commission’s procedures clearly failed to do so. These procedures, which govern courts martial, are sufficient to govern commissions. Apparently, the Bush administration’s “rationale” for not using them: “federal court procedures are too onerous.” As Stevens pointed out, Dumbya didn’t ever show how court-MARTIAL procedures and guarantees are too onerous. The basic protections afforded by the UCMJ are indeed quite basic, and yet the commissions still didn’t offer them. Under Commission procedures, ANY evidence could be offered – including any hearsay evidence – if it was “relevant”; defendant could be removed from or barred from the proceeding altogether for no reason at all (as indeed Hamdan was), defendant could basically not consult his lawyer, and so on.

But there’s more… A whole lot more… And for Scumbya, it all adds up to a whole lot less. Blobberts, while on the D.C. Circuit, rejected Hamdan’s claim that the Commissions violated the Geneva Convention, stating that the GC doesn’t create a “private right of action.” Hamdan, however, wasn’t suing to have something enforced, or to obtain money. He was saying something is unlawful. The Constitution itself doesn’t create a “private right of action” for violations thereof – i.e. the 4th Amendment – but people who have been victimized by violations can sue to prevent government deprivation of their life and liberty. Stevens, recognizing this anciently obvious principle, and ignoring the osequiosly constipated Roberts’ red herring, held that the commissions DID violate article 3 of the Geneva Conventions, which requires that some minimum legal process be afforded to persons in Hamdan’s situation. A violation of article 3 is itself a violation of the laws of war, and is actually also a war crime.

4 members (excluding Kennedy) further held that conspiracy is not a recognized offense under the laws of war, so even if everything else about the Commission, mutatis mutandis (as William Buckley would say; when you use a pompous phrase you hope you use it right!), was propeer, Hamdan was STILL improperly charged.

Justice Breyer, in a separate concurrence that graced the 176-page opinion, threw Bush a bone, noting that Bush could start again from scratch simply by obtaining Congressional approval for the Commissions. Of course, Breyer implied that Congress could not approve a scheme such as the one set up here – unless we de-enlist from the Geneva Convention, rewrite the Uniform Code of Military Justice, and/or(probably all three) change the international laws of war. No doubt FauxSchloxNews and the Rethuglican Congress are collectively foaming from mouth to frothing mouth at the opportunity to do all three. It is unlikely, though, that they will succeed.

Oh, I have to mention the dissent. Someone has to be the bearer of REALLY good news. Scalia (FFF), Sloppy Seconds Strip Search Sammyh (SSSSS), and Tight Tonsils Thomas (TTT) all proudly displayed their fat, angry white male draft-dodging hate in their dissenting opinions, as they argued the President needed to violate the law in order to save what he has permanently destroyed. Or something like that. Because, you know, al Qaeda is a new and deadly enemy. When has this kind of argument NOT been made? Each enemy the U.S. has fought in official or unofficial wars can be spinned so as to appear “new and deadly.” al-Qaeda isn’t so new; they only stirred Justice Thomas’ explosive diarrhea-depositing rage five years ago, but have been around much longer. And deadly – yeah, al Qaeda is deadly, but, this statement is an uncontextual platitude. Here’s another platitude that is just as applicable: “Nothing is as powerful as an idea whose time has come.” Barbaric civilizations throughout history get some ideas – and some have taken them out on the U.S. We have somehow managed to respond without sending our Constitution and laws into the ether.

What was most telling of all about today’s decision is this: TTT – that rascally, pubic-hear prankstering, Scalia shit-sucking scold, read his dissent from the bench. As mostly everyone knows, the only thing Thomas does on the bench is sleep and grunt. He has never, in 15 years, read a dissent from the bench, but today felt sufficiently “provoked” by the majority’s opinion to rouse himself to some dynasty-defending diatribe.

I don’t know whether I wish I was there to see the experience or not. Thomas’ blind rage is so powerful that a way should be found to harness it and send it over to Iraq. That rage, locked in mortal combat against insurgent stench, out to produce at least a draw. The outcome of today’s epic battle, though, was much clearer: the President was slapped silly. Maybe that phrase is redundant, or even incorrect – no – he was slapped smartly. But just like no one could trust what came out of his father’s lips, no one can be sure that a message smacked into his can be read, no matter how red.


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