June 28, 2004, Welcome to my nightmare
The Supreme Court today answered the simple question: "Are we a nation of laws or of (peculiarly venal) men?" with the conclusion that the latter applies. In what I feared greatly, the High Court, by the most-feared 5-4 ruling (meaning you know what), held that American citizen Jose Padilla can be arbitrarily held by the Government without counsel, charge or trial solely on the whim of the President and his delegates.
The basis of the ruling was a clever procedural dodge: the habeas corpus petition had to be brought in South Carolina naming the naval brig commander, rather than in New York, where Padilla was held at one time and then moved at the sole whim of the Government. We are invited to guess what will now happen once Padilla's counsel stops crying and drafts a habeas corpus petition in South Carolina, which presumably will take another two or three years of arbitrary detention to reach the High Court again, when either President Kerry will have long since either charged him or released him or President Bush will have, relying on this authority, already locked up dozens, if not hundreds of additional "unalwful combatants", without any constitutional safeguards or limitations (the Supreme Court said it was o.k. and all...) Why no national hew and cry? Because Padilla is an Hispanic Chicago gang-banger who adopted a Moslem name-- that's why.
In short, I am not overstating things by telling you that we are now, officially, by a 5-4 vote of the Supreme Court of the United States, a dictatorship. Some might argue that the companion case of Hamdi , which provides for some sort of "opportunity to contest the factual basis for detention before a neutral decisionmaker" ameliorates this-- but I don't buy that for one minute. The Padilla case makes it clear that the High Court will give the boy it handed the Presidency to unlimited, unchecked power to act as judge, jury and jailer.
It is not without irony that this decision comes the same day as a secret
sovereignty transfer, took place two days early in Iraq. The new "free and democratic" government of Iraq, whose prime minister announced that "elections may be held up" (forever?) because of "security concerns". It is not without further irony that our new ambassador at what will be the world's largest embassy building complex is John Negroponte, who so ably represented the United States in Central America in the 1980's, as our nation aided and abetted death squads, torturers, and other activities there (in the name of anti-communism of course) as we have in the "War on Terror".
Well, since we are no longer a nation governed by laws, but by men, the choice we face in November becomes that much more serious. My God.
Comments
no. No. NO. NO! NONONONONONONONONO!!!
Posted by Andrew Cory at June 28, 2004 04:00 PM
No Hyperbole,
Sherlock, these guys are bad news.
Impeachment, perhaps?
Posted by Elton Beard at June 28, 2004 04:20 PM
Time constraints do not
permit impeachment, except
on Election Day.
Posted by the talking dog at June 28, 2004 04:59 PM
Imagine if George W. is (re?) elected in November and one or more Supreme Court justices retire during his 2nd term; we could end up with the likes of John Ashcroft (I am embarrassed he is from Missouri) on the Supreme Court!
Posted by dennis mccowan at June 28, 2004 05:41 PM
Dennis-
I wouldn't worry about Ashcroft on the High Court. Its not as if we can do worse than our current crew, who has told us what they think of freedom (Padilla) and democracy (Bush v. Gore).
What matters is that the guy in the Oval Office actually believes that our laws and constitution apply to him, and that he cannot usurp "inherent powers" equivalent to the divine right of kings.
The High Court majority (in name only-- the 5 bastards are beneath my contempt)
have not merely trashed the bill of rights and their own Court's precedent (since at least 1866-- see ex parte Milligan), they have pretty much trashed a good part of 800 years of Anglo law going back to the Magna Carta.
I realize a lot of people are taking delight in the other cases today, because they are good little Democratic Party cheerleaders, and it LOOKS LIKE Bush was given a set-back. You'll see none of that here: Jose Padilla is a citizen of this country, and his rights have been taken away by the President and the Supreme Court of the United Staets has said its a.o.k. with it-- and didn't even have the cojones to just out and admit that that's what it was doing.
This is not a good day for America. Its not that I'm worried about "who worse" can be on this COurt-- we can't get any worse, Dennis. Maybe 4 or 8 years of President John kerry can, however, replace some of the 5 clowns who hate our country who sit on the High Court now.
Posted by the talking dog at June 28, 2004 07:04 PM
Yes, the Padilla decision is a disgrace, and in general this Supreme Court shamefully bobs and weaves to avoid any decision, but, if Clinton is off limits, please get over the 2000 election. Move on (without the .org) already.
Posted by They Call Me Mr. Crabcake at June 28, 2004 08:48 PM
Mr. Crabcake:
In B v. G, the Supreme Court prefaced the case by saying "this has no precedential value". Remind you of anyone else? ALL Supreme Court cases have precedential value-- regardless of how they are prefaced. Hence, we cannot "move on" until it is reversed. (You, on the other hand, don't HAVE to mention Bill Clinton in every single freaking post.)
MOVING ON, even in Padilla, the High Court could have reverted to Judge Mukasey's original decision (remember Judge Mukasey? think "no precedential value...). Mukassey suggested a preliminary showing whereby the government was required to show SOME evidence warranting Padilla's detention, and Padilla had the right to counsel and to contest that hearing. This is kind of what the Court did in 2 other cases today... giving lip service to less wary people who still mistakenly think we're a free country. But nooooooo....it didn't do that. It DISMISSED THE CASE. Told Padilla-- the Prez can lock you up and throw away the key AT WHIM, and WE DON'T CARE ENOUGH not to rely on some bogus procedural point (which the dissent, using words like "tyranny" and "star chamber", noted were, in fact, BOGUS).
Also- the Second Circuit (rightly) said "Charge or release"-- which Scalia rather bizarrely also said in a very bizarre dissent in another case today.
A very strange day, all around (I guess the Iraqis will now have to deal with the daily bombings, now that its not "our problem" anymore... too bad about the 130,000 troops we have there-- occupation over, troops to remain, right?
Posted by the talking dog at June 28, 2004 10:35 PM
George Bush * will* be re-elected in November.
Somehow you will muddle through. Conservatives will give you jobs - and you will like it.
Posted by Mark Etzek at June 29, 2004 01:18 AM
I just think of what Bill Brennan and William O. Douglas would have done with this one. At least one of them would have issued an order two or more years ago and had this out quickly. And you know they would have defended the Constitution with a vigor that the Supremes of today seem to lack. The ultimate task of the Supreme Court is to defend the Constitution and the people who are abused by violation of the Constitution. Scalia and Rehnquist seem to feel the task fo the court is to defend the government against the people. That is so bass-ackwards it leaves me speechless.
Posted by WallyCoxLives at June 29, 2004 08:07 AM
Wally, aren't the Supremes supposed to tell us what is and isn't constitutional?
If something is found to be constitutional, then how can it be wrong?
Are you sure you aren't the final authority on what's constitutional?
Maybe you should change your name to WallyCourtLives.
Posted by at June 29, 2004 04:39 PM
Sorry, forgot the tagline.
Posted by Green Beret 72 at June 29, 2004 04:43 PM
GB 72:
Wally is being aspirational, but he is not being ahistorical. The Bill of Rights was created during a discussion whereby it was determined that the original constitution was "all sails and no anchor"... brakes had to be put on unchecked governmental power: hence, the first ten amendments, which protect us from unlawful seizure and detention by our government. Generally, in a habeas corpus case, such as this, the Supreme Court would have applied its own precedent (a case called ex parte Milligan from 1866) and found the Padilla detention not merely improper, but anathema, as habeas corpus unquestionably applies to a citizen arrested on American soil. No exceptions if the courts are open and operating, through 2 World Wars, the Cold War, and 138 years... And yet...
The HIgh Court actually didn't tell us ANYTHING was constitutional or not in Padilla... it ducked it...
The Supreme Court of the United States has, many times before, overlooked the kind of technicality they found so paramount in their decision of yesterday (as noted by 4 justices)... And yet...
Clearly, their concern is political: for whatever reason, 5 of them felt it would be embarassing to release Padilla before the election, so they went for the procedural dodge. Most peculiar: they didn't even remand Padilla for the kind of hearing they said "unlawful combatants" were entitled to in 2 other cases-- instead, case dismissed, assuring that he will not be released before the election, which seemed to be the High Court's only concern.
So, the practical consequence-- the government CAN lock you up arbitrarily, throw away the key, deny you counsel, charge and trial... AND ITS O.K.
I don't know about you, but I continue to have a problem with that. A very, very big problem.
Posted by the talking dog at June 29, 2004 05:18 PM
I stand by my position. The Supremes tell us what is constitutional. You are free to comment, though it appears that you are trying to pack WallyCourt with liberals.
Posted by Green Beret 72 at June 29, 2004 05:52 PM
Wally prefers the great liberals of the Warren Court era (Douglas and Brennan); I would throw in Thurgood Marshall and say that I agree they were great justices, but I also concede that this is a matter of taste. Frankly, J.P. Stevens-- a Ford appointee-- and David Souter-- a GHW Bush appointee-- will also go down as great justices.
As to your position, I submit that the Constitution tells us what is constitutional; the Supreme Court's function is judicial review of the cases that come before it. Since it accepts so few cases, it would be helpful if it actually decided them, as opposed to what it has been doing lately, i.e., making up procedural reasons not to decide them. The Constitution itself provides that the Great Writ shall not be suspended-- the Supreme Court merely decided accordingly in numerous cases... until now.
Right now, its not about "liberal" or "conservative"-- its about "Do we have a Constitution or not?" And the 5-justice Court's answer is "Not (wink, wink)".
Right now, I would have been delighted to have had the Burger Court on the Padilla case, where Rehnquist would have just been one lone "out there" vote (he was often out-voted 8-1 back in the day).
Even "conservative" justices like Byron White and Potter Stewart and even Warren Burger, who I often disagreed with, would have seen the danger of allowing a President to just by-pass the Bill of Rights for citizens-- even a President from their own party.
So let me say it this way: it was within the power of the 5 justices to have made the following grand pronouncement: "Al Qaeda presents such a unique threat, that unlike wars past where we had uniformed armies, the President must have unlimited flexibility to protect the nation, the COnstitution is not a suicide pact, yada yada yada, quaint notions like the bill of rights and habeas corpus are inapplicable in these dangerous times... Milligan is reversed, etc."-- and I agree that such a decision would constitute a new state of constitutional law-- however flawed I may think such would be.
Byt they didn't do that. They simply allowed (rubber stamped, actually) a blatantly unconstitutional practice dumped in their laps on the flimsiest of excuses, which achieves the same result without the political cost.
As such, they didn't say anything was constitutional or not, so you needn't trouble yourself about that question.
Posted by the talking dog at June 29, 2004 06:20 PM
Green Beret, a few words on history.
The Supreme Court is supposed to say what is and is not constitutional. As TG pointed out, the decision that was reached was not on constitutional grounds, but on a narrow legal interpretation. The Court ducks questions when it doesn't want to create a restrictive precedent by using narrow legal grounds. It is a kind of trick of the trade. They'll let an issue come to a head if they think there are better, more effective cases in the pipeline or if they just don't think it will do the country good to establish the precedent at that time because it might restrict future freedom of action.
But TG misreads me. Those great "liberal" justices were also men of conscience who acted without fear. It is their courage and decisiveness that I would have wanted on the day that the executive branch decided it was a kingship and could suspend the constitution. I think either of those two would have stepped up to the plate early and without hesitation (but with deliberation--they were thinking men) and brought the matter to the court themselves. Once you recognize that it is a constitutional issue, you decide it, right? This court backed off from it even though it is a constitutional matter.
And yes, Thurgood Marshall was a fine justice. I think he might have acted more decisively in this matter too, especially considering it is a civil rights matter.
I will admit freely that much of my thinking on these men was shaped by The Brethren, but not my thinking on Rehnquist. I don't see the man described in that book as the man who is the current Chief Justice.
Posted by at June 30, 2004 08:04 AM
I guess the last post was by Wally; I think Wally and I pretty much agree on what's going on, but the examples chosen by Wally happened to be regarded as great LIBERAL justices.
I'm sorry, but with few exceptions (maybe Roger Taney?) I find it extremely unlikely that we could find five OTHER justices in the HISTORY of the Supreme Court who would have stood idly by allowing an American President to unilaterally trash the Bill of Rights for over two years, and now, for an indeterminate future amount of time.
That's why I started naming what are usually regarded as CONSERVATIVE justices. As I said-- this is no longer about "liberal vs. conservative"-- this is about whether you literally believe we are governed by laws or by men.
Posted by the talking dog at June 30, 2004 08:52 AM
Oh, forgot to sign that last one. It's me.
And yes, I preferred the "liberal" court to the one we have now. The one we have now seems to be more concerned with enhancing the powers of government rather than protecting the rights of the people. As it stands, the executive branch has enjoyed a tremendous and terrifying expansion of power in the past three years, with the assistance of Congress. That which we have traditionally and rightfully enjoyed as rights of the people has been stripped away. And as those rights have been denuded, it is the naked power grab that has become the most obvious and ugly thing revealed. I don't understand why people are so myopic about our rights. They are being "practical" when they want the executive to be able to do things by fiat during a time of crisis, but they fail to see how those powers, once obtained, can be abused very quickly and can turn on innocent people. A so-called "liberal" court is one which tends to lean towards the rights of the people rather than the powers of government. I sleep better at night when I know the courts can be counted upon to defend an innocent man rather than throw innocent and guilty in jail together.
Green Beret reads me wrong and very unfairly. I do not advocate that the court overstep its limits. Like any judge, Justices have the power and obligation to issue injunctions when they deem it appropriate. I have no idea what Green Beret means with his WallyCourt remarks.
Oh, and TG, yes, the Constitution tell sus what is constitutional, but judicial review in this instance means determining whether a given law or action conforms to the requirements and limitations of the Constitution. Which is just quibbling on my part, but I felt like getting all anal about it.
Posted by WallyCoxLives at June 30, 2004 09:01 AM
So, who else sits on WallyCourt? I think Al Gore's available, and certainly, Howard Dean.
Posted by Green Beret 72 at June 30, 2004 12:24 PM
Actually, Green Beret betrays an ignorance of both me and my views with his remarks. I have far too much respect for the institution of the Supreme Court to politicize it to that extent. If Douglas and Brennan were guilty of being "liberal", they were also remarkably good at the nuts and bolts of jurisprudence. And they had enormous respect for the Constitution.
Of course, Green Beret is now clearly baiting me, but I don't mind since I can run rings round him on issues of fact, logic, history, etc. And I am definitely funnier than he is.
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