July 03, 2004
Supreme Court Restores Balance to Our American Republic
The American people: 2, President Bush: 0. So the headlines should have read across the nation in the wake of the Supreme Court’s 6-3 decisions in (Hamdi vs. Rumsfeld and Rasul et al. v. Bush et al), which limited the President’s power to confine not only American citizens, but foreign nationals as well, without due process of law.
Although the high court supported the Bush Administration’s right to seize U.S. citizens, ruling in Hamdi vs. Rumsfeld that
Congress gave President Bush the authority in its arguably overarching Authorization for Use of Military Force (AUMF), which empowered the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks,the Court ruled that the President’s power was not absolute. The Court further held that the “due process” concerns of those labeled enemy combatants, be they American citizens or foreign nationals, must be addressed by the administration, stating:
although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful oppor¬tunity to contest the factual basis for that detention before a neutral decision maker.
The Court further concluded that:
Hamdi’s detention is unauthorized…and that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.
It was stunning to me that the Bush Administration took the unprecedented unilateral step of holding American citizens branded “Enemy Combatants,” without affording them access to the courts to begin with. Claiming that the constitutional status of Commander-in-Chief of the U.S. Armed Forces gave him special fiat to conduct the war on terrorism as he saw fit, the President in effect, suspended the 14th Amendment guarantee of due process before the law and the right of Writ of Habeas Corpus. One right—due process of law—cannot be taken from American citizens, and the other—Habeas Corpus—can only be suspended by Congress in extreme cases, to wit:
[t]he 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. US CONST, Art I, § 9, Cl. 2.
Though the Supreme Court attested to the fact that the United States is at War, it flatly rejected the President’s claim that his power and discretion in conducting that war were absolute. The majority ruled in effect that the President is not above the Constitutional latticework that defines governmental actions and protects citizens from tyrannical and oppressive behavior, and that they—the Supreme Court, and indeed the judicial branch—cannot be frozen out of the process, because they are a co-equal branch of the government. Justice Sandra Day O'Connor, writing for the 6-3 majority in Hamdi vs. Rumsfeld, stated,
"As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."
More important however—at least in my mind—the Court restored access to the federal courts for not only American citizens but the foreign nationals being held in Guantanamo Bay, Cuba, and in so doing reaffirmed the supremacy of our Republican form of governance and the preeminence of the rule of law over all other concerns.
In seeking to deny the rights of those it declared enemy combatants, the Bush Administration assured their access to U.S. courts by trumpeting a power it did not have, and could not constitutionally sustain. Many conservative critics of the Court’s rulings have complained that now our enemies can sue us—the United States—in court for shooting at them. That is an absurd notion on its face. If the Bush Administration had not tried to circumvent the rules of War (yes, I know as grotesque as it sounds there are rules in warfare); i.e. the Geneva Conventions, and declared the foreign fighters Prisoners of War, there never would have been a case. Yes, we were attacked, but we cannot continue to hold ourselves above the community of nations, claiming ourselves supreme and expect the world to go along quietly like children chasing the piper’s heel. Newsflash: foreign citizens have natural rights endowed by the creator, as well. And why the Administration did not seek to charge both Hamdi and Padilla with treason is a question that begs a rational answer. Is it because they knew, given the high threshold for proving treason (two witnesses who saw the treasonous act taking place) would be problematic since only one witness, a shadowy CIA operative is the Administration’s sole source?
Opposition to the rulings on the Court was predictable with Associate Justice’s Clarence Thomas—who continues to disappoint—and Antonin Scalia both dissenting. Associate Justice Anthony Kennedy joined the dynamic duo in Hamdi vs. Rumsfeld, and Chief Justice William Rehnquist, join the dissent in Rasul et al. v. Bush et al. Thomas to me is an enigma as are Black conservatives. Here is a man who grew up in the Civil Rights movement, and should well know the pain and stain of oppression, and yet his arch conservatism reminds me of the days when the Supreme Court fully embraced the doctrine of Separate but Equal. One has to wonder if indeed his version of the Constitution is stained red, soaked with the blood of the innocent he would condemn to tyranny, oppression, and injustice at his pen, and narrow interpretation of the Constitution. He wrote in Hamdi vs. Rumsfeld that
[t]his detention falls squarely within the federal government's war powers, and we lack the expertise and capacity to second-guess that decision…
Excuse me, but isn’t that your job as a member of the Court? Isn’t that what the checks and balances system built into our system of governance is all about? I lack the capacity and expertise to fully understand the tax code, but that does not absolve me of the responsibility to pay my taxes, or file a return every April 15th. As a Justice of the Supreme Court I would think the rule of law would be the most important consideration in each case, no matter its content.
Would he have the judicial branch vacate their role of judicial oversight at the mere mention of War and defer to the executive branch for all matters? Isn’t the bending and flaunting of the rule of British law one of the paramount reasons we broke away from British rule and began this nation? And as many have agreed, the so-called War on Terror is not a declared war by Congress as called for under the Constitution, but an Executive Branch creation, which could drone on long into the foreseeable future. Should the American people be subjected to the whims of the President without proper access to the courts for redress of grievances as called for under the first Amendment? To argue such, is to turn a blind eye to the lesson of history, and violate not only the spirit of our founding, but the letter of our long standing laws.
In the final analysis, Justices Thomas and Scalia notwithstanding, the American system has once again proved it metal, and its place among the world’s finest system of governance. Though justice wasn’t swift—it took two years for these cases to wiggle their way through the court system—it was decisive and just. And a message has been sent to all future Presidents: even in War, the Constitution and the rule of law hold sway, indeed they are supreme and cannot be set aside at the President’s whim. The Executive cannot seek to impose tyranny and oppression at home while championing freedom and democracy around the world. It is my hope that come November the American people say no to a President who so callously attempted to trample their rights.
Edward Martin- I wonder in what detail you read the actual rulings in this case to paint Scalia and Thomas in the same vain on these decisions. As you may know, I am usually a supporter of Thomas, but I will gladly agree with you that he was way out in left field on this one (although the racial overtones of your comments continue to offend me- as we discussed previously).
The point of my writing here is to point out that painting Scalia and Thomas in the same brush when it comes to the Hamdi case is dumbfounding. If you note Scalia’s opinion it is actually a dissent, joined by the most liberal justice on the court (John Paul Stevens), which says that unless the government uses its constitutional power to suspend the writ of habeas corpus, it can never detain American citizens in the way it has done to Hamdi. This would go much further than O’Connor lukewarm opinion (O’Connor, lukewarm??? SHOCKING!!), and would limit the president’s power even more than the majority in Hamdi would do. Meanwhile Thomas was on the exact oposite end of that decision from Scalia, wanting to give the president the most latitude (seeing as they were on the exact oposite side of this issue, how can anyone group them together here??).
Also, on a somewhat tangential note, on the pornography case that just came out, judge Thomas was for the free-speech 5-4 majority while Scalia was on the other side. Just to further point out that the left’s continued attempt to paint these two very interesting jurists as “always voting together” is misinformed, silly and politically motivated.
Finally, I completely agree with you that Bush’s position on these issues was untenable and dangerous, and is a big reason why I am strongly considering voting libertarian in 2004.
Posted by: Misha Tseytlin at July 3, 2004 12:20 PMMr. Martin, thank you for this informative article. Misha’s points aside, this is one of the best articles I have read at Watchblog - known for often presenting facts and then perspective from a personal view on those facts. Fine piece of writing in my opinion and I very much appreciate the update on this extremely important topic.
Posted by: David R Remer at July 3, 2004 10:14 PMMisha, in answer to your question, I read them in great detail, and after reading Scalia’s impassioned dissent (does he write any other kind), I am left with a question of my own: why not join the majority and craft a concurring opinion with his points added to the mix, why dissent? And you will not that I did not seek to analyze Mr. Scalia’s dissent, but merely stated that he had done so.
As far as my take on Thomas; I beg you sir tell me how I have offend you by voicing my opinion about Thomas? What “racial overtones” do you detect in my writing?
And once again Scalia and Thomas do not always vote together, but they are more often then not on the same page of the book. And what can be politically gained by painting Thomas and Scalia with the same conservative brush?
Thanks for the response E.M.-
1. Scalia tends to think in very black and white terms, and is not very good at compromise (whether thats a good or a bad quality depends on the sort of case you are dealing with). In this case, I think the dissenting opinion he wrote with judge Stevens was very apt. There is no more dangerous power the government can have that snatching up its own citizens without judicial oversight, and Scalia felt like he needed to take a stand on that (I would think he would be applauded for that).
2. It did seem from your post that you were lumping Scalia and Thomas on this issue, saying they were against the spirit of what the court had done in protecting civil liberties from Bush. In fact you said “In the final analysis, Justices Thomas and Scalia notwithstanding, the American system has once again proved it metal…” I think Scalia more than did his part in the Hamdi decision, and wanted to go even further than the court did in protecting civil liberties (in the Hamdi case, that is).
3. What is politically gained by lumping Scalia and Thomas together is to marginalize them (usually to marginalize Thomas, really), making them seem like simple-minded conservative judges who want to destroy our civil liberties ect ect. In reality, as the free speech and the Hamdi cases illustrate, they are very complex and interesting legal figures that come down on different sides and should be taken seriously. Taking Scalia and Thomas seriously wouldnt get too many people out to democratic fund-raisers, however, so the left demonizes them as a two-headed hydra of conservative-evil.
4. As for the racial overtones thing- As I have mentioned to you before, it is one of my biggest pet-peeve when people are thought to think a particular way because of the shade of their skin or what country they come from ect. ect. I would hate it if someday people were saying “you know, Judge Tseytlin’s opinion in this case is bizarre, given his background as Jew…” I want my arguments taken on their face, and I am sure judge Thomas does as well
.
If the Bush administration were really all the things people say it is, then why is the Supreme Court (which supposedly “appointed him”) able to contradict him? This just proves the health of our republic—this give and take between the branches of government is healthy, normal, and a sign that things are plugging along marvelously.
And why, for that matter, if America is the now the police state that the left insists it is, is Michael Moore still eating triple helpings of bacon double cheeseburgers instead of bread and water in some dank dungeon?
Posted by: Martin at July 4, 2004 02:43 AMThe courts strike a blow against fascism is the headline I would have prefered.
Posted by: Greg at July 4, 2004 09:00 AMMartin- I could be wrong, but I think that you must admit that the Bush administration’s CLAIM that they have absolute power to designate any person an enemy combatant (including ANY U.S. citizen) and then hold them indefinetely with no judicial oversite or ability for the person to show evidence to prove his innocense is rather scary. It is a good sign that the administration yielded to the Court- but what do you think of them putting foward such an argument of absolute power in the first place?
Posted by: Misha Tseytlin at July 4, 2004 09:40 AMMisha, what if the Bush Administration simply ignores the Supreme Court ruling? I am having some difficulty finding any material consequence in our current government.
I mean with the Justice Dept. a lackey for the administration and the House of Rep.’s backing the President as the only horse in the race, what consequence would there be should the President decide on principle he was right and the Supreme Court is wrong and act accordingly?
This is a very scary scenario and a direct result of a one party government for all intents and purposes.
Posted by: David R .Remer at July 4, 2004 11:54 AMthe consequences would be political, hopefully. Remember that perhaps the most popular president since Washington attempted to mess with the Supreme Court’s decisions and the public and his own party turned on him for that (I am referring to FDR’s court-packing scheme, which he had to back off of. Sadly, the Court eventually gave in anyway, and allowed the undermining of our constitution that was the New Deal). In the end, if the American people do not protect their own civil liberties, no number of Supreme Court decisions will save them. It is my opinion that the American people have already abandoned care for large portions of the constitution by supporting economic regulation by our federal government well beyond enumerated powers and by allowing abridging of the first ammendment by the FCC and McCain-Fieldgold. Lets hope they stand firm on at least these issues.
Posted by: Misha Tseytlin at July 4, 2004 12:55 PMA foreign national is just that. FOREIGN. The constitution, which has been used as toilet paper by both Dems and Reps was forged not for foreigners. My basic problem with all this is that it relates to foreigners working to undermine Americans. They don’t have RIGHTS. In fact, if you go further than the constitution and read the Geneva Convention - these idiots could have their own heads chopped off because they are not in uniform…It is scurrilous to charge the US constitution with defending those who would attack the US from outside.
Posted by: jimbobspag at July 4, 2004 05:08 PMjimbobspag, I respect your understanding of the Constitution, but, perhaps, if you would reread it, you would find that it was shaped not just for this nation but as a beacon for the rights and dignity of all persons. It states “all men are created equal” not just American men.
But the deeper point and wisdom of the Constitution is its requirement that power and authority be subservient to the will of the people and the welfare of the people. One of the underlying premises of the Constitution is the Golden Rule, do unto others as you would have others do unto you. Power and authority stand in direct opposition to the golden rule, and thus, the Constitution sets about to check and constrain the abuses of power and authority to treat others as lesser humans with lesser rights.
But the Constitution is little more than a dried up old piece of paper if the American people do not understand and abide by its spirit, its intent, and proscription of citizen responsibilities and obligations to remain informed, act accordingly, and remain true to the spirit of the document which holds such truths to be self-evident by educated and informed citizens.
The drafters of the Constitution were educated and informed and their gravest doubts about the future of this nation lay with the prospect of power being wielded by the uneducated and uninformed. There was method in their providing the vote only to white male property owners, aside from the prejudices and biases of the day: those were the class of people most likely to be educated and if not educated, at least interested enough by vitue of property ownership, to remain informed about the goings of government and authority.
So much of the failings of government these days can be directly traced back to the ignorance and disinterest of the electorate. They are the check on abuse of power, and their ability to check, has been very seriously diminished by the complexity of our lives, our lack of education in economics, history, civics, and philosophy. We learn from political parties en masse rather from the data collectors and researchers. We vote as we are told, rather than independently assessing the value of candidates on our own. In the end, it will not be the Constitution which fails the American people, but the people who fail the Constitution that undermines our nation’s greatness of the 20th century.
Posted by: David R. Remer at July 4, 2004 06:13 PMMisha,
Supreme Court Justices serve for life; they are by and large immune to political shenanigans that affect the other two branches of government. Nothing is really gained by making them seem like “simple-minded conservative judges who want to destroy our civil liberties…,” since they can’t be fired or otherwise gotten rid of; the founders planned it that way. However I think I get you over arching point.
As for the racial issues that offend you: life would be so much more rosy if the color of a person skin did not affect the way that lived and thought about their lives. But we do not live in Zanadu or Paradise, or Oz for that matter; we live in America where racism is part and parcel of the fabric of our society. Ones background will affect the way they rule from the bench, to think otherwise is to ignore human nature.
Points go in both directions on this issue. Martin’s, that the SCOTUS is not a conspiratorial lackey of the administration, would seem to discredit Moore’s stream-of-consciousness gaggle of weak ramblings in that film of his. It makes no logical sense that they would “appoint a dictator” and at the same time, revoke that ersatz dictator’s power. As far as that goes, it seems the election beef was all about Democrats not wanting to accept that we elect via the electoral college.
On the other hand the administration DID try to make an end run around the Bill of Rights, and is now caught like a kid with his hand in the cookie jar.
But the SCOTUS did catch him, and the system did work. These are victories, ultimately, for the Constitution and the vision of the Founders.
The political consequences are forthcoming in November. Period.
