The Bush War on Terror -- And Civil Liberties

For most Americans, the suspension of civil liberties in the post-9/11 world would seem to be an abstraction -- something that applies only to people like Salim Hamdan, who was Osama bin Landen's bodyguard, and other men with funny headgear and fanatical beliefs who are incarcerated in U.S. military lockups around the world.

But as the Bush administration's arguments yesterday before the U.S. Supreme Court again revealed, Americans who care about their core freedoms and the future of this great country had better start paying attention because there is great mischief afoot and it will not be easily undone just because King George will be giving up his crown in a few years.

The Supremes heard oral arguments in Hamdan v. Rumsfeld, which without question is the biggest challenge to the president's war powers since the 2001 attacks and probably the most important case the high court will decide this term.

As noted in a Kiko's House post yesterday, Hamdan was captured by U.S. forces in Afghanistan and hustled off to the Navy brig at Guantanamo Bay, Cuba. At issue is whether the military tribunals created to try him and other alleged terrorists are constitutional because the law passed by Congress authorizing them pretty much suspended all civil liberties, including habeas corpus. That is a writ issued by a judge ordering that a prisoner be brought before the court so it can be determined whether he is being imprisoned lawfully.

Habeas corpus is not some bleeding-heart concept. It is one of the pillars on which the American criminal justice stands and has served the nation well in times of war and peace for over 200 years. This means that habeas corpus is anathema to the Bush administration, which has thumbed its nose at the Rule of Law at at its most fundamental at almost every turn.

This was on full view as the administration's top lawyer, Solicitor General Paul Clement, double-spoke his way through an argument to the effect that Congress didn't really mean to suspend habeas corpus but had merely "stumbled on" its suspension of the Writ. He said that this was okey-dokey because the president can do pretty much whatever he wants to do anyway as commander in chief in time of war.

Clement's laissez faire argument stopped Justice David Souter cold. He opined that:

The suspension of the Writ [is the most] stupendously significant act [Congress can undertake]. "Are you really saying Congress may validly suspend it inadvertently?

Souter would appear to have Clement in a box, adding:

If you accept that the military commissions [tribunals] apply the laws of war, don't you have to accept the Geneva Conventions?

Clement:

They can adjudicate that the Geneva Conventions doesn't apply.

Souter:

You can't have it both ways. The government can't say the president is operating under the laws of war, as recognized by Congress, and then for purposes of defining those laws, say the Geneva Conventions don't apply.

Clement then went deeper into the administration's world of smoke and mirrors.

He declared that the tribunals hew to the laws of war, so if a detainee has a claim like Hamdan's, he should bring it before a tribunal. But Clement seemed to be at his weakest -- and most obtuse -- when defending his claim that Guantanamo detainees like Hamdan are different from regular POWs covered by the convention because . . . well, because they just are.

Justice Anthony Kennedy interjected:

If a group is going to try some people, do you first have the trial and then challenge the legitimacy of the tribunal?

Clement didn't like Kennedy's word choice:

This isn't just some group of people. This is the president invoking his authority to try terrorists.

Justice John Paul Stevens, saying out loud what must have been on the minds of all eight (*) justices, pondered whether Congress had stripped the Supreme Court of jurisdiction to rule on Hamdam's habeas corpus claims:

Do you say it's a permissible suspension of the Writ or that it's not a suspension of the Writ?

Replied Clement:

Both.

FOR THE PLAINTIFF

Neal Katyal, representing Hamdan, next argued that the law establishing the tribunals did not pertain to his client because his case already was pending in the courts when it was passed.

This prompted rookie Justice Samuel Alito to ask why Katyal can't raise his claims after the tribunal has issued its final decision, the way he would if this were an ordinary criminal proceeding.

Katyal replied:

This is not an ordinary criminal proceeding. If it was we wouldn't be here. . . . This is a military commission unbounded by laws, the constitution, or treatises.

He added that the Founding Fathers had a deep distrust of military tribunals and that the only thing that relieves that distrust is by Congress establishing clear rules.

THE BIG SUM-UP

The consensus view of the day from legal eagles pretty much across the board is that the Bush administration didn't do so well and that Clement, even with help from openly sympathetic Justice Antonin Scalia, made a hash of things.

Adding to the administration's difficulties is that the justices focused most of their attention on the question of whether Congress had, in effect, neutralized the court's historic role, which certainly is not what Clement wanted to focus on.

Concluded Dalhia Lithwick in a Slate article:

At some point, it must begin to insult the collective intelligence of the court, these tautological arguments that end where they begin: The existing laws do not apply because this is a different kind of war. It's a different kind of war because the president says so. The president gets to say so because he is president.

For today at least, it appeared that the Bush administration would not readily marshal five votes for its core legal proposition: that if you just refuse to offer answers, the questions will go away.

The headline on Lyle Denniston's analysis at SCOTUSBlog seemed to say it all:

Hard Day For Government in Hamdan Case

If that is true, and I hope it is, we're all a little safer for the moment. The future, however, is another matter.

ABOUT THAT ASTERISK (*)

Eight justices heard the arguments because Chief Justice John Roberts had not come on board when the court took the case. Efforts to recuse the despicable Scalia because he had already said publicly that he sided with the White House were unsuccessful. Natch.

Scalia, meanwhile, plays the race card in denying in a Boston Herald letter to the editor that he flipped the bird at a Herald reporter outside a Boston church on Sunday.

Said Scalia:

From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene - especially when made by an ‘Italian jurist.’ (I am, by the way, an American jurist.)