Monday, January 31, 2005

Wanted: Free Legal Advice 

The following is good news indeed, if one assumes that the Bush administration is legally bound by the terms and provisions of the Constitution. Based, however, on our reading of several recent findings by the White House counsel -- not to mention the so-called "facts on the ground" -- that assumption is very much in play:
A federal judge ruled Monday that foreign terror suspects held in Cuba can challenge their confinement in U.S. courts and she criticized the Bush administration for holding hundreds of people without legal rights.

Judge Joyce Hens Green, handling claims filed by about 50 detainees at the U.S. Navy base at Guantanamo Bay, said the Supreme Court made clear last year that they have constitutional rights that lower courts should enforce.

"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats," she wrote, "that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

Green also ruled that hearings set up by the government to determine if the prisoners are "enemy combatants" are unconstitutional. Those hearings, called Combatant Status Review Tribunals, had been criticized by civil rights groups because detainees are not represented by lawyers and are not told of some of the evidence against them -- including some information that the judge said may have been obtained by torture or coercion.
Although we are descended from lawyers we are not lawyers (plainly; why else would we pay so much in %#$@&!% legal fees?), and must therefore turn to our more learned readers for instruction. It has always been our understanding that the first ten amendments to the Constitution were intended not as an enumeration of citizens' rights, but as a set of restrictions on what the government may do; that in fact early opposition to the adoption of the Bill of Rights (by Alexander Hamilton, among others) arose from the belief that it might be wrongly construed as limiting the rights of the people to those enumerated therein (hence Amendments IX and X). As Thom Hartmann put it:
The reason for this, Hamilton noted, was that only if the government had rights did you need it to also grant rights to the people with a bill of rights. If the people were the sole holders of rights, a bill of rights became unnecessary, because government had no rights to give, and no right to give rights . . . .

"Here [in the United States], in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations [of rights]. 'WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.' Here," in the opening sentence of the Preamble to the Constitution itself, Hamilton added, "is a better recognition of popular rights...."

Hamilton summarized his argument into a single pithy sentence: "The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS." (Capitals Hamilton's.)
Meanwhile Justices Thomas and Scalia, who fancy themselves "originalists," are given to outbursts such as the following:
"Every time the Supreme Court defines another right in the Constitution," Scalia said in his best Orwell-speak, "it reduces the scope of democratic debate." As a 9 October 2004 Associated Press article by David Gram ("Justice Scalia Speaks at UVM") noted, "the court's leading conservative intellectual said judges shouldn't read rights into the Constitution that aren't spelled out in the document itself" . . . .

"Abortion, gay rights and the 'right to die' are best left to the legislative and executive branches, he [Scalia] said. 'You want a right to abortion? ... Pass a law.'"
And Thomas, of course, in his lone dissent from the court's ruling in Hamdi v. Rumsfeld, wrote that the executive branch should be allowed to do more or less as it pleased if "national security" could be reasonably invoked as a justification.

We know that a handful of late-nineties court rulings set the groundwork for an interpretation in which Constitutional restrictions on the powers of the government were held not to apply in cases where the victims were not citizens of the US. Our question is: at what point did the consensus shift from the Hamiltonian view to the Scalian (which the former obviously anticipated, and with some trepidation)? What exactly was the logic by which "enemy combatants" --
AMENDMENT V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
-- came to be regarded as non-persons? When exactly were prisoners at Gitmo --
AMENDMENT VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
-- excluded from the ranks of "the accused"?

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