Sunday, September 11, 2005

Do as Thou Wilt, Pt. LXXVI 

"The greatest [calamity] which could befall [us would be] submission to a government of unlimited powers."
--Thomas Jefferson: Declaration and Protest of Virginia, 1825. ME 17:445

"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages."
--Thomas Jefferson to John Taylor, 1798. ME 10:44

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
--Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269

"The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume."
--Thomas Jefferson to A. H. Rowan, 1798. ME 10:61

"Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension."
--Thomas Jefferson to James Madison, 1788. ME 7:97

"If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system."
--Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:179

We apologize for the extended history lesson, but we have been in one of our infrequent originalist moods since Judge J. Michael Luttig and his colleagues of the 4th Circuit Court ruled on Friday that a congressional resolution passed with little debate just after 9/11 trumps the Fifth and Sixth Amendments; that Ex Parte Milligan belongs in the toilet, since the Civil War was weak beer indeed compared to the Global War on Terror; and that the most venal, duplicitous and woefully incompetent president in living memory is entitled to wield the unconstrained powers of the despot:

The Bush administration can continue to imprison a U.S. citizen arrested in Chicago three years ago in a terrorism investigation without charging him with any crime, a federal appeals court ruled Friday in an opinion written by a judge under consideration for the Supreme Court.

Ruling in the case of Jose Padilla, the Fourth U.S. Circuit Court of Appeals in Richmond, Va., said Congress, in the aftermath of the terrorist attacks four years ago, gave President Bush broad powers to classify citizens as well as noncitizens as "enemy combatants'' and confine them in military jails without charges.

"Those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil,'' said Judge J. Michael Luttig in the 3-0 decision.

That description was based on the government's allegations against Padilla, which the court assumed to be true for purposes of deciding whether his detention was legal. Defense lawyers said they would appeal to the Supreme Court.

"This is the first time that an appellate court has held that a U.S. citizen arrested in the United States can be held indefinitely without criminal charge,'' said Padilla's attorney, Jenny Martinez, an assistant law professor at Stanford.

Luttig, appointed to the court by President George H.W. Bush in 1991, is an outspoken conservative who is widely regarded as a top candidate to succeed retiring Supreme Court Justice Sandra Day O'Connor.

His ruling Friday was reminiscent of a decision by another appeals court panel that included Judge John Roberts on July 15, four days before Bush nominated Roberts to the Supreme Court. That ruling, written by another judge and joined by Roberts, upheld the president's authority to use a military commission at Guantanamo Bay, Cuba, to try an al Qaeda suspect without being bound by the rules of the Geneva Conventions.
We are always pleased to cite a news item that provides us with a ready-made segue. As you know, Mr. Bush is about to appoint two Supreme Court justices in rapid succession; with more than three years left to serve, he may well have the chance to appoint a third -- who would complete, with Scalia and Thomas, a five-superfreak majority that could dominate the court for decades. Forget social issues for a moment: does anyone imagine that the President, having asserted extraordinary and unprecedented powers throughout his two terms, is likely to nominate a justice whose respect for the traditional system of checks and balances exceeds his own?

The distinguished investigative reporter Robert Parry of Consortium News recently examined John Roberts's long history of deference to executive power, and found nothing to assuage our fears:

While much of the focus on Bush’s choice of Judge Roberts has centered on his life-long conservative ideology, including his hostility toward women’s rights, a sleeper issue has been Roberts’s support for giving the Executive nearly unlimited authority, at least when the White House is held by a Republican . . . .

Roberts’s deference to presidential power is a strand that has run through his entire career as special assistant to Ronald Reagan’s attorney general, a legal strategist for Reagan’s White House counsel, a top deputy to George H.W. Bush’s solicitor general Kenneth W. Starr, and a federal appeals court judge accepting George W. Bush’s right to deny due-process rights to anyone deemed an “enemy combatant.”

Roberts has sided with executive power on both foreign policy issues and on bureaucratic disputes. For instance, during the Reagan administration in 1983, he said it was time to “reconsider the existence” of independent regulatory agencies, such as the Federal Communications Commission and the Federal Trade Commission, and to “take action to bring them back within the Executive Branch” . . . .

In the 1980s, Roberts also provided legal advice to the Reagan administration on how to pick its way around the legal obstacles erected by Congress to limit military and other assistance to the Nicaraguan contra rebels who were fighting to overthrow Nicaragua’s leftist Sandinista government . . . .

The Bush administration also has withheld documents pertaining to advice Roberts gave to Solicitor General Starr during George H.W. Bush’s administration. At that time, other Iran-Contra topics were under review, including how to limit the investigation of Iran-Contra special prosecutor Lawrence Walsh and whether to pardon Iran-Contra defendants as a way to finally shut down Walsh’s probe. [See Parry’s Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq] . . . .

In Roberts’s current job as a U.S. Appeals Court judge, he endorsed an extreme view of executive power claimed by the Bush administration, the right to designate anyone in the world an “enemy combatant” and thus deny these people basic legal protections under international or U.S. law.

On July 15, 2005, just four days before George W. Bush nominated him to the U.S. Supreme Court, Roberts ruled as part of a three-judge appeals court panel against judicial review for Salim Ahmed Hamdan, a detainee in the prison camp at Guantanamo Bay.

The panel ruled that the Geneva Convention would not apply to Hamdan because it covers only nation-states and not terrorist organizations like al-Qaeda. But the court went even further, asserting that presidential action cannot be constrained by “judicially enforceable rights” in treaties approved by the U.S. government.
The court also endorsed Bush’s proposed military commissions for trying and possibly executing those designated “enemy combatants.” In endorsing this procedure – which even some military lawyers have protested as unjust – Roberts and his colleagues cited precedents from World War II.

The judges acknowledged that no declared state of war now exists, but cited a congressional war powers resolution passed after the Sept. 11, 2001, terror attacks as a legal basis for Bush asserting unfettered powers as commander in chief.

Essentially, the court endorsed all of the Bush administration’s legal rationales and accepted at face value its factual assertions about Hamdan and the other Guantanamo detainees, particularly the White House claim that they are members of al-Qaeda.

The court agreed with Bush’s argument, too, that since al-Qaeda is not a state and doesn’t comply with the rules of war, its “members” don’t qualify for any protections under domestic or international law . . . .

Regarding the Hamdan case, Roberts also saw no impropriety in his simultaneous interviewing with senior administration officials for a life-time job on the Supreme Court and his judging of a case in which Bush was a defendant.

If indictments are handed up in the Plame case, that is another issue that could eventually end up before what might then be called the Roberts Court.
In another context, Nat Hentoff quotes the late Justice William Brennan:
"The Framers bequeathed to us a vision of rulers and the ruled united by a sense of their common humanity. . . . We cannot console ourselves with the belief that reliance on formal rules alone is ever sufficient to be faithful to the vision of the Framers."
In other words, justice untempered by mercy and wisdom is not justice. The subject of Mr. Hentoff's piece is Judge Roberts's decision in Hedgepeth ex rel. Hedgepeth v. Washington Metropolitan Area Transit Authority, in which the man who believes that George Bush should have the unlimited power to torture whomever he chooses endorsed the arrest, detention, and interrogation of a twelve-year old child for eating a single french fry on the New York subway.

UPDATE: Chances are you not been keeping up to speed on the latest developments in Gitmo, where several dozen detainees have decided they simply cannot face another bite of the delghtfully piquant lemon chicken:
The U.S. military is tube-feeding more than a dozen of the 89 terror suspects on hunger strike at the Guantanamo Bay prison in Cuba, a spokesman said Friday.

Some of the 89 striking detainees at Guantanamo have not eaten for a month, said Guantanamo detention mission spokesman Sgt. Justin Behrens. The others have refused at least nine consecutive meals, he said . . . .

"People are desperate. They have been there three years. They were promised that the Geneva Conventions would be respected and various changes would happen and, unfortunately, the (U.S.) government reneged on that," Stafford-Smith said . . . .

"As far as their reasons for hunger striking it seems to be a myriad of different reasons that they all have, the largest one seems to be like they want to protest their continued (detention)," [said Guantanamo prison spokesman Maj. Jeff Weir]. "Their future is uncertain from a legal point view so they are trying to find out exactly what their future entails."
(Link courtesy of our esteemed colleagues Buck Batard at Bad Attitudes and Martha Bridegam at Demisemiblog.)

UPDATE II (via our revered colleague Avedon Carol): In the new NYRB William L. Taylor writes that the most intriguing question about John Roberts . . .
. . . is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages. It is a question of great relevance to Roberts's candidacy for the Supreme Court. As the late Charles Black has written, no serious person is under the illusion that "a judge's judicial work is not influenced...by his sense, sharp or vague, of where justice lies in respect to the great issues of his time."

After a privileged upbringing in an Indiana suburb, attendance at an exclusive, expensive private school, high ranking at the undergraduate and law schools of Harvard, and clerkships with Federal Appeals Judge Henry Friendly and Supreme Court Justice William Rehnquist, John Roberts took a job in the Reagan administration. There he joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s. His work as a young man in the 1980s established the pattern of his later public career.

Roberts was first employed in 1981 and 1982 as a special assistant to the attorney general, William French Smith. He went from there to the Reagan White House in November 1982, where he served as associate counsel to the President for three and a half years. During this period, Roberts played an important part in the administration's efforts to curtail the rights of African-Americans, to deny assistance to children with disabilities, and to prevent redress for women and girls who had suffered sex discrimination. He also justified attempts by the state of Texas to cut off opportunities for the children of poor Latino aliens to obtain an education. Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights.

In all of these efforts, which halted temporarily when Roberts left government for private practice in 1986, he was no mere functionary. Indeed, he often was prepared to go beyond his conservative superiors in the Reagan administration in mounting a counter-revolution in civil rights, expressing frustration with his conservative superior at the Justice Department, Theodore Olson, differing on a key constitutional issue with Robert Bork, and disagreeing on voting rights with Senator Strom Thurmond.
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