Original URL: http://www.theregister.co.uk/2006/06/29/do_mess_with_texas/

Supremes axe Gitmo kangaroo courts

Fair trials prove stubbornly popular

By Thomas C Greene

Posted in Media, 29th June 2006 22:42 GMT

The US Supreme Court has axed a pillar of the Bush Administration's national security strategy by insisting that prisoners in Guantánamo Bay, Cuba not be subjected to the kangaroo courts, otherwise known as "military tribunals," that the Bushies have attempted to use in disposing of terror suspects.

The Court had previously ruled that Gitmo prisoners are entitled to minimum levels of legal process, but neglected to specify any particulars beyond the implicit standard that prisoners are permitted to challenge their detention in the federal court system. Today's ruling in Hamdan v. Rumsfeld spells out several such requirements.

In a nutshell, the Court demands that the standards applying to courts martial, as spelled out in the Uniform Code of Military Justice (UCMJ), be applied. This will require prisoners to be present at their trials, and give them an opportunity to challenge evidence against themselves. The current military tribunal approach had permitted secret evidence to be presented without the defendant's knowledge, hence without any hope of challenging it. It had also suspended habeas corpus, or the right of a defendant to be present at his trial. The majority decision was written by Justice John Paul Stevens.

Within minutes of the ruling, during a press conference, the President graciously offered to "consider" the Supreme Court's ruling. And within the hour, White House flack Tony Snow hastened to re-write history, claiming that the decision had "emphasized" the need for Congress to grant the President the authority he has thus far been wielding illegally. Actually, the issue came up most notably in a concurring decision by Justice Stephen Breyer, rather than the majority opinion. Nevertheless, Congressional rubber-stamping was "the most important" issue in the ruling, Snow explained.

It's a complicated decision, with numerous dissenting opinions, Snow allowed. Therefore it will take some time for the White House to "figure out what it all means." Which is code for "we're going to interpret it in our own way and act on it however we please."

But for now, at least, the White House has found its crucial sound-bite incantation: "Congressional authorization." We will be hearing nothing else from the right-wing punditry until a popular myth is established to the effect that the Republican-controlled Congress need only ram through a bill legitimizing the existing system, to which the President can even append "signing statements" indicating his determination to ignore any language he dislikes.

Literally minutes after Snow's performance, US Senator Lindsey Graham (Republican, South Carolina) obediently offered to introduce anti-terror legislation suspending habeas corpus and authorizing the so-called military tribunals that the Supremes have just ruled against. He said that Congress needs only to "bless" the kangaroo courts favored by the Bushies, and all will be well at Camp Delta.

In the near term, we will see a media blitz with the phrase "Congressional authorization" repeated ad nauseam, culminating in a hastily-drafted bill rammed through the House, plus a slightly more intelligent version making slower progress through the Senate, to be reconciled in Conference Committee and endorsed by the President with a classic "signing statement" indicating his profound contempt for the very laws that he swore an oath to execute faithfully.

It's clear that the Bush Administration reads the Constitution of the United States with a contemptuous and very selective eye. It finds within it a plethora of concomitant rights for itself, such as the right to deny trials to so-called "enemy combatants," to torture foreign captives, and to spy on innocent US citizens without a warrant.

All of these activities are expressly forbidden by the Constitution.

Denying trials is forbidden by the Fifth Amendment: "No person shall be ... deprived of life, liberty, or property, without due process of law." Note the key phrase "no person," as opposed to "no citizen." The right to trial is not something that the Constitution grants in a conditional manner. It is not conditional upon anything, including citizenship. It is, rather, a hard restriction on government authority. Denying due process is something that the government simply cannot do legitimately. Period.

Torture is forbidden by the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The restriction is unconditional. Torture is something else that the government simply cannot do legitimately. Period.

Warrantless spying is forbidden by the Fourth Amendment: "...no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Here again, we confront a thing - warantless spying - that the government simply cannot do legitimately. Period. Yet the Bush Administration does it with impunity.

The Constitution is paramount to all other laws: Congress can pass all the bills it pleases to create loopholes in it, but any such laws are invalid.

And yet, the Bushies contend that the same Constitution, which plainly forbids all of these abuses, empowers it to enact all of these abuses. It has wrung enormous mileage out of Article II Section 2, which says simply that, "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Service of the United States..."

From this single enumerated duty, the Bushies have extruded a plethora of imagined concomitant rights to ignore any part of the Constitution that inconveniences them. Said another way, the argument is that the President cannot be an effective Commander in Chief unless he's got the (presumed, or concomitant) right to chuck any part of the Constitution that gets in the way of dispatching his duty, which he alone is free to interpret.

This leads to the bizarre conclusion that there are greater and lesser rights within the Constitution. But of course there are not. Congress is expressly forbidden to draft laws that violate its provisions, or even weaken them with wiggle room. (Not that this has ever inhibited it in doing so. The Fourth Amendment in particular has been gutted through the years, and the Supreme Court has capitulated repeatedly, which in practical terms means that we're stuck with the situation.)

But today, the Supreme Court decided to defend the Constitution against executive abuse. It ruled that Article II Section 2, and the Congressional resolution authorizing the use of military force against terrorists, do not even "hint" at the grotesquely swollen powers that the Bushies have claimed.

The Court said it: the President does not have the power to violate the Constitution. And, we will add, Congress does not have the power to authorize the President to violate the Constitution.

This was made evident by the simple fact that the Supremes heard the case, which Congress had decreed it cannot do. The Court ignored the Detainee Treatment Act of 2005, which illegitimately attempted to strip the Supremes of jurisdiction over the Gitmo mess. (It also outlawed torture, but the President issued a "signing statement" informing the world that he had no intention of obeying it. Not that the Act, or the statement, matter; torture is already outlawed by the Constitution.)

When Justice Breyer wrote in his separate decision that "nothing prevents the President from returning to Congress to seek the authority he believes necessary," he did not mean that Bush and his compliant Red-State yokels in Congress can collaborate to draft an unconstitutional law. Of course, this is precisely what the right-wing punditry will claim, but it is absolutely wrong.

The Supreme Court does not issue rulings that it intends to see violated. What Breyer meant is that the White house and Congress are free to seek an alternative to courts martial, so long as it satisfies the requirements of the UCMJ, the Geneva Conventions, and the Constitution of the United States.

He did not mean, as a certain sleazoid Senator from South Carolina insisted, that Congress can "bless" unconstitutional kangaroo courts. So don't be fooled as the right-wing media blitz arguing otherwise gathers momentum. ®

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