Supreme Court Jesters

...And Obscene Court Gestures

Perhaps one should be a little pleased with the Supreme Court's recent decision to allow the Environmental Protection Agency to actually, ahem, protect the freakin' environment. On balance I would give that up to have them rule on the constitutionality of the odious Military Commissions Act. As the BBC reports, they have recently decided not to decide this vital issue.

The US Supreme Court has said it will not decide whether detainees held at Guantanamo have the right to challenge their detention in US federal courts.

The decision means the court will not rule on the constitutionality of an anti-terror law pushed through Congress by President George W Bush last year.

The provision in question states that Guantanamo Bay inmates cannot challenge their detention in US civil courts.

Many of the 385 detainees at the camp have been held for five years or more.

None has yet been able to challenge their detention in a US civil court.

The provision stripping detainees of their right to mount a legal challenge to their confinement was upheld by a federal appeals court in Washington in February.

The court's majority opinion was that "the will of Congress" should prevail and that habeas corpus did not apply to foreign nationals being held at Guantanamo Bay because it is not US soil.

Now, I don't have a law degree or anything, but it seems a simple enough task to interpret the clear language of Article 1, section 9 of the Constitution with regard to the Military Commissions Act passed on Sept. 28, 2006. (NYT news story), (Amnesty International response)

"The 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.

No bill of attainder or ex post facto Law shall be passed."

Since what we're dealing with here is in fact a suspension of the writ of habeas corpus and an ex post facto law (one that purports to take effect before it was passed), the matter seems to have been settled back in 1787. So that only leaves one issue as far as I can see, "that habeas corpus did not apply to foreign nationals being held at Guantanamo Bay because it is not US soil." And once again, I'm not at all impressed with the validity of this argument. What they're saying in effect is that US jurisdiction does not apply in this case - but wait, what they're REALLY saying is that jurisdiction applies so far as the government is concerned, but not so far as the detainees' rights are concerned.

This is a continuation of a trend in BushAmerika towards an institutionally asymmetrical application of legal principle, just as in the comparison I recently made between Monica Goodling's rights and those of detainee David Hicks. This abomination of a government continues to rely on the most tissue-thin of specious arguments, proffered by a gaggle of cronies similar to Alberto Gonzales - who recently testified in the Senate that the Constitutional guarantee not to suspend habeas corpus does not indicate that habeas corpus is a guaranteed right. This kind of reasoning should be met with an instant response of, "whoo boy, what the heck are YOU on?"

As far as the court's unusual respect for "the will of Congress" is concerned, I'm quite certain that Congress does NOT have the authority to amend the Constitution. So who are these clowns that Bushie and his father have appointed to the US Supreme Court? Bozos in expensive Italian suits, they should all be sent to a circus stuffed into the same Austin Mini. At least that would yield a laugh for the kiddies. They sure aren't looking anything like qualified lawyers from where I'm standing.

One other thing I think is really important and likely to be skipped over. The court is claiming that they are not making a decision here, but from a practical standpoint I can hardly imagine anything more deceptive. The detainees are not being released, nor are they being afforded an appearance before the court, so a de facto decision has been reached - from the point of view of the detainees, very emphatically so.

Clinton appointees Ruth Bader Ginsburg and Stephen Breyer were joined by George H. W. Bush pick David Souter in dissenting this decision, Breyer writing, "I believe these questions deserve this court's immediate attention." The rest of the court, ALL REPUBLICAN APPOINTEES (Roberts and Alito by Junior, Kennedy by Reagan, Stevens by Ford and Clarence Thomas by Poppy) join with Reagan appointee Antonin Scalia in collectively making an obscene gesture towards the rule of law that can be interpreted to mean, "Go F#@k Yourself!"

One other thing. The court could have accepted this case and then ruled in the government's favor. There are two reasons this did not happen, both of them as sinister as they are cynical. The first is obvious. They are reluctant for political reasons to signal to the public that a police state has fully entrenched itself on American soil. The second is even more disturbing. By withholding final judgement on this issue the court gives a level of authority to President Bush that it can later deny to any Democratic successor.

I can hardly imagine anything more partisan than that, nor any more grievous example of the asymmetrical application of the law that I lamented above. The really sad thing is, recent history has shown that the administration is probably even now hatching something even worse. When someone respects the law as a concept, they see it as the glue that holds civilized society together. When someone like Bush, Gonzales, Scalia, or these other Republican-appointed toadies thinks of the law, they only see an armed thug in a uniform, willing to do their bidding.

Update: you may also want to read this excellent post from Marjorie Cohn at Counterpunch: Coming up Short on Habeas Corpus for Gitmo Detainees

TAGS: Supreme Court, Detainees, Constitution, Police State