Supreme Indemnity

by ELAINE CASSEL



Yesterday was a big day at the Supreme Court. The Court handed down five opinions. Two of these related to the University of Michigan affirmative action policies. Inasmuch as legal minds far brighter than mine have already weighed in on these cases (and will continue to do so for months to come), and inasmuch as affirmative action is not really my beat, I am not going to comment on those opinions–at least not now.

A case that ruled that libraries must use internet filters that shut down porn sites (and any other sites snared by the filter: collateral damage in the war on porn) is of critical importance to civil libertarians and will be the subject of a future article.

But for now, I want to comment on, and urge you to read, the sleeper case of the day – the one in which California’s law that provides information about insurance companies that might be liable for claims of Holocaust victims was stricken by the Court because it interferes with the President’s "foreign policy." The case is American Insurance Association vs. Garamendi.

In 1998 the US entered into an agreement with Germany to set up an organization, the International Commission on Holocaust Era Insurance Claims (ICHEIC), to hear claims of Holocaust survivors and victims and to pay some claims up to a certain limit. This was not a formal treaty and it did not by its terms prohibit alternative remedies for survivors or victims of the Nazi regime who sought compensation for the confiscation of Jewish bank assets, the use of Jewish slave labor, and the failure to pay Jewish insurance claims. California enacted a law that allows residents to ascertain which insurance companies might have been insuring Nazi interests such that they could be looked to for reimbursement.

The Supreme Court ruled today that the law must be stricken because it interferes with the Executive’s agreement with Germany regarding the settlement of claims through the ICHEIC (it is noteworthy that few claims have been settled by this body). Affidavits of "sub-cabinet" level officials were filed with the Court assuring the court that the California law impedes the President’s ability to speak with "one voice" about foreign policy.

Justice Ginsberg wrote a strong dissent in which she was joined by–are you ready for this?–Justices Scalia, Thomas, and Stevens (no surprise, as to him). The dissenters noted that there was no legal precedent for holding that an agreement like this one, made outside the statutory and constitutional framework or foreign treaties, should be preempted in the name of "foreign policy." The dissent reminds me of the lone voices on federal courts who have recently (and likewise, unsuccessfully) called for judges to conduct judicial review and not merely assent to the President’s claim of national security justification for secret detentions, trials, deportations and denial of trials and counsel.

(Along those lines, yesterday the Justice Department also named another "enemy combatant, removing him from federal court jurisdiction where he was charge with minor fraud charges to an undisclosed location. Ali Saleh Kahlah al-Marri, 37, has been in custody since 2001. He had a lawyer, now he has none. He had a trial date. Now he has none.)

If you have been paying attention to the Bush administration’s preemption of laws since 9/11 (all in the name of national security and fighting a "war on terror"), you will see the Garamendi decision as an obvious–but nonetheless frightening–extension of its desire to overthrow any law–state, federal, or international–that interferes with its supreme power, with its "national" interest, be it national "security" or national "foreign policy."

It is ironic that it scores a win on a case dealing with victims of the Nazis, for many commentators are noting the uncanny resemblance of the Bush administration to a fascist regime, in which wars are waged in the name of "national" interest (Bush’s preemption doctrine).

And civil liberties, even life itself, are sacrificed in the name of national "security."

ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She is writing a book on civil liberties post 9/11, and keeps and keeps an eye on Bush and Ashcroft’s trampling on the Bill of Rights at her Civil Liberties Watch.

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