Forget what the media’s talking heads have told you about these three Supreme Court decisions that tested the power of George W. Bush. The President won far more than he lost, so administration "officials" who pronounce themselves victors are more on target than the press who tell you that the decisions represent a defeat for the Administration, or rein in its power. Taken together, the decisions are more important for what they did not do. Their significance for the future, particularly if Bush is reelected, cannot be underestimated.
Rumsfeld v. Padilla
To begin with, the Court dodged the most important case-the case of Jose Padilla. Padilla, recently vilified by a highly-placed Department of Justice attorney, is the American citizen arrested on a material witness warrant in Chicago two years ago. The government’s story then was that he was planning to detonate a dirty bomb. Attorney General John Ashcroft held a press conference and announced the incarceration of Padilla and told us what a dangerous man he was. Of course, if they had evidence that he was planning to detonate a dirty bomb, they would have charged him with a host of crimes, and tried him. But they never charged him with anything. What does that tell you? A couple of weeks ago, Ashcroft sent out one of his top deputies to change the story on Padilla. That story may have influenced the Court’s decision, though we will never know this. Though the official denied that the press conference-at which he announced that Padilla had "confessed" to plotting to blow up high-rise apartment buildings-may have been held when it was to punctuate the government’s belief that Padilla was a very, very dangerous man. So if he is so dangerous, why is he not being charged. Of, you have to love this reason: because the government denied him his rights and repeatedly interrogated him without an attorney (and, maybe even tortured him, for all we know) his confession is no good! Can’t be used in court. So since we denied him his rights, we cannot try him, but we can hold him without charging him forever. Because we say he is dangerous.
And what did the Supreme Court have to say about that? In a 5-4 decision, it said…nothing. It ruled that Padilla’s court’ appointed attorney, Donna Newman, filed the petition for writ of habeas corpus (challenging the detention of her client without charge, without access to her) in the wrong federal court. She sued Rumsfeld, on whose order Padilla was named an "enemy combatant" in the Southern District of New York, where he was brought and incarcerated and where she was appointed. But after she got into the case, and without notice to her, the government moved him to a brig in South Carolina. So the government argued that the warden of the brig is the party to be sued, not Rumsfeld. As if that warden does not answer to Rumsfeld, at least if she is holding an enemy combatant-so-called. So with Rehnquist writing for the majority, the court threw out his petition. Altogether. Padilla has to start all over again, suing the warden wherever he or she is. Ah, but keep in mind, that once his attorneys file a another petition, the government just has to move him again. And again. And again. To avoid answering for his detention.
So the most important of the three cases was not decided. In not deciding, the Court fully sanctioned the continued detention of Padilla, without a charge, without a lawyer (Newman is now out of the case, since the suit was dismissed), for years to come.
George Bush 1, Civil Liberties, 0.
Hamdi v. Rumsfeld
On first glance, which is all the nightly news gave you, the Hamdi case looks like a win for lovers of freedom. Even Hamdi’s public defender, Frank Dunham, said that they "won big." I disagree. And amazingly to this writer, so did Scalia, who was joined in his dissent by Justice Stevens. The majority opinion was written by Justice O’Connor, and we all know what that means-a tortured crafting of facts cobbled to law that tries to give everybody something. A little here, a little there. He is what we got: The Congress gave the President the authority to detain anyone involved with fighting with al Qaeda or the Taliban when it voted for war in Afghanistan. Hamdi was supposedly captured in Afghanistan. As long as the U.S. is fighting in Afghanistan (I guess that will be forever, don’t you think?), Hamdi can be held WITHOUT BEING CHARGED WITH A CRIME. But, he gets a lawyer (a lawyer subject so special instructions by Ashcroft and Rumsfeld, an lawyer whose conversation with his client will be monitored and limited as Rumsfeld and Ashcroft see fit) and he can file a petition for writ of habeas corpus, challenging his detention. Ah, but the government gets the benefit of the doubt in such a hearing. It puts forth is conclusory affidavit, like the one cranky Judge Doumar in Richmond did not like one bit, and Hamdi gets to try-just try, if he can-to prove them wrong. Yes, the burden will be on Hamdi to prove the government’s allegations against him to be wrong. Now that will be kind of difficult, won’t it, since Hamdi has been incarcerated for going on three years, has no contact with anyone in the outside world, and will have a hell of a time coming up with the witnesses to refute the conclusion of the government that he was indeed fighting with the Taliban or al Qaeda against the U.S. Let’s see, even if he knew people to subpoena to support an alibi-if he has one-federal marshals don’t serve subpoenas in Afghanistan.
Scalia and Stevens joined in the call to either charge him with a crime-Scalia suggested treason-or have Congress suspend the writ of habeas corpus (Scalia contends that only Congress, not the President, can properly do this). But don’t create some mechanism that allows the President to weasel out the result that the majority wanted-that is, to give Hamdi a lawyer, let him file his papers, but give him the burden of proving his "innocence." An insurmountable burden of proof.
George Bush 2, Civil Liberties, 0.
On this one, a 6-3 majority ruled that those poor bastards in Guantanamo, those men that have been there for going on three years and, we now presume, subject to all kinds of physical torture and mental and sexual abuse, can file a petition for writ of habeas corpus challenging their detention, but, so what? The court was silent on what trial courts will do with the petitions. Presumably, let them file their papers then promptly toss them out. This was an expected outcome. No way the Court was going to accept the Administration’s "tortured" (pun intended) view of jurisdiction to think that the government that rules over Guantanamo Naval Station does not have jurisdiction over the prisoners that he holds there. That would just be too stupid, even for a court eager to please. It found that the detainor is the key to jurisdiction, not the detainee. So where the detaining party is, is where there is jurisdiction. That would be Rumsfeld. Of course, what court that would be in, what venue, is open to question. Since venue was such a big deal in the Padilla case, I wonder why the court did not toss out Guantanamo cases brought in the District of Columbia? (I have a clue-the Guantanamo cases were far easier to answer, and less an affront to presidential power than is Padilla’s case). Rumsfeld’s seat of power is in the Pentagon, Arlington, Virginia, so venue ought to be in the Eastern District of Virginia, not the District of Columbia.
I believe the Guantanamo prisoners will meet the same fate of most illegal immigrants who challenge their deportation with a writ of habeas corpus. They get a summary proceeding that sounds more than what it is because of the value attached to the term "habeas corpus." After a cursory reading of the petition, and a brief hearing to satisfy the bare requirements of the law, the gavel slams, and the immigrant is escorted to an airport and sent to whatever country can be found to receive them–after they serve their time for any crimes they can be charged with.
Though nothing was said of this in the opinion, I imagine that the prisoners will be under the same disability as Hamdi-proving their "innocence," just as persons facing deportation. But, you might ask, their innocence of what? They have been charged with no crime, neither has Hamdi. They, too, will have to prove that they were not fighting against the U.S. or preparing to do so. Again, where will they get their alibi witnesses and, if they have any, how can they be subpoenaed into court? You think the government is going to give visas to their witnesses? Or pay their expenses?
George Bush 3, Civil Liberties, 0.
The Contrarian View
Reading the cases and placing them in the context of the "war on terror" supports a view that is admittedly contrary to what mainstream media are saying. But if you have been listening to them since September 11, you don’t know much about what has happened to the legal system in this country, all in the name of preserving liberty. In these three cases, the Supreme Court did not want to totally abrogate its responsibility (except for one Justice, Thomas, who, as a reluctant justice on a court he often expresses contempt for, not surprisingly wants to be left out of any judicial interference with the almighty President) or the Constitution so it threw a vote or two in the direction of the Constitution.
But it left plenty of room for this despotic President, and all who follow him (you think Kerry cares about civil liberties? You think he would not want the same power Bush is wielding?) to incarcerate Americans at whim, concoct a story about "fighting" against American, and dare you, just dare you, to try your luck at proving your innocence.
Oh, about that? Finally, we have the Supreme Court, in the Hamdi case, putting the lie to that myth. There is no presumption of innocence-not if you are Hamdi. There is no mercy-not if the government moves you around so you never know whom to sue. There is a cruel hint at mercy for the Guantanamo Bay prisoners-file your papers, but tell your family to abandon hope. You aren’t going anywhere anytime soon.
Game, set, match to George Bush.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer. She can be reached at: firstname.lastname@example.org