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The Felonious Five Ride Again
The Supreme Court and Enemy Combatants
by MARC NORTON

PART ONE

You have just been hauled off by Homeland Security and declared an Enemy Combatant. Maybe you hung out with the wrong people in Pakistan. Maybe you logged into that website that describes how to make a "dirty bomb." Maybe the cousin of that Arab guy next to you at the firing range once shared a cab with Mohamed Atta. It doesn’t matter, they’ve got their claws into you now.

But, not to worry. According to a whole host of progressive human rights organizations, the Supreme Court handed Bush his hat on June 28 — an "historic ruling" and a "strong repudiation" of the administration, according to Steven Shapiro of the American Civil Liberties Union. "This is a major victory for the rule of law," claims Michael Ratner of the Center for Constitutional Rights, "and affirms the right of every person, citizen or non-citizen… to test the legality of his or her detention in a U.S. Court." Yup, everyone "can now have their day in court," says Jamie Fellner from Human Rights Watch.

So now you and the rest of your fellow Enemy Combatants wait for your day in court. And wait. And wait. And wait.

You wait because what the Supreme Court did was not a "major victory" at all. What the Supreme Court has actually done is enshrine the concept of Enemy Combatants into our legal system, strip you of nearly all of your constitutional "due process" rights, and consign you to a legal limbo that would make both Franz Kafka and George Orwell spin in their graves.

PRELUDE: THE 2000 ELECTION

Al Gore won the popular vote, but you know the story. Thousands of voters in Florida not allowed to vote, thousands more handed misleading ballots, thousands more disenfranchised when their chad-impaired ballots were thrown away. Even then, just when defeat stared George W. Bushboy in the face, the majority of the Supreme Court rode to the rescue of their ideological soulmate, with an "equal protection" ruling so ridiculous that the same Court had rejected the same legal argument only weeks before.

Chief Justice William Rehnquist, Anthony Kennedy, Sandra Day O’Connor, Antonin Scalia and Clarence Thomas — dubbed the "Felonious Five" — earned themselves a special place in the history of scoundrels. "Although we may never know with complete certainty the identity of the winner of this year’s presidential election," wrote dissenting Supreme Court Justice John Paul Stevens, "the identity of the loser is perfectly clear. It is the nation’s confidence in [the Supreme Court] as an impartial guardian of the rule of law."

And yet this is the same cast of characters who just provided us with "a major victory for the rule of law." Apparently leopards do change their spots.

JOSE PADILLA

Again, you know the story. Jose Padilla — a U.S. citizen, a resident of New York, a Puerto Rican, and a Muslim — is arrested in Chicago as a "material witness" in connection with an alleged plot to detonate a radioactive "dirty bomb." Attorney General John Ashcroft himself calls a press conference to announce the arrest. Then, when the government lawyers run into legal difficulties holding Padilla, the Prez declares him an Enemy Combatant and sends him off to a Navy brig in South Carolina. There he is held incommunicado, without charges, for two years. Padilla’s attorney, Donna Newman, appointed by the Southern District of New York to represent him when he was being held as a "material witness," files a habeas corpus petition. Eventually she wins a ruling from the New York appeals court ordering the Bush administration to either release Padilla or to file criminal charges. The administration then files an appeal to the Supreme Court.

The stage is now set for a "major victory for the rule of law." Padilla is the poster boy for victims of civil rights abuses. He’s a citizen, arrested in the U.S. There has been no evidence presented to any court about his alleged transgressions, other than vague hearsay. There are no charges. He has been denied access to his lawyer almost the entire time he has been incarcerated, and when he does finally meet with her, their conversations are monitored by the feds. He has the New York appeals court behind him. How can the Bushies wiggle out of this one?

Easy. Bush wins on a technical knockout. By a 5-4 vote, the Supremes declare that Padilla’s attorney filed her habeas corpus petition in the wrong courtroom.

And who are the five who consign Padilla to who-knows-how-many more years of legal limbo? Why, none other than the Felonious Five — the same five black-robed thieves who put Bush in the White House, the same five injustices who told the American people that democracy will have to wait for at least four more years.

According to the Felonious Five, Padilla’s attorney should have filed her petition in the District of South Carolina, where Padilla is currently being held in captivity, instead of the Southern District of New York, where Padilla was first arrested. Instead of naming Donald Rumsfeld, Bush’s Secretary of Defense, as the defendant, she should have named Melanie Marr, Commander of the Consolidated Naval Brig in South Carolina.

The dissent, written by Justice Stevens and joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, rips this technical argument apart. The President had expressly designated Rumsfeld to detain Padilla. The administration conceded that Rumsfeld’s war department first took custody of Padilla in New York, where he had been jailed as a "material witness." Newman was appointed to be Padilla’s lawyer by the court in New York. She filed the habeas corpus motion in New York, before being informed that Padilla had been secretly transferred to South Carolina. "If jurisdiction was proper when the petition was filed," writes Stevens, "it cannot be defeated by a later transfer of the prisoner to another district." All the proceedings concerning Padilla’s detention, both as a "material witness" and as an Enemy Combatant, took place in New York.

Finally, as the New York court observed, Rumsfeld has publicly shown "both his familiarity with the circumstances of Padilla’s detention, and his personal involvement in the handling of Padilla’s case." Contrast that with Rumsfeld’s claimed lack of familiarity with the conditions in Abu Ghraib.

But Stevens doesn’t stop with a technical argument about courtrooms. In language reminiscent of his scathing dissent in Bush v. Gore, he call portions of the majority’s argument "disingenuous at best." Calling someone disingenuous, for those unschooled in the art of tact, is a polite way to call that person a liar. Stevens and his colleagues claim that the Padilla case poses "a unique and unprecedented threat to the freedom of every American citizen… At stake is nothing less than the essence of a free society… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

That’s strong language. But you probably read it here first. Neither the media, nor our friends on the left so eager to declare major victories, have quoted this dissent.

NEXT: YASER ESAM HAMDI & GUANTANAMO

MARC NORTON wrote about the Felonious Five and Enemy Combatants in the January 1, 2004 print edition of CounterPunch. He has also written on the subject in Beyond Chron, a San Francisco-based online daily. MARC NORTON can be reached at nortonsf@ix.netcom.com.