Bush and the Press vs. the Constitution


Last week, an article in the Washington Post explained how decisions of the Bush administration with regard to detention policies have been overturned by the Supreme Court. The tone of the article is interesting. It’s title is "White House Dismissed Legal Advice On Detainees".*

The "advice" in question came from lawyers who "repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court." This is the advice that was "ignored".

The only problem with the policy decisions, then, was that they risked being overturned in court. In other words, that they would be illegal.

But notice it’s not the illegality of the policies which were of any concern. Quite the contrary, the fact that the policies would be illegal is of precisely zero concern. The only issue was in implementing the policies in a way that would not invite judicial scrutiny.

The Post cites the example of a warning from a top lawyer at the State Department, John B. Bellinger III, who wrote in an email that it was virtually guaranteed that "without a legislative basis, federal courts are not going to be willing to uphold the indefinite detention of unlawful combatants."

The White House, the Post notes, wished to keep Guantanamo "free of judicial oversight." But instead the Supreme Court ruled last week that detainees at the facility "have a constitutional right to a review of their detention in federal courts"–in other words, that habeas corpus applied.

The right of habeas corpus, Latin for "you have the body", is a fundamental legal principle by which prisoners may bring their case to a court to determine whether their detainment is lawful or not. A person may not be held if there have been no charges made against them, and unless there is a good or compelling reason to detain a person, they must be set free.

The principle is enshrined in the US Constitution, which states that "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."

The Supreme Court has recognized that "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

In sum, the White House sought to deny habeas corpus to detainees in the "war on terrorism". But rather than seeking Congressional legislation allowing it to do so, the Bush administration has insisted the President has the power to unilaterally declare habeas corpus suspended.

This as a "misjudgment" on the part of the White House, the Post quotes Matthew Waxman, a lawyer for the State Department and Pentagon, as saying; a "misjudgment" that brought about "the very result it sought to avoid — heavy judicial involvement and erosion of deference to the president’s view of wartime necessities."

The Post quotes Philip D. Zelikow, who was involved in policy making for the White House, as saying that the White House had "planned for the best instead of preparing for the worst".

Ergo, the "best" situation would be a legal black hole at Guantanamo in which detainees had no recourse to challenge their detainment; the government could hold people without charge for as long as it wanted. The "worst" situation would be that detainees would be able to actually challenge their imprisonment and might even potentially have to be released if no charges were filed against them.

This is, unsurprisingly, the White House framework. What is perhaps only slightly more surprising is that the Post does nothing to challenge or question this framework, instead only quoting people who accept this framework and commenting as though it was the correct and proper one; indeed, as though it were the only one which existed.

"Even some conservative allies of the administration," the Post article says, "agree that the White House may have mishandled elements of its strategy, but they pin most of the blame for the administration’s predicament on the leanings of the Supreme Court."

Thus, the White House is to blame, but only for not foreseeing the "leanings of the Supreme Court", which, the Bush administration should have known, would favor preserving habeas corpus. It is the Supreme Court which should bear most of the blame for adhering to such silly and archaic judicial principles.

Reinforcing this framework, the Post quotes M. Edward Whelan III, a former Justice Department official, who says that "It may well be fair to fault the Bush administration for failing to work with Congress early on to develop a statutory framework governing detainees. But the narrow Supreme Court majorities in the Guantanamo cases deserve far harsher criticism for their gross misreadings of the law and their abandonment of sound precedent on which the administration reasonably relied."

And so it is that criticism of the Bush administration is due, but only insofar as it chose to unilaterally deny habeas corpus to detainees, instead of seeking Congressional authorization to do so. But it is the Supreme Court that is deserving of "far harsher criticism" for seeking to uphold this most basic of legal principles, this most basic foundation of law and protection against arbitrary and unlawful arrest and imprisonment.

The Post quotes another "top official" as saying that it’s unfair to criticize the Bush administration for not formulating policy "based on the expectation that the Supreme Court would misinterpret the Constitution."

For an alternative view, the Post turns to the former head of the Justice Department’s Office of Legal Counsel who butted heads with the administration, Jack L. Goldsmith, author of "The Terror Presidency". What information does the Post cite from Goldsmith? In his book he wrote "of a White House meeting he attended in February of that year in which Paul D. Clement, of the solicitor general’s office, warned that the administration might lose the case before the Supreme Court, despite it’s ‘solid legal arguments.’

"Goldsmith said he suggested that the administration seek a congressional sign-off for the entire detention program, something that would make it harder for the court to strike down the program.

"Goldsmith’s view was supported by Clement, then-National Security Council lawyer Bellinger and Pentagon general counsel William J. Haynes II — but not, Goldsmith said, by David S. Addington, then legal counsel to Vice President Cheney.

"’Why are you trying to give away the president’s power?’ Addington asked, according to Goldsmith…"

Addington’s view was supported "by then-White House counsel Alberto R. Gonzales", who Bush later appointed Attorney General.

The Post then goes on to note that the White House did indeed try to get the Congress to provide a fig leaf cover for its detention policies, and "persuaded Congress to enact the Detainee Treatment Act, which stripped the courts of any right to hear habeas corpus challenges from Guantanamo detainees." And, "At the White House’s behest, the Senate narrowly defeated a proposal to give detainees the right to seek habeas corpus review of their imprisonment in federal courts."

But the White House had been "warned that a lack of habeas corpus protections for detainees would be struck down by the Supreme Court — as it was last week."

The debate as presented in the Washington Post is thus not whether the government should have the power to strip prisoners of basic legal rights or not, but rather whether the best way to strip them of those rights is for the Executive or the Legislative branch to do so.

There might be something instructive in this state of affairs. But only for those who reject this framework; for those who might not see the White House’s "misjudgment" as being that it didn’t go to the Congress first, but rather that it tried to do away with habeas corpus at all in the first place; for those who might not agree that the Supreme Court is worthy of "far harsher criticism" than the White House for upholding this most elementary principle of jurisprudence, or that the Court had "misinterpret[ed] the Constitution" in doing so.

The Washington Post, of course, doesn’t find anyone espousing such a radical fringe view worthy of representation. Such a heretical alternative framework simply isn’t suitable for print.

And that, arguably, is the most insightful and news-worthy aspect of the whole article.




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