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Thursday, June 12, 2008

Boumediene for Bouginners

I never thought I'd say this, but thank God for Anthony Kennedy. With today's Gitmo decision in Boumediene v. Bush, Wrong Way Tony finally got one right. It almost makes me want to stop hating him for stealing the election back in 2000, although, on the other hand, if he hadn't stolen the election we wouldn't have had this problem--or dozens others for that matter--in the first place. Good analysis for us non-lawyers from Hilzoy and Glenn Greenwald. Goes to show how critical it was that Senate Dems beat down the nomination of Robert Bork more than two decades ago. Were it not for that long ago fight, the Constitution would have been shredded today by five "justices" who apparently believe that executive power is unlimited. Instead, they've only got four. Harry Reid, take note.

On the plus side, we know even better now than we did before just how much of a reactionary the Chief Justice really is. His dissent may not have been as unhinged as that of Scalia (β€œIt will almost certainly cause more Americans to be killed. The nation will live to regret what the court has done today.” Then--being, I can only guess, for one of the court's most arrogant and least restrained justices, ironic?--he blasted the majority's "inflated notion of judicial supremacy.”). But it does show just how little regard both men have for constitutional rights as justified by a plain reading of the text. The Bush administration argument that prisoners on Gitmo get no habeas protections because they aren't on "American" soil doesn't pass the laugh test. This is not a question of whether we can or cannot detain possible terrorists. It is a question of whether the president can act without any judicial oversight. Can American officials reasonably claim to have the power to set up black sites anywhere they can get a leasing agreement and then kidnap, imprison, torture, or kill anyone they want without a shred of legal oversight? No.

I had the distinct displeasure of seeing the neo-fascist lawyer David Rivkin on PBS Newshour tonight comparing this case to Dred Scott and saying it was the "worst decision he had ever read." How perverse. How inverse! Dred Scott was denied legal recourse in challenging his return to slavery because as a slave he was not considered a "person" under the constitution. So how exactly is granting prisoners access to the legal system like denying a slave access to the legal system? The Orwellians strike again. No matter how fancy a pedigree the CJ owns, he's shaping up to be a Roger Taney for the new millennium. Except, of course, that the infamous Taney, a believer in democracy and a skeptic about corporate privilege, had a few redeeming qualities. What happens when you breed a Taney and a McReynolds? Roberts.


At 7:47 AM, Blogger Number Three said...

No comment on the decision or the opinions, which I haven't yet read. But it's really striking what a disaster the Bush administration's policy toward WOT detainees has been. And I don't mean just on moral grounds, either. No, as a policy, the administration has screwed the pooch over and over again. Almost seven years in, the administration still does not have a functioning system of military commissions, still has not resolved the guilt of any of the accused, and, by torturing detainees, has made it almost impossible for the U.S. to come out of the process with anything other than a black eye.

The torture also makes it impossible to actually try those guilty of killing Americans on 9-11 in a regular court. Think about that. If some of these guys were actually 9-11 plotters, they can't be tried in a real court because almost all the evidence would be problematic. The administration policy has made it impossible to hold murderers accountable in a public and standard manner.

At 2:28 PM, Blogger tenaciousmcd said...

As in so many areas, the Bushies have effectively just decided to kick this can down the road, hoping to get out of town before anyone discovered how big a mess this was. That way, they could always say, "silly surrender monkeys, we never lost a terror conviction on OUR watch."

Conservatives like to run on law and order, but they've always failed to understand that order depends upon law actually being "rule of law," a limit on those in power, believing instead that law is exclusively a restraint upon undesirables. Like morality, law becomes something we impose only upon those we don't like (the poor, the foreign, the minority) and never upon ourselves. That Scalia reacts with such vehemence to this case tells you something about his basic values: at heart he is little more than a bedwetting authoritarian who craves a strong daddy.


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