Boom! Biff! Bam! Slap!

[Gary Sisco]

"You'll be slapped and you'll like it." (Humphrey Bogart)

Sometimes resistance is found in the most unlikely places:

http://www.reuters.com/article/topNe...DOUBLEFEATURE_

[claude]

This is quite an upset for the tribunal system

We'll have to see how the appeal process goes though.

[Dr Dave]

I see here that Alberto Gonzales still has his job...

[Gary Sisco]

They're all preparing their resumes now, regardless. Jan 2009, baby.

[Gary Sisco]

Excellent and educated commentary from one of Sullivan's readers:

All this goes to show that creating a new system from scratch is a terrible idea, especially when we already have systems perfectly well suited for the exact tasks. We have courts that can try people for war crimes, and have done so. We have courts that can try people for crimes, and have done so. We have courts that can provide an independent review as to whether someone is or is not properly held, pending hostilities, under the laws of war.

This was done in the 1760s, and can be done as easily now. Now it may not fit the outsized view of executive power some people find in emanations from penumbras in the Constitution (I'll just note that people who think their legal theories are correct don't go around trying to have court jurisdiction eliminated prior to getting rulings) but it fits the actual Constitution that is our patrimony, that was crafted with similar concerns regarding conflict in mind, and was based on the proposition, well tested over the centuries, that diffusion of power best serves the interests of freedom and safety.

(my emphasis)

***********

Those two paragraphs contain more knowledge and understanding of the American legal and constitutional system and its ideas and history than everything combined that the whole of the Bush administration and its minions will ever write, past, present, or future.

[Gary Sisco]

Another open-handed slap at the deserving (followed link from Sullivan's site):

(June 09, 2007 -- 07:28 PM EDT)
Emptywheel discovered a striking footnote in the court order Judge Reggie Walton issued allowing Scooter Libby's powerful legal friends -- 12 top-shelf lawyers, including Robert Bork -- to issue briefs on Libby's behalf:


It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant.

The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it. (emphasis added)



Ouch. Sarcasm becomes you, Judge Walton.

Let's also not forget, my conservative friends, that Walton was a Bush appointee, nominated for his no-nonsense style.




-- Steve Benen

[Gary Sisco]

And again, slap!

Jun 11 01:02 PM US/Eastern
By ZINIE CHEN SAMPSON
Associated Press Writer


RICHMOND, Va. (AP) - The Bush administration cannot legally detain a U.S. resident it believes is an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday. The court said sanctioning the indefinite detention of civilians would have "disastrous consequences for the constitution—and the country."

In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn't strip Ali al-Marri, a legal U.S. resident, of his constitutional rights to challenge his accusers in court.

It ruled the government must allow al-Marri to be released from military detention.

Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master's degree.

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the constitution—and the country," the court panel said.

Al-Marri's lawyers argued that the Military Commissions Act, passed last fall to establish military trials after a U.S. Supreme Court ruling, doesn't repeal the writ of habeas corpus—defendants' traditional right to challenge their detention.

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For those who don't know, a Navy brig is run by the Marine Corps. There are few harder fates.

[Gary Sisco]

Links at Sullivan's site:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri's criminal prosecution - on the eve of a pre-trial hearing on a suppression motion - puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521.

We note, however, that not only has the Government offered no other explanation for abandoning al-Marri's prosecution, it has even propounded an affidavit in support of al-Marri's continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by ... providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006). [My italics].

***********

In short, as Sullivan concludes, he was handed the enemy combatant label so he could be tortured. His actual behavior prior to arrest had nothing to do with it. And now they decline to prosecute. What a crew -- the worst thing to happen to constitutional government in modern times.

See, to prosecute in open court, there must be charges, evidence, rules of evidence. There must be a defense and a right to confront one's accusers *and* their evidence.

All things that the Bushist junta created its tribunals to avoid.

If it were not a crime today -- and it is -- I would honestly say what I think ought to be done with the lot of them.

But, in fact, there are speech crimes in the US today. There'll be thought crimes before it's over.

[Gary Sisco]

Got this from a friend who got it from the Village Voice:

It was a close call, but on a 2-1 decision June 11 by a panel of the 4th Circuit Court of Appeals preserved the Constitution — at least for now — by saying that even "criminal civilians" can't be held indefinitely in military detention. In other words, the basic habeas corpus right has survived — for the Bush regime to fight against another day.

Read the brilliant opinion in al-Marri v. Wright penned by Judge Diana Gribbon Motz, and check out the dissent, which is tacked on to the same document.

The 4th Circuit, based in Richmond, Virginia, isn't exactly the most liberal appellate court. Far from it, in fact. But Motz's opinion speaks loud and clear, at least (as I said yesterday) for now:

The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention.
The judge wound up agreeing with lawyer Jonathan Hafetz of NYU's Brennan Center for Justice, which tackles lots of fascinating constitutional issues. Check this Brennan Center page for background of the case. And just in case you've forgotten that habeas is so important that it's actually written into the Constitution, see Hafetz's Ten Things You Should Know About Habeas Corpus. Speaking of yesterday's decision, Hafetz noted:

The ruling puts the United States where it belongs: in full support of fundamental habeas corpus rights even in times of perceived emergency. The Court soundly and rightly rejected the Administration's attempt to treat the globe as a battlefield that is exempt from rule of law. The decision protects legal residents and citizens from secret detention.
Just for good measure, here's another morsel from Motz:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them 'enemy combatants,' would have disastrous consequences for the Constitution — and the country.

We refuse to recognize a claim to power that would so alter the constitutional foundations of our republic.
The case is a flash point for the conflict between Dick Cheney's — I mean, the president's — power and the rights guaranteed by the Constitution.

Almost as interesting (and heartening) as Motz's opinion was the amicus brief filed last November in the case by a gaggle of former Justice Department officials (including Janet Reno). As the excellent Jurist site reported at the time, those people argued that

the existing criminal justice system is more than up to the task of prosecuting and bringing to justice those who plan or attempt terrorist acts within the United States — without sacrificing any of the rights and protections that have been the hallmarks of the American legal system for more than 200 years. The federal government is eminently capable of both protecting our nation’s security and safeguarding our proud traditions of civil liberties. We would do well to remember Benjamin Franklin’s admonition that “[t]hose who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”
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Nor will they have either.

I am heartened to see the judiciary finally waking from its slumber on these questions, and also military people, very much including officers, speaking out honestly and clearly.

Thank goodness this Gang is done when the term's done. When they get back in their coffins, it will be a good day, indeed. And a better one when we expose them to the broad daylight and stick a wooden spike through their hearts.