Friday, June 20, 2008

(Morally) Dead Flowers

The wingnuttia representative from the Philadelphia Daily News told us the following today (from here – re: the Boumediene v. Bush Supreme Court ruling)…

(By the way, I’m going to try and winnow through the layers of freeper agit-prop and get to the heart of her argument, which is ridiculous enough.)

…five justices…held that the Guantanamo detainees are entitled to a full rainbow of constitutional rights, including habeas corpus, (and) have taken it on themselves to strip the executive and Congress of the right to determine foreign policy and, more important, national security.
Well, that was predictable.

The phrase “a rainbow of constitutional rights” is just bad writing; I think Flowers was going for “a cornucopia of constitutional rights” or something like that. Either way, she’s wrong, of course; I didn’t see anything addressed in the Boumediene ruling except the issue of habeas corpus rights for Guantanamo detainees and civilian review.

And she goes on, of course…

In other words, five unelected lawyers have figured out a way to trump both civil and military authorities by treating the separation of powers as a whimsical idea and not the bedrock of our constitutional democracy.
And did I mention that Flowers herself is a lawyer, by the way? I’d like to see what would happen were she ever to make these arguments before a judge as opposed to writing them in a newspaper column.

This post references the majority opinion in Boumediene by Justice Anthony Kennedy; he wrote as follows…

Security depends upon a sophisticated intelligence apparatus and the ability of our armed forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as commander in chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the judicial branch.
Flowers also states…

The detention center at Guantanamo, which can't be considered sovereign U.S. territory…
Uh, excuse me, but the New York Times notes the following here

…(Bushco) herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantánamo Bay and claimed that since the base is on foreign territory, the detainees’ habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantánamo, which is under American control, is effectively part of the United States.
And believe it or not, this column gets even more ripe…

On two occasions, the Bush administration and Congress tried to compromise with the more liberal members of the court by passing legislation that would provide the detainees with some limited procedural rights, just not the whole shebang demanded by the guys in the orange suits. But it refused to extend habeas to the enemy combatants, allowing them to present their cases in a civil court when the more appropriate venue was a military tribunal.

Well, for starters, here’s some information on the Detainee Treatment Act of 2005 that Congress allegedly passed to “compromise with the more liberal members of the court” (sic – should be a capital “C” – this is the first occasion). As the summary states…

The Detainee Treatment Act of 2005 prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S. Army Field Manual for Human Intelligence Collector Operations; and strips federal courts of jurisdiction to consider habeas corpus petitions filed by prisoners in Guantanamo, or other claims asserted by Guantanamo detainees against the U.S. government, as well as limiting appellate review of decisions of the Combatant Status Review Tribunals and Military Commissions.[1]
The second occasion was the Military Commissions Act of 2006 which, as the Times tells us, “tried — and failed horribly — to fix the problems with the Detainee Treatment Act.”

Here is the summary…

The United States Military Commissions Act of 2006[1] was an Act of Congress[2] signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld,[3] the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."[4]
The whole point of the MCA was, as noted in the Wikipedia article, to “legalize the Jose Padilla treatment” and deliberately leave unresolved the question of habeas corpus rights for enemy combatants, whether or not they are declared as such even if they’re American citizens.

And the goal of Boumediene was to provide for the civilian court review, including habeas corpus (as stated earlier) that, according to Flowers, was already provided for in the two congressional acts that preceded the ruling. That’s a scandalous misrepresentation.

Going on with her screed…

As law professor Jack Goldsmith was quoted as saying in the most recent issue of Commentary magazine, "[Lincoln] believed that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, through the preservation of the nation."
How very interesting that Flowers would quote the man who (to our benefit) helped to invalidate the two flawed legal opinions from John Yoo that served as the feeble pretext for Dubya’s military commissions (as noted here).

Finally (I can’t take much more of this from her, to be honest)…

…those who say the government hasn't proven that the Guantanamo detainees are truly a threat, like our esteemed Sen. Specter, should remember that one of the most recent suicide bombers was a guest at Guantanamo until his release in 2003.
Flowers is referring to Abdullah al-Ajmi (his case is discussed here), and you could argue that he was a threat when he was apprehended and remained that way throughout his confinement at Guantanamo, to the point where blowing himself up in Mosul last April was an inevitability.

You could also argue that he was not predisposed to violence, but became radicalized during his confinement (Ajmi’s lawyer Thomas Wilner said that he was “deeply affected”; take that however you want, though the fact that Ajmi was a lance corporal in the Kuwaiti army – and was married with a child – leads me to believe that he was picked up in a “sweep” without much further consideration; that doesn’t fit the typical terrorist profile for me).

In addition, you could argue that, if he was already predisposed to violence, his case should have been prioritized to the point where he was afforded due process and a hearing before anyone else.

So basically (no surprise), the case of Abdullah al-Ajmi is hardly as black and white as Flowers and others would have you believe.

Speaking only for myself, I am glad that the “five-man oligarchy” (I’m sure Justice Ginsburg would have a comment for that) maintained the habeas rights of Gitmo detainees, as they would ensure all rights for anyone on what is deemed to be American soil (even those of idiot lawyer columnists).

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