Supreme Spin Untrue From “Torture Yoo”

In typical form for the Bushco attack dog that he is, John Yoo sounds off today on the editorial page of the Wall Street Journal (where else, I wonder) about the Boumediene v. Bush ruling granting habeas corpus rights to the prisoners currently held at Guantanamo.

I’ll try to parse some opinionating that is truly worthy of a response as opposed to Yoo’s typical right-wing hectoring. Also, only the Wall Street Journal (well, maybe the Philadelphia Inquirer also, and possibly the Chicago Tribune) would publish the commentary of a lawyer whose two “torture memos” were both contested by the one-time head of Dubya’s Office of Legal Counsel (and peer to Yoo) Jack Goldsmith here.

The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

The phrase “overruled twice by Congress” is incomprehensible for anyone, but particularly so for a lawyer, which Yoo purports to be. But if by that he means that Congress has tried to legislate on this matter twice, then he is correct.

And Yoo is also right to the extent that Boumediene is the third legal setback administered to Bushco by the Supreme Court in successive, even-numbered years. However, for the sake of context, this should be noted from the New York Times (excerpted from a recent editorial)…

…the Bush administration repeatedly tried to strip away habeas rights. First, it 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.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantánamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried — and failed horribly — to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees’ habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution — invasion or rebellion — do not exist.

And Yoo also tells us…

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S.

Concerning “the great war” (which turned out to be shorter than the Iraq debacle), this is a FindLaw review of the book "Romantics At War," which notes the steps FDR took when confronted with German saboteurs, giving rise to the Ex Parte Quirin Supreme Court ruling upon which Dubya’s military commissions are based…

The invaders of 1942 were apparently not the steeliest folk the Third Reich had to offer, as within days of landing one of them had confessed all and given up his compatriots to the F.B.I. Franklin D. Roosevelt directed his attorney general to court-martial the captured Germans - rather than trying them criminally in a federal district court. He did so even despite the fact that, at the time, the Geneva Conventions placed limits on the treatment of captured combatants, as they continue to do today. The Germans were court-martialled; their appeals were denied; and they were duly executed.

Even at the time, Roosevelt's decision was on shaky legal ground. During the Civil War era, the case of Ex Parte Milligan famously expounded that the courts of the United States were the exclusive organs of justice within our borders.

Yet in considering what to do with the German saboteurs, Roosevelt seized on a different case entirely: a Revolutionary War precedent in which a Brit in cahoots with Benedict Arnold was captured, tried by a military court, and executed in three days time. Of course, there was then no Constitution - and certainly no Geneva Conventions - with which to contend.

In any event, the Roosevelt Administration should not have worried. Ultimately, the Supreme Court - speaking through no less than Chief Justice Harlan Fiske Stone - retroactively approved the executions, in (Quirin), even though they had occurred outside the normal justice processes of the courts of the United States, and outside the strictures of the Geneva Conventions as well.

How was this possible? The Court had a simple answer: haberdashery. Writing an unseemly eight months after the saboteurs had been executed, the Court held that the Germans, having shed the uniform of their nation, had likewise shed the protections of the laws of war. Thus they were, in the phrase Chief Justice Stone coined, "unlawful combatants."

They shed their uniforms, so they thus shed their legal protections, huh? What a sterling moment in American jurisprudence.

This is a strangely appropriate recollection, though, when you realize that Yoo is trying to weave a fiction here of “whole cloth” on behalf of an “emperor” who truly has “no clothes.”

Update: Yep, I'd call this a big-time takedown on Yoo from Greenwald (h/t Atrios).