Despite the initial good news of the Obama administration on the civil liberties front, things have soured considerably in the last week. Obama’s public closure of Guantanamo was a necessary first step in returning something like constitutional sanity to a government hijacked by the right wing in the past eight years. But closing Guantanamo, it should be acknowledge by all, is only a first step—not an end game, and certainly nothing like a complete victory. It was only a very public announcement of a plan. The devil, of course is in the details.
One of those details emerged this week. Why has Obama reneged on one of his most important campaign promises? He had repeatedly called the Bush Administration’s invocation of state secrets opportunistic and anathema to constitutional government. So many waited with anticipation when AG Eric Holder dispatched a DOJ lawyer, Eric Letter, to file his administration’s claims in the case of Mohamed v. Jeppesen DataPlan, currently before the Ninth Circuit Court of Appeals. The case involves torture in Bush’s extraordinary rendition plan. This would have been a perfect opportunity for Obama’s administration to repudiate his predecessors and its legal tactics.
So why did Letter argue before the three-judge panel that the entire matter is a state secret? The details of the extraordinary rendition plan—a truly horrific policy that has bloodied the America’s hands and sullied our reputation—are known throughout the world. Why not air them in a federal courtroom? Why not submit to the rule of law? Is this not the American Way? And why does the Obama Justice Department attempt to cover up for the Bush Administration?
Those of us committed to restoring constitutional government have a duty to let this administration know such tactics are unacceptable. And they do not go unnoticed.
Showing posts with label torture. Show all posts
Showing posts with label torture. Show all posts
Wednesday, February 11, 2009
Sunday, December 9, 2007
Boumediene v. Bush
In what may be the most significant constitutional showdown of the twenty-first century thus far, a number of detainees at Guantanamo Bay are suing out a writ of habeas corpus. The writ's practical suspension in the name of the Bush administration's "war on terror" has been one of the most frightening--and least reported upon--issues alive today in the United States.
The Bush administration argues that habeas corpus simply does not apply to enemy aliens captured on the battlefield. Supporters of the administration point out that there is not a single such precedent in American or British law supporting exactly the fact pattern of Boumediene. Lawyers for the detainees have repeatedly pointed out that this is incorrect, if only because the common law writ of habeas corpus was not traditionally restricted to subjects (or in America, to citizens), and that notions of subjectship were simply not as well articulated as they are today.
The argument is of course much bigger than this. Few supporters of habeas corpus would argue that the writ should extend to the Guantanamo detainees if, for instance, the Bush administration treated them as true prisoners of war and extended them the protections of the Geneva Conventions. Supporters of the Bush administration are also forced to argue that the U.S. courts have no jurisdiction because the United States is not sovereign in Cuba and merely holds a lease for the military base. As absurd as this is on its face, the U.S. Congress has attempted to strip the courts of jurisdiction in these matters, which has subsequently forced great separation of powers questions on the Supreme Court.
Oral arguments before the Supreme Court can be found here. The set of consolidated cases that make up Boumediene v. Bush are well worth listening to and considering as a set of very serious historical problems. How far does the writ of habeas corpus apply? To what extent does the U.S. Supreme Court have the ability to countermand the executive and the legislative branches? And to what extent do political divisions on the court itself reflect different judicial outcomes? Oral arguments before the Court are wonderful ways for the justices to signal each other how they intend to vote and what they intend to argue. What kind of politics do we see here? It is an enormously important question as the imperial presidency rolls onward.
One issue, from a constitutional historian's point of view, is about just how much original meaning is controlling and precisely how it is recovered. One doubts that Justice Scalia's continued refrain "you can't find me one case where habeas was extended to an enemy alien" is relevant. It ignores the development of habeas corpus as a writ and, for that matter, fails to deal with the significant problems of today.
The Bush administration argues that habeas corpus simply does not apply to enemy aliens captured on the battlefield. Supporters of the administration point out that there is not a single such precedent in American or British law supporting exactly the fact pattern of Boumediene. Lawyers for the detainees have repeatedly pointed out that this is incorrect, if only because the common law writ of habeas corpus was not traditionally restricted to subjects (or in America, to citizens), and that notions of subjectship were simply not as well articulated as they are today.
The argument is of course much bigger than this. Few supporters of habeas corpus would argue that the writ should extend to the Guantanamo detainees if, for instance, the Bush administration treated them as true prisoners of war and extended them the protections of the Geneva Conventions. Supporters of the Bush administration are also forced to argue that the U.S. courts have no jurisdiction because the United States is not sovereign in Cuba and merely holds a lease for the military base. As absurd as this is on its face, the U.S. Congress has attempted to strip the courts of jurisdiction in these matters, which has subsequently forced great separation of powers questions on the Supreme Court.
Oral arguments before the Supreme Court can be found here. The set of consolidated cases that make up Boumediene v. Bush are well worth listening to and considering as a set of very serious historical problems. How far does the writ of habeas corpus apply? To what extent does the U.S. Supreme Court have the ability to countermand the executive and the legislative branches? And to what extent do political divisions on the court itself reflect different judicial outcomes? Oral arguments before the Court are wonderful ways for the justices to signal each other how they intend to vote and what they intend to argue. What kind of politics do we see here? It is an enormously important question as the imperial presidency rolls onward.
One issue, from a constitutional historian's point of view, is about just how much original meaning is controlling and precisely how it is recovered. One doubts that Justice Scalia's continued refrain "you can't find me one case where habeas was extended to an enemy alien" is relevant. It ignores the development of habeas corpus as a writ and, for that matter, fails to deal with the significant problems of today.
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