Long arm of the law nabs Bush

U.S. Supreme Court

Post-9/11 America suffered a near-breakdown of the democratic checks and balances on the executive branch of government by the legislature, independent law enforcement agencies, the courts, the media and public opinion. All became blindly patriotic.

It's only now - after the Iraq fiasco and the growing crisis of confidence at home - that they are reasserting their role, in varying degrees.

The American public is going through a major political rethink, thanks to a long list of honourable dissidents, from Howard Dean, Ted Kennedy and Al Gore to Michael Moore, whose Fahrenheit 9/11 is breaking attendance records, leaving audiences either dazed into silence as credits roll or moved to sustained applause.

But no institution has intervened with as much force and legal authority as the U.S. Supreme Court in stating that the Bush administration cannot continue to operate above the law.

The magnitude of what the judges have just done comes into focus when you consider that they are the same people who made George W. Bush president after the Florida recount; that their philosophical bent has been conservative; and that, historically, the court has been deferential to presidents in times of war, as in 1944 when approving Franklin D. Roosevelt's shameful detention of Japanese Americans.

The court did not just reject the Bush administration's idea of holding terrorism suspects indefinitely without recourse to the courts or lawyers. The judges demolished its entire rationale.

Just as there have been several scandalous facets to the invasion and occupation of Iraq, there are several aspects to the administration's suspension of the rule of law. The court was hearing only the cases of the following:

  • Two American citizens jailed as "enemy combatants" (and hence denied due process); 

  • Sixteen non-citizens held, along with about 600 others, at the American naval base at Guantanamo Bay, and designated as "unlawful combatants (and hence not eligible for the Geneva Convention protections due enemy soldiers).

The administration has been disingenuous in its arguments.

Cumulatively, the court's message was loud and clear: Bush's endless war on terrorism is not a licence to hold Americans or even foreigners without recourse to the courts.

Take Jose Padilla, the Chicagoan "dirty bomber." He has been held, without charge, in a naval brig for two years, accused of being an Al Qaeda operative out to explode a radioactive device. 

The government urged dismissal of his case because, get this, his lawyer had filed a petition against the wrong defendant, Defence Secretary Donald Rumsfeld, rather than the naval commander under whom he is being held. 

It also urged the rejection of his right to legal counsel, saying that the one meeting he did have with a lawyer - from behind a glass wall, in the presence of two government officials - fulfilled that obligation.

The second defendant, Yasser Esam Hamdi, arrested in Afghanistan, has been in jail for two years. His lawyer, allowed one meeting, told the judges he can't tell them what Hamdi told him because the government deemed the content as classified. "Everything he has told me I'm not allowed to convey to the court."

The judges ruled that citizen "enemy combatants" must be allowed full access to the courts. 

The case of Guantanamo Bay inmates involved two petitions, one on behalf of 12 Kuwaitis, and another on behalf of two Britons (since released) and two Australians.

The government said Guantanamo is not American territory. The court said it is, given the 100-year-old lease on that part of Cuba.

The administration had two more arguments.

  • America is at war and the president should be exempt from judicial overview. Besides, he already has the authority to designate citizens and non-citizens as "enemy combatants" under the powers granted him by Congress seven days after 9/11, namely, that he could use "all necessary and appropriate force" against terrorists.

  • The detainees already enjoy an oversight. "The interrogation process itself provides an opportunity for an individual to explain that this (their arrest) has all been a mistake." 

The court ruled that the 16 inmates, and by extension all those held at Guantanamo Bay, have a right to be heard in American courts, period. 

Cumulatively, the court's message was loud and clear: Bush's endless war on terrorism is not a licence to hold Americans or even foreigners without recourse to the courts. 

"The very core of liberty has been freedom from indefinite imprisonment and the will of the executive," wrote Justice Antonin Scalia.

This has lessons for Ottawa.

Five people being held in Canada under security certificates, three post-9/11 and two pre-, have also not been charged with any crime. They have not been told why they are being held. They have been refused bail.

Unlike the detainees in America, they do get a periodic review before a Federal Court judge. But neither they, nor their lawyers, can be present at the secret hearing. So, they remain in a "legal black hole," says Roch Tasse, of the Ottawa-based Civil Liberties Monitoring Group.

Canada is usually an international leader when it comes to due process and the rule of law. In this case, we are behind even Bush's America.

Haroon Siddiqui is the Star's editorial page editor emeritus.  [email protected].

Source: Toronto Star

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Older Comments:
John Walker Lindh received 20 years for breaking an arguably obscure U.S. law, although he was in Afghanistan at the time, because he was a U.S. citizen. Officials of various U.S. intellegence, defense and law enforcement agencies - including officials of the U.S. Department of Justice - claim they can break U.S. laws, although they are U.S. citizens and representing the U.S. Government, because (for instance) they are doing so in Afghanistan.

Americans scoff at Saddam Hussein for claiming he cannot be made to answer for any laws he himself had signed into law. Unfortunately, some of the claims Americans are hearing made by various officials of the U.S. Government might perhaps sound disturbingly similar.

When officials of the U.S. Government transgress the U.S. Constitution, what difference would it make where and how they chose to do so? The U.S. Constitution's eighth amendment forbids cruel and unusual punishment. Torture, for example, is cruel and unusual punishment - inflicted, for example, when prisoners might potentially be reluctant to cooperate during interrogations conducted at the request of U.S. Government officials.

In addition, I was under the impression that at least some officials of the U.S. Government were sworn to uphold the U.S. Constitution. If ignorance of the law is no defense, that same principal would especially seem to be the case for those who are sworn to uphold the law. Plus, any attempt to obscure a transgression of the law (perhaps such as occurred during the detention of Jose Padilla) would seemingly be an obstruction of justice - which itself would be against the law.

Peace be unto you.