Will Liberty Succumb to Federalist Society Ideology?
By Paul Craig Roberts
12/11/07 "ICH" -- The US Supreme Court has taken up the issue whether the executive branch can detain people indefinitely merely by declaring them to be suspected terrorists or illegal enemy combatants. The case is a habeas corpus issue and, therefore, of the utmost importance. Without the protection of habeas corpus, government can lock away anyone on the basis of unsubstantiated charges as the Guantanamo detainees have been for nearly six years.
Reporting on the Court’s deliberations about Odah v. US and Boumediene v. Bush, Tom Curry, a national affairs writer for MSNBC, reports that Justice Stephen Breyer suggested to US Solicitor General Paul Clement that the executive branch could indefinitely hold people such as those in Guantanamo prison if Congress were to pass “some special statute involving preventive detention and danger, which has not yet been enacted.”
According to Curry, senators Dianne Feinstein and Arlen Specter regard a preventive detention statute as a possibility worth considering.
Pray that Curry has misunderstood Breyer. A different interpretation of Breyer’s remarks is that the justice was telling Bush’s solicitor general that in the absence of a preventive detention statute there is no legal basis for holding the detainees. If there were such a statute, the case before the court would be its constitutionality.
Support for the latter interpretation comes from House Judiciary Committee member Jerrold Nadler (D,NY). Rep. Nadler thinks Breyer was merely “thinking out loud,” not “floating an idea” and inviting Congress to pass an unconstitutional statute. Nadler believes that Breyer was telling Clement that as there is not even a preventive detention statute, the executive branch has no basis for holding the Gitmo detainees.
That Feinstein, Specter, Jon Kyl, and other US senators think it is “worth considering” for Congress to overturn habeas corpus, the greatest bulwark against tyranny, indicates how much the US constitutional tradition has been lost.
The importance of the case seems to be completely over the heads of the media, who appear to be looking for a technical solution that permits people accused without evidence to be held forever. The American press apparently believes that the US government can make no mistake or behave improperly and that the detainees, actually comprise, in Senator Kyl’s words, “a danger to our troops.”
It is a “danger” that the Bush regime has been unable to prove even with torture and secret evidence. Half of the detainees have had to be released. According to news reports, the regime has been able to create cases against only 14 of those remaining. After all the years of illegal detention, harsh treatment, and denial of access to attorneys, the Bush regime has come up with 14 cases, and they are probably fabricated.
Where is the rule of law when hundreds of people can have years stolen from their lives?
It is uncertain how the court will decide the case. Bush’s solicitor general has told the justices that they should trust the executive branch to correctly balance “the interests of the prisoners” with the administration’s ability to “prosecute the global war on terror.”
In other words, it is Waco all over again. The executive branch runs roughshod over the US Constitution and then demands, “trust us,” which means don’t take away any of the illegitimate power that the executive branch has claimed and exercised or hold anyone accountable for abusing executive power.
Unfortunately for the future of liberty in America, a number of the Republican justices see the issue as one of the separation of powers. The Republican justices or most of them are, or were, members of the Federalist Society, an organization of Republican lawyers committed to increased power for the executive. These Republican justices will be inclined to decide the case in the interest of executive power.
The Federalist Society is a product of a past time when Republicans were said to have “a lock on the presidency” but could not get their agenda into law because the Democrats had a lock on Congress. Republican frustrations manifested themselves in attempts to heighten the president’s powers so that a Republican agenda could prevail over a Democratic Congress. Like generals who fight the last war, the Federalist Society is stuck in its assault on the separation of powers in the interest of “energy in the executive.”
Many Federalist Society members join for social reasons and for net-working, as the society provides the pool of attorneys for Republican appointments to the federal bench and for Department of Justice appointees. Many members mistakenly think that the society stands for “original intent,” but as their real interest is career-driven, they don’t pay much attention to the society’s assault on the US Constitution.
Kings exercised the power to throw into dungeons people who offended them or whom they regarded as a threat. Once arrested, a person could be locked up forever without charges or evidence brought before a court. Habeas corpus was an English invention that provides quick release of a person unlawfully held by orders of the executive.
The Bush Regime has made the most determined assault the Anglo-American world has seen on the principle of habeas corpus. The previous assault was by Stuart kings who destroyed their rule by proclaiming the “divine right of kings.”
Now Americans are faced with Bush/Cheney and the solicitor general of the US Department of Justice (sic), Paul Clement, proclaiming the divine right of President Bush and his Justice (sic) Department.
We must all pray that there are not enough Federalist Society members on the Supreme Court to uphold a Benthamite ruling of preventive detention.
Jeremy Bentham (1748-1832) was the Englishman who renewed the assault on liberty, which centuries of English reforms had created. Bentham believed that tyranny was no longer a problem, because people were empowered by democracy to control the government. He argued that any restraint placed on government’s powers would limit the ability of government to do good. To protect citizens from crime, Bentham favored preventive arrest of everyone whose social class, bone structure or other chosen indicator suggested a proclivity toward crime. “The greatest good for the greatest number.”
The Bush regime is comprised of modern day Benthamites. Their agenda is to overthrow the civil liberties that make law a shield of the people instead of a weapon in the hands of the state. As anyone can be declared a suspect, the weapons that Bush would use to fight “the global war on terror” would soon be turned on the American people. Without habeas corpus, there is no liberty.
Dr. Roberts was Assistant Secretary of the US Treasury for Economic Policy in the Reagan administration. He is credited with curing stagflation and eliminating “Phillips curve” trade-offs between employment and inflation, an achievement now on the verge of being lost by the worst economic mismanagement in US history.
President Bush walks past Miguel Sigler Amaya, a former Cuban political prisoner and founder Movimiento Independiente Opcion Alternativa (Independent Movement for an Alternative Option), after Bush spoke about Cuba in the Roosevelt Room of the White House in Washington, Friday, March 7, 2008. ((AP Photo/Charles Dharapak))
By JENNIFER LOVEN Associated Press Writer Article Launched: 03/08/2008 12:47:28 AM PST
WASHINGTON—President Bush is poised to veto legislation that would bar the CIA from using waterboarding—a technique that simulates drowning—and other harsh interrogation methods on terror suspects.
The president planned to talk about the veto in his Saturday radio address.
Bush has said the bill would harm the government's ability to prevent future attacks. Supporters of the legislation argue that it preserves the United States' right to collect critical intelligence while boosting the country's moral standing abroad.
"The bill would take away one of the most valuable tools on the war on terror, the CIA program to detain and question key terrorist leaders and operatives," deputy White House press secretary Tony Fratto said Friday.
The bill would restrict the CIA to using only the 19 interrogation techniques listed in the Army field manual.
The legislation would bar the CIA from using waterboarding, sensory deprivation or other coercive methods to break a prisoner who refuses to answer questions. Those practices were banned by the military in 2006, but the president wants the harsh interrogation methods to be a part of the CIA's toolbox.
Backers of the legislation, which cleared the House in December and won Senate approval last month, say the interrogation methods used by the military are sufficient.
"President Bush's veto will be one of the most shameful acts of his presidency," Sen. Edward Kennedy, D-Mass., said in a statement Friday. "Unless Congress overrides the veto, it will go down in history as a flagrant insult to the rule of law and a serious stain on the good name of America in the eyes of the world."
He noted that the Army field manual contends that harsh interrogation is a "poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the (interrogator) wants to hear."
President Bush delivers a statement on the economy, Friday, March 7, 2008, at the White House in Washington. (AP Photo/Haraz N. Ghanbari) (Haraz N. Ghanbari - AP)
Move Could Reverberate in Campaign
By Dan Eggen Washington Post Staff Writer Saturday, March 8, 2008; Page A02
President Bush today will veto legislation meant to ban the CIA from using waterboarding and other harsh interrogation tactics and will argue that the agency needs to use tougher methods than the U.S. military to wrest information from terrorism suspects, administration officials said.
Bush's decision to veto an intelligence authorization bill that contains the waterboarding provision is the subject of his weekly presidential radio address, to be broadcast today, the White House said.
"The bill would take away one of the most valuable tools on the war on terror: the CIA program to detain and question key terrorist leaders and operatives," White House spokesman Tony Fratto said yesterday.
Although long expected, Bush's formal move to veto the bill reignites the Washington debate over the proper limits of the U.S. interrogation policies and whether the CIA has engaged in torture by subjecting prisoners to severe tactics, including waterboarding, a type of simulated drowning.
The issue also has potential ramifications for GOP presidential nominee John McCain (R-Ariz.), a longtime critic of coercive interrogation tactics who nonetheless backed the Bush administration in opposing the CIA waterboarding ban. The Democratic presidential candidates, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), both support the ban, though neither was present for last month's Senate vote for the bill that Bush is to veto.
The legislation would have limited the CIA to using 19 less-aggressive tactics outlined in a U.S. Army field manual on interrogations. Besides ruling out waterboarding, that restriction would effectively ban temperature extremes, extended forced standing and other harsh methods that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.
Bush and his aides have argued that the CIA's "enhanced interrogation program" was crucial in uncovering terrorist plans and averting deadly plots. CIA Director Michael V. Hayden has also spoken out against the Senate bill and defended the methods as lawful and effective.
In a statement to The Washington Post, Hayden said the Army manual guidelines were intended for "a different population of detainees, a different group of interrogators, and for different intelligence needs" than those of the nation's chief spy agency. The CIA has not specified all the tactics it wants to keep using but says it no longer uses waterboarding. Administration officials have not ruled out using the tactic again.
Many Democrats and human-rights groups say the tactics are often counterproductive and that, regardless, they constitute illegal torture under U.S. and international law. Senate Majority Leader Harry M. Reid (D-Nev.) said yesterday that Bush has "compromised the moral leadership of our nation," and said the administration is ignoring the advice of military experts who oppose harsh techniques.
Retired Army Lt. Gen. Harry E. Soyster, a former director of the Defense Intelligence Agency, suggested that those who support harsh methods simply lack experience and do not know what they are talking about. "If they think these methods work, they're woefully misinformed," Soyster said at a news briefing called in anticipation of the veto. "Torture is counterproductive on all fronts. It produces bad intelligence. It ruins the subject, makes them useless for further interrogation. And it damages our credibility around the world."
In two separate forums earlier this week, FBI Director Robert S. Mueller III and Navy Rear Adm. Mark H. Buzby, commander of the military detention facility at Guantanamo Bay, Cuba, defended the efficacy of less-coercive, "rapport-building" interrogation tactics.
"We get so much dependable information from just sitting down and having a conversation and treating them like human beings in a businesslike manner," Buzby told reporters in a conference call Thursday.
Staff writer Joby Warrick contributed to this report.
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