Rule of Memorandum

The Bush Administration has attracted and nutured legal opinions that may well live on in infamy, unless the Roberts Court outdoes them. John Yoo, Robert Delahunty, Alberto Gonzales, Stephan Hadley, David Addington and no doubt others whose names don't spring to mind have rendered decisions on what rights that others fought and died for should survive in the age of asymmetric warfare.

The general answer has been "not so much," and "only what we say." The Congress has been nearly supine in this affair, the Supreme Court now reshaped in the authoritarian vision of Cheney and Rumsfeld. Will we be left with Memoranda substituting for Law?

Before the smoke in New York had settled in 2001, the Justice Department's Office of Legal Counsel had rendered the classified opinion that "the president's authority to wage preemptive war against suspected terrorists was virtually unlimited, partly because proving criminal responsibility for terrorist acts was so difficult." ( Washington Post, Jan. 5, 2005; my emphasis)

In Shafiq Rasul, et al. v. George W. Bush, President of the United States, et al., the Supreme Court finally imposed some small modicum of law, "struck down indefinite detention without legal process" in the assessment of at least one press release. That was June, 2004. Two years later:

What we have learned is that (this administration has) a great reluctance, for reasons that are unfortunate, to ever defending the cases in court. Since 9/11, they have yet to call their first witness in any post-9/11 detention case. That is, have a person in court and say "this is what this person did, and this is why we are holding them."

Terry Gross' show on Thursday provided a mid-term retrospective on this affair, starting with civil rights lawyer Joseph Margulies', author of Guantánamo and the Abuse of Presidential Power.

Rasul stated limits on Presidential power. The Bush Administration has mocked the decision, substituting secret military tribunals, with evidence withheld from the prisoner, and no lawyers for an actual hearing concerning the lawfulness of their detention. The combatant status review tribunals found that almost everyone we were holding in this new, made-up category, was indeed properly in this new, made-up category, and so enjoyed almost none of the rights we have long taken for granted.

In the case of Margulies' client Mamdou Habib, the basis for detaining him was what he said while being tortured in Egypt for 6 months. For the combatant status review tribunal, confession under torture is sufficient evidence for continued detention.

"I've been at prisons all over the country, I've been on Death Row in I think a half a dozen states and the prison at Guantánamo, being there was the most disturbing place I'd ever seen."
– Joseph Margulies

The other response from the Bush administration was to stop sending detainees to Guantánamo, our little piece of "not American soil" and instead sending them to Bagram AFB in Afghanistan. So much more out of sight, out of mind, fight-them-over-there convenient for everyone involved. Conditions at Bagram–from what little we know–are even worse than Gitmo.

Part two of Fresh Air was from Amicus Bush lawyer Richard Samp, chief counsel for the Washington Legal Foundation, "Advocate for freedom and justice®" [sic]. WLF "shapes public policy and fights activist lawyers, regulators, and intrusive government agencies at the federal and state levels, in the courts and regulatory agencies across the country." Without irony, we presume. How much more intrusive can you get than indefinite detention with no hope for protection of the law?

Samp, on the WLF position:
"The United States government has the right to detain enemy combatants who have fought us against us in wars [sic] until the conclusion of that war and it doesn't make any difference whether these people are charged with any crimes, they can be held without trial for the duration of hostilities."

The duration of hostilities. That's pretty much forever is it not? We're all supposed to simply rest assured that the government knows what it's doing, is doing the right thing, and will not make any mistakes that people have to pay for with their lives.

In defense of Gitmo, Samp tells us that it's much better than the secret, undisclosed locations. It's "bewildering" that anyone should call for its closure (including his President's expressed "like" to do that? Granted, no one believes that was sincere). It's "relatively open to the press," by which he means more open than the "secret locations around the world and Afghanistan," where conditions are "far worse."

"It seems to me what people are really asking for is, let's do all of this in secret so perhaps the world can't see what we are doing."

Do you suppose his legal arguments are as fulsome as his interview style?

"They're all being given the right to go into federal court to assert their rights." Just a suprising coincidence that almost none of them have actually "chosen" to do so yet.

June 23, 2006

Tom von Alten      tva_∂t_fortboise_⋅_org