Crunch Time in the Imperial Presidency, Pt. I

Two meetings yesterday could determine the very fate of our democracy, and I really don't think I'm being hyperbolic about that. I'll discuss the first here. Yesterday we had oral arguments at the Supreme Court on Hamdan v. Rumsfeld, over the legality of the special military tribunals being used at Guantanamo and elsewhere. Allowing these tribunals would basically set the precedent that the President can detain anyone, hold them indefinitely, and adjudicate them according to standards in direct contrast to the codes of both military justice and accepted constitutional law.

And the Supreme Court wasn't buying it.

The Supreme Court gave a skeptical hearing Tuesday to the Bush administration's claim that the president has the power on his own to create and control special military tribunals to punish foreigners he deems to be war criminals.

Five of the eight justices hearing the case commented that the laws of war and the Geneva Convention set basic rules of fairness for trying alleged war criminals.

And they questioned whether the president was free to ignore those basic rules — as well as the rules of American military law.

The justices' skepticism suggested a second setback might be looming for the administration's legal strategy in the fight against terrorism. Two years ago, the high court said war — even a new kind of war on terrorism — did not give the president a "blank check" to make new legal rules for capturing and holding prisoners [...]

Justice Stephen G. Breyer appeared to agree. "If the president can do this, well then he can set up a [military court] to go to Toledo and … pick up an alien and not have any trial at all," he said.

Actually Breyer said much more. He said, and I'm paraphrasing, "This isn't a war, because we're not at war in any traditional sense, this isn't a war crime, because conspiracy is not a war crime, it used to be but it's not considered one now, and this isn't a war crime tribunal, because there's no emergency and it's not on the battlefield."

If you have the evidence to convict the guy who was Osama bin Laden's driver (which Hamdan was), then go ahead and convict. The Moussaoui case is taking place under full view of the public, and the need for military tribunals is nil. Basically this is an attempt by the Administration to hide whatever indiscretions they've made in torturing or exacting harm to detainees, which would certainly play out in open court. Our system of laws simply demand that a defendent confront his accusers and question the evidence used aagainst him. The world won't crumble if these prisoners are allowed to do that. To assume otherwise suggests a disbelief in the American justice system. If you want our courts to run like they did in the 1960s-era Soviet Union, go ahead and say so.

There is a further complication. This case has essentially been tried already, and the Supreme Court sided against the government, saying they don't "have a blank check" even in a time of war. So the Congress passed the "Detainee Treatment Act" with a controversial provision which may or may not strip the Supreme Court of jurisdiction in this case (which seems completely unconstitutional to me; it's basically suspending writs of habeas corpus). So one of the things argued yesterday was whether or not the SCOTUS can decide the case. Sen. Lindsay Graham, who wrote the Congressional law, filed this amicus brief which is the transcript of a floor debate on just this very subject between Graham and Sen. John Kyl of Arizona.

Except, the Lincoln-Douglas debates they weren't. Since they never actually had it. They just inserted it into the Congressional Record after the fact.

Now I realize that the Congressional Record is often not what it appears to be. Much of it is inserted at the last second. And even when statements are delivered live, there are often no other senators in the chamber. But this particular episode appears to go well beyond the normal charade.

What we have are two Senators falsely suggesting--to the highest court in the land--that an imaginary dialogue inserted in the Congressional Record was in fact a live floor debate which reveals the definitive intent of Congress. If all this is true--and it certainly appears to be--Senators Kyl and Graham have some explaining to do.

They'll stop at nothing to defend their Imperial President.

So, incidentally, will Justice Antonin Scalia, who gave his opinion on this case well before the oral arguments commenced. It seems to me that during the Supreme Court confirmation hearings there was all this hullabaloo about how prospective Justices couldn't taint upcoming cases by remarking on anything that might come before them in the future. Mr. Scalia obviously isn't constrained by such modesty:

“War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says on a tape of the talk reviewed by NEWSWEEK. “Give me a break.” Challenged by one audience member about whether the Gitmo detainees don’t have protections under the Geneva or human-rights conventions, Scalia shot back: “If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I’m not about to give this man who was captured in a war a full jury trial. I mean it’s crazy.” Scalia was apparently referring to his son Matthew, who served with the U.S. Army in Iraq.

That's apparently true even if the detainees weren't picked up on the battlefield, as is the case with so many at Guantanamo, a good majority of whom were sold to the United States by Pakistanis for a healthy ransom (see Habeas Schmabeas for details).

You have to recuse yourself if you prejudge a case like this. Yet there was Scalia yesterday, mocking the prosecutor's arguments (as well as that of his fellow Justices). Only his arguments appeared to fall short yesterday. We can only hope so, as it would strike a blow against the Imperial Presidency.