'There Is No Law Here'

A funny thing happened on the way to monarchy: a rare Supreme Court take-back

When military lawyer Lt. Commander Charlie Swift was assigned by the Pentagon in 2003 to defend terror suspect and Guantánamo prisoner Salim Hamdan, his orders—as Swift later told me—were to represent his client by obtaining a confession from him.

Salim Hamdam was surprised to see Swift, asking: "The guards say there is no law here, so what are you even doing here?" However, like some other military lawyers who have resisted the Pentagon's notion of "due process," Swift is essentially commanded by his conscience. He told his client, "I think there is law here, and we're going to have to go the Supreme Court to prove it."

Swift had been told that if he didn't get a confession from Hamdan, his client would no longer be available to him. Ignoring that order, Swift did go to the Supreme Court, with civilian lawyer Neal Katyal of Georgetown University; and in June 2006, the court, in Hamdan v. Rumsfeld, handed the Bush administration a humiliating defeat.

The ruling declared that these "detainees" (Gitmo guards are forbidden to call them "prisoners," as if they had rights) are, contrary to Bush, protected by the Geneva Conventions, and have the habeas corpus rights to go into American courts and contest the conditions of their confinement and the reasons they are being held in the first place.

The Supreme Court last year also demolished the Bush team's insistence that the military commissions they had invented at Guantánamo—to sort out and try the prisoners—had anything to do with due process (i.e., fundamental fairness). Also, said the court, the prisoners must not be subjected to "cruel, inhuman, degrading treatment."

Having brought back some respect for the rule of law by winning this case—defying the president, Donald Rumsfeld and Dick Cheney in the process—Swift's reward was the end of his military career. (The rule for members of the corps of military lawyers is that if you're not promoted within a certain number of years in the service, you're out.)

But after the Hamdan decision that Swift won, civilian lawyers for the other despairing prisoners—isolated for five years without access to lawyers, and held in such brutalizing conditions that some have committed suicide and others are on hunger strikes—filed hundreds of habeas corpus suits in our federal courts.

Shaken at the prospect that the president's unilateral powers over his war on terrorism were being dismantled, the White House and Cheney got the Republican-controlled Congress to pass the Military Commissions Act of 2006, stripping terrorism suspects at Guantánamo and our other prisons of their habeas corpus rights. This monarchical law also gave George W. Bush the authority to bypass the Geneva Conventions' ban on "cruel, inhuman and degrading treatment."

However, the Military Commissions Act goes much farther to subvert the separation of powers that is the linchpin of this Republic and its constitution.

In his forthcoming book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy—the most important and frightening account of the construction of "the imperial presidency" that I've read (from Little, Brown in September)—Charlie Savage reveals that radical changes in the rights of Americans as well as non-citizens are in store if other sections of the Military Commissions Act are not overturned.

One example: Under the MCA, "The president can seize citizens as 'enemy combatants' even if they have nothing to do with Al Qaeda [because] an 'enemy combatant' can be anyone who 'has engaged in hostilities or who has purposely and materially supported hostilities against the United States.' Under this broad definition, the president can potentially imprison without trial any citizen who is accused of donating money to a Middle East charity that the government decides is linked to a terrorist group." (Emphasis added.)

There is much more subversion of our democracy contained in the MCA, as Savage details (and as I have in previous Voice columns). But it looked as though the Supreme Court wasn't going to review these parts of the MCA, or the denial of habeas corpus rights at Gitmo and the asphyxiation of due process there.

Then suddenly, on June 29, the Supreme Court declared, as its members were leaving town, that, in the next term, beginning October 1, the court will hear the habeas corpus claims in the combined cases of Boumedienne v. Bush and Al Odah v. United States. (Bush's lawyers tried mightily to persuade the court not to rehear the cases.)

The votes of four of the justices are needed to have the court review regular appeals. But to return to a rare review of a previously denied petition requires five votes—and that hasn't happened since Hickman v. Taylor (1947).

On April 2, when those cases were first turned down, justices John Paul Stevens and Anthony Kennedy joined the majority in order, they said, to wait until the lower courts acted on the habeas corpus rejections of the MCA and the Detainee Treatment Act of 2005. It looks as if Stevens and Kennedy have changed their minds.

Stevens, in view of his previous opinions, was a sure bet to eventually bring back habeas corpus; but next October, swing voter Arthur Kennedy will be the decider. I predict the result will be another major (though not mortal) blow to the Bush-Cheney dream of monarchy—the kind that George Washington turned down when it was offered him by some enthusiasts after the Revolution.

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