As I noted last week, at last there's a growing rebellion in the lower federal courts against the president's claim that he must be the sole decider in how to combat terrorism. But hanging over this is the shadow of the Roberts-Alito Supreme Court. It will have the final say on these acts of resistance by federal district courts and a few appellate panels.
Particularly important and controversial will be the high court's ruling on the legal black hole the president and his advisers have created at Guantánamo Bay. Soon after he replaced Donald Rumsfeld, Secretary of Defense Robert Gates said that our treatment of prisoners there has degraded our reputation—both among our allies and in the rest of the world. We used to be known, more or less, as a nation of justice based on our laws and faithfulness to international treaties.
On December 5, there will be oral arguments at the Supreme Court on the combined cases Boumedienne v. Bush and Al Odah v. United States. At issue is the restoration of the rights of these prisoners—twice affirmed by the Supreme Court and then overruled by a Republican-controlled Congress—to go into our federal courts and contest the legality of their imprisonment and the conditions of their confinement. Some aspects of those conditions have been described by the International Red Cross as "verging on torture."
Here is a grim prelude to the facts that the nine justices will hear. See if you can guess who presented this scenario—unsuccessfully—to Congress this summer:
"Hauled before a military tribunal at the American naval base in Guantánamo Bay, the detainee, picked up in Afghanistan, asked why he was being held for associating with a member of al-Qaeda [as he had been told]. 'Give me his name,' the detainee demanded.
"The [military] tribunal's president said he didn't know it. Nor did any of the tribunal's other members. 'How can I respond to this?' the detainee cried before being taken back to his cell to continue his detention, perhaps for the rest of his life."
It was Republican senator Arlen Specter of Pennsylvania who insisted on elementary justice for this prisoner, as he was co-sponsoring a failed bill with Democrat Pat Leahy to restore habeas corpus rights to Guantánamo detainees, many of whom have been caged there for nearly six years. Desperation has caused a number of prisoner suicides and the brutal force-feeding of other detainees who have attempted suicide or gone on hunger strikes.
It is quite possible that by the time oral arguments are heard on December 5, the Senate Judiciary Committee, and then the entire Senate, will have confirmed Bush's appointment of longtime former federal judge Michael Mukasey—who is much admired by most of the legal establishment—to succeed the hapless Alberto Gonzales as attorney general, our chief law-enforcement officer.
Should Rudy Giuliani become president, Mukasey—his close friend and, until his nomination, his adviser on constitutional matters during Giuliani's presidential campaign—is very likely to stay on as attorney general and be vitally involved in cases involving domestic constitutional issues and international treaties we've signed. He believes that a president, in the interest of national security, can disobey laws that Congress has passed, as does our present commander-in-chief. And, like Rudy, he won't say whether waterboarding is torture.
With regard to Guantánamo, Mukasey, during his confirmation hearings, had no problem with "enhanced interrogation techniques," echoing the president's mantra that "we do not torture" as we extract necessary information.
Moreover, Mukasey added, "I don't think people are mistreated at Guantánamo." And law professor Marjorie Cohn (of the Thomas Jefferson School of Law in San Diego) reports that Mukasey told Senator Dick Durbin before the hearings that detainees receive "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans."
Indeed, we are so solicitous of the welfare of our prisoners that if any of them prove so ungrateful as to attempt suicide, we bind them to a chair and force-feed them, sometimes causing them to lose control of their bowels in the process.
Mukasey told the Senate committee that, with regard to cases before the Supreme Court on whether habeas corpus rights should be restored to these terrorism suspects, "I would not advise the President to grant rights beyond those that they already have."
Watching the hearings on C-SPAN, it was hard to separate Mukasey from Dick Cheney. Asked whether the president must obey federal statutes, he replied: "That would have to depend on whether what goes outside the statutes nonetheless lies within the authority of the president to defend the country." (But George Washington refused the wish of some of his admirers to become king.)
In a blistering response to Mukasey's obeisance to extra-presidential powers, Yale constitutional-law professor Jed Rubenfeld, in his New York Times op-ed "Lawbreaker in Chief" (October 23), instructed the man who, as of this writing, appears certain to be confirmed as attorney general:
"The president has no supreme, exclusive, or trumping authority to 'defend the nation.' In fact, the Constitution uses the words 'provide for the common defense' in its list of the powers of Congress, not those of the president. . . . " (In 1787, the framers in Philadelphia took great care to limit the powers of the presidency. They had had enough of kings.)
