Morning Report 3/22/05Under the Revival Tent


Judge turns down Bush regime’s heroic attempt to resuscitate itself.

Terri Schiavo probably didn’t notice, but once again the courts have stepped in to try to stop someone from being kicked around like a football by the two other branches of our federal government.

Early this morning, Judge James Whittemore of the 11th Circuit’s Florida Middle District rejected the Bush regime’s orchestrated attempt to force-feed both Schiavo and the American public.

Whittemore joins the ranks of judges who have stepped in to try to halt the Bush regime. Yes, the right wing will point out that he was a Clinton appointee. But Utah federal judge Paul Cassell was appointed by Bush himself, and during a Congressional hearing on another person in a vegetative state (Alberto Gonzales), Vermont senator Pat Leahy pointed out that Cassell described a mandatory sentence (the kind of thing the Bush regime insists upon) as “unjust, cruel, and irrational.”

It’s not only judges like Cassell and Great Britain’s Law Lords who are stepping up. There’s Judge Gerald Tjoflat, down in Georgia, who wrote in a case involving protesters at the School of the Americas:

We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.

Not to mention other federal judges in the Hamdi and Padilla cases. Lots of judges have stepped up, as Anthony Lewis notes in the latest New York Review of Books. Riffing off a new tome on the Pentagon Papers crisis of ’71, Lewis writes:

Congress as an institution has hardly exercised its checking power since the terrorist attacks of September 11, 2001. It gave President Bush greatly expanded investigative and prosecutorial authority in the Patriot Act. It has only intermittently challenged the unprecedented secrecy he has imposed on government activity.

That leaves the third branch, the courts. In the context of the “war on terrorism,” would they decide a case like the Pentagon Papers the same way today? No one can be sure. But lately there have been signs that judges are unwilling to be cowed by the claims, made since September 11, of unreviewable presidential power. The Supreme Court ruled last year that citizens held without trial as “enemy combatants” must have an opportunity to answer official suspicions, and held that prisoners at Guantánamo Bay may file petitions in federal courts for release on habeas corpus.

Lewis points to yet another judge who stepped up:

The Supreme Court made its decision on citizens held without trial in the case of Yaser Esam Hamdi. Rather than tell him its reasons for holding him and letting him answer, the government sent Hamdi back to his home in Saudi Arabia. Then, the other day, a federal district judge in South Carolina ordered the release of the other American held as an “enemy combatant,” Jose Padilla. The judge—Henry F. Floyd, nominated by President Bush in 2003—said: “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant.”

You can read the Padilla decision for yourself. For a quicker take, consult the invaluable Punch & Jurists Weekly Newsletter:

After reviewing the law and the facts of this case, Judge Floyd ruled that he had no choice but to reject the President’s claim of authority to detain Padilla without charging him with a crime. “To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

Lewis, in his NYRB piece—which is particularly incisive about the desperately in need of repair Fourth Estate—says about the Floyd ruling:

It was only a trial judge speaking, and officials immediately said they would appeal. His decision affected one American citizen while mistreatment of prisoners overseas during interrogation, as FBI reports among other things have shown, remains inadequately investigated, much less forbidden. But that a trial judge reached those conclusions, and had the courage to express them, meant something. Perhaps, in the courts, the spirit of the Pentagon Papers lives.

Meanwhile, the spirit continues to move the Bush regime and its allies on the Christian right. In the Schiavo circus, the 11th Circuit judge, Whittemore, has folded the religious right’s revival tent. But while Bush and Tom DeLay figure out how to continue their crusade, check out my colleague Jim Ridgeway‘s shrewd analysis. And go back and read the blogger Digby‘s Sunday sermon pointing out the hypocrisy of Bush’s having signed the Texas Futile Care Law back when he was just a governor, not an emperor.

Digby’s rant (thanks to the Daily Kos for publicizing it) is worth repeating—despite the continued “liberal blog” references. It’s just plain good perspective, so here’s more:

Those of us who read liberal blogs are also aware that Republicans have voted en masse to pull the plug (no pun intended) on medicaid funding that pays for the kind of care that someone like Terri Schiavo and many others who are not so severely brain damaged need all across this country.

Those of us who read liberal blogs also understand that the tort reform that is being contemplated by the Republican congress would preclude malpractice claims like that which has paid for Terri Schiavo’s care thus far.

Those of us who read liberal blogs are aware that the bankruptcy bill will make it even more difficult for families who suffer a catastrophic illness like Terry Schiavo’s because they will not be able to declare Chapter 7 bankruptcy and get a fresh start when the gargantuan medical bills become overwhelming.

And those of us who read liberal blogs also know that this grandstanding by the congress is a purely political move designed to appease the religious right and that the legal maneuverings being employed would be anathema to any true small government conservative.

Those who don’t read liberal blogs, on the other hand, are seeing a spectacle on television in which the news anchors repeatedly say that the congress is “stepping in to save Terri Schiavo” mimicking the unctuous words of Tom DeLay as they grovel and leer at the family and nod sympathetically at the sanctimonious phonies who are using this issue for their political gain.