{"id":692,"date":"2008-06-13T11:42:05","date_gmt":"2008-06-13T16:42:05","guid":{"rendered":"http:\/\/www.scpronet.com\/wordpress\/2008\/06\/13\/the-republic-on-a-knifes-edge\/"},"modified":"2008-06-13T11:42:05","modified_gmt":"2008-06-13T16:42:05","slug":"the-republic-on-a-knifes-edge","status":"publish","type":"post","link":"https:\/\/www.scpronet.com\/wordpress\/2008\/06\/13\/the-republic-on-a-knifes-edge\/","title":{"rendered":"The republic on a knife’s edge"},"content":{"rendered":"

By Robert Parry<\/strong>
\nconsortiumnews.com<\/a><\/p>\n

There are two ways of looking at the landmark 5-4 Supreme Court decision recognizing the habeas corpus rights of detainees at Guantanamo Bay, Cuba: As a stirring victory for individual liberty over collective fear \u2013 or as a reminder that the one more right-wing justice could make George W. Bush\u2019s imperial presidency \u201cconstitutional.\u201d<\/p>\n

At the heart of the June 12 decision was the majority\u2019s recognition that President Bush and his political allies have been playing games with the Constitution by turning Guantanamo into a legal black hole for the indefinite imprisonment (or kangaroo-court trials) of people Bush deems \u201cunlawful enemy combatants.\u201d<\/p>\n

By the narrowest majority, the Supreme Court rejected Bush’s legal loophole, declaring that the U.S. government cannot evade the constitutional tradition of judicial oversight simply by citing an indefinite \u201cwar on terror\u201d and by placing detainees off-shore at the U.S. naval base at Guantanamo Bay.<\/p>\n

\u201cThe laws and Constitution are designed to survive, and remain in force, in extraordinary times,\u201d Justice Anthony Kennedy wrote for the court\u2019s majority.<\/p>\n

The majority also saw the Guantanamo loophole as a device used by the President and the Republican-controlled Congress of 2005-06 to evade the authority of civilian courts as well as the habeas corpus obligation for the Executive to justify a person\u2019s detention.<\/p>\n

\u201cThe writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers,\u201d the majority ruled, adding that it \u201cmust not be subject to manipulation by those whose power it is designed to restrain.\u201d<\/p>\n

In a concurring opinion, Justice David Souter also noted the duration of many Guantanamo imprisonments, \u201csome of the prisoners represented here today having been locked up for six years,\u201d he wrote.<\/p>\n

However, four right-wing justices \u2013 Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito \u2013 saw nothing wrong in creating this modern-day Devil\u2019s Island outside the reach of traditional justice for the duration of the indefinite \u201cwar on terror.\u201d<\/p>\n

Presumptive Republican presidential nominee John McCain also has vowed to appoint more justices in the mold of Bush\u2019s selections, Roberts and Alito. If another Roberts or Alito replaces one of the five more moderate justices, the new right-wing majority would be in position to reverse the latest ruling.<\/p>\n

<\/p>\n

Imperial Presidency<\/strong><\/p>\n

The four sitting right-wing justices repeatedly have embraced the Bush administration\u2019s radical notion that at a time of war \u2013 even one as vaguely defined as the \u201cwar on terror\u201d \u2013 the President possesses \u201cplenary\u201d or unlimited powers as Commander in Chief.<\/p>\n

As expressed in classified memos by John Yoo when he was a key lawyer in the Justice Department\u2019s Office of Legal Counsel, there should be, in essence, no limits on what a war-time President can do as long as he is asserting his duty to protect the nation.<\/p>\n

Alito also is associated with this concept of a \u201cunitary executive,\u201d holding that a President should control all regulatory authority, define the limits of laws via “signing statements” and \u2013 at his own discretion \u2013 override treaties, the will of Congress and even the Bill of Rights and the Constitution.<\/p>\n

Under this theory, a President can cite his commander-in-chief powers to spy on citizens without warrants, imprison people without charges, authorize torture, order assassinations, and invade other countries without congressional approval.<\/p>\n

With just one more Alito or Roberts, that view would claim control of the U.S. Supreme Court and allow a new five-to-four majority to, in effect, rewrite the Constitution.<\/p>\n

The founding principles of the United States \u2013 that everyone possesses certain \u201cunalienable\u201d human rights and no one is above the law \u2013 would be history. [For details on these executive theories, see our book, Neck Deep.]<\/p>\n

Dissenting Justices<\/strong><\/p>\n

In their dissents to the June 12 ruling, entitled “Boumediene v. Bush,” the right-wing justices fashioned narrow arguments around the fact that previous courts had avoided extending habeas corpus \u2013 the right to challenge one’s detention \u2013 to non-citizens outside U.S. territory.<\/p>\n

As Chief Justice Roberts wrote in his dissenting opinion:<\/p>\n

\u201cThe majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus \u2013 its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay.\u201d<\/p>\n

Writing the principal dissent, Justice Scalia sought to turn the argument about Bush\u2019s alleged manipulation of habeas corpus back on the court majority.<\/p>\n

\u201cIf the understood scope of the writ of habeas corpus was \u2018designed to restrain\u2019 (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much \u2018designed to restrain\u2019 the incursions of the Third Branch [i.e. the Judiciary].<\/p>\n

\u201c\u2018Manipulation\u2019 of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as \u2018manipulation\u2019 by the Executive,\u201d Scalia continued. \u201cThe understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.\u201d<\/p>\n

In other words, the right-wing court minority believes that the President should have the unilateral right to decide who should be defined as an \u201cunlawful enemy combatant\u201d and the nature of their incarceration for as long as the \u201cwar on terror\u201d continues.<\/p>\n

Given the advanced ages and questionable health of some Supreme Court justices, Election 2008 may well decide more than just who will be the new occupant of the White House.<\/p>\n

It may well decide whether Bush\u2019s imperial presidency outlasts his time in office \u2013 and whether the concept of \u201cunalienable rights\u201d survives.<\/p>\n

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com<\/a>. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Robert Parry consortiumnews.com There are two ways of looking at the landmark 5-4 Supreme Court decision recognizing the habeas corpus rights of detainees at Guantanamo Bay, Cuba: As a stirring victory for individual liberty over collective fear \u2013 or … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8],"tags":[],"class_list":["post-692","post","type-post","status-publish","format-standard","hentry","category-national-newscommentary"],"_links":{"self":[{"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/posts\/692","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/comments?post=692"}],"version-history":[{"count":0,"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/posts\/692\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/media?parent=692"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/categories?post=692"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.scpronet.com\/wordpress\/wp-json\/wp\/v2\/tags?post=692"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}