Hamdan v. Rumsfeld

I'm not a lawyer, so I can't pretend to be an expert in this. (On the other hand, I'm as much a philosopher as someone with a J.D. is a lawyer, and I rarely hear someone say "I'm not a philosopher, so I can't really speak with any authority about x, y, and z," which could be, say, abortion, life after death, and whether language or thought precedes the other.)

The Supreme Court--with John Roberts recused--is hearing oral arguments in the case of Salim Ahmed Hamdan v. Donald H. Rumsfeld, adding an extra half-hour to the usual hour for such arguments. First, the facts (or the "facts"):

Hamdan was captured in Afghanistan in November 2001, then transferred to Guantanamo. In 2004 he was referred to a military commission to be tried on conspiracy charges. The administration claims Mr. Hamdan, as bin Laden's driver, delivered weapons to al Qaeda members and was aware of bin Laden's role in the 9/11 attacks.

The strategy of the Bush administration has been to identify such a person as an "enemy combatant," and claim that as such he or she has no protection under any of the Geneva Conventions. Consequently, Hamdan--in this case--can be tried and punished by a military tribunal, without the right of any appeal to an independent court. Indeed, such an appeal would go to the White House.

In short, the Administration can identify, capture (or arrest), try, convict, and execute someone without any external check or independent judicial review.

To many, this seems like a terrible idea. Obviously enough, to communists like the ACLU, such powers are redolent of precisely both the source of the complaints in the Declaration of Independence, and fail to consider the Constitutional protections against those complaints. But others--over 35--have filed amicus briefs in support of Hamdan.

"This has nothing to do with 9/11 or supporting terrorism," said Paul Saunders, a Cravath [Swaine & Moore] partner who wrote a brief in Hamdan. "This case raises probably more fundamental issues of jurisprudence than any other case I can think of -- whether the president has the power to create a parallel system of courts that is self-executing."

Saunders, a former JAG officer in the Vietnam War, said the political implications of going up against the administration in Hamdan "were not an issue for us, not even considered."

There are some technicalities in the law here, one stemming from a much earlier case (Ex Parte McCardle):

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.

As Linda Greenhouse [this may require registration] explains the point:

Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.

The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.

There are other problems, such as that arising from Roberts's recusal. The Court could tie 4-4, which ordinarily upholds the earlier appellate decision but establishes no precedent. But because of what statutes were in place at the time, it gets really really confusing about what such a tie would mean, and what it would say about the appellate decision. (This is where I need to be a lawyer, although I bet a lot of lawyers couldn't fully explain this situation.)

Those are legal issues. There are, of course, political and moral issues as well. But to keep this brief (if you've read this far, you deserved that pun), let's just consider (yet again) the precedent being set, if the Administration gets the right to do this.

A President can identify someone he or she believes to be an enemy combatant (and this can include American citizens, as far as I can tell, as in the John Walker Lindh and José Padilla cases). That person can be arrested (and, if the Italians are correct, someone can drive up next to such a person on the streets of Milan, or Portland, and stuff him or her in the backseat of a car). This person can then be tried secretly, sentenced secretely, and, conceivably, executed secretly.

Add this to the claim of the Administration that it can wiretap (and physically search) American citizens without warrant, if determined as legitimate by the Administration (and its rather generous conception of what does and does not constitute "torture").

Just exactly how different is this than the system of justice so mightly criticized by Jefferson, Madison, and Monroe? We had George Washington and George H.W. Bush; do we really want George III?

Isn't this closer to Argentina of the late 1970s (as described in Jacobo Timmerman's Prisoner Without a Name, Cell Without a Number, among many other places)? Do we really want to introduce the notion of deseparicidos into the American jurisprudential vocabulary?

Many--including the Administration--argue that this is all justified by the Global War on Terror, which they sometimes remind us could last beyond any of our lifetimes. Thus they seem to be arguing for a blank legal check (with no balance).

To drive the point home, I like to repeat this situation to my conservative friends. They say, well, it's a messy world, but most people are willing to give up liberty for security.

Then I say "President Hillary Clinton."

Ignorance

I'm back, with my basketball brackets in shreds and my eyes almost completely glazed over from watching the tournament. Every now and then I peek out to look at the world, and see various things about Iraq and how things are going there.

1) A new book, Cobra II, by Michael Gordon, the chief military correspondent for The New York Times, and retired Marine general Bernard Trainor, indicates that virtually the entire war was designed and implemented by the "troika" of Bush, Cheney, and Rumsfeld. This is, perhaps, the usual strategy of conservatives ignoring the State Department, which is viewed with serious suspicion by conservatives: the State Department has been frequently and traditionally criticized by them as harboring communists, communist sympathizers (even when there aren't all that many communists around), soft, "internationalist," and, on occasion, treasonous. Pat Robertson famously suggested bombing it (in a Christian way, of course); the Bush administration, according to Gordon and Wood, simply ignored it. The international experience of Bush and Cheney is well-known, of course; Bush speaks Spanish and now has a passport, and I believe Cheney has expressed his commitment to globalism by offering to shoot lawyers from a large number of different countries. Colin Powell and Richard Armitage--clearly communists, frequently advocating state seizure of private property and delineating their subtle attacks on bourgeois values in a way that many of us can't recognize as genuinely Marxist--have a little experience in dealing with foreign countries, even in invading them (including the same one we re-invaded three years ago). Bush chose, apparently, to ignore their advice, but Powell's remark "You break it, you've bought it," relative to Iraq, seems prescient and perhaps the kind of thing that may come back to haunt his former boss.

As Trainor remarked in a recent interview about Bush, Cheney, and Rumsfeld:

the three of them were joined at the hip, if I can use that expression. They all thought basically the same way, and their perceptions became reality. I think the President, I would describe it as the man who presided over the troika. I think Vice President Cheney was very influential in terms of the policy. And certainly, Secretary of Defense Rumsfeld was a man in charge of the execution of the policy. Everybody else was what I would describe as in the outer circle. The National Security Advisor, Condoleezza Rice, the Secretary of State, Colin Powell, and even the neo-cons, which gained so much blame for things going wrong. But those people were -- they were in the outside of the private sanctum of the President, Vice President and Secretary of Defense. Those three thought alike and acted in unison.

He adds

. . . the joint chiefs of staff were largely marginalized in this process, and in certain respects, the National Security Advisor, Condoleezza Rice, and Secretary of State Powell were pretty much cut out of it, too.

The right has been pushing Rice to run for President; they argue that black people will be more likely to vote for her and that liberals will hesitate against voting for an African-American woman. I think those views are probably both oversimplified and generally incorrect, but since we know very little about Rice's positions on much--she likes football--it is interesting that they are pushing a candidate whose views are so unknown. (Her candidacy has been pushed by Dick Morris, former consultant to Bill Clinton, and a frequent "expert" on FOX News. FOX doesn't seem to mind very much that Morris spends most of his time pushing his most recent book, or that he used to hire prostitutes to suck his toes.)

It will be interesting to see Dr. Rice explain why she played such a minor role in such a major decision, while head of the NSA. I woulda thunk that the Director of the National Security Agency might be an important player in determining issues having to do with national security, but I've been wrong before.

"So, Dr. Rice, how did it make you feel to be so ignored? And then to be promoted (I guess) to a position that had also been ignored?"

2) There is some debate over whether Iraq is in a civil war or not. This is tricky, because (last time I checked) there aren't either Aristotelian essences that must be satisfied, or even less stringent necessary and sufficient conditions, to determine whether something is a civil war or not. Ayad Allawi, who used to be our kind of guy, seems to think so:

"It is unfortunate that we are in civil war. We are losing each day as an average 50 to 60 people throughout the country, if not more," Allawi told the BBC. "If this is not civil war, then God knows what civil war is."

I get the queasy feeling that Iran is playing us for dupes, and, of course, the real losers here are those who would like to live a normal life in Iraq, if such a thing is or will be possible.

Again, the dilemma the Bush administration has put us in: stay, and things get worse. Leave, and things get worse. The choice among conservatives, moderates, and others seems to be stay, hope for the best, accentuate the positive, and keep on message: democracy is a messy thing, it can't be done overnight, and we're there for the duration.

But please, Mr. Bush, quit talking about the War on Terror as if it is a traditional war that gives you carte blanche to do whatever you wish, such as warrantless wiretaps and physical searches, suspension of habeas corpus, approving of torture, disappearing people, etc.. This war doesn't give you those rights any more than the War on Poverty gave them to LBJ. As a critic I saw recently observed, there are no obvious security reasons to prevent the Administration from going to the FISA court and getting the appropriate warrants, unless they want to do something that court won't approve. Given the latitude that court has granted, that's a bit scary.

3) Democracy is, indeed, a messy thing, although I would like someone in the media (you know, the communists in the mainstream media, or the clearer thinkers at FOX, who somehow are able to brag that they are watched by more people than any other network yet aren't mainstream) to remind us that "democracy" is a term fraught with ambiguity. I love talking to my students about democracy (in the context of Socrates and Plato); they recognize that democracy is a good thing, they know that many people have died (and are currently dying) in its defense, but they aren't very sure what precisely democracy is, and they are more than a little stymied in trying to say why it is a good thing. Personally, just as I think one should be able to pronounce a city or country one is bombing, one should be able to defend verbally a concept one is willing to die for (or make others die for).

An interesting article in The Guardian makes the point well:

elections keep on producing the wrong results. Hamas is in power in Palestine; René Préval, the protege of Jean-Bertrand Aristide whom the US helped remove in a coup two years ago, won the presidency in Haiti; Ahmed Chalabi, the protege of the neocons whom the US wanted to impose on the Iraqi people at the outset of the war, could not win a single seat. Elsewhere, voters in Latin America have opted for leaders who campaigned against the neoliberal economic strictures imposed by Washington.

The issue is not whether the developing world is ready for democracy - as the administration keeps arguing - but if the US is ready for the democratic choices made by the developing world.

If we describe a democracy as one that (minimally) guarantees one person one vote, free and fair elections, and maintains safeguards for minorities and those who are otherwise at risk, then the problem is fairly clear: lots of people in this world want democracy, but they don't necessarily agree with the positions of the Bush administration. Hugo Chavez, Hamas, Aristide, etc., may win democratic elections and adopt positions "we" don't like. (I put that in scare quotes, because I think there is a tendency to say that what the Bush administration does represents America. I'm not so sure.) So aren't some really a bit more comfortable with the old days, such as the elder Somoza running Nicaragua, about whom FDR famously said "He's a son of a bitch, but he's our son of a bitch"? If Sadaam Hussein had been more amenable to US Administrations--while continuing to violate human rights, torture and kill his own citizens, etc.--would we have deposed him?

The tragedy of realpolitik, I guess. Perhaps the Algerians had it right, when one of its political parties ran, in Algeria's first democractic election, on a platform of getting rid of the democracy. (They won, but then were overthrown by a military coup.)

4) Some of the most trenchant criticisms of the Bush administration are coming from the "right," unless Sandra Day O'Connor has suddenly fallen under the spell of noted Svengali David Souter (or, perhaps, Bruce Sutter?). She said this in a speech that was reported very sparingly (primary sources were, again, The Guardian, and NPR; why is it that a British newspaper is doing a better job on this than domestic news sources?). The NY Times eventually got to it, but a quick Google search indicates that the places to find accounts of the speech were more likely to be in Seattle or Charleston than Chicago.

Just listen to what this com-lib had to say (as reported by The Boise Weekly):

"'I,' said O'Connor, 'am against judicial reforms driven by nakedly partisan reasoning.' Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O'Connor said we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies. 'It takes a lot of degeneration before a country falls into dictatorship,' she said, 'but we should avoid these ends by avoiding these beginnings.'"

She said this to a group of Texas attorneys. As far as I know, she didn't shoot any of them.

Spring Break!

As Milhous van Houten plaintively asks: "when are we going to get rowdy?"

See you next week, with questions about Bernard Trainor, Condaleeza Rice, and the state of Kansas basketball.

Until then, have a beer and think of me. Better yet, send it over to my table.

Random Sports Nonsense

For sports fans, this is a good time of the year. Sadly, it is tempered by the death of Kirby Puckett, all-too-young, and (for music fans) the death of Ali Farka Toure. I won't add anything to the obituaries of either, except to say that both seemed to have found something they were good at and enjoyed--tremendously--doing. Always a good thing.

NCAA Men's Basketball

I hate Duke, and have for a long time (crystallized when Christian Laettner decided to take an extra hard step on an opponent's stomach while he was down, underneath the basket). I can't even think of many Duke players I like, although I admit a begruding respect for Johnny Dawkins and Bobby Hurley and, with still more begruding, J.J. Redick. Maybe it's because they win so consistently, or recruit so well (the two are, of course, related), or maybe because their fans can be so obnoxious (and frequently privileged--I just have this feeling that many of them grow up to vote Republican, in spite of what they may claim). The nice thing is that they won't win this year.

I don't like Connecticut much more; I'm suspicious of that silent "c" in the middle of the state's name, for one thing. I don't think Memphis has it in 'em, nor does Gonzaga. But somebody has to win, right? Texas? North Carolina? Illinois? Ohio State?

I'm viewing this as one of the trickiest tournaments to pick in years; it should be great to watch and there should be a lot of upsets. I expect someone to go a lot farther than anyone thought; maybe some team like Southern Illinois gets to the "Elite Eight"; maybe Gonzaga loses in the first round (karma?). One could be safe and pick Connecticut, which has great talent, a good coach who has been there, and a lot of experience; I'm just going with my gut on this one. Since the brackets haven't been announced as I write this, the teams chosen here may not even make the tournament, or be arranged in the appropriate way to meet up in the Final Four. Keep that in mind when you return to admire and/or belittle the following predictions.

Final Four:

UNC vs. Connecticut
Villanova vs. Ohio State

Final game:

Villanova defeats UNC

I will add a) my surprise team to go very far is the University of Alabama at Birmingham and b) every single thing here is a wild guess with virtually no chance of being correct c) next year's final game will be UNC vs. Ohio State. I actually don't like Ohio State that much, even though (or because) I taught there, but they've done well in a difficult and physical league, and they have a recruiting class next year that may only be matched by North Carolina's--and both teams are already good and quite young.

Player of the Year

As everyone knows, this comes down to two white guys (can I say that?), J.J. Redick and Adam Morrison. Their numbers are virtually identical; the standard rap is that Redick plays in a much more difficult league and is better defensively, and thus he will win (ironically, for those who follow this stuff) by a whisker.

No one seems to point out that Redick's supporting cast (Batista is not quite Shelden Williams) is considerably stronger than Morrison's; Coach K seems to get about 3 McDonald's All-Americans every year, while Mark Few gets some of the better players out of Seattle. That's what it seems like, anyway.

Redick looks to me to be tired, and I'm tired of hearing about how he's tired of apologizing for being a good Christian. Morrison looks to me to get a lot of breaks by being allowed to put his shoulder down and shove it into the defender's chest.

So I vote for Dee Brown, but expect Redick to win it by a relatively comfortable margin. I also don't expect him to be as effective in the NBA as people keep saying, not if he's tuckered out after a college season, keeping in mind he is a central focus of opponents--but the NBA plays 81, not 30, games, and if he scores much, he may get some attention and at least as much physical abuse as he saw against UNC every single night.

Baseball

There will be more to be said here about the upcoming baseball season; I'm just going with quick predictions about the National League. (There's an American league?)

NL East: Mets (ick)
NL Central: Cardinals
NL West: Dodgers (ick, again)

I think the East will be close, but losing Mazzone and an aging staff makes me think the Braves won't quite get there. (Then again, people have been saying precisely that for 14 years now.) The Central will also be close, and Milwaukee and Pittsburgh are to be taken seriously any specific day; they just don't have the horses for the stretch. If Clemens pitches and stays healthy (the latter seems more of an issue than the former at this point), the Astros and Cardinals should take it down to the wire; I hope and expect Muldar to pitch very well, and Al Reyes to show Cardinal fans something as well. (I refuse to use the horribly overused word "special" in describing any sports phenomenon except the Special Olympics.) I don't really care about the NL West; they are there for someone to beat handily in the first round of the NLDS (as the Cards did to the Dodgers and the Padres the last two years). But the Dodgers are better, J.D. Drew may finally have the awesome year we've always expected, and, fundamentally, only a few dorks and people who go to games from the 4th through the 7th inning pay any attention to the Dodgers anyway.

I shall close with a link for Cardinals fans--a very informative and well-done Cardinals blog--and for those who need to understand why I, in no way, approach the geekiness of some baseball fans/Sabermetricians.

Go Redbirds!