The U.S. Supreme Court has taken up the issue
whether the executive branch can detain people indefinitely merely by declaring
them to be suspected terrorists or illegal enemy combatants. The case is a habeas
corpus issue and, therefore, of the utmost importance. Without the protection
of habeas corpus, government can lock away anyone on the basis of unsubstantiated
charges as the Guantanamo detainees have been for nearly six years.
Reporting on the Court's deliberations about Odah v. U.S. and Boumediene
v. Bush, Tom Curry, a national affairs writer for MSNBC, reports that Justice
Stephen Breyer suggested to U.S. Solicitor General Paul Clement that the executive
branch could indefinitely hold people such as those in Guantanamo prison if
Congress were to pass "some special statute involving preventive detention
and danger, which has not yet been enacted."
According to Curry, Senators Dianne Feinstein and Arlen Specter regard a preventive
detention statute as a possibility worth considering.
Pray that Curry has misunderstood Breyer. A different interpretation of Breyer's
remarks is that the justice was telling Bush's solicitor general that in the
absence of a preventive detention statute there is no legal basis for holding
If there were such a statute, the case before the court would be its constitutionality.
Support for the latter interpretation comes from House Judiciary Committee
member Jerrold Nadler (D-N.Y.). Rep. Nadler thinks Breyer was merely "thinking
out loud," not "floating an idea" and inviting Congress to pass
an unconstitutional statute. Nadler believes that Breyer was telling Clement
that as there is not even a preventive detention statute, the executive branch
has no basis for holding the Gitmo detainees.
That Feinstein, Specter, Jon Kyl, and other U.S. senators think it is "worth
considering" for Congress to overturn habeas corpus, the greatest bulwark
against tyranny, indicates how much the U.S. constitutional tradition has been
lost. The importance of the case seems to be completely over the heads of the
media, who appear to be looking for a technical solution that permits people
accused without evidence to be held forever. The American press apparently believes
that the U.S. government can make no mistake or behave improperly and that the
detainees are actually, in Sen. Kyl's words, "a danger to our troops."
It is a "danger" that the Bush regime has been unable to prove even
with torture and secret evidence. Half of the detainees have had to be released.
According to news reports, the regime has been able to create cases against
only 14 of those remaining. After all the years of illegal detention, harsh
treatment, and denial of access to attorneys, the Bush regime has come up with
14 cases, and they are probably fabricated.
Where is the rule of law when hundreds of people can have years stolen from
It is uncertain how the court will decide the case. Bush's solicitor general
has told the justices that they should trust the executive branch to correctly
balance "the interests of the prisoners" with the administration's
ability to "prosecute the global war on terror."
In other words, it is Waco all over again. The executive branch runs roughshod
over the U.S. Constitution and then demands, "trust us," which means
don't take away any of the illegitimate power that the executive branch has
claimed and exercised or hold anyone accountable for abusing executive power.
Unfortunately for the future of liberty in America, a number of the Republican
justices see the issue as one of the separation of powers. The Republican justices
or most of them are, or were, members of the Federalist Society, an organization
of Republican lawyers committed to increased power for the executive. These
Republican justices will be inclined to decide the case in the interest of executive
The Federalist Society is a product of a past time when Republicans were said
to have "a lock on the presidency" but could not get their agenda
into law because the Democrats had a lock on Congress. Republican frustrations
manifested themselves in attempts to heighten the president's powers so that
a Republican agenda could prevail over a Democratic Congress. Like generals
who fight the last war, the Federalist Society is stuck in its assault on the
separation of powers in the interest of "energy in the executive."
Many Federalist Society members join for social reasons and for networking,
as the society provides the pool of attorneys for Republican appointments to
the federal bench and for Department of Justice appointees. Many members mistakenly
think that the society stands for "original intent," but as their
real interest is career-driven, they don't pay much attention to the society's
assault on the U.S. Constitution.
Kings exercised the power to throw into dungeons people who offended them or
whom they regarded as a threat. Once arrested, a person could be locked up forever
without charges or evidence brought before a court. Habeas corpus was an English
invention that provides quick release of a person unlawfully held by orders
of the executive.
The Bush regime has made the most determined assault the Anglo-American world
has seen on the principle of habeas corpus. The previous assault was by Stuart
kings who destroyed their rule by proclaiming the "divine right of kings."
Now Americans are faced with Bush/Cheney and the solicitor general of the U.S.
Department of Justice (sic), Paul Clement, proclaiming the divine right of President
Bush and his Justice (sic) Department.
We must all pray that there are not enough Federalist Society members on the
Supreme Court to uphold a Benthamite ruling of preventive detention.
Jeremy Bentham (1748-1832) was the Englishman who renewed the assault on liberty,
which centuries of English reforms had created. Bentham believed that tyranny
was no longer a problem, because people were empowered by democracy to control
the government. He argued that any restraint placed on government's powers would
limit the ability of government to do good. To protect citizens from crime,
Bentham favored the preventive arrest of everyone whose social class, bone structure,
or other chosen indicator suggested a proclivity toward crime. "The greatest
good for the greatest number."
The Bush regime is comprised of modern-day Benthamites. Their agenda is to
overthrow the civil liberties that make law a shield of the people instead of
a weapon in the hands of the state. As anyone can be declared a suspect, the
weapons that Bush would use to fight "the global war on terror" would
soon be turned on the American people. Without habeas corpus, there is no liberty.