The Broad View

Digby's fond farewell to Linda Greenhouse...

...and the reason, even if can you find no other, to vote for Barack Obama.

"One of the Good Ones"

Give me liberty or give me security?

The more I reflect on today's Supreme Court decision (.pdf) in Boumediene et al. v. Bush et al., the more wonderful and extraordinary it seems to me. Also extraordinary but in no way wonderful is Justice Antonin Scalia's written dissent. Scalia is a living rebuke to everything the Founders held dear.

I am not a lawyer, so I don't know if the extensive recounting of the historical background of habeas corpus and the writ's centrality in the thinking of the Framers is typical. Kennedy, writing for the majority, says:

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

I take this line of reasoning to be a shot across the bow of the USS Unitary Executive by Justices Breyer, Ginsburg, Souter, Stevens and Kennedy. It is a reproof of every argument advanced for restricting liberty in the name of the War on Terror.

After recounting historical failures of the writ "in times of political unrest," the opinion states that in one case (Darnel's Case against Charles I) of wrongful imprisonment, "legislative response was long delayed" and the King "began to abuse his authority again and Parliament was dissolved." 

In this, I read a direct criticism of Congress for shirking its duty to check an out-of-control executive. The justices go on:

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. [...]

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion of Invasion the public Safety may require it."

It seems the justices are giving Congress an elementary lesson in Constitutional law and American history. It couldn't be clearer. In case some of the Federalist Society members have trouble remembering, the opinion provides extensive support for this viewpoint from accounts of the ratification debates. None of it is difficult nor does it require a law degree to understand.

It really is a shame that the rightwing authoritarian voter will probably not take the trouble to read the opinion but instead find validation of ignorance in the utterances of the usual gasbags, including McCain. Yep, McCain lost no time in dishonoring his own cruel imprisonment with complaints about the decision.

Regarding whether or not the Constitution applies to territory that is sovereign to Cuba but leased by the U.S., the justices say this:

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." [...] Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." [...]

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensible mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

The rebuke is breathtakingly plain. This decision makes me want to do the happy dance.

To read Scalia's dissent is to take a trip to the dark side. He opens with a "description of the disastrous consequences of what the Court has done today." This doomsday prediction is remarkable for the primacy of fear over liberty. What the Framers feared most is what Scalia most desires. He is openly derisive of his colleagues. He relies on accounts of violent attacks subsequently committed by detainees who had been released as if they are predictive of future behavior by current detainees and thus obviate the need to recognize Constitutional limits to the suspension of habeas corpus. Scalia would have the history books changed from "Give me liberty or give me death" to "Give me security, liberty's not safe."

Scalia closes with this:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of othe constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

That's quite an extraordinary charge: "The Nation will live to regret what the Court has done today." In all, Scalia would rather restrict constitutional protections, keep human beings locked up forever with no recourse and traffic in unreasoning fear of terrorists on the loose everywhere than discommode the Executive and the military.

Many years ago, in the mid-'60s, I traveled through the Plains states, the South and Southwest. Every highway and byway was dotted with roadside billboards demanding, in giant letters, "IMPEACH EARL WARREN." I was young and apolitical at the time. Who the hell is Earl Warren, I wondered.

The right wing has never been shy about demanding impeachment or elimination by other means of those with whom they disagree. Democrats, meanwhile, bend over backward to accommodate different viewpoints in a disastrously misguided political calculation that sacrifices principle for expedience. Thus we are saddled with Madame Speaker "Impeachment Is Off The Table" Pelosi.

Enough is enough. Antonin Scalia has continued to flaunt his unworthiness to sit on the Supreme Court. He doesn't regard torture as being prohibited under the Eighth Amendment. ("Has anybody ever referred to torture as punishment? I don't think so.") He has refused to recuse himself in cases in which he has personal connections and interests. And his decisions have advanced an extreme form of executive power that would be arguably criminal had it come from anyone other than a member of the governmental branch charged with the interpretation and preservation of constitutional norms. Scalia is a constitutional Catch-22. I doubt, though, that I'll ever see billboards that read "IMPEACH ANTONIN SCALIA."

At last!

Score one for the Constitution! As infuriating as the Roberts Supreme Court can be, there still is the occasional outcome that gets it right:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts. [...]

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." [...]

The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.

This was a 5-4 decision, as has become the norm in the Roberts court, with the liberal members prevailing for a change. The chief justice, in all his majesty, agreed with his sovereign king and "criticized his colleagues for striking down what he called 'the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.' " I guess even he couldn't make this pig fly for Justice Kennedy.

Scalia, in what can only be termed a partisan Republican talking point devoid of actual legal reasoning, wrote that "the nation is 'at war with radical Islamists' and that the court's decision 'will make the war harder on us. It will almost certainly cause more Americans to be killed.' " Way to play the fear card, Scalia.

"I Did It" -- As told to Maureen Dowd

Once again, Maureen Dowd phones in a column that is the envy of every ink-stained slacker who would love her gig. Who wouldn't like to get paid the big bucks for twice-weekly columns of stupifying mediocrity?

Today's offering is just so darned clever, you'll want to slap yourself upside the head. Dowd channels Clarence Thomas for an O.J.-inspired "I Did It" confessional. Is that hilarious or what?

As MoDo tells it, Thomas is an embittered guy who's "done it" to every one from Anita Hill to Al Gore as payback for his own sense of inferiority. As far as dime-store psychology goes, that ain't bad.

Dowd, though, is projecting as usual and reveals more about herself than her narrator-target:

I used to have grave reservations about working at white institutions, subject to the whims of white superiors. But when Poppy’s whim was to crown his son — one of those privileged Yale legacy types I always resented — I had to repay The Man for putting me on the court even though I was neither qualified nor honest.

So I voted to shut down the vote-counting in Florida by A. — oh, I’ll just say it: Al — because if he’d kept going he might have won. I helped swing the court in case No. 00-949, Bush v. Gore, to narrowly achieve the Bush restoration.

I know it wasn’t what my hero Atticus Finch would have done. But having the power to carjack the presidency and control the fate of the country did give me that old X-rated tingle.

Al Gore’s true claims didn’t matter in that standoff any more than Anita Hill’s true claims did during my confirmation. That’s the beautiful thing about being a conservative. We don’t push for the truth. We push to win, praise the Lord.

It’s a relief to finally admit it: I’m proud to have hastened Al’s premature political death, hanging by hanging chads. It was, you might say, a low-tech lynching.

Wasn't it actually the cynical Dowd that helped pave the road to Al Gore's political ruin? Wasn't it Dowd's columns about earth tones and Gore "practically lactating" that ignored the truth? Talk about a "low-tech lynching." And I'll bet MoDo enjoyed "that old X-rated tingle" when Gore, with her help, was hung by those chads.

This means war! Or does it?

Quickly--tell me the difference between a detainee and a prisoner. A prisoner and a prisoner of war? An enemy combatant and a terrorist? A terrorist and a criminal? A soldier and an enemy combatant? What the hell is a lawful combatant vs. an unlawful combatant?

While we're thinking of language, describe the differences between an insurgent and an enemy combatant, a criminal and an insurgent, a terrorist and an accused terrorist.

How about the difference between war and the War on Terror? The War on Terror and a police action? Counter-terrorism and policing? Trial by jury and courts-martial? Courts-martial and military commissions? Indefinite detention and abrogation of the right of habeas corpus?

It is amid the thickets of corrupted language that we understand how our politics have become so vile and our Constitution so endangered. It is in language, too, that our foreign policies and legal system have become mired. And it is with clever but imprecise language that the administration is trying to sidestep the meaning of Hamdan v. Rumsfeld--a decision that seems to promise some means of redress for the detainees of Guantanamo, but may wind up dumping them into a new limbo.

I started writing this post a few days ago, and in the interim Billmon authored a post that addresses, in a way, some of these questions:

The rise of Fourth Generation warfare hasn't just stumped the Pentagon (which is still trying to fight insurgents with tanks and 500-pound bombs) it's also rendered obsolete and/or inapt many of the traditional legal precedents on the status of combatants and noncombatants, the legal rights of military detainees, and the application of the Geneva Conventions -- just to mention some of the issues directly raised by Hamdan.

Reading through some of the old cases, like Eisentrager, gives you a sense of how big the disconnect has become. To cite just one example:

The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

Consider how many of the premises in that statement are not directly applicable to the fight against Al Qaeda. There is no war -- at least in the old-fashioned sense of a declared conflict between two sovereign states. There is no government for the "alien enemy" to serve. Indeed, the very concept of the enemy has been severed from national citizenship.... [snip]

The problem, in a nutshell, is that the administration's reaction to the not-so-brave new world in which we now find ourselves basically boils down to: "The old rules don't apply (except, of course, where they maximize presidential war powers) so we can do anything we want. Get out the thumbscrews." The position taken by many liberals, on the other hand, has been that the old rules are just fine (that is, unless they buttress presidential war powers) even if it means pretending not much has really changed. This at times leads to the assertion that the war against Al Qaeda isn't really a war, and shouldn't be treated as such.

Billmon goes on to say that he believes the war against al Qaeda and Islamic terrorism is indeed a war that, as such, "justifies the application of presidential war powers." He also recognizes that it will be a long war, made longer by the ineptitude of the administration.

With all due respect to Billmon, I am not so sure that the actions necessary to control international terrorism are those of waging war. And I say "control" because by its very nature, terrorism is a tactic that isn't defeated except in individual instances; it is rather a practical phenomenon that can be minimized or discouraged by techniques more associated with policing than combat.

Instead, we are stuck in a "day after" mindset. I vividly remember getting a call from a dear friend late on the day of 9/11 and he said, briefly, "This means war, you know." When Colin Powell made his first statement after the attack and talked about "bringing them to justice," I was completely incensed. I emailed Chuck Schumer ranting that I didn't want to hear talk about "criminals" and "bringing to justice," but that I wanted them "crushed."

That was then. This is now, and for many Americans the irrational fury of revenge is largely spent. Bush, Cheney and the war-mongers have tried to keep it alive, hitting the fear button for political advantage every chance they get.

Part of the difficulty of getting past the language of war to the more productive language of crime is how to reconcile the true nature of the conflict we are in with the terrible loss of so many young soldiers' lives. But it must be done.

The conflict in Iraq doesn't look any more like a "war" than the War on Terrorism, despite the insane dangers of IEDs, insurgent attacks, and pitched battles on street corners. If it is a war, then it is a civil war in which we have no business. Of course, we brought about the conditions that made this situation inevitable and bear that guilt. But at this point, we are clearly exacerbating the hostilities by our very presence while doing precious little to make things better. So for us, the fighting in Iraq is more of a defensive holding nature than war to truly conquer an enemy that will formally cease hostilities.

All along, it's been evident that defeating al Qaeda's plots and plans requires detective work, more and better spies, informants, limited strikes against terrorist cells and hideouts. It requires close cooperation among allies and creative diplomacy. It requires understanding the motivations of the enemy and anticipating his moves.

All of that sounds more like police work than soldiering to me. There was excellent cause for the military invasion of Afghanistan since it was a state thoroughly involved with aiding and abetting the criminals. Beyond that, though, we are fighting an enemy more like the mob or urban gangs than an opposing army.

So what are we doing, and how should we proceed? Billmon argues for a rethinking of the rules to accommodate new situations:

Where I differ violently (so to speak) from the authoritarians in the White House is in recognizing that precisely because this is going to be a long war, and precisely because the traditional distinctions -- "enemy aliens," "lawful combatants" -- are becoming blurred or are no longer meaningful, it may be necessary to change the rules in ways that enhance some of the legal rights of detainees and restrict some of the uses of presidential power.

To me, this is just common sense. To withstand a long war, the rules for identifying and detaining POWs have to be sustainable -- legally, morally and politically. They have to attract the neutral or the non-committed to America's side, not push them away. They have to weaken the will of the enemy to resist, not strengthen it. And they have to protect Constitutional liberties or at least not harm them, rather than contribute to the steady erosion of freedom that long wars tend to produce. Compared to those needs, the value of any useful intelligence produced by the administration's Kafkaesque torture machine -- or any vengeance wreaked upon the architects of 9/11 -- is trivial, even if it exists.

But what's the alternative? Sticking our heads in the sand and pretending the world hasn't changed?

Enhancing some of the legal rights of detainees sounds like a non-starter to me, given the current political climate. I take a simpler approach. Since I believe we have a fairly robust system for dealing with criminals while ensuring their rights (though the high court has been eroding those rights lately), I think we should apply what we already know and administer well.

I believe al Qaeda terrorists are no more soldiers, "combatants" of any stripe, than a mob capo or a gang lieutenant. They are glorified, highly dangerous criminals. And they should be dealt with as such.

While this approach would do nothing to enhance Commander Codpiece's stature as Commander-in-Chief of All He Surveys, it would finally bring some rationality to the pursuit and punishment of international terrorists.

This was Patrick Fitzgerald's approach when he went after the blind Sheikh Omar Abdel Rahman. It is the approach that would finally winnow the dangerous characters from the dupes at Guantanamo. And as far as the intelligence revelations that might come out in court, we have legal ways of dealing with secret evidence that don't shred our Constitution. At any rate, in this I agree with Billmon:

You can certainly argue, as I did in my earlier post, that the Cheney administration's crimes prove it can't be trusted to use any discretionary powers wisely -- that the existing legal framework, however flawed, is our only bulwark against a whole string of Abu Ghraibs. But I prefer to think a distinction can and should still be made between the current gang of criminals and the American presidency as an institution. We can still hope that future administrations will be willing to prosecute the war within the boundaries of constitutional legality and human decency.

And if I’m wrong? Well, then no legal system and no set of rules -- old or new -- will be sufficient to save our liberties or stave off America's defeat.

Victory for terrorists vs. Victory for democracy

One wonders how they got elected in the first place, given their proven tin ears and propensity to choose exactly the wrong frame. I'm talking about congressional Democrats, of course.

Today's example of how not to capitalize on victory comes from Nancy Pelosi, as reported in the Washington Post [emphasis added]:

In striking down the military commissions Bush sought for trials of suspected members of al-Qaeda and other terrorist groups, the high court Thursday invited Congress to establish new rules and put the issue prominently before the public four months before the midterm elections. As the White House and lawmakers weighed next steps, House GOP leaders signaled they are ready to use this week's turn of events as a political weapon.

House Majority Leader A. Boehner (R-Ohio) criticized House Minority Leader Nancy Pelosi's comment Thursday that the court decision "affirms the American ideal that all are entitled to the basic guarantees of our justice system." That statement, Boehner said, amounted to Pelosi's advocating "special privileges for terrorists."

Similar views ricocheted around conservative talk radio -- Rush Limbaugh called Pelosi's comments "deranged" on his show Thursday....

"It would be good politics to have a debate about this if Democrats are going to argue for additional rights for terrorists," said Terry Nelson, a prominent GOP political strategist who was political director for Bush's reelection campaign in 2004.

No, my dear Ms. Pelosi. We do not describe the Supreme Court's decision as a victory for detainees' rights, though it certainly is such. We describe Thursday's decision as a victory for American democracy. We say the decision reaffirms that we have a president, not a military dictator or a king. We say that the Supreme Court has reminded all Americans that our government prevails because no-one, especially not the president, is above or beyond the law.

The administration will try to make this about "the terrorists." They are already cranking up the spin machine:

A senior administration official, who spoke on the condition of anonymity because the issue is still being debated internally, seemed to hint at the potential political implications in Congress. "Members of both parties will have to decide whether terrorists who cherish the killing of innocents deserve the same protections as our men and women who wear the uniform," this official said.

No, Hamdan v. Rumsfeld is about the imperial presidency, the excesses and abuse of the Constitution by the Bush administration in its flawed prosecution of the so-called War on Terror. If Dems like Nancy Pelosi don't understand how to frame this in their remarks, how to hammer the administration with this defeat, they will remain in the minority.

Finally some limits on Bush

Now that the Supreme Court has ruled that the Bush regime cannot bypass the normal workings of the law by trying Guantanamo detainees before secret military commissions, there is finally one branch of government setting limits on Bush's shredding of the Constitution.

This is not only a resounding defeat for Bushism and a victory for the rights of detainees, it is an unequivocal reminder that this is a nation defined by Constitutional law with three separate, co-equal branches of government designed to check each other.

The 5-3 decision (with Chief Justice Roberts recusing himself) shows that Justice Kennedy is now the sometime swing vote on the Court. Predictably, Scalia, Thomas and Alito dissented from the majority. Thomas' written dissent should go down in the history of the court as among the most shameful examples of Constitutional ignorance:

Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench -- something he had never done before in his 15 years. He said the court's decision would "sorely hamper the president's ability to confront and defeat a new and deadly enemy."

The court's willingness, Thomas wrote in the dissent, "to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous."

I remember Thomas complaining bitterly of a "high-tech lynching" by those who opposed his nomination to the court. Now, it seems, he's content to be just another White House lackey with his soulmates Scalia and Alito.

Update: Glenn Greenwald analyzes the decision. Meanwhile, Atrios warns against premature celebrations:

My quick take is that it's certainly an important symbolic victory, but this administration's contempt for the law, the constitution, and the balance/separation of powers that our system rests on isn't going to be very affected by what 5 people in black robes say. They've ignored Congress and they'll ignore the Court too, leaving our mainstream media with more time to deal with the impending threat of blogofascism.

Beyond grief

Atrios summed it up:

Cruising into Tuesday evening...there will be two possible storylines:

1) The Democrats are a bunch of losers, as are all of their supporters. Bush and his giant codpiece looked magnificent at the state of the union, and Mrs. Alito was very happy and smiling sitting next to Mrs. Bush safe and content now that the magnificent and mighty President Bush made that bad Ted Kennedy go away.

2) The Democrats shocked Washington today by holding together, dropping a mighty turd in the punchbowl of the Bush administration, dealing a deadly blow to his nomination of Alito. The president won't be too happy tonight as he gives the 2006 state of the union speech.

Tomorrow is going to be a brutal day, folks. Brutal. John Aravoisis deconstructs his own fury (they don't come any smarter than John).

But pull up your socks and prepare yourselves to go back to work. Meteor Blades tells us why.

FILIBUSTER: This may be the most important blog post ever

Maybe the most important post ever to appear in the blogosphere is here, on The Daily Kos.

As of noon today, Eastern time, FIFTEEN Democratic senators (including, bless my soul, California's Diane Feinstein! Bravo, DiFi. We won't forget!) have signed up to sustain the filibuster.

The post has all the phone and fax numbers you need to get to the senators who have hung back (or who've prematurely said they wouldn't support the vote against cloture). Frist has set the cloture vote for Monday afternoon. Use the time in between to make some calls, send some faxes. Blast these guys. Let 'em (and 'er) hear you, us, We the People.

Go for it!

On a conference call with bloggers last week, Senate Minority Leader Harry Reid said there was a "50/50 chance" he could get 41 senators to sustain a filibuster of the Alito confirmation. According to the C-SPAN tally board, a number of Democratic senators are still holding their cards close to the vest — and that's merely on the Yeas and Nays, not on whether they'd agree to filibuster. So I think Reid's odds are optimistic.

But damn, it's worth a shot. Kerry and Kennedy have stepped up to the plate, and whether you think Kerry is motivated by politics or by principles, he has done the right thing. As, of course, has Teddy — from whom we'd expect no less.

Even if Reid can't count 41 noses, he should proceed with the filibuster. At the very least — even if it fails — it leaves the anti-Alito talking points on the table as we head into the 2006 election. And there's plenty of hay to be made with them still: the "unitary executive" arguments are going to be high on the radar for quite some time. The filibuster is an attack, and as Chiaroscuro has said below, "Attack! Attack! Attack!" is the clearest imperative.

Call your senators!

More (and not all of it pretty): Digby, Kos, firedoglake, CBS News