Tortured Logic

Yesterday, by the narrowest of margins (5-4), the US Supreme Court found the Bush regime's indefinite holding of detainees at Guantanamo to be unconstitutional, ruling that the detainees had a right to the Great Writ of Habeas Corpus to challenge their detentions in US civilian courts.

This is, of course, a very good thing since the opposite finding would have been devastating.

I have two observations to make about this.

First, there shouldn't have even been a debate about this. The decision should have been unanimous. The fact that it wasn't is very ominous and revealing.

Scalia, writing for the minority, stated that this decision meant that more Americans would be killed by the terrorists. See his further comments here:

“If the understood scope of the writ of habeas corpus was ‘designed to restrain’ (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 ‘designed to restrain’ the incursions of the Third Branch [i.e. the Judiciary].

“‘Manipulation’ of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as ‘manipulation’ by the Executive,” Scalia continued. “The 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.”

Two things stand out about (In)justice Scalia's remarks here.

One, he concludes and asserts as a settled question that the detainees are enemies. As Michael Rapkin has pointed out, by the government's own admission, 70% of the GITMO detainees are innocent. Many of them have been there for six years, tortured by the US military the entire time.

The government won't charge most of these detainees.

Why is that?

Because they haven't got anything on them.

Contrary to most Americans' perception, based on the lies purveyed by Bush et al, these detainees haven't all been picked up on a battlefield. Most of them have been turned in for bounties by neighbors or rivals.

This is an extraordinary gaff from a judge to render judgment from the bench without a trial and without charges being even filed that these detainees are all guilty of terrorism. Except that it's not a gaff.

Two, Scalia, as he characteristically will do, bends his reading of the law and the Constitution to suit his politics. He has previously publicly mused that "so-called torture" isn't cruel and unusual punishment because - you're going to love this - it isn't carried out within the framework of crime and punishment and since the "cruel and unusual punishment" prohibition refers only to that, presto, "so-called torture" isn't by definition cruel and unusual.

In the instant case, Scalia is claiming that the Judiciary is overreaching by upholding the Great Writ (as it is described in the Declaration of Independence) against the Executive branch's negation of habeas corpus.

The Court, in other words, according to Scalia, should not restrain a President who is "entrust[ed]" with "crucial wartime determinations." The American colonists who broke with King George over his abolition of habeas corpus were, therefore, wrong to do so because they were restraining an executive who should rightly make these decisions by himself. What would Scalia say about Alexander Hamilton's remarks that “the practice of arbitrary imprisonments has been, in all ages, the favorite and most formidable instrument of tyranny"? (THE FEDERALIST NO. 84, at 533 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961).

The second observation I would make here is by way of addressing those who say that this razor's edge decision means that we have to make sure that McCain doesn't get a chance to appoint more judges like Scalia, Roberts, Thomas, and Alito. That is, make sure Obama gets elected.

We need to understand how the Court got packed the way that it has. Of course, the President gets to appoint them. But the Judiciary acts within the parameters of not principally what the President - and to a lesser degree because of "advise and consent," the Congress - wants but the political atmosphere in the country.

What would be more meaningful: an Obama presidency who is a little to the left of McCain on certain matters, or a mass movement spearheading a majority sentiment in the country that demands that habeas corpus be sustained and that demands that illegal and indefinite detentions, extraordinary rendition, torture as policy, and the phony war on terror (a justification for wars of conquest such as Afghanistan, Iraq, soon Iran and not long after that probably Pakistan) be ended?

Obama has, as readers know, signed onto the foreign policy of Bush and Cheney with regards to Iran. He has said that he admires the foreign policy of George's father.

If the "war on terror" that Bush and Cheney have used to justify all of their unjust wars and rumors of (another) war is also Obama's credo, and that forms the rationale and backdrop to the conservative majority in the Supreme Court, then how perilous is the fate of habeas corpus and the rest of the Bill of Rights (save the 2nd Amendment which the right wing will NEVER abrogate)?

Even if Obama were a liberal, which he is not, and wanted to save habeas corpus and move the Supreme Court away from the radical right, could he do so in a country in which the mobilized forces are the right wing and the demobilized forces of the left and the majority sentiment are absent except as voters?

The radical right has been mobilizing its forces and creating public opinion via their right wing media empire and their various "think tanks" et al for two plus decades.

They recognize correctly that who is in office and what their party affiliation is matters much less than what the parameters of public discourse are. They have been dominating that public discourse such that even those individual Democratic officials who differ with them feel it necessary to endorse and legitimate the parameters of debate set by the radical right.

This will continue to be the case even if Obama were elected absent a mass movement coming from the left. In fact, it would continue to be the case even if Ron Paul or Ralph Nader were elected. Look at how unambiguously Obama stated his support for Israel at AIPAC. Look at how Hillary Clinton declared her enthusiasm for the Bush doctrine by declaring that if she were president she'd "obliterate" Iran.

One of the more disturbing aspects of the views of many of those who support Obama today is their stance of "give him the benefit of the doubt," sure what he says is "worrisome, but he has to say some of these things to get elected."

This is an extraordinarily thin reed of hope in the face of the storms coming from the right. If your candidate can't even say the right things before he becomes president, what will he do when he becomes the next Chief Executive of the Biggest Empire in History?