Hamdi, Padilla and Rasul v. Rumsfeld and Bush
Who Really Won?
By ELAINE CASSEL
Forget what the media's talking heads have told you about these three
Supreme Court decisions that tested the power of George W. Bush. The
President won far more than he lost, so administration "officials" who
pronounce themselves victors are more on target than the press who tell
you that the decisions represent a defeat for the Administration, or
rein in its power. Taken together, the decisions are more important for
what they did not do. Their significance for the future, particularly if
Bush is reelected, cannot be underestimated.
Rumsfeld v. Padilla
To begin with, the Court dodged the most important case-the case of Jose
Padilla. Padilla, recently vilified by a highly-placed Department of
Justice attorney, is the American citizen arrested on a material witness
warrant in Chicago two years ago. The government's story then was that
he was planning to detonate a dirty bomb. Attorney General John Ashcroft
held a press conference and announced the incarceration of Padilla and
told us what a dangerous man he was. Of course, if they had evidence
that he was planning to detonate a dirty bomb, they would have charged
him with a host of crimes, and tried him. But they never charged him
with anything. What does that tell you? A couple of weeks ago, Ashcroft
sent out one of his top deputies to change the story on Padilla. That
story may have influenced the Court's decision, though we will never
know this. Though the official denied that the press conference-at which
he announced that Padilla had "confessed" to plotting to blow up
high-rise apartment buildings-may have been held when it was to
punctuate the government's belief that Padilla was a very, very
dangerous man. So if he is so dangerous, why is he not being charged.
Of, you have to love this reason: because the government denied him his
rights and repeatedly interrogated him without an attorney (and, maybe
even tortured him, for all we know) his confession is no good! Can't be
used in court. So since we denied him his rights, we cannot try him, but
we can hold him without charging him forever. Because we say he is
dangerous.
And what did the Supreme Court have to say about that? In a 5-4
decision, it said...nothing. It ruled that Padilla's court' appointed
attorney, Donna Newman, filed the petition for writ of habeas corpus
(challenging the detention of her client without charge, without access
to her) in the wrong federal court. She sued Rumsfeld, on whose order
Padilla was named an "enemy combatant" in the Southern District of New
York, where he was brought and incarcerated and where she was appointed.
But after she got into the case, and without notice to her, the
government moved him to a brig in South Carolina. So the government
argued that the warden of the brig is the party to be sued, not
Rumsfeld. As if that warden does not answer to Rumsfeld, at least if she
is holding an enemy combatant-so-called. So with Rehnquist writing for
the majority, the court threw out his petition. Altogether. Padilla has
to start all over again, suing the warden wherever he or she is. Ah, but
keep in mind, that once his attorneys file a another petition, the
government just has to move him again. And again. And again. To avoid
answering for his detention.
So the most important of the three cases was not decided. In not
deciding, the Court fully sanctioned the continued detention of Padilla,
without a charge, without a lawyer (Newman is now out of the case, since
the suit was dismissed), for years to come.
George Bush 1, Civil Liberties, 0.
Hamdi v. Rumsfeld
On first glance, which is all the nightly news gave you, the Hamdi case
looks like a win for lovers of freedom. Even Hamdi's public defender,
Frank Dunham, said that they "won big." I disagree. And amazingly to
this writer, so did Scalia, who was joined in his dissent by Justice
Stevens. The majority opinion was written by Justice O'Connor, and we
all know what that means-a tortured crafting of facts cobbled to law
that tries to give everybody something. A little here, a little there.
He is what we got: The Congress gave the President the authority to
detain anyone involved with fighting with al Qaeda or the Taliban when
it voted for war in Afghanistan. Hamdi was supposedly captured in
Afghanistan. As long as the U.S. is fighting in Afghanistan (I guess
that will be forever, don't you think?), Hamdi can be held WITHOUT BEING
CHARGED WITH A CRIME. But, he gets a lawyer (a lawyer subject so special
instructions by Ashcroft and Rumsfeld, an lawyer whose conversation with
his client will be monitored and limited as Rumsfeld and Ashcroft see
fit) and he can file a petition for writ of habeas corpus, challenging
his detention. Ah, but the government gets the benefit of the doubt in
such a hearing. It puts forth is conclusory affidavit, like the one
cranky Judge Doumar in Richmond did not like one bit, and Hamdi gets to
try-just try, if he can-to prove them wrong. Yes, the burden will be on
Hamdi to prove the government's allegations against him to be wrong. Now
that will be kind of difficult, won't it, since Hamdi has been
incarcerated for going on three years, has no contact with anyone in the
outside world, and will have a hell of a time coming up with the
witnesses to refute the conclusion of the government that he was indeed
fighting with the Taliban or al Qaeda against the U.S. Let's see, even
if he knew people to subpoena to support an alibi-if he has one-federal
marshals don't serve subpoenas in Afghanistan.
Scalia and Stevens joined in the call to either charge him with a
crime-Scalia suggested treason-or have Congress suspend the writ of
habeas corpus (Scalia contends that only Congress, not the President,
can properly do this). But don't create some mechanism that allows the
President to weasel out the result that the majority wanted-that is, to
give Hamdi a lawyer, let him file his papers, but give him the burden of
proving his "innocence." An insurmountable burden of proof.
George Bush 2, Civil Liberties, 0.
Guantanamo Detainees
On this one, a 6-3 majority ruled that those poor bastards in
Guantanamo, those men that have been there for going on three years and,
we now presume, subject to all kinds of physical torture and mental and
sexual abuse, can file a petition for writ of habeas corpus challenging
their detention, but, so what? The court was silent on what trial courts
will do with the petitions. Presumably, let them file their papers then
promptly toss them out. This was an expected outcome. No way the Court
was going to accept the Administration's "tortured" (pun intended) view
of jurisdiction to think that the government that rules over Guantanamo
Naval Station does not have jurisdiction over the prisoners that he
holds there. That would just be too stupid, even for a court eager to
please. It found that the detainor is the key to jurisdiction, not the
detainee. So where the detaining party is, is where there is
jurisdiction. That would be Rumsfeld. Of course, what court that would
be in, what venue, is open to question. Since venue was such a big deal
in the Padilla case, I wonder why the court did not toss out Guantanamo
cases brought in the District of Columbia? (I have a clue-the Guantanamo
cases were far easier to answer, and less an affront to presidential
power than is Padilla's case). Rumsfeld's seat of power is in the
Pentagon, Arlington, Virginia, so venue ought to be in the Eastern
District of Virginia, not the District of Columbia.
I believe the Guantanamo prisoners will meet the same fate of most
illegal immigrants who challenge their deportation with a writ of habeas
corpus. They get a summary proceeding that sounds more than what it is
because of the value attached to the term "habeas corpus." After a
cursory reading of the petition, and a brief hearing to satisfy the bare
requirements of the law, the gavel slams, and the immigrant is escorted
to an airport and sent to whatever country can be found to receive
them--after they serve their time for any crimes they can be charged
with.
Though nothing was said of this in the opinion, I imagine that the
prisoners will be under the same disability as Hamdi-proving their
"innocence," just as persons facing deportation. But, you might ask,
their innocence of what? They have been charged with no crime, neither
has Hamdi. They, too, will have to prove that they were not fighting
against the U.S. or preparing to do so. Again, where will they get their
alibi witnesses and, if they have any, how can they be subpoenaed into
court? You think the government is going to give visas to their
witnesses? Or pay their expenses?
Fat chance.
George Bush 3, Civil Liberties, 0.
The Contrarian View
Reading the cases and placing them in the context of the "war on terror"
supports a view that is admittedly contrary to what mainstream media are
saying. But if you have been listening to them since September 11, you
don't know much about what has happened to the legal system in this
country, all in the name of preserving liberty. In these three cases,
the Supreme Court did not want to totally abrogate its responsibility
(except for one Justice, Thomas, who, as a reluctant justice on a court
he often expresses contempt for, not surprisingly wants to be left out
of any judicial interference with the almighty President) or the
Constitution so it threw a vote or two in the direction of the
Constitution.
But it left plenty of room for this despotic President, and all who
follow him (you think Kerry cares about civil liberties? You think he
would not want the same power Bush is wielding?) to incarcerate
Americans at whim, concoct a story about "fighting" against American,
and dare you, just dare you, to try your luck at proving your innocence.
Oh, about that? Finally, we have the Supreme Court, in the Hamdi case,
putting the lie to that myth. There is no presumption of innocence-not
if you are Hamdi. There is no mercy-not if the government moves you
around so you never know whom to sue. There is a cruel hint at mercy for
the Guantanamo Bay prisoners-file your papers, but tell your family to
abandon hope. You aren't going anywhere anytime soon.
Game, set, match to George Bush.
Elaine Cassel practices law in Virginia and the District of Columbia,
teachers law and psychology, and follows the Bush regime's dismantling
of the Constitution at Civil Liberties Watch
<http://babelogue.citypages.com:8080/ecassel/> . Her book, The War on
Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of
Rights, will be published by Lawrence Hill this summer. She can be
reached at: ecassel1@cox.net