When Congress ceases to function
By Douglas Watts
Created Oct 2 2006 - 5:48pm
"The Privilege of the Writ of Habeas Corpus shall not be suspended unless
when in Cases of Rebellion or Invasion the public Safety may require it." --
U.S. Constitution, Article One, section nine.

"The Constitution is explicit in the statement that Habeas Corpus may be
suspended only with rebellion or invasion. We do not have a rebellion or an
invasion ... Surely as we are standing here, if this bill is passed and
habeas corpus is stricken, we'll be back on this floor again."-- U.S.
Senator Arlen Specter, Sept. 28, 2006.

You know Congress has ceased to function when a U.S. Senator declares a bill
is profoundly unconstitutional, offers an amendment to repair the defect,
watches the amendment go down in defeat, and votes for bill anyways, stating
the Supreme Court will "clean this up later."

So saith and doeth Pennsylvania Senator Arlen Specter on the Senate floor,
Sept. 28, 2006. Ponder the above sequence of events for more than a moment.

-------

To: the Supreme Court
From: Congress

Hi folks. We were in such a rush to go on a two month vacation that we
passed this confused piece of junk which supercedes and pisses on 900 years
of legal tradition. We don't know if it is constitutional or not and frankly
don't care. If you care, feel free to clean it up while we're gone. If you
don't care, that's okey-dokey too.

Your Friends in the Legislative Branch.

--------

What if criminal trial judges had this same attitude? What if a judge did
not even bother to make sure her court decisions are lawful? What if the
judge issued a decision she knew to be fatally flawed and said, "what the
hell, the appeals court can clean this mess up. I'm tired of this case."?
What if the appeals court judges said, "what the hell, the Supreme Court can
clean this mess up. It's Friday and we want to go home."? What if bridge
builders, civil engineers, surgeons and tape measure makers adopted this
attitude?

At issue on Sept. 28, 2006 was whether sufficient facts exist to allow
Congress to suspend the writ of habeus corpus within the specific limits
imposed by the Constitution. The Constitution plainly states Congress may
not suspend the writ "unless when in Cases of Rebellion or Invasion the
Public Safety may require it." The law just passed by Congress fails to even
address this threshold question, let alone prove it.

This entire mess began several years ago when Congress stood idly by and
allowed the President to invent from whole cloth a system of "military
commissions" to try terror suspects in a manner that deprives them of
virtually all of the legal rights provided by civilized societies to
imprisoned people.

In its June 2006 decision in Hamdan v. Rumsfeld, the Supreme Court found
unconstitutional the President's plan for "military commissions." Rather
than fix the gross constitutional violations noted by the Supreme Court just
three months ago, Congress has now enacted a law even more unconstitutional
than what the Court just rejected. The most telling insights into this issue
are found in the oral argument and ruling of the Supreme Court in Hamdan.

Among other things, the Supreme Court ruled that Congress and the President
were trying to suspend the writ of habeus corpus without actually saying so.
This led to the U.S. Solicitor General, Paul Clement, making the bizarre
claim that the Supreme Court should not expect Congress to know what the
laws they pass actually say or do. Below are verbatim excerpts from oral
argument on March 28, 2006. Note the not-well-concealed astonishment of the
Justices:

CLEMENT: My view would be that if Congress, sort of, stumbles upon a
suspension of the writ, but the preconditions are satisfied, that would
still be constitutionally valid.

JUSTICE SOUTER: Isn't there a pretty good argument that a suspension of the
writ of Congress is just about the most stupendously significant act that
the
Congress of the United States can take? And, therefore, we ought to be at
least a little slow to accept your argument that it can be done from pure
inadvertence?

Justice John Paul Stevens then asked the government's attorney if Congress
had or had not suspended the writ of habeus corpus.

JUSTICE STEVENS: May I just ask this, just to clarify? When they do take
away some jurisdiction of some habeas corpus claims, do you defend that, in
part, as a permissible exercise of the power to suspend the writ, or do you
say it is not a suspension of the writ?

CLEMENT: I think both, ultimately.

JUSTICE STEVENS: It can't be both.

The Justices caught the government in the same game of circular illogic on
the critical question of whether the President's proposed "military
commissions" are even allowed under the Constitution or the laws of war. The
argument presented on behalf of Hamdan, a Yemeni citizen imprisoned at
Guantanamo Bay, was that the military commissions are unlawful on their face
because they deprive the suspects of their habeus corpus and Geneva
Convention rights. In response, the government attorney argued it was up to
the military commission -- not the Courts -- to decide if its own structure
is Constitutional. To this, Justice Anthony Kennedy replied:

JUSTICE KENNEDY: I have trouble with the argument that -- insofar as he says
there is a structural invalidity to the military commission, that he brings
that before the commission. The historic office of habeas is to test whether
or not you are being tried by a lawful tribunal.

In effect, Kennedy said, the government claimed that only the kangaroo court
itself should be allowed to determine whether it is a kangaroo court. This
exchange laid bare the Administration's ultimate motive -- to completely
insulate the military commissions from any external oversight by the
Courts -- including whether the military commissions themselves are
Constitutional. In essence, the Bush Administration argued the Supreme Court
had no jurisdiction in the matter whatsoever.

The Justices in Hamdan repeatedly caught the government trying to deceive
the Court itself. The government cited the President's wartime powers as
legal justification to create military trial commissions conducted pursuant
to the laws of war. Yet, on several key issues, the government said the laws
of a war "don't apply" to the military commissions, including adherence to
the Geneva Conventions. This duplicity was noted by Justice David Souter:

JUSTICE SOUTER: But that, I guess, is the problem that I'm having. For
purposes of determining the domestic authority to set up a commission, you
say, the President is operating under the laws of war recognized by
Congress, but for purposes of a claim to status, and, hence, the procedural
rights that go with that status, you're saying the laws of war don't apply.
And I don't see how you can have it both ways.

What is important to understand is how deceptive and brutal the government's
attack on the Supreme Court's authority has become. In Hamdan, the
government was caught by the Court attempting to strip terror suspects and
the Supreme Court itself of any right to challenge the Constitutionality of
the President's military commissions. Under the new law enacted Sept. 28,
Congress made overt what the President's plan had deceptively implied.

If nothing else, this sequence of events shows how desperately important it
is that the Supreme Court has the authority to check the powers of Congress
and the President. It also shows that in this Administration, Congress and
the President cannot be trusted to respect the checks and balances built
into our Constitutional framework of government.

Despite blunt admonitions by the Supreme Court, the new law enacted by
Congress removes nearly all of a defendant's ability to get a fair trial.
And by suspending the writ of habeus corpus, the new law prohibits the
defendant from challenging the fundamental unfairness of the system itself.
This is the textbook definition of a kangaroo court. If a trial system is
designed to guarantee convictions and the defendant is forbidden from
challenging that design, then conviction becomes guaranteed -- by design.
That is not a trial. It is an Inquisition, a Stalinist show trial, a Salem
witch trial, a kangaroo court, a Star Chamber.

This is precisely what Congress has legislated; and this is precisely why
the Bush Administration has insisted on Congress suspending the writ of
habeus corpus. Without the writ, defendants in these kangaroo courts have no
impartial outside authority to bring a claim that the trial system itself is
unlawful.

This is why the U.S. Solicitor General told Justice Kennedy it was up to the
military commission itself to determine if it has been constituted lawfully.
And this is why several Justices incredulously asked, how can the commission
impartially judge its own legality? Is this not unlike Congress deciding for
itself if its laws are Constitutional? Is this not somewhat insane?

Why is Congress going along with this? Aside from blunt, coarse stupidity
and crass pandering to the mob, Congress appears to be motivated by hatred
and vengeance. The illogic is simple. Because these "terrorists" have no
respect for human life or the rule of law, Congress has no obligation to
protect them under the rule of law.

This is "bread crumb logic", ie. that terror suspects should be grateful for
whatever crumbs of legal protection we grudgingly give them. The embedded
assumption is clear -- the U.S. could have just executed them once we were
done torturing them -- so they should be grateful for any treatment better
than summary execution.

As the President and Congress have been forcefully told by the U.S. Supreme
Court, "bread crumb logic" has no basis in U.S. law, international law or
the laws of war. Now that law books says they are wrong, Congress and the
President want to burn them. How 10th century of them.

The entire transcript of oral argument in Hamdan v. Rumsfeld can be read and
downloaded at www.hamdanvrumsfeld.com [1]. It is incredible reading.
_______
"I wanted you to see what real courage is, instead of getting the idea that
courage is a man with a gun in his hand." -- Atticus Finch. To Kill a
Mockingbird, by Harper Lee.

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"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson