By Mark David Blum, Esq.
I have tried to remain mum on the explosive paranoia and fear imbedded into the dissent of Justice Antonin Scalia in the recent Supreme Court decision, Boumedine et al. v. Bush, et al. Cited by every cowardly Republican and firebreathing NeoCon, the Scalia dissent will go down in history as being among the most irrational and unreasoned opinions ever cast on the Court. Still, I turned away from the loudmouths and fearmongers as they cited the decision and some of its tastier quotes.
Now, the issue can be ignored no longer. In the June 17, 2008 Wall Street Journal , the man I consider to be the Chief Architect of the crimes of the Administration, Berkeley Professor John Yoo wrote an opinion piece that called the decision of the Majority of Boumedine, “judicial imperialism of the highest order.”
Shame on Yoo for perpetuating a great lie. Understandable though it may be, Yoo has a lot to lose if a War Crimes Tribunal is ever convened. Yoo’s lies are quoted by Scalia and like one monkey cleaning another, both argued the President was told by Yoo, "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay]."
Yoo’s “Judicial Imperialism” comment cannot go unanswered. First, the Supreme Court does not run the Country. It exercises dominion and control over the constitutionality of government actions. (Marbury v. Madison). As the final arbiter of the constitutional application to the current law, the Supreme Court’s majority opinon, right or wrong, is not Imperialism. Simply, they are just doing their jobs.
It is the likes of Yoo who have wrought imperialism upon this great nation. By creating a roadmap to give the President “plausible deniability” by escorting him through a legal minefield, Yoo was aiding and advising on how to circumvent and evade the law. This way, the President was hopefully insulated from prosecution for his illegal war in Iraq. Yoo designed and developed the Bush Doctrine and the Final Solution for Terrorism. As the Eichman of his day, Yoo does not deserve any space of prominence other than on the FBI’s Most Wanted List.
In a nutshell, when Guantanamo Bay prison was opened to receive prisoners from the Afghanistan and Iraqi campaigns, Yoo showed the President how to enable torture and escape any obligation toward the prisoners. He told the Bush Administration to simply not call them prisoners of War. Our government called them a new legal animal, “enemy combatants”. As such, argued the Bush Administration, these persons were not soldiers in any army and were not entitled to Geneva Conventions protection. At the same time, the government insisted they were something other than just common killers and thugs and created a quasi military status for their new found prisoners. In doing so, the government argued it was neither responsible to civil law nor military law nor international law. This is the magic of Yoo’s plan. Keep the prisoners away from lawyers, evidence, judges, hearings, law, rights, and public trial. Yoo set up a system that required no Due Process and no appellate review.
After several attempts to enforce some kind of human right and humane protection of Guantanamo detainees, the Supreme Court in a series of rulings, repeatedly told the Bush Administration that captives are entitled to some due process, representation, trial, and judicial review. Still, the Yoo taught government kept pushing the envelope and cutting out both Congress and the Courts along with lawyers and basic due process out of the process.
Our government felt it knew better and called all intermeddlers threats to national security. This is the same argument made by Scalia and Yoo. Consider some of the Justice’s own words: “America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.” Yes we are threatened by an international terrorist and criminal organization. Our military set out and grabbed up hundreds of perceived threats and imprisoned many at Guatanamo.
Notwithstanding the torture, abuse, harassment, examinations, and whatever else our military and CIA concocted, “they’ still don’t even know who is and is not the enemy. Again, Justice Scalia: “In the long term, then, the Court's decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. Some have been captured or killed. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.”
Consequently, the military and government has no idea who truly is and is not the enemy. To me, this more than anything creates the vital necessity of at least the most basic of constitutional protections. Forget calling them constitutional protections. Instead, let us call them basic human rights. Your prosecutors have no evidence and have no idea if you are guilty or not but they are going to hold you and torture you until they are convinced otherwise. That is not our nation’s policy. If it ever should so become, let me be among the first to grab a musket.
Scalia says that housing prisoners under such conditions was actually in their best interest and who are they to complain for the lack of human rights? “The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. The President relied on our settled precedent when he established the prison at Guantanamo Bay for enemy aliens. The President's Office of Legal Counsel advised him ‘that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].’ Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.” What kind of Americans are we who would engage in what is called extraordinary rendition. That is not our policy and it is criminal around the world. Presently, CIA officers are undergoing a trial in absentia in Italy for the kidnapping and extraordinary rendition of an Italian citizen.
The remainder of the Scalia dissent and the bulk of Yoo’s argument is that because we never accorded such rights in the past, where do we get the precedent to do so today. In response, I offer two considerations. First and perhaps the most offensive, is that both Yoo and the Associate Justice play fast and loose with the facts. Quickly they bounce back and forth between historical treatment of actual prisoners of war and the declaration that Guatanamo detainees are not POWs. They bait and switch as it is convenient to their arguments. I say they cannot have it both ways. Either they are POWs and are entitled to Geneva Convention protections or they are criminals, albeit dangerous, and are deserving of the wrath of that justice system. The Court’s dissenters and the President himself need to decide which label will be affixed.
The other consideration is how in Scalia’s own words, our government is clueless in determining who is and is not a terrorist. Do we know how many captives were radicalized while in captivity and killed Americans as a result of that detention? Since the Associate Justice is so afraid for American lives, why does not advocate to treat all human beings humanely? Our constitution touches all places under American control and all Americans anywhere in the world. Guantanamo Bay is American territory and thus under constitutional law, the judiciary and not the Executive Branch is the final arbiter on the lawfulness of any detention of anybody.
Let me leave you with this thought. “Government lawyers told federal judges that the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.” If so, the decision in Boumedine et al. v. Bush, et al. is the most important decision of the Court this term. The Federal Courts are intended to be the last line of defense to protect and guarantee human and constitutional rights. No Associate Justice or Berkley law perfessor should say otherwise.