Monday, December 05, 2005

Nods and Winks to Blind Justices

I don't much get into guessing the future--it's a parlor trick at best, and something I'd as soon leave to the Rush Limbaugh's of this world. (Bo, bo, bo, my friends, just as I predicted on this very program six months ago with half my brain shoved up my…)

But some time back, I guessed that Saddam Hussein's defense would rest partly on challenging the legitimacy of the court hearing his case, and lo and behold (from WaPo's Doug Struck):
Lawyers for Hussein, led by former U.S. attorney general Ramsey Clark, walked out of the courtroom Monday to protest the judge's refusal to listen to their arguments that the defendants cannot get a fair trail.

Chief Judge Rizgar Mohammed Amin relented, and then listened to arguments from both Clark and Najeeb Nuaimi, a former justice from Qatar.

They argued that the trial is unfair because the defense lawyers are in danger; two have been killed. And they said the tribunal, which was planned by American officials, was illegally formed. (Italics added.)

The second part of my Hussein trial prediction is that his lawyers will claim that his acts of "genocide" were conducted under his legitimate powers and responsibilities as head of the Iraqi state to repress rebellion. We'll see, but heck, if I can think of that, I'm guessing Clark can too.

Not too coincidentally, that line of argument approaches a tangent to the issues of war powers as presently practiced by the United States, and as reflected by the convoluted case of Hamdi v. Rumsfeld.


Yaser Esan Hamdi, an American citizen who was captured while allegedly fighting with the Taliban in Afghanistan, was detained for over two years without access to counsel in the naval brig in Charleston, South Carolina. Hamdi's father filed a habeas corpus petition on his behalf with a federal district court. (A writ of habeas corpus demands that prisoners be brought before a court to determine whether they are being held legally.) The district court upheld Hamdi's right to a federal trial, but that decision was reversed by a federal appeals circuit court. Among the three appeals court judges who ruled against Hamdi (and for the administration) was none other than John Roberts. At the time of that decision, Roberts was under consideration by Mr. Bush for nomination to the Supreme Court about to be vacated by Sandra Day O'Connor. (And as we all know, today Roberts is the Chief Justice of America's highest court.)

Hamdi's case went to the Supreme Court, which reversed the Roberts verdict. Sort of.

By an 8 to 1 decision in July of 2004, the Supreme Court ruled that Hamdi, as an American citizen, had the right to have his case heard in a U.S. court. Writing for the majority, Sandra Day O'Connor said:
"A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

Stephen Shapiro of the American Civil Liberties Union declared the Hamdi decision to be:
"…a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts."

But not everyone was as enthusiastic about the Hamdi decision as Shapiro was. Elaine Cassel of the Global Policy Forum and Civil Liberties Watch thinks that Mr. Bush "won far more than he lost" in the Hamdi case.
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.

Indeed, O'Connor's majority opinion agreed that Congress had, in fact, authorized Mr. Bush to hold suspected terrorists in indefinite detention when it passed Public Law 107-40 (the AUMF).

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF…

…There is no bar to this Nation’s holding one of its own
citizens as an enemy combatant.

This statement has profound significance on the primacy of the United States Constitution and America's brand of adherence to rule of law.

During the U.S. Civil War, then Supreme Court Chief Justice Roger Taney ruled that President Lincoln could not suspend the privilege of habeas corpus in wartime because Article I of the Constitution delegated that authority to Congress alone.

A compelling argument (to me anyway) says that in passing the AUMF, Congress not only illegally gave Mister Bush a "blank check" to deny habeas corpus, but also wrote a "blank" bill of attainer. A bill of attainer is:
"…a law that legislatively determines guilt and inflicts punishment upon named individuals... or readily identifiable groups.... without provision of protection of a judicial trial" (United States v. Archambault, 2001 DSD 36).

Article I of the Constitution specifically prohibits Congress from passing a law of attainer, and makes no exceptions for wartime or national emergencies.

Here's where it gets scary. With the AUMF, Congress granted both itself and the executive branch extra-constitutional powers without going through the trouble of amending the Constitution. And with the Hamdi v. Rumsfeld opinion, the Supreme Court let them get away with it.


In the months (and perhaps years) to come, it will be interesting to track the parallel trials of Saddam Hussein and the American system of laws and government. I for one look forward to seeing who comes out looking worse.

Wouldn't it be a hoot if Mister Bush wound up claiming he can't get a fair trial in the American courts because Congress didn't let him put enough of his cronies on the bench?

Not a prediction. I'm just saying.


  1. How do you see the AUMF as a bill of attainder? I'd be interested in you elaborating on that point.

  2. A bill that states anyhone the President determines to be a terrorist is guilty without trial?

    Being stuck in a Navy Brig isn't punishment?

    How "parsifal" do you want to be?

  3. I wonder, Jeff. I'll have to look into it, but if I remember the case law on Bill of Attainder correctly, the analysis goes to the legislative intent - i.e. identifying a specific person or readily identifiable group. "Anyone the president determines to be a terrorist" is too vague a statement to qualify as a Bill of Attainder, in my view.

    Which isn't to say there aren't plenty of things wrong with the law, I just don't think that's one of them.