Wednesday, July 05, 2006

Fourth of July Special

Apparently, according to our current rulers, freedom isn't indivisible after all, and all men aren't created equal and endowed with certain inalienable rights, if the unitary executive classifies them as enemy combatants. Just thought you'd want to know.

East Valley Tribune, July 2, 2006

Not only did President Bush get put in his place by the Supreme Court’s decision on military tribunals last Thursday but, in an interesting local sidelight, so did Sen. Jon Kyl.

The decision, as ably and rapidly summarized by Marty Lederman, held first, that the president’s authority is subject to statute and treaty, and second, that what Congress does should be construed to comply with the international laws of war.

That these ideas are controversial shows how far we’ve come in so short a time. The president’s conduct is subject to existing law. The president is not above the law, and can’t ignore existing statutes and treaties.

This is apparently subversive stuff. So-called “conservatives” claimed that 9/11 changed everything, including the Constitution, or our government of laws, not men. They argued that fighting the war on terror required ignoring, or superseding, or impliedly overturning statutes, treaties, and the laws of war. The president has the power to detain anyone -- aliens, U.S. citizens, doesn’t matter -- indefinitely and never bring them to trial, and needn’t disclose any of the “evidence” because of national security. Could be you, could be anyone, because we have to trust the president -- even President Hillary Clinton.

This “inherent power” stuff came along a few years too late (or, for Hillary, too early). If only Bill Clinton had argued that he had the inherent Article II power to fool around with an intern and nobody -- not Congress, the courts, and certainly not The New York Times -- had any right to question him. See, it’s the Republicans’ lawyers who really are willing to say anything.

The Supreme Court also has ended the sickening debate over exactly how outrageously we can treat detainees without “torturing” them -- because we may waterboard, or keep men in cells the size of filing cabinets for three days, but we only fake drownings and don’t keep them locked up for five days. That would be “torture,” and President Bush says we don’t “torture.” But the Court said that the Geneva Convention applies, even in this amorphous “war” fought through tax cuts, keeping Terri Schiavo on life support, and banning gay marriage.

Imagine that. The United States can’t inflict “cruel treatment and torture,” or “outrages upon personal dignity,” or “humiliating and degrading treatment.” That’s almost un-American, isn’t it? It’s judicial activism at its worst, insisting that the president is not above the law. How does the Supreme Court expect us to win the War on Terror if we can’t sell our souls?

As for our junior senator’s little role in Hamdan, it’s in an understated footnote. The Court had to determine if Congress, in late 2005, had taken away jurisdiction over pending habeas cases. Trying to set up that argument (which wasn’t clear in the bill itself), Kyl and Lindsay Graham (R-Ga.) inserted a scripted “debate” into the Congressional Record, complete with supposedly live interjections. (Kyl claims to say at one point, “I see that we are nearing the end of our allotted time,” and another senator’s statement begins, “If I might interrupt.”)

There’s only one problem -- the entire exchange never happened. (Hat tip: Emily Bazelon in Slate, here and here.) It’s not on the C-SPAN tape and instead was a written script inserted into the Record after the vote. But Kyl didn’t have the text marked as having been inserted after the fact -- and then tried to pretend to the Court that meant it was live.

In his amicus brief to the Court, Kyl stated that “the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet…or are underlined.” (Italics in original) His brief then discusses the scripted, after-the-fact written statement as if it had been live. Kyl forgot to mention that the Senate’s bullet-or-underlining business is strictly discretionary. It’s the honor system, but Kyl came up a bit short in the honor department, and it’s there for posterity in footnote 10.

Jon Kyl accomplished something few politicians can do. He was able to lie -- without his lips moving.

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