Post-Gazette Editorial – 7/2/06

This page was last updated on July 2, 2006.

The court speaks / An imperial presidency is checked -- for now; Editorial; Pittsburgh Post-Gazette; July 2, 2006.

Surprise, surprise! The PG runs to the defense of Islamic terrorists. To be honest, though, the editorial is probably more about bashing President Bush than celebrating the court “victory” of a terrorist. I could be wrong, but I believe the PG has come out against just about everything the Bush administration has done to “provide for the common defence.” If those aren’t the actions of an enemy of the U.S., how do they differ from what an enemy would do?

Below is a detailed critique of the subject editorial.

“Guantanamo Bay is more than a place where ‘enemy combatants’ in the war on terror are kept in detention. For good or ill, it is also a symbol of the Bush administration’s prosecution of this war.

“President Bush, encouraged by confidants such as Vice President Dick Cheney, came to the White House with a desire to expand presidential authority -- an attitude that found itself suddenly empowered by the terror attacks against the United States on Sept. 11, 2001.”

[RWC] Note the drive-by accusation that “President Bush … came to the White House with a desire to expand presidential authority.” Where’s the evidence? Of course, in addition to not providing any examples, the editorial ignores the fact that President Bush kept a lot of Bill Clinton’s appointees around because that would tend to contradict the PG talking point.

“Henceforth, the ‘war president’ was determined as commander in chief to do whatever he saw fit to defeat the terrorist threat. He would brook no opposition, he would abide by no greater law than his own assumed power. (For example, he would not seek permission of a special court to undertake domestic surveillance.) To all intents and purposes, he would be an American Caesar.”

[RWC] The “example” is bogus. When did interception of international communications become “domestic surveillance?” As I’ve asked in previous critiques, is an airplane flight between Pittsburgh and London domestic or international?

Further, other than fringe wackos and our enemies, who has asserted the terrorist surveillance program wasn’t the right thing to do? Indeed, polls consistently show the American people support the program by a wide margin. Regarding politicians, the same people griping about alleged legal problems with the program were the same people tripping over themselves to make the program “legal.”

“His firmness and resolve resonated with many Americans fearful of another attack on the American homeland. Many people approved that Guantanamo Bay was set up as a prison precisely because it was offshore and supposedly out of the reach of U.S. courts and all their fussing over rights.”

[RWC] The editorial failed to note other attractive properties of Club Gitmo.

First, since it was not anywhere near the U.S. civilian population, there was no chance potential escapees could endanger the civilian population.

Second, its location made escape attempts unlikely.

Third, its location made terrorist rescue attempts unlikely.

I’m sure there were other practical considerations, but those were the first to come to mind.

“Terrorists don’t deserve any rights, the popular thinking went. The trouble, of course, is that not all the suspects scooped up in the war on terror and held at Guantanamo were likely to have been terrorists in the first place. This can be inferred from the fact that, according to The Associated Press, out of a total of 759 detainees from 49 countries at the naval base, about 300 have since been released or transferred.”

[RWC] Perhaps the PG should check its inference skills. The editorial failed to note some of the “about 300 … released or transferred” were recaptured on the battlefield. Anyone care to guess why?

“Still, some of those held at Guantanamo Bay are undoubtedly dangerous terrorists, and it is fair to assume that one of them is Salim Ahmed Hamdan, a Yemeni said to have served as Osama bin Laden’s bodyguard and driver in Afghanistan.

“He was charged with conspiracy and was set to appear before a military commission -- a special creation of the Bush administration with something less than the usual protections of military justice. He appealed to the courts, which had previously determined that Guantanamo Bay was not some foreign gulag unknown to the Constitution (an entirely logical finding given that an American flag flies over it).”

[RWC] “[T]he usual protections of military justice” are generally intended for court martials involving the American military. Many of the protections afforded during a “normal” court martial could not be applied during a terrorist trial. For example, should the U.S. be forced to choose between compromising national security secrets and freeing a known terrorist? Just because a terrorist trial doesn’t provide the same protections as would a civilian criminal trial, that doesn’t mean the process isn’t fair.

“On Thursday, the U.S. Supreme Court ruled on this case, which ultimately is less about the fate of one unsavory petitioner than about the question of whether the president can do what he likes in a nation of laws during a war. The historic answer from the courts is a resounding ‘no.’

“By a margin of 5 to 3, the court held that the Bush administration, in setting up military commissions to try terrorists, had offended the common law of war, the Uniform Code of Military Justice and at least one part of the Geneva Conventions. Neither the special demands of the war on terror nor the urgency of battle justify what the Bush administration wanted to do.”

[RWC] Though the vote was 5 – 3, it would have been 5 – 4 had Chief Justice John Roberts not removed himself from the case. You see, Justice Roberts was on the US Court of Appeals for the DC Circuit when it affirmed President Bush has the authority he claimed. Anyone care to guess why the editorial failed to note this?

Regarding the Geneva Conventions¹, the Supreme Court ruling is obviously wrong to anyone who can read. Article 2 clearly states the Conventions apply only between “High Contracting Parties” (signatories) of the Conventions. Only governments can be signatories, and terrorists by definition represent no government.

Further, to qualify for POW status under Article 4, enemy fighters must meet specific requirements; not everyone qualifies. For example, the fighter must be fighting for a country that is a party to the war and that signed the Conventions. That’s not true for any of the terrorists fighting in Iraq, Afghanistan, et cetera. Legal combatants must also meet other requirements, such as wearing ‘a fixed distinctive sign recognizable at a distance’ (like a uniform) and ‘carrying arms openly’ among others. If you don’t meet all of the relevant requirements, you don't qualify for POW treatment.

“It is important to note that what the court did not do was set terrorists free. And as Justice Stephen Breyer said in his concurring opinion, ‘Nothing prevents the president from returning to Congress to seek the authority he believes necessary.’”

[RWC] The ruling also doesn’t prohibit us from holding the terrorists indefinitely at Gitmo until the end of the war on terror. Is indefinite detention better than a trial?

“The sulphurous dissents from Justice Antonin Scalia and Justice Clarence Thomas -- joined by Justice Samuel Alito -- suggest that this president could do virtually anything in the war on terror and he would receive their blessing. They are those odd conservatives who see nothing wrong in an imperial presidency with unchecked powers. They would not have even heard this case, deferring instead to a jurisdiction-stripping piece of legislation known as the Detainee Treatment Act.”

[RWC] “Odd conservatives?” If you’ve been reading the PG for more than a day, you know all conservatives are “odd.”

The editorial blathers about an “imperial presidency,” yet fails to see an imperial behavior in the Supreme Court. You’ll read what I mean below.

Article III, Section 2 of the U.S. Constitution states, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as Congress shall make.” In other words, Congress can decide which cases the Supreme Court can hear.

In December 2005, Congress passed and President Bush signed the Detainee Treatment Act of 2005. Section 1005 states unambiguously, “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The DTA became effective December 30, 2005, the day President Bush signed the DTA.

Five of the justices held that because the DTA didn’t explicitly include pending cases, they could interpret the DTA to exclude pending cases! If this isn’t an example of imperial behavior, what is? This is an example of judges reading what they want to read and why it is important to have judges who will read laws as written.

“Fortunately, the center held in this case, and America is the better for it. The greater message here is that no one is above the law, not even the president, and the country does not have to sacrifice its standards of civilized behavior in confronting a bitter enemy. This ruling was not soft on terrorism but firm in support of America’s highest ideals.”

[RWC] “The center?” Is “centerism” the new term for liberalism/progressivism/socialism/et cetera?

What is uncivilized about trial by military tribunal? The PG apparently believes terrorists and enemies of the U.S. are no worse than common criminals or American military personnel under court martial.

“Bitter enemy?” Is this what you call an enemy that specifically targets civilians, tortures prisoners to death, beheads captives, and then mutilates and booby-traps their bodies?

“Congress should take this to heart in any action it contemplates. President Bush should also take the hint and close Guantanamo Bay, which has become an embarrassment even to our allies. As Thomas Jefferson suggested in the Declaration of Independence, it is well to have ‘a decent respect to the opinions of mankind.’”

[RWC] This is PG-speak for, “If Congress takes action to support President Bush’s actions (as it did with the DTA), Congress is as evil as President Bush.”

As presented, the eight-word excerpt from the Declaration of Independence is intentionally misleading. The editorial wants us to believe Thomas Jefferson believed in listening “to the opinions of mankind” in formulating American policy. Today, by “opinions of mankind,” I believe the PG means France, Germany, the UN, or anyone who considers America and/or President Bush a danger to the world.

But that’s not what Jefferson meant. The above excerpt is from the very first paragraph/sentence of the Declaration of Independence. Here it is in full.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume the Powers of the earth, the separate and equal station to which the Laws of Nature and Nature’s God entitled them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Read the Declaration and it’s clear that when Jefferson wrote “a decent respect to the opinions of mankind,” he was saying mankind deserved to have a written explanation of why the 13 colonies would take such drastic action. Jefferson was doing anything but soliciting “the opinions of mankind.”

Given its creative interpretation of the Declaration of Independence, perhaps some members of the PG have a future serving on the Supreme Court. <g>

1. Geneva Convention relative to the Treatment of Prisoners of War; United Nations; August 12, 1949.