Or How I Learned to Stop Worrying

"Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. " - Justice John Paul Stevens writing the majority opinion of the United States Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et. al.

The United States Supreme Court today rejected the Bush Administration’s contention that it could ignore the United States Constitution and laws and set up kangaroo courts in which to try detainees held at Guantanamo Bay. The Court rejected the argument that the Congress had stripped its jurisdiction by enacting the Detainee Treatment Act of 2005. The Court also held that the Executive Branch must obey the law of war, the Geneva Conventions (including Common Article 3), and the UCMJ. In short, the Court held that the President is not above the law, even in a time of war.

By holding that the President must obey the laws, Justice Stevens took a giant bite out of the Unitary Executive theory that the Bush Administration loves and cherishes so much.  In rather short order, the legal arguments put forth by John Yoo justifying torture now begin to crumble. The Court’s holding that Common Article 3 of the Geneva Conventions binds the actions of the Executive nullifies the argument used by this Administration to exclude parts of Article 3 from the latest Army Field Manual on interrogation. A house of cards built on the fantasy of an unchecked ruler has crumbled today upon colliding with the United States Constitution.

The Bush Administration’s arguments for Executive overreach have never had firm legal grounding. Their grounding has been based on fear and fanaticism. The debate has always been between fanaticism and reason. Today reason won a temporary reprieve. But the fanatics are still in charge of the Ship of State. The Administration’s principal premise, whether it is to justify torture or to justify indefinite detention, has been that the people we are holding are bad, evil, horrible. Therefore, anything we do to them is justified. Every overreaching act of the Bush Administration has been predicated on that fundamental premise.

The Bush Administration tortures a prisoner because it assumes a priori that the prisoner is a terrorist. Therefore, to extract valuable intelligence that might save lives the Administration must torture the terrorist. The bush Administration detains a prisoner indefinitely because it assumes a priori that the prisoner is a terrorist. Therefore, to protect the safety of all Americans the Administration must detain the terrorist indefinitely.

This underlying premise that all we hold are terrorists has emotional appeal to supporters of the Bush Administration and many Americans who are terrified of an unseen and unpredictable enemy. The Administration knows this and never misses an opportunity to perpetuate this notion:

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”  - Vice President Dick Cheney, June 2005

The Administration’s supporters duly follow this line that everyone at Guantanamo Bay and everyone the United States tortures is a terrorist. However, there is plenty of evidence that this is not the case. Many prisoners at Guantanamo Bay were sold to the Americans by enterprising Pakistanis and Afghanis for hefty fees. A large number of these detainees were later found to be innocent and some have been released. There are others at Guantanamo, like Abdur Sayed Rahman and Muhibullah, who are being held there for reasons that defy sanity:

But there are many more, it seems, who sound like Abdur Sayed Rahman, a self-described Pakistani villager who says he was arrested at his modest home in January 2002, flown off to Afghanistan and later accused of being the deputy foreign minister of that country’s deposed Taliban regime.

"I am only a chicken farmer in Pakistan," he protested to American military officers at Guantánamo. "My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

…

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The Bush Administration not only detains people without charge who are not terrorists they have also kidnapped and tortured people who are not terrorists. By not following the laws or international Conventions, the Bush Administration has denied itself the tools to determine who is truly a terrorist and who is being unjustly held and tortured. But, based on their principal premise, the distinction between guilt and innocence need not be made.

Having lost the legal fight it remains to be seen if the Bush Administration will be able to stoke the flames of fear enough to convince the American people to look the other way as it continues to torture and detain "terrorists". The Supreme Court has spoken; will the President listen?

Yesterday I read the news that the FBI has videotape of Congressman William Jefferson (D- La.) taking bribes. I am sure you will agree with me that taking bribes is probably not the smartest or most legal thing for a Congressman to do. This morning I wake up to the news that members of Congress from both parties are furious, absolutely furious, over this latest bribery scandal.

I was getting ready to write Congress to thank them for their newfound zero tolerance policy toward criminal behavior until I actually read a little more about why Congress is so upset. Apparently Congress is upset that the FBI raided the Congressional offices of Representative Jefferson. Apparently the Executive branch has overreached and is challenging the separation of powers laid out in the Constitution. Lions, Tiger, and Bears, Oh My!

Congressmen and Senators are tripping over each other to get to the microphone and denounce the Bush Administration for endangering the Constitution.

House Speaker Dennis Hastert is outraged and ready to wrestle:

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.

"Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress," he said. "Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years."

Senate Majority Leader Bill Frist wants an investigation:

Senate Majority Leader Bill Frist (R-Tenn.) said that he is "very concerned" about the incident and that Senate and House counsels will review it.

House Minority Leader Nancy Pelosi was a little less outraged and more circumspect:

House Minority Leader Nancy Pelosi (D-Calif.) said in a statement that "members of Congress must obey the law and cooperate fully with any criminal investigation" but that "Justice Department investigations must be conducted in accordance with Constitutional protections and historical precedent."

Former House Speaker Newt Gingrich however saw the end of the Republic:

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line "on the edge of a constitutional confrontation," called the Saturday night raid "the most blatant violation of the Constitutional Separation of Powers in my lifetime." He urged President Bush to discipline or fire "whoever exhibited this extraordinary violation."

Why are Republicans so outraged about the President of the United States overstepping his Constitutional bounds? Shouldn’t they be jumping up and down and rejoicing that finally a Democrat has literally been caught red handed? Perhaps they fear the Police State is now about to turn on them?

Where were these same Republicans when this Administration played games with the 1st, 4th and 5th Amendments of the Constitution? Where were these same Republicans when this Administration wildly abused the President’s Article II powers? Where were these Republicans when this Administration asserted its right to violate the Constitutional protections of American citizens?

Could it be that the Unitary Executive does not taste nearly as sweet when it hits close to home? Perhaps the members of Congress are now a little concerned that the Executive branch might be tapping their phones or reading their email. It is a joke that these Republicans are now screaming about the Constitution when they have remained silent for so long as it has been trampled in the name of National Security.

I say to Senator Frist, Speaker Hastert and the rest of the Constitutionally challenged Republicans that the entire Constitution matters - not just the part that protects Congress from the Executive branch. Outrage about the "speech or debate" clause of the Constitution should be equally matched by outrage about the tearing down of the Bill of Rights. If Congress wants the American people to defend their Congress then Congress needs to do its job of defending the American people. Otherwise go whine about this in your Cloakrooms and at the House Gymnasium.

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”

- Vice President Dick Cheney, June 2005

As Chinese President Hu Jintao meets with President George Bush they are likely to discuss a whole host of issues of bilateral importance. However, one issue that is unlikely to be on the agenda is the plight of two Uighur men being held at Guantanamo Bay.

Since June 2002 the United States Government has held two Chinese Uighur men at Guantanamo Bay. These men were picked up from Pakistan in 2001 as "enemy combatants". On March 26, 2005 the two Uighur men, Abu Bakker Qassim and A’del Abdu al-Hakim, were found not to be "enemy combatants" by the Combatant Status Review Tribunal (CSRT) at Guantanamo Bay. However, as of this writing, they remain in custody at Guantanamo Bay.

The two men are ethnic Uighur. The Uighur are a persecuted Muslim minority in China. After September 11, 2001 China has stepped up its crackdown of the Uighur by claiming they are "terrorists". The United States Government fears if the two Uighur men are repatriated to China they will be imprisoned or killed. The Bush Administration does not want to admit the men to the United States but cannot find a foreign Government willing to accept the men either.  Lawyers for the two men argued in the United States District Court for the District of Columbia that the two men should be released from Guantanamo. But in December 2005 a District Judge ruled that even though their detention is unlawful they cannot be released:

These petitioners are Chinese nationals who received military training in Afghanistan under the Taliban. China is keenly interested in their return. An order requiring their release into the United States–-even into some kind of parole “bubble,” some legal-fictional status in which they would be here but would not have been “admitted”–-would have national security and diplomatic implications beyond the competence or the authority of this Court.

The United States Supreme Court declined to hear their case this week because another hearing is pending on the case in a lower court. So, the men remain in legal and diplomatic limbo for the foreseeable future.

The plight of these two men illustrates the dangers of holding men indefinitely without any due process in the name of the "war on terror". It also demonstrates the foolishness of this Administration’s view of the world as being divided into "us" and "them". The two Uighur men are falling through the large chasm that exists between "us" and "them".

The obvious question is how many of those still being held at Guantanamo are innocent of the charge of being hostile to the United States. We cannot hope to know the answer as this Administration has appointed itself the sole right to determine their status and their guilt through the flawed CSRT process. I would have more faith in the infallibility of this Administration in being the soul arbiter of men if Mr. Cheney would cease making absolutist statements like "But what’s left is hard core." How can we even trust that he can make a sound judgment when he can’t even bring himself to refer to them as "who" but insists on referring to them as "what" - as if they are things not people? This Administration famously removes all qualifiers from its statements and takes absolutist positions. These positions do not serve us well.

Congress has abdicated its oversight responsibility and punted on this issue. In fact Congress has made it more difficult for the Courts to intervene by passing legislation that strips further the human rights of those being held at Guantanamo. The Unitary Executive of George W Bush is steamrolling and trampling freedom on its quest to spread freedom and liberty everywhere. What a strange and confused world we live in today.

The French Revolution produced many horrors, but none more so than The Reign Of Terror when thousands were sent to the guillotine in the name of public safety. The name most often associated with the horrors that transpired at that time in France is Maximilien Robespierre. Robespierre was one of the leaders of the French Revolution that culminated in the beheading of King Louis XVI.

The Revolution that began with the slogan Liberté, égalité, fraternité quickly turned inward on itself. With France engaged in war with Austria and Prussia Robespierre ascended to head the Committee of Public Safety which held the executive power in revolutionary France. Robespierre began to consolidate power to protect the Republic from enemies foreign and domestic. He began to see enemies everywhere. To protect the French population from these terrorists and enemies of the state, Robespierre launched The Reign Of Terror. The Committee of Public Safety began to deploy spies everywhere. Any hint of dissent was viewed as against the public good and the dissenters were quickly dispatched via the guillotine.

In unleashing the Reign of Terror, Robespierre believed he was upholding the principles of liberty, equality and fraternity by protecting the Republic from terrorists that sought to undermine it. The ends began to justify the means. Ultimately however, the Terror that he unleashed not only consumed the Revolution, but its also consumed Robespierre himself. Robespierre was sent to the guillotine by the very forces that he set into motion.

Robespierre was a follower of the French philosopher Jean Jacques Rousseau. Rousseau, in  The Social Contract (Penguin Classics) and subsequent works, argued that a social contract exists between the governed and the ruler. The contract rests on the belief that there is a notion of a general will of the people that the ruler is given the authority to protect and defend. The ruler is endowed with unlimited executive power to protect the general welfare of the governed. Rousseau’s theory does not allow any constraints on the power of the ruler in defense of the general will. In other words, the ruler has inherent power to ignore laws of the Republic. Rousseau was one of the first modern thinkers to formulate the ideas of the Unitary Executive. A number of corollaries quickly follow from Rousseau’s theory. Since the ruler is charged with defending the general will any opposition or public dissent is deemed to be against the greater good of the general will and the Republic.

By taking Rousseau’s social contract to its logical extreme, Maximilien Robespierre became arguably the first practitioner in Western Civilization of the theory of the Unitary Executive.

Today in the United States we are again confronted with Rousseau’s Unitary Executive. Fortunately there are no guillotines in the streets; however, the stakes today are equally high. The Unitary Executive is being used to justify violations of the Fourth Amendment, indefinite detentions, excessive secrecy, leaking of classified information for political purposes; and torture.

The Unitary Execute theory grants the President the power to determine what is in the public interest. Thus, today we were told by the President’s Press Secretary that when the President leaks classified information it is for the greater good, when a whistleblower leaks to the New York Times about warrant-less spying it’s aiding the terrorists. Mr. McClellan took the theory even further today by accusing anyone who questions the President’s motives in leaking the classified information as being "crass" and anti-American. Any dissent, true to the logic of the Unitary Executive, is considered aiding and abetting the enemy.

The Unitary Executive as the rise and fall of Robespierre demonstrated has one major systemic flaw. The belief in the rightness of the ruler to be the soul arbiter of what is in the general will, or national interest, leads to a stifling of ideas within the Executive. Any hint of dissent, even from within, is dealt with harshly. Ultimately the internal contradictions of this theory cause the Executive to cannibalize itself.

I believe signs of this collapse from within have been growing in the Administration. The departure of Scooter Libby was only part of this long slide into failure. We have now seen Andy Card leave and soon we will see others leave or be pushed out (the political equivalent of the guillotine) as this Unitary Executive proceeds to emasculate itself.

In the end, we are left with a touch of irony as the Administration that famously despises all things French is now crumbling under the burden of the Unitary Executive - a theory devised by the French philosopher Rousseau.