Or How I Learned to Stop Worrying

Today the United States Supreme Court dealt a severe blow to the legacy of Brown v. Board of Education. In a 5-4 decision Chief Justice John Roberts wrote the following in an opinion joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito (Justice Kennedy cast the deciding vote for the majority but did not sign on to Roberts’ opinion):

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

With those lines, the Supreme Court rolled back much of Brown v. Board of Education while claiming to have upheld it.

On May 17, 1954 the Supreme Court’s unanimous decision in Brown v. Board of Education struck a death knell to the long era of racial segregation in America by overturning the 1896 Supreme Court decision in Plessy v. Ferguson. Plessy had upheld racial segregation and the doctrine of "separate but equal" as constitutional.

In writing for the majority in Plessy Justice Henry Billings Brown wrote on May 18, 1896 the following:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

Over a century after Plessy, Chief Justice Roberts’ words echo the words of Justice Henry Billings Brown. In Plessy, Justice Brown went on to write:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. … The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

…

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It was the Supreme Court’s affirmation of segregation so plainly handed down in Plessy that Brown rejected, overturned and aimed to remedy. Today that changed by Justice Robert’s throwback to Plessy’s position that government’s attempts to counter segregation is in itself discrimination.

In a scathing dissent today, Justice Stephen Breyer wrote:

The lesson of history … is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration.

The legacy of Brown vs. Board of Education is now in serious jeopardy after today’s ruling - the ruling today aims to effectively strip school boards of tools that they have used to counter racial segregation. In that we have returned to the days of Plessy, by turning Brown on its head.

In 1954, on behalf of the unanimous Supreme Court in Brown, Chief Justice Earl Warren wrote:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

…

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

Today’s was a landmark decision that effectively rendered Brown toothless. Save for Justice Kennedy not signing on to Justice Roberts’ opinion, it would have been a complete overturning of Brown v. Board of Education.

"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?