Our Tattered Constitution, Rent By Cruelty and Unanimity
By SusanUnPC on November 26, 2008 at 3:30 AM in Current Affairs
[This story was published on February 23, 2007, and written by me (Susan). You can see that my politics changed during the 2008 election. But I'm not excising those sections, even if they may cause me some embarrassment. So what. I'll leave them be. But what I WANT you to do is to skip ahead to this paragraph, because it begins the section on the exceptional article by Jane Mayer (who Larry Johnson is featuring for her new, must-read book) for The New Yorker on the lonely, honorable efforts of one Alberto Mora, who scarcely a soul has heard of but who SHOULD BE a national hero. Sigh. Anyway, read it all, or skip ahead to this paragraph:
To know how that all happened, all you have to do is go back in the New Yorker archives and read Jane Mayer's story of the diligent, dedicated efforts of Alberto Mora, former general counsel of the United States Navy, to put a stop to (his term) "cruel" treatment of detainees.
]
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ORIGINAL ARTICLE IN FULL, published February 23, 2007: I have some unnamed friends who say they’ll never vote for certain candidates for the Democratic presidential nomination for a variety of reasons. To which I shrug and concede “to each his own,” but it seems these people are like those who pay a heap of good money to spend a miserably cold weekend atop Mount Washington in New Hampshire where they sit out on a balcony in -16-degree weather at its weather observatory which has recorded the most extreme wind ever clocked (231 m.p.h.) because of its “accidental geography.”
It’s one thing to find one’s self stuck for four more years of the next “unitary president” like George W. Bush, but it’s quite another to participate in making that happen. That’s not “accidental geography” or even what could reasonably be called a rational choice to spend time there. And the highest price being paid is one that slips our minds all too often: The erosion of the rights of ourselves and our fellow citizens, the evisceration of Constitutional precepts, and — most precipitously and permiciously — the loss of our own humanity as well as how others regard us around the world. So to my “til-hell-freezes-over” friends, I say two words: Supreme Court.
The New York Times this week published vitally important editorials — “American Liberty at the Precipice” and “Making Martial Law Easier.” And Time magazine’s “In Defense of a Divided Court” reported on the urgings of Chief Justice John Roberts for unanimous, 9-0 decisions by the Supreme Court that would destroy the storied history of influential dissent in the court and turn upside down the Court’s purpose in offering differing opinions on the most contentious, difficult cases.
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By the way, as I write this, I’m listening to James Bamford on Seattle’s NPR station, KUOW:
The National Security Agency was once nicknamed “No Such Agency.” For years, the U.S. government wouldn’t admit it existed. The NSA is thought to be the largest intelligence agency in the world. Its original mission was to collect information about foreign countries. Today, it often collects information about individuals, and in 2002, President Bush gave the NSA the authority to tap U.S. citizens’ communications without a warrant. We talk with James Bamford, the man who has written the books on the NSA. (Audio archive.)
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We have a Supreme Court whose composition is dangerously close to being a “rubber stamp” for a “brave new world” in which our constitutionally-protected rights must be sacrificed to “keep us safe.” If we elect another Republican president — or fail to vote for the Democratic candidate because he/she isn’t our cup of tea — we will GUARANTEE the further, or perhaps permanent, dissolution of those constitutional rights.
Justice John Paul Stevens, a frequent dissenter, is 86. Justice Anthony Kennedy, a frequent “swing vote,” is 70. Justice Ruth Bader Ginsburg, a liberal and a cancer survivor, is 76. And on and on. I don’t think Las Vegas would consider laying odds that one of the justices won’t be replaced by the next elected president.
When the U.S. Supreme Court scolded the Bush Administration last year for attempting to try suspected enemy combatants on the cheap, the ruling rested largely on one of the court’s most honored precedents. It’s the same opinion that helped force Richard Nixon to cough up those embarrassing tapes in 1974. And for more than 50 years it has guided the court in deciding whether a President has acted within his powers or whether he has stepped over the line.
The interesting thing is, it’s not a majority opinion. It’s a concurrence, a separate statement that a lone Justice, Robert Jackson, cooked up to accompany the court decision striking down Harry Truman’s plan for taking over the steel mills in 1952. But its elegant reasoning long ago made it the go-to opinion when the court puts a President in his place.
The Jackson concurrence comes to mind because in several speeches and interviews since early last year, Chief Justice John Roberts has been pursuing a push for unanimity on the court. He wants the Justices to speak with one voice as much as possible, to decide cases 9 to 0, with no pesky dissents or concurrences. As he advised a crowd two weeks ago at Northwestern University School of Law, “The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court.”
[...]
[T]he price of unanimity is the loss of concurrence and dissent, the expression of views that can strengthen the law by showing us how it came to be, where it should develop and why the most important rulings are never easy. Sometimes the doubters are right, and if their voices disappear, so might the prospect of not-yet-recognized freedoms or protections for many Americans.
[...]
Court dissenters have also been crucial to the civil rights of African Americans. …
Or consider Japanese Americans during World War II. In 1944 a majority of Justices upheld the conviction of Fred Korematsu for resisting internment in a “relocation center.” That prompted Justice Frank Murphy to write in dissent that the policy of relocating or incarcerating ethnic Japanese occupied “the ugly abyss of racism.” His opinion helped lead a federal court to vacate that conviction 40 years later.
All of us can speak more freely, get counsel in a criminal case and keep the police out of our bedrooms because, at some point, maverick Justices stood up to a court majority. … (“In Defense of Dissents,” Time, February 26, 2007)
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While I’m listening to James Bamford, I have multiple Web windows open, one of them holding Naomi Klein’s op-ed in today’s The Guardian:
The US psychological torture system is finally on trial
America has deliberately driven hundreds, perhaps thousands, of prisoners insane. Now it is being held to account in a Miami court
Something remarkable is going on in a Miami courtroom. The cruel methods US interrogators have used since September 11 to “break” prisoners are finally being put on trial. This was not supposed to happen. The Bush administration’s plan was to put José Padilla on trial for allegedly being part of a network linked to international terrorists. But Padilla’s lawyers are arguing that he is not fit to stand trial because he has been driven insane by the government. … (Read all.)
To know how that all happened, all you have to do is go back in the New Yorker archives and read Jane Mayer’s story of the diligent, dedicated efforts of Alberto Mora, former general counsel of the United States Navy, to put a stop to (his term) “cruel” treatment of detainees.
David Brant, the former head of the Naval Criminal Investigative Service, came to Mora with disturbing reports from his NCIS agents who were appalled by the treatment of detainees at Guantanamo.
Brant oversaw a team of N.C.I.S. agents working with the F.B.I. at Guantánamo Bay, in what was called the Criminal Investigative Task Force. It had been assigned to elicit incriminating information from the nearly six hundred detainees being held there. …
Brant informed Mora that he was disturbed by what his agents told him about the conduct of military-intelligence interrogators at Guantánamo. These officials seemed poorly trained, Brant said, and were frustrated by their lack of success. He had been told that the interrogators were engaging in escalating levels of physical and psychological abuse. Speaking of the tactics that he had heard about, Brant told me, “Repugnant would be a good term to describe them.”
Much of Brant’s information had been supplied by an N.C.I.S. psychologist, Michael Gelles, who worked with the C.I.T.F. and had computer access to the Army’s interrogation logs at Guantánamo. Brant told me that Gelles “is phenomenal at unlocking the minds of everyone from child abusers to terrorists”; he took it seriously when Gelles described the logs as shocking. …
(OF NOTE: This proves that when you have highly qualified, talented people like Michael Gelles and like FBI agent Dan Coleman — whose remarkable success in getting terrorist suspects to talk, without coercion, has been told by Mayer and in Lawrence Wright’s book, The Looming Tower — you CAN get information. You CAN convict terrorists. You CAN make progress in the “GWOT.” And you CAN do it all without “repugnant” treatment that, besides being against all that we stand for and being “cruel and unusual” treatment, is largely unsuccessful and counterproductive.)
But Mora — a conservative Republican but one who as a first-generation American holds the Constitution dear — was hoodwinked, lied to, and undermined every step of the way.
Mora tried to put a stop to what he termed “cruel” treatment of the detainees. And that’s when the Bush administration, including David Addington, lied to his face as well as to the American people. Those who most undermined Mora were “a small group of lawyers closely aligned with Vice-President Cheney” — with Cheney being a stuanch advocate of a “unitary presidency” that can override those quaint Constitutional precepts that guard individual rights.
Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.
In important ways, Mora’s memo is at odds with the official White House narrative. In 2002, President Bush declared that detainees should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva conventions. The Administration has articulated this standard many times. Last month, on January 12th, Secretary of Defense Donald Rumsfeld, responding to charges of abuse at the U.S. base in Cuba, told reporters, “What took place at Guantánamo is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment.” (“THE MEMO: How an internal effort to ban the abuse and torture of detainees was thwarted,” Jane Mayer, The New Yorker, February 27, 2006)
One of those who hoodwinked Alberto Mora was William Haynes, who was then the Pentagon’s general counsel. Only a strong fight by Democrats like you and me — and members of the Democratic then-minority in the U.S. Senate — kept President Bush from having Haynes appointed to the United States Court of Appeals for the Fourth Circuit.
But the KEY POINT is that William Haynes would have never been nominated for the Fourth Circuit by any of the current crop of Democratic presidential nominees.
So, however strongly you may feel about this or that Democratic candidate, please keep in mind that the federal court system that guarantees the preservation of our Constitution is in peril of being taken over by arch-conservatives who believe in the “unitary presidency” and in trampling on personal rights in order to supposedly protect us against those “24″-ish dangers that are just as fictional as “24″‘s ridiculous, but unthinkingly frightening, “ticking bomb” plotlines that Dick Cheney and his “dark side” com(un)patriots so admire.
The “unitary” Bush administration stealthily tucked in a provision inside “the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.” “Posse comitatus” is in peril, but Sens. Patrick Leahy and Kit Bond have introduced legislation to “limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.”
And habeas corpus — your right, everyone’s right, to a day in an American court — is on the chopping block. Again, Sen. Leahy, this time joined by the rather unreliable Sen. Arlen Specter, has introduced legislation to protect habeas corpus.
But Leahy and his Republican counterparts wouldn’t have to hurriedly introduce legislation to undo Bush administration “stealth” unitary enactments if we had a Democratic president in the White House.
Go for sub-freezing weekends on Mount Washington, and risk instant frostbite, if that’s your idea of fun, but don’t get too extreme about who you’re going to vote for in ’08. Your freedoms, and your future generations’ freedoms, depend on it.
Every time you decide you hate Clinton, Obama, Edwards, Richardson, whoever, and that you’d NEVER vote for whoever you hate, just say two words to yourself: Supreme Court. (Or “federal courts,” to be more precise.) It’s all the reminder you’ll need.
by Ronald Scott
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