April 20, 2004

Two words: law. lessness.

The Bush administration will argue before the Supreme Court today that American courts have no jurisdiction over the incarceration of foreign nationals held in prison camps at Guantanamo Bay.

The Bush Justice Department will base its arguments on technicalities--that Guantanamo is not US soil--and on an odd political theory which boils down to this: "unless we, the crackpot politicians and extremist neoconservative hacks who brought you such peace of mind in places like Iraq, are able to act without any oversight whatsoever, America's very existence will be placed at risk."

Have the terrorists won already?

Are only a few successful attacks enough to cause America to abandon the rule of law, in exchange for an overweening deference to a strongman President who soothes our fears by relieving us of our responsibilities? How committed are we, really, to the rule of law? To democracy? How courageous are we, really?

We acted from fear when we gave Bush a free hand to invade Iraq. Fear was responsible for the eagerness of Congress to give Bush greater domestic surveillance powers under the Patriot Act. Fear is behind our unwillingness to hold Bush accountable for his detention of prisoners on Guantanamo.

We hear a lot about courage, but we haven't been demonstrating much of it lately. Hopefully the Supreme Court will start to calm things down by ruling against the Administration in these war-on-terrorism cases. We can and should act to defend ourselves from terrorists, but this does not mean that we ought to sacrifice our commitments to the things that make us different from terrorists. We supposedly hold values that extend beyond just "achieving our objectives." We recognize the value of restraint; of leadership by persuasion and by example rather than by force alone; of rationality in the face of threats, rather than reflexive and fear-driven retaliation; of democracy as a strong and vibrant thing, rather than a vulnerability that should be sacrificed at once to keep us safe.

The Bush Administration has been advocating too many of these latter alternatives and too few of the former. Not only should the Supreme Court rule against the Administration in these cases before it, the American people should rule against Bush in the upcoming election before them.

Posted by Carey at April 20, 2004 08:52 AM

I think it's fantastically irrational that people think it's okay for the American government to perform an end-run around our own laws by creating an extraterritorial pocket of lawlessness in a foreign country. The message it sends to the American people and to the world is that our own laws are inadequate, a mere convenience to be thrown away whenever expedient. Gitmo and the "enemy combatant" doctrine is going to go down in history as one of the great abuses of government power in American History, along with the Alien and Seidition Act.

Fortunately, I think people will come to their senses over time.

Posted by: Mark Ashton at April 20, 2004 10:21 AM

Erm... no.

Your typical hyperbole and vitriol to the contrary, these 'technicalities' are the very basis of law. I might as well characterize your view as:

"We, the legal geniuses that ensured that the abortion debate has lasted a lifetime longer than in any country that just dealt with it legislatively back in the '70s, are now going to start second-guessing the conduct of military action. Oh yeah, and that limitation on our power--the essence of separation and federalism called 'jurisdiction'--well, we don't take it very seriously."

There are some serious questions here--and serious answers--but fretting over whether Bush is attempting to abandon the rule of law is rhetoric devoid of reason, your normal habit of treating your opponents as if they've not a moral in their heart or scruple in their soul. If Bush had no respect for the rule of law, he wouldn't try to shield himself in 'technicalities,' he'd just go ahead and break it outright. Respect for the Rule of Law is the difference between trying to incarcerate them at Guantanamo--where there's some ambiguity--and just sticking them in Joliet and telling the Supremes, "You've made your law, now let's see you enforce it."

Posted by: A. Rickey at April 21, 2004 01:38 AM

I'm sorry, I must have missed when choosing not to break the law outright became the same thing as respecting the law. I'm happy to know that, in my career as a lawyer, I'm free to abuse and contort the law in anyway I chose. As long as I don't break it outright, no one can acuse me of not respecting it!

Posted by: Mark Ashton at April 21, 2004 07:56 AM

If law were only a set of hyper-technical complex rules, there would be no obligation other than the possibility of a sanction to uphold it. But many people do not envision technicalities to be the basis of law. We hope that law is based on other things.

If you assert that law is just technicalities, we don't need to claim that you don't have morals or scruples--you've already said so yourself. Either law has principles behind it, in which case Carey's argument stands, or it doesn't--in which case your huffy complaints are awfully weak.

Posted by: Heidi at April 21, 2004 10:44 AM

That should be: "that you don't have morals or scruples in a legal setting"--it should be obvious from context, but I've had problems with some people interpreting the breadth of my statements before, so I'm not going to risk it here.

Posted by: Heidi at April 21, 2004 10:45 AM

A. Rickey: I rarely go so far as to claim that my opponents have "not a moral in their heart or scruple in their soul." I often claim, however, that my opponents hold to moral standards that I don't agree with.

Example: I believe that women should be able to have an abortion, and that it is perfectly acceptable for courts to enforce this right against the majority's will which finds expression in the legislature.

I don't accuse all folks who disagree with me of being amoral or immoral. In fact, many of my opponents are much more moral than my supposed allies.

Slithery D et. al.: Your points about technicalities are all well-taken. The precise kind of "technicalities" I'm singling out here are those small details which serve as inadequate grounds for a ruling BECAUSE they a) frustrate the reasonable purposes of the broader laws of which they are a part, or b) are supported by inadequate rationales.

The technicalities in the Guantanamo case relating to "US soil" are good examples of what I'm talking about. Bush is trying to do an end-run around the restrictions on the executive's powers to do whatever it wants, whenever it wants, and for whatever reasons it wants.

We may simply disagree about whether the country would benefit from trusting the Bush administration or not. I, personally, don't trust it at all.

Posted by: Carey at April 21, 2004 11:57 AM

"If Bush had no respect for the rule of law, he wouldn't try to shield himself in 'technicalities,' he'd just go ahead and break it outright."

Incorrect. He needs to hold at least the pretense of respecting the law. After all, there's an election coming up and this pretense is all that's keeping him afloat in the polls.

Posted by: at April 21, 2004 06:06 PM

Actually, holding even a bad man who disagrees with the law is respecting it by following it. The grandfather of realists would agree with me there: Holmes' 'bad man' himself has respect for the law, so long as he's not violating it.

(As for that being all that's keeping him afloat in the polls--somehow I've got my doubts.)

As for admitting that one has no principles--hardly. All it admits is that whatever scruples one has are not the scruples of the law, or may differ from your own.

The concept of sovereignty, to quite a few people and particularly conservatives, is a principle in and of itself. Again, by failing to respect this 'technicality,' one might easily conclude that a man was ruthlessly disregarding the boundaries of judicial power. To decide that something is beyond some mystical moral dimension of the law is to say nothing more than you have a particular set of scruples.

And Slithery, I have read quite a few FRCP 11 cases. First, this isn't a civil procedure case. Secondly, although FRCP's aren't classed as 'laws' as such, they're 'law-like' enough that one can respect them as such, so would be part of respecting a 'rule of law.' Thirdly, nothing in this discussion of 'technicalities' gets close to sanctionable under FRCP 11, even if it applied.

Of course, if you want to cite me a case of a lawyer being sanctioned for having brought a colorable jurisdictional claim before the Court (or even a court), I'm all ears.

Posted by: A. Rickey at April 23, 2004 07:47 PM