Damn the Constitution! Full speed ahead!

Anyone who thought that a mere decision by the U.S. Supreme Court in Boumediene v Bush would deter the Bush administration from pursuing its kangaroo court proceedings in Guantanamo was quickly disabused of this notion. Within hours the White House had issued statements that Bush “would comply” with the ruling but “strongly disagreed” with it and would consider whether to “respond to the court ruling with new legislation.”

This is bizarre. Bush seems to lack a basic understanding of the role of the Executive under the U.S. Constitution. The President’s job is to enforce the laws that the Congress passes. The SCOTUS has the final word on whether a law is unconstitutional. It is emphatically not the job of the President to either overrule the Supreme Court or pass legislation. In addition, the President doesn’t have the right to pick the minority opinion just because he prefers it — under the U.S. Constitution he is bound to implement the ruling of the majority of the court.

Or as Blue Texan puts in succinctly at Firedoglake in a piece entitled “Bush doesn’t know what the Supreme Court does:” http://firedoglake.com/2008/06/13/bush-doesnt-know-what-the-supreme-court-does/

I know Bush obviously doesn’t give a shit about the law, and he views the Court — the institution that awarded him the Presidency made him King — as a rubber stamp. But it’s pretty disturbing to hear someone who swore an oath to defend the Constitution continually demonstrate his total ignorance of it.

This is the third time that the U.S. Supreme Court has ruled against the Bush administration about the rights of prisoners being held at Guantanamo. You’d think Bush would have gotten the message by now but, no, he’s bound and determined to ignore the Court, the Congress and anyone else who may disagree with him. According to recent polls, the list of those who disagree with GWB is about seventy-five percent of the American public.

Attorney General Michael Mukasey epitomized the narrow obduracy of the Bush administration in his statement issued at the G-8 Summit in Tokyo: http://www.huffingtonpost.com/2008/06/13/bush-administration-says_n_106911.html

“I’m disappointed with the decision, in so far as I understand that it will result in hundreds of actions challenging the detention of enemy combatants to be moved to federal district court.”

“I think it bears emphasis that the court’s decision does not concern military commission trials, which will continue to proceed. Instead it addresses the procedures that the Congress and the president put in place to permit enemy combatants to challenge their detention.”

Note that Mukasey trivializes the Boumediene decision as merely procedural rather than address the sweeping Constitutional breadth of the Supreme court decision. In Mukasey’s opinion the military tribunals are not affected and will continue.

So far, 19 of the detainees, including Khalid Sheikh Mohammed and four other alleged Sept. 11 plotters, are facing military war crimes trials. The Pentagon has said it plans to try as many as 80 of the roughly 270 men held at Guantanamo.

But the lawyer for Salim Ahmed Hamdan, Osama bin Laden’s one-time driver, said he will seek dismissal of the charges against Hamdan based on the new ruling. A military judge had already delayed the trial’s start to await the high court’s decision. According to Navy Lt. Cmdr. Brian Mizer, Hamdan’s current lawyer:

“The entire legal framework under which Mr. Hamdan was to be tried has been turned on its head.”

Charles Swift, the former Navy lawyer who used to represent Hamdan agrees with Mizer and, stated that he believes the court removed any legal basis for keeping the Guantanamo facility open and that the military tribunals are “doomed.”

Guantanamo generally and the tribunals were conceived on the idea that “constitutional protections wouldn’t apply,” Swift said. “The court said the Constitution applies. They’re in big trouble.”

While some lawyers for Guantanamo detainees predict that there will be prompt hearings and possible release, others hold a contrary view. James Cohen, a Fordham professor who has two clients at Guantanamo clients is among those taking a pessimistic view. He predicts that Bush will continue to resist complying with the ruling, dragging it out as long as possible.

“Nothing is going to happen between June 12 and Jan. 20,” when the next president takes office.”

Judging by the initial reactions from AG Mukasey and others within the Administration like SecDef Gates, Cohen might well be right.

We can only hope that the courts will find a way to expedite the surge of hearings that are sure to come. Roughly 200 lawsuits are currently pending in federal court for Guantanamo detainees. One hopeful sign is the fact that chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle those cases. Detainees already facing trial are in a different category and will be handled in a different manner.

The Supreme Court has spoken on this issue three times — perhaps the third time will be the charm that will convince the Bush administration to take “No” for an answer — or perhaps the resolution of the prisoners at Guantanamo will be waiting the inauguration of the next president.

Given the reactions of the two major presidential candidates, the fate of the detainees could be very different depending on which presumptive nominee of the major parties takes office next January.

John McCain is vehemently opposed to the Boumediene ruling and would probably continue the Bush administration’s policy of fighting it tooth and nail. On the other hand, Barack Obama, a former constitutional law professor, has issued a statement strongly supportive of the Boumediene ruling and has already promised that one of his first acts as president would be to close Guantanamo.

Another factor to consider when casting a ballot come November — the rule of law, the restoration of habeas corpus and the fate of the Guantanamo prisoners.

If you believe that the Constitution is indeed the supreme law of the land, then the choice will be simple — vote for the man  who will take his oath to uphold the Constitution seriously — the former professor of constitutional law, Barack Obama.

If you don’t respect the Constitution and the Rule of Law, then the other guy is your man.

Myself, I vote for the Constitution and the Rule of Law every time.

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Explore posts in the same categories: Boumediene v Bush, Guantanamo, habeas corpus, Military Commissions Act, Mukasey, politics, U.S. Constitution, U.S. Supreme Court

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