Elaine Cassel

A Defeat in Disguise?

Forget what the media's talking heads have told you about the cases of Hamdi, Padilla, and Rasul representing a victory for civil liberties and a curb on Presidential power. While it is significant that the court ruled that the prisoners have some access to U.S. courts, the President won far more than he lost. Taken together, the decisions are more important for what they did not do and their significance for the future cannot be underestimated.

Rumsfeld v. Padilla

To begin with, the Court dodged the most important case, that of Jose Padilla. Padilla, recently vilified by a highly-placed Department of Justice attorney, is the American citizen arrested on a material witness warrant in Chicago two years ago. The government's story then was that he was planning to detonate a dirty bomb. Attorney General John Ashcroft held a press conference and announced the incarceration of Padilla and told us what a dangerous man he was. Of course, if they had evidence that he was planning to detonate a dirty bomb, they would have charged him with a host of crimes, and tried him. But they never charged him with anything. What does that tell you? A couple of weeks ago, Ashcroft sent out one of his top deputies to change the story on Padilla. That story may have influenced the Court's decision, though we will never know this. The official denied that the press conference at which he announced that Padilla had "confessed" to plotting to blow up high-rise apartment buildings may have been held to punctuate the government's belief that Padilla was a very, very dangerous man. So if he is so dangerous, why is he not being charged? Or, you have to love this reason: Because the government denied him his rights and repeatedly interrogated him without an attorney (and, maybe even tortured him, for all we know) his confession is no good! Can't be used in court. So since we denied him his rights, we cannot try him, but we can hold him without charging him forever. Because we say he is dangerous.

And what did the Supreme Court have to say about that? In a 5-4 decision, it said...nothing. It ruled that Padilla's court' appointed attorney, Donna Newman, filed the petition for writ of habeas corpus (challenging the detention of her client without charge, without access to her) in the wrong federal court. She sued Rumsfeld, on whose order Padilla was named an "enemy combatant" in the Southern District of New York, where he was brought and incarcerated and where she was appointed. But after she got into the case, and without notice to her, the government moved him to a brig in South Carolina. So the government argued that the warden of the brig is the party to be sued, not Rumsfeld. As if that warden does not answer to Rumsfeld, at least if she is holding an enemy combatant-so-called. So with Rehnquist writing for the majority, the court threw out his petition. Altogether. Padilla has to start all over again, suing the warden wherever he or she is. Ah, but keep in mind, that once his attorneys file a another petition, the government has only to move him again, – and again, and again, – to avoid answering for his detention.

So the most important of the three cases was not decided. In not deciding, the Court fully sanctioned the continued detention of Padilla, without a charge, without a lawyer (Newman is now out of the case, since the suit was dismissed), for years to come.

George Bush 1, Civil Liberties, 0.

Hamdi v. Rumsfeld

On first glance, which is all the nightly news gave you, the Hamdi case looks like a win for lovers of freedom. Even Hamdi's public defender, Frank Dunham, said that they "won big." I disagree. And amazingly to this writer, so did Scalia, who was joined in his dissent by Justice Stevens. The majority opinion was written by Justice O'Connor with a little something for everyone. Here is what we got: The Congress gave the President the authority to detain anyone involved with fighting with al Qaeda or the Taliban when it voted for war in Afghanistan. Hamdi was supposedly captured in Afghanistan. As long as the U.S. is fighting in Afghanistan (I guess that will be forever, don't you think?), Hamdi can be held without being charged with a crime. But, he gets a lawyer (a lawyer subject to special instructions by Ashcroft and Rumsfeld, a lawyer whose conversation with his client will be monitored and limited as Rumsfeld and Ashcroft see fit) and he can file a petition for writ of habeas corpus, challenging his detention. Ah, but the government gets the benefit of the doubt in such a hearing. It puts forth its conclusory affidavit, like the one cranky Judge Doumar in Richmond did not like one bit, and Hamdi gets to try and prove them wrong. Yes, the burden will be on Hamdi to prove the government's allegations against him to be wrong. Now that will be rather difficult, won't it, since Hamdi has been incarcerated for going on three years, has no contact with anyone in the outside world, and will have a hell of a time coming up with the witnesses to refute the conclusion of the government that he was indeed fighting with the Taliban or al Qaeda against the U.S. Let's see, even if he knew people to subpoena to support an alibi – if he has one – federal marshals don't serve subpoenas in Afghanistan.

Scalia and Stevens joined in the call to either charge him with a crime – Scalia suggested treason – or have Congress suspend the writ of habeas corpus (Scalia contends that only Congress, not the President, can properly do this). But don't create some mechanism that allows the President to weasel out the result that the majority wanted – that is, to give Hamdi a lawyer, let him file his papers, but give him the burden of proving his "innocence." An insurmountable burden of proof.

George Bush 2, Civil Liberties, 0.

Guantanamo Detainees

On this one, a 6-3 majority ruled that those poor bastards in Guantanamo, those men who have been there for going on three years and, we now presume, subject to all kinds of physical torture and mental and sexual abuse, can file a petition for writ of habeas corpus challenging their detention, but so what? The court was silent on what trial courts will do with the petitions. Presumably, let them file their papers then promptly toss them out. This was an expected outcome.
The Court was not going to accept the Administration's view of jurisdiction to think that the government that rules over Guantanamo Naval Station does not have jurisdiction over the prisoners that he holds there. It found that the detainor is the key to jurisdiction, not the detainee. So where the detaining party is, there is jurisdiction. That would be Rumsfeld.

I believe the Guantanamo prisoners will meet the same fate of most illegal immigrants who challenge their deportation with a writ of habeas corpus. They get a summary proceeding that sounds more than what it is because of the value attached to the term "habeas corpus." After a cursory reading of the petition, and a brief hearing to satisfy the bare requirements of the law, the gavel slams, and the immigrant is escorted to an airport and sent to whatever country can be found to receive him, after he serves his time for any crimes he can be charged with.

Though nothing was said of this in the opinion, I imagine that the prisoners will be under the same disability as Hamdi – proving their "innocence," just like people facing deportation. But, you might ask, their innocence of what? They have been charged with no crime, neither has Hamdi. They, too, will have to prove that they were not fighting against the U.S. or preparing to do so. Again, where will they get their alibi witnesses and, if they have any, how can they be subpoenaed into court? You think the government is going to give visas to their witnesses? Or pay their expenses?

Fat chance.

George Bush 3, Civil Liberties, 0.

The Contrarian View

In these three cases, the Supreme Court did not want to totally abrogate its responsibility or the Constitution so it threw a vote or two in the direction of the Constitution.

But it left plenty of room for this despotic President, and all who follow him to incarcerate Americans at whim, concoct a story about "fighting" against American, and dare you, just dare you, to try your luck at proving your innocence.

There is no presumption of innocence – not if you are Hamdi. There is no mercy – not if the government moves you around so you never know whom to sue. There is a cruel hint at mercy for the Guantanamo Bay prisoners: File your papers, but tell your family to abandon hope. You aren't going anywhere anytime soon.

Game, set, match to George Bush.

The Disgrace That Is Guantanamo

I started to write about the disgraceful situation in Guantanamo Bay, Cuba Friday morning. I had read about the International Red Cross�s condemnation of the Bush administration�s continued detention of 650 or more prisoners, some of them juveniles, captured in Afghanistan two years ago. They have been held in cages on the American military base there, without attorneys, with little access to family, and without any charges being placed against them.

Before the war in Iraq fell apart, we heard that Paul Wolfowitz was planning to be in charge of trying some of the men. Several prisoners were targeted to be the guinea pigs for prosecution and, of course, they were facing the death penalty. But it turned out that one or more of those were British subjects. Tony Blair stepped in and, with support for his wholesale commitment to Bush�s war waning, begged Bush not to execute any British citizens.

That�s the last we'd heard until this week when the Red Cross reported that men are trying to commit suicide repeatedly, physical and mental health is deteriorating. One wonders what the hell we are doing down there -- and the answer is probably nothing.

It�s just as well I did not get the article written Friday morning. For on Friday afternoon, driving home, I heard that Bush may now be planning our next war in Cuba. Whether that materializes or not, he was placing new restrictions on Americans visiting Cuba, threatening tourists with criminal prosecution on the grounds that taking money to Cuba was �money laundering for terrorists.� I swear that is what he said. Because I pulled over to the side of the road and wrote it down. So being a friend to Cuban people or a fan of Cuban music -- well, in the administration�s Alice-in-Wonderland world, that makes you a terrorist, too. Whatever you do, don�t buy the video or CD of Buena Vista Social Club. Ry Cooder, you better watch your back. You might be tried as a terrorist sympathizer.

So the Bush is administration, is, I guess, going to try to get all the Cubans here who want to get here, and do what it can to destabilize Cuba so that the Cubans left there are as desperate as the Iraqis are now. Of course we know the reason why -- Bush needs desperately to win Florida in 2004. He�s counting on this invitation to Cubans in Cuba to win the votes of the Cubans already there. Politics as usual.

At his press briefing yesterday, Scott McClellan, the White House press secretary, said that the President �rejects� the report of the Red Cross about the horrible treatment of people in Guantanamo. Rejects it. What does that mean? We just don�t listen to it? We don�t care what the international community thinks of us? It�s irrelevant? We are not going to read it? Likely it means yes, to all of the above.

Then I heard an attorney on NPR Friday night boast that �we� had to treat the prisoners that way. After all, they caused the September 11 attacks. Honestly, that is what he said! What? You can be sure if they were even remotely connected to September 11 they would have been brought to trial, in public, and be awaiting death now. Sadly, the interviewer did not question him about his statement. How many listeners heard it and assumed it to be the truth? How many, like me, heard it and were incensed at the lie of it?

As for the prisoners of Guantanamo, their chaplain and at least two of their translators have been locked up in military prisons, at least one of them charged with treason. Their crimes so far have been enumerated as serving baklava to prisoners (on the banned food list, I guess), having on their computers emails intended for prisoners� families, and having �maps� or their cells. If the government could, it would charge them with the crime of kindness to fellow human beings or treating prisoners humanely. It can�t do that, so it trumps up charges to make those who try to help them look like terrorists, although the prisoners themselves have not been shown to be terrorists.

So, in an administration where irony is too subtle a term, we have George Bush opening up the shores of Florida to Cubans who will, as soon as they can, become citizens and vote for him and his brother. In the meantime, the Cuban lobby in Florida will see that Bush carries Florida. By hook or crook.

At the same time, we have Bush presiding over the wholesale mistreatment, even torture, some say, of upwards of 700 men who have been shown to have done nothing wrong. Except to have been on the streets of Afghanistan when Bush wanted to act like a cowboy and get �somebody� for September 11.

I guess there is nothing any of us can do about any of this. Except face the fact that the Bush administration is, at its core, a cruel, hateful, and mean bully of a government. To put it in psychological terms, it is sociopathic: lacking in empathy, self-absorbed, a sense of entitlement, hatred of all but self, and with total disregard for the rights of others. Bush will, I fear, get what he wants -- one way or the other.

In the meantime, the Supreme Court has been asked to review a federal appeals court ruling that forecloses federal courts from hearing the pleas of the Guantanamo prisoners. The lower courts agreed that the federal courts had no jurisdiction because the prisoners are not on American soil. How�s that for a catch-22? We arrested them, brought them to a U.S. military base, classified them as �enemy combatants� so as to try to exempt them (and us) from international law, the laws of war, and U.S. law, and now we have declared them outside of the law. I guess, in a sick and twisted way, that does make some sense.

For the hapless prisoners in the black hole of Guantanamo comes a voice from the past to file a friend of the court brief in their behalf. Fred Korematsu is an American citizen of Japanese descent who refused to enter a Japanese internment camp in California 60 some years ago and was prosecuted, convicted, and imprisoned for challenging the internment order. The Supreme Court then said it was just fine that he was ordered to be locked up, and even finer that he was prosecuted for challenging the order.

In his brief he begs the court to respect the fundamental principle that those deprived of liberty have the right to a fair hearing. I suspect the Supreme Court will follow its leader and �refuse to accept� Mr. Korematsu�s plea. After all, what do fairness, justice, and decency have to do with anything anymore?

Elaine Cassel watches the Bush administration�s war on civil liberties and reports on it at Civil Liberties Watch . She practices law in Virginia and the District of Columbia and teaches law and psychology.

Civil Rights Violations are Nothing New

Last week, the Justice Department's Office of Civil Rights reported that it had documented 34 "credible" civil rights complaints arising under the implementation of the USA Patriot Act. Only 34?

By definition, a "civil rights" violation usually means that a law enforcement officer, acting as agent of local, state, or federal government, deprived someone of life, liberty, or property without regard for the law or due process. The violation often involves an unlawful search of one's person or a wrongful seizure of property.

The report found that jail guards in New York beat several immigrants detained after 9/11. Most would say that this is a civil rights violation. And that is what the Justice Department found, as well.

The major media outlets covered the story of the report, and people everywhere were expressing their dismay. But I could not get excited about the report.

Why? Because brutal treatment of prisoners in America is a fact of prison life. One that is little covered and, when it is, is justified as being the product of an animal-like environment in which the strong prey upon the weak and guards abuse for self-protection. Our Supreme Court has pretty much decided that any kind of prison torture squares with the Constitution. Justices Scalia and Thomas have gone on record as saying that there is really no such thing as the cruel and unusual punishment prohibited by the 8th Amendment to the Constitution. They and some of their colleagues argue that the Constitution does not address what is "too much" punishment and that proportionality--let the punishment fit the crime--is not what the Amendment is about. If the electric chair is not cruel and unusual then what is?

The Justice report also substantiated a claim by a federal prison inmate who said he was told by a prison doctor, ''If I was in charge, I would execute every one of you ... because of the crimes you all did.'' Not a nice thing to say, to be sure, but how many times a day in American's prison population do you think a prisoner is verbally abused or harassed? Yet, there is not a or court in this country that would rule that the prisoner's "rights" had been violated. Verbal abuse is an accepted fact of prison life in America.

At the end of 2002, there were 2,166,260 Americans in local jails, state and federal prisons and juvenile detention facilities, 2.6 percent higher than the year 2001. Less than a third of them are perpetrators of violence. Most are small-time drug users and dealers or people who steal and commit fraud in order to support their habits. Many are victims of draconian three-strikes laws, which the Supreme Court validated last year when it said it was just fine that a man would spend 25 years in prison for stealing videotapes. Why isn't such a sentence a violation of civil rights under the Constitution?

Prisoners have their civil rights violated when they lose their right to vote. Their civil rights are violated when the stigma of prisonization will keep most from ever getting decent jobs, which means they will have a darn hard time trying to beat the better than 60% odds that they will go back to prison for breaking some law or another, or violating some rule of their release.

As sorry as I am for the experiences of the 9/11 detainees, I find it ironic that the Justice Department pretends to care about their beatings, while turning a blind eye to the systematic deprivation and violation of the civil rights of tens of thousands of men and women in American prisons.

What accounts for this anomaly? Could it be that Ashcroft and DOJ feign concern in order to help sell what they say needs to be an even "stronger and better" Patriot Act?

Ashcroft has been trying to improve the image of the Patriot Act as a set-up to asking Congress for even more powers. Powers that will lead to more civil rights violations. Come to think of it, the Patriot Act is, itself, a 275-page or so manifesto on how to violate civil rights.

Only 34 validated civil rights complaints under the Patriot Act? I would have thought it would be in the thousands. For a good argument could be made that the Patriot Act itself is a 275-page or thereabouts manifesto, a "how-to" violate the civil rights of each and every one of us.

Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch.

Save Us From This Supreme Court

Karl Rove, with a little help from his friends, is working overtime to line up the most extreme hard-right ideological candidate list he can muster for possible vacancies on the U.S. Supreme Court. No one knows who is leaving the court, but speculations are that Chief Justice Rehnquist and Justice O’Connor will depart soon. Who knows what kind of deal was made between them and Bush’s handlers before they awarded the presidency to George? Recall that election night 2000, O'Connor was overheard saying something like, “Oh, damn. Florida returns in doubt? There goes my retirement.� More than one source has said that she would not retire unless a “Republican� was in power. Well, she saw to that.

As a lawyer, my cynicism of the Supreme Court did not begin until the election. Sure, I knew that politics plays a role in docketing and decision-making, but I was not a total cynic. Now, my cynicism and approbation are complete. We are the only civilized country in the world where nine people with life-time appointments have the final say on all laws, whether enacted by state or federal legislatures. This court has swept aside the principle of stare decisis, in which prior case decisions mean something. They take cases to “redecide� issues when the political winds shift, as they did when Bush ascended to the throne.

The Sunday New York Times reported on the progress of the plot to pick young-ish and extreme candidates. The purpose: to solidify the Bush regime’s rule for 30 or 40 years. All this falls in line with the plans of Karl Rove, as reported in an excellent piece in the May 12, 2003 New Yorker by Nicholas Lemann. Aptly named “The Controller,� the profile is a frightening depiction of a Karl Rove with a far grander vision than just George Bush's presidency (unless the repeal of term limits is also in his plan).

Rove fancies himself in a league with James Madison. Why else would he name his only child “Andre Madison Rove.� How weird is that? According to the Lemann, he keeps a copy of Madison’s Federalist writings ever at the ready, and cites chapter and verse in support of his vision for a new kind of republic. Referring to himself in terms of the imperial “we,� he plans to deal with the problems of the pesky majority that voted for Gore. He aims to create a new majority of right-wingers that can wreak tyrannical havoc over the rest of us. How will he do that? By convincing Americans that everything they want, Bush and the Republicans can offer them. Of course, their promises are lies, lies, as the tax cut indicated. Read the fine print—hey, read the large type—and half of what he says is there just does not exist. Like the non-existing WMDs.

If Americans are as gullible as Rove seems to think they are, then maybe the Supreme Court is the least of our worries. If Rove’s vision continues along the lines we are experiencing now, we will have a powerful central government in which the President controls the civilian work force government (see the report in the Sunday Washington Post), the Attorney General controls the Constitution, and Congress enacts whatever laws Bush and his handlers send up. The Court becomes just another stamp of approval, giving legitimacy to illegitimate means and results.

It couldn’t get much worse. Someday, we may look back on this Court as moderate, even as (I pause before admitting this) I, hearing a decades-old interview of Richard Nixon last week, thought, “Damn, what was so bad about him?�

Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch.

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