Reading the news these days is like perusing an Orwellian novel. The excursion into a fantasy world might be entertaining, but for the fact that current news reports are not intended as fiction.
The Supreme Court today hears oral arguments on the case challenging the Bush administration tribunals established to prosecute and judge what would otherwise be called "alleged" enemy combatants in the "War on Terror." Under the tribunal system, a detainee is labeled an "enemy combatant" without the right to challenge the accuracy or basis for the designation. The President determines and defines the "crimes" for which a detainee can be tried and convicted. The procedures used to try the detainee can be changed at any time that the Bush administration chooses. The right to test or challenge evidence presented against the detainee can be curtailed or eliminated. The presiding official is not required to be "impartial" and may be in the chain of command that includes the prosecutor. And the conviction and punishment of a detainee under these procedures, up to and including execution, is reviewable only by the President, without any oversight by the Legislative or Judicial Branches of government. Government lawyers argue that, at the time of the Revolutionary War when the Constitution was written, war prisoners could be shot on sight, so the current procedures are really doing the detainees a favor. They reluctantly concede, however, that there have been a few hundred years and some minor evolution of civilization and concepts of civil rights since that time.
One Supreme Court Justice [Roberts] has decided to recuse himself because he previously participated in review of the process in a lower appellate court proceeding. Another Justice, [Scalia] has already publicly stated that detainees have no rights under the Constitution or Geneva Convention. Justice Thomas lacks the ability to think independently, so he can be expected to vote however Scalia tells him to vote. It is up to the other six Justices to decide whether our Constitution and laws impose any constraints upon Presidential power and perogatives, once he declares that the country is at war.
Virtually all experts concede that the President has plenary power to use measures he deems militarily necessary to repel an attack or invasion. That discretion is generally seen to be limited to 15 days, unless a longer period can be effectively demonstrated as necessary. The 9/11 attack was years ago and there has been no demonstration of an actual subsequent attack or incursion since that time. The use of 9/11 or the Congressional authorization to use necessary force to support continued exercise of those "emergency" powers seems very stretched, if not completely disingenuous. Thus, in deciding this case, the Court may have to address whether the nation is, in fact, at war. If we are not in the emergent circumstances that were contemplated by the grant of emergency war powers, that justification for the tribunals will not stand.
Another issue to be addressed is whether, even in wartime, the President is not restricted by the Geneva Convention. That treaty and internationally accepted set of rules governing war does accord certain rights to prisoners and detainees, including those accused of being war criminals. The Bush administration argues that it is not bound by the Geneva Convention.
There is a school of thought that arrogates all power to the President, the ability to decide which laws to obey and which to ignore, the authority to arrest and cause detainees to disappear or be executed without due process, and that all otehr branches of government are subservient to the Executive. There is a list of National leaders with similar attitudes toward international law and civil rights: Pinochet, Allende, Noriega, Amin, Hitler, Saddam Hussein, Milosevic, and others. The question is why George W. Bush is so determined to add his name to the list.
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