Cost of the War in Iraq
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Monday, June 28, 2004

Phew! US Supreme Court Upholds Fundamental Principle of Due Process 

As most readers are likely aware, the United States Supreme Court issued its opinions in three cases involving so-called "enemy combatants" in the "war on terror." The cases are Rasul & Odah v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. I've written about them before (see e.g., my blog entries of 3/26/04, 4/11/04, 4/28/04, and 6/2/04).

Before looking at what the high court said in those decisions, I want to share some thoughts on judicial decision making at the appellate level. These views are my own, but they are in no way original.

The role of appellate courts, like the US Supreme Court, is to review proceedings and decisions by the trial court or lower appellate court to ensure they were conducted in compliance with the law. Appellate courts do not decide factual issues; their jurisdiction is generally limited to matters of law.

When deciding a case, appellate courts often consider the following principles, favoring some over others depending on the circumstances:

* the court's legitimacy rests on the legal soundness of its opinions; unanimity helps bolster that legitimacy

* the court should address only those issues that were fairly raised in, and decided by, the tribunal below

* the court's opinions should fully explain the reason for the judgment, but they should not say any more than is necessary to dispose of the issue

* do not decide constitutional issues unless doing so is necessary to dispose of a case

* sometimes ambiguity is necessary to leave room for future cases and as a way to reach consensus among members of the court

* when reversing the lower court, the appellate court should explain clearly how and why the lower court erred to prevent trial courts from repeating the mistake

To one degree or another, the opinions issued by the US Supreme Court on June 28 reflect those principles.

Due to the split among the Justices in the enemy combatant cases, it is helpful to understand the technical aspects of the opinions. Supreme Court opinions have two main parts. First is the judgment or mandate. For example, did the Court reverse, vacate, affirm, or dismiss the appeal? The second part consists of the reasoning or how the Court arrived at the judgment. Think of the judgment as the ultimate destination and the reasoning as the directions for getting there. If 5 or more of the 9 Justices agree on both the destination and the directions, we have a solid precedent and a "majority opinion."

When 5 or more of the 9 Justices agree on the judgment (destination) only, but disagree on the best way to get there, we have a plurality, usually represented by an agreement on directions by 3 or 4 justices. The decision does not have much precedential value because there is no agreement on why the issue was correctly or wrongly decided below. The decision can indicate, however, which way the Court might rule in a future case.

With that background, here's my take on the historic cases resulting from the Bush administration's "war on terror."

Rasul & Odah v. Bush involve foreign nationals being held as enemy combatants in Guantanamo Bay, Cuba. The Bush administration argued that federal courts lacked jurisdiction to entertain habeas corpus petitions filed by alien enemy combatants being held at the US naval base at Guantanamo Bay, Cuba. The Supreme Court dismissed the Bush administration's contention. The US's control over the Guantanamo Bay territory is plenary and lawful, and will continue so long as the US does not abandon the base. Federal court authority reaches prisoners detained by US officials at Guantanamo.

The opinion, authored by Justice Stevens, was joined by Justices O'Connor, Souter, Ginsburg, and Breyer. Justice Kennedy concurred in the judgment, explaining how he would have reached the same result for a different reason. The Chief Justice and Justice Thomas joined Justice Scalia's dissent, which departed from the majority because of the enemy-alien status of the prisoners.

The Supreme Court's decision allows the prisoners to proceed to challenge the circumstances of their detention in federal district court. (See the US habeas statute, 28 USC section 2241.) Because the majority of Justices agreed that federal courts have jurisdiction to hear habeas petitions filed by aliens held at Guantanamo Bay, the holding is binding precedent. It leaves many questions unanswered, although some of those questions are answered in the next case, Hamdi v. Rumsfeld.

Hamdi v. Rumsfeld involves an individual, Yaser Esam Hamdi, who was captured in Afghanistan during the 2001 US invasion. After US authorities later discovered that Hamdi was a US citizen, he was transferred from Guantanamo Bay to a military brig in South Carolina (the same brig at which the government is holding Jose Padilla, also a US citizen). After Hamdi's father filed a habeas action in federal court seeking his son's release, the Bush administration claimed that it could lawfully hold Hamdi as an enemy combatant under orders of the President; that it could do so based on the information summarized on a government agent's affidavit; and that federal courts have no authority to review the detention of enemy combatants during the war on terror. The Supreme Court was asked to decide whether the Fourth Circuit Court of Appeals correctly construed a federal statute, combined with the executive's war powers, to permit Hamdi's indefinite detention on the basis of the executive's say-so.

Eight of the nine Justices rejected Bush's claim that Hamdi is not entitled to access the courts and have them review his detention. They disagreed on whether Congress authorized the President to detain individuals like Hamdi. The Court vacated the Fourth Circuit's decision and sent the matter back for further proceedings.

Here's how things broke down:

Justice O'Connor wrote an opinion with which Rehnquist, Kennedy, and Breyer agreed (the plurality opinion). She wrote that, through the Authorization of Use of Military Force (AUMF) Congress passed after 9/11/2001, the President has implicit -- but narrow -- authority to detain individuals who took up arms against the US in Afghanistan in support of the Taliban and the al Qaeda network. Hamdi is alleged to be such an individual. O'Connor emphasized the fundamental principle of due process, and explained that Hamdi had the right to contest the factual basis for his enemy combatant status before a neutral decisionmaker. Note that the plurality used the term "neutral decisionmaker" and not "federal court." Obviously, the plurality contemplates the use of military tribunals or something of a similar nature.

Justice Souter wrote for himself and Justice Ginsburg. They concurred in part and dissenting in part, agreeing to vacate the judgment because Hamdi was entitled, as a matter of due process, to a meaningful opportunity to contest the factual basis of his detention. The two Justices disagreed, however, that Congress authorized the President to detain individuals like Hamdi as part of the post 9/11 AUMF. Moreover, Souter explained, the federal Non-Detention Act prohibits the President from detaining anyone under the same circumstances as Hamdi and that Hamdi should therefore be released. In light of the split and the need for a practical resolution, he and Justice Ginsburg agreed to join the other six justices in remanding the case to allow Hamdi to present evidence rebutting the government's designation of him as an enemy combatant.

Importantly, Souter's decision goes to some length to explain how Bush administration claims that it is acting in accordance with the laws of war are not borne out by law or fact. Souter notes that many of the Geneva Convention processes have been adopted under Military Law and that the executive is subject to the law of the land. His opinion casts serious doubt on the Bush's claim that he can unilaterally suspend the law because he is in charge of the US military forces. His opinion is really worth a read. I was very surprised at the strong language so critical of the administration's claims.

Justice Scalia dissented and was joined by Justice Stevens. Justice Scalia explained that when "the government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime." Only through the use of Congress's power under the Suspension Clause (Art. I, sec. 9, cl. 2) may constitutional protections be relaxed to accommodate the exigencies of war. He and Justice Stevens concluded that the AUMF did not amount to an exercise of power under the Suspension Clause, and therefore the detentions by Bush officials were illegal.

Justice Thomas dissented also, but on completely different grounds, with the opposite result as the two other dissenters. Like many of his opinions, the reasoning is weak and superficial. I'm not going to bother discussing it further.

So, it looks like this case means: (1) AUMF gave the President narrow authority to detain individuals accused of aiding al Qaeda and the Taliban in Afghanistan; and (2) the federal courts are open to enemy combatants in US territory, like Gitmo, for considering habeas corpus petitions.

Padilla v. Rumsfeld is maybe the most famous case of the three, even though the basis for the decision was solely procedural. In a prior post, I explained that the Bush administration appealed a Second Circuit Court of Appeals decision that determined Padilla was in the proper court and named the proper government official (Rumsfeld) as defendant. The administration argued that the NY federal court lacked jurisdiction over Padilla's actual custodian in South Carolina, the proper defendant under the habeas statute. The Court agreed with the jurisdictional question and went no further.

I expected the Court to reach the more heady issues the appeal presented, namely the extent of Presidential authority under the Constitution to hold an American citizen indefinitely and for the purpose of interrogation, without charges or access to counsel, pursuant to the President's own discretion, and without the right to judicial review.

Well, I was wrong. But I know why. It is clear that the Court could not reach a consensus -- at least not yet -- on those issues or it would have decided them. Remember that the plurality in Hamdi determined that the President's authority under AUMF was narrow -- the prisoner must have been detained in Afghanistan as part of the Taliban or Al Qaeda forces trying to repel the US invasion following 9/11, or those who helped the 9/11 plot. It does not appear that Padilla fits that narrow description. I suspect one of two things happened that led to the Court's limited decision.

The first possibility is that the Court is at an impasse (4-4-1). Or, the Justices who joined O'Connor's Hamdi opinion but who are inclined to find the President exceeded his narrow authority under AUMF in Padilla's case, and who reject the notion of executive detention authority under these circumstances, agreed to a wait and see approach.

The wait and see approach -- leaving the question open and seeing what happens when Padilla refiles in the proper forum -- allows the Bush administration to rethink its strategy. It may decide to bring criminal charges against Padilla and could thereby moot his claims of unauthorized detention. (This may raise other issues, but the inherent Presidential authority issue would unlikely arise again.)

Overall, I am quite pleased with how these cases turned out, and I think the public should be. A majority of the Court reiterated the importance of the concept of Due Process in our justice system and ensured that government powers remain in balance and do not exceed the permissible bounds of their respective authorities.

There is one last thought I want to share on this and it relates to the torture memos that were in the news over the last few weeks. Souter's opinion in particular made clear that at least he and one other Justice are deeply concerned with the Bush administration's apparent repeated violations of law in prosecuting the war on terror, at least insofar as detentions go. When I read the opinion for the first time, I immediately thought of the torture memos. The Bush administration was concerned about being prosecuted for war crimes. At least two US Supreme Court Justices view the administration's actions as unlawful and its arguments disingenuous in relation to prisoners in the war on terror. The threat of war crimes is, therefore, very real -- or would be if Republicans in control of Washington had any integrity whatsoever.

I leave you with the following from the dissent in the Padilla case written by Justice Stevens and joined in by Justices Ginsburg, Breyer, and Souter (they would have rejected the procedural argument and decided the other issues):

"Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."

Friday, June 25, 2004

I'm Back 

I'm back from a wonderful vacation in Oregon. I watched no news, read no newspapers, and never went online. No wonder I slept soundly every night!

I've got lots to catch up on, which will be no problem tomorrow since United failed to send my luggage with me. I sure hope it arrives tomorrow sometime.

Anyway, and in the meantime, here's another example of Bush's claims bumping up against reality.

Editor and Publisher: AP Forced to Sue for Bush's Complete Military Record

Why does anyone trust this man?

Thursday, June 10, 2004

Meeting Survivors of the Taliban 

I had the honor and the pleasure to spend some time with four women judges from Afghanistan and their two translators on June 9. They are amazing women who possess enormous compassion. I was given the opportunity to teach them a little about the internet. It was an absolute blast for me.

Unfortunately, their needs go way beyond computer hardware and software. A detailed lesson on the internet was therefore unnecessary. Nevertheless, we found the new Constitution of Afghanistan in their native language (Dari/Farsi) and they were thrilled. We found Radio Liberty (Radio Free Europe) in Pashto and listened for a while. One judge spent time on a site translating English to Farsi and vice versa. I showed them Google, and we found a newspaper in Farsi and discovered a Farsi site for BBC. They were able to catch up on the news some. Two of the judges had never used a mouse before and with the English keyboard, surfing was a bit of a challenge. We managed ok though since it was all so new and fresh for them.

The best part of our time together was talking and sharing information about each other. The two translators who accompanied the judges were wonderful and they generously filled in gaps about Afghanistan and their own experiences. Both translators are from Afghanistan but live here in the US now. I asked one whether she still had family in Afghanistan, and she replied, not really, all of the men in her family had been killed.

Some of the stories these women told were chilling, and others very touching. The lack of security is their main concern. They consider the country still at war, and continue to dress conservatively, including keeping their heads covered (but not their faces), to better assure their safety in public. One of the translators told me of another female judge who was fired for not wearing a head scarf (chador) on her visit to the US. She was seen in a picture with President Bush without the chador. Appeals to reinstate her by the Bush Administration were rejected. Afghanistan currently has no legal restriction on women's dress like during the Taliban, yet women still lack the basic freedom to choose how to dress.

The indignity the judge suffered post-Taliban pales in comparison to the shared experience of all women during the Taliban rule. The women I met consider the Taliban hoodlums, many of whom were juveniles trained in Pakistan. They emphasized that the Taliban's beliefs have nothing to do with Islam. When the Taliban assumed power they immediately removed all women judges from their posts. Some of the friends and colleagues of the women I met were killed by the Taliban. They faced threats like acid being thrown on their faces, beatings, and even murder, at the whim of any Talib who they encountered on the street. A woman risked her life simply by going outside during the years the Taliban ruled Afghanistan. She could be punished for simply walking too loudly.

One of the Afghan judges said that all she had to eat for a time was grass. She was grateful that she and her family had salt to put on it, however, because some families had nothing. Another judge said she wanted to learn how to drive so if the Taliban came back she could fill a truck with women and get them out of Afghanistan. I was struck by the fact that she and the others still contemplated the return of the Taliban. I don't know why that struck me. I have read how the Taliban are emerging again in Afghanistan. I realized that I forgot what it must be like for women, like these four judges, to have been so terrorized by the Taliban that any suggestion that they are still operating must be extremely threatening to all women in Afghanistan.

We talked about the 10s of thousands of orphans on the streets in Kabul. They must pick pockets and steal to survive. When caught, they appear before one of these judges. One judge described the mother of a pick pocket coming to court wailing. She had seven children to feed and her husband had been killed. The child didn't sell any water that day, his regular job to support the family, and he was afraid to go home empty handed. The judge said that it was wrong for him to do that, but he was not responsible for the dire situation he and his family find themselves in.

All of the judges risked their lives educating children in their homes in violation of the Taliban's rules. They felt it was their duty to do so, and it was a way for them to survive their complete lack of freedom. The fact that they were here and alive to tell their stories was a remarkable tale of survival.

One of the judges continues to work to help get kids educated. A major impediment to education is the lack of transportation for children to get to and from school. Her story about trying to get some help from an NGO in Kabul to resolve this problem was apparently typical of how things are going in Afghanistan today. Her request for a vehicle, something the NGO was there to provide, was rejected. She was told that the organization couldn't donate a vehicle because she would need to put gas in it and they didn't want to be responsible for the gas or maintenance because that represented a long-term commitment. They didn't want a long-term commitment. Huh?

The women also talked about how US government aid is going to the warlords that are perpetuating the conflict. I asked one of the judges whether my use of the term "warlord" to describe people like General Dostum was accurate, and she responded with an emphatic yes.

The heroin trade is flourishing and the borders are like sieves. One judge pleaded for a call to seal the borders of Afghanistan. They welcomed US assistance and wanted more from the international community (and justifiably so in my view).

The four judges have no telephones. There is little electricity. Housing prices in Kabul are skyrocketing because of the thousands of NGOs and the relatively wealthy foreigners they bring. Skyrocketing housing prices are making it impossible for ordinary Afghans to live in the city. Once again, transportation becomes an issue for work and school. The place is a shell of its former self.

I asked the four what they thought of all the consumer goods and the variety of choices we have in the US. I asked that question because the lack of choice struck me when I entered my first grocery store in Colombia during a semester abroad in college. The judges said that during school they learned about the US economy and how it resulted in additional choices for consumers. After my South American experience I said I had always wondered why Americans needed fifteen choices of dishwashing soap, for example, when some people in other parts of the world lack basic necessities. It was a resource allocation issue, I said, and it seemed little unfair to me. They smiled and responded that they wished more people in the world thought the way I did. I do too.

What can anyone do to help? I'm sure there are lots of things, not least of which is to stay aware of what is going on in Afghanistan. The Taliban should never be allowed to rise to any position of power again. Public awareness of what is happening there is one step toward preventing their return.

Before we parted ways on Wednesday, one of the translators offered me some information on how to help ordinary Afghans. The translator is involved with the a re-greening project to help Afghan families operate sustainable farms. The project is operated through the Commonwell Institute International, Inc., whose website you can reach by clicking here. Please read a little about this worthwhile project and consider donating.

Monday, June 07, 2004

Lawyers Said Bush Not Bound by Torture Laws-WSJ 

One more in a long line of things we should expect to see. A tad bit concerning don't you think?

Lawyers Said Bush Not Bound by Torture Laws-WSJ

Josh Marshall has a good analysis on the information in this Wall Street Journal article that's worth checking out. Click here.

Sunday, June 06, 2004

An Alternative Eulogy For Ronald Reagan 

A little reality check and a little balance on Ronald Reagan's life and death from investigative journalist Greg Palast:



Friday, June 04, 2004

Bush Consults Private Counsel (For Which Crime?) 

So Bush has consulted an attorney in his private personal capacity in connection with the disclosure of Valerie Plame's identity as a CIA officer. Attorney John Dean has written about the implications of that consultation and what it might mean in terms of the grand jury investigation. Check it out: FindLaw's Writ - Dean: The Serious Implications Of President Bush's Hiring A Personal Outside Counsel For The Valerie Plame Investigation

It would be interesting to know whether Bush consulted with counsel about the prisoner abuse scandal at Abu Ghraib and elsewhere. I'm going out on a limb here, but I suspect that could have been another topic of conversation during Bush's visit to Attorney Sharp's office. The administration's legal memoranda on the applicability of war crimes laws suggest that the President intended that the military apply whatever tactics were necessary to prevent further acts of violence against Americans, both civilians and military, irrespective of their compliance with war crimes related laws. I may be giving Bush too much credit for thinking he might share responsibility for how prisoners have been treated by US agents, however.

Perhaps Bush and his lawyer even discussed whether he could be charged with an offense, or sued for damages in his personal capacity, for holding Jose Padilla in violation of his constitutional rights. Deputy Attorney General already admitted to the illegality of the detention and interrogation by acknowledging that none of his statements could be used against him in court. The fact that Padilla was held by the authority of the President alone makes Bush vulnerable to suit since his order amounted to an intentional deprivation of Padilla's rights under, at a minimum, the Sixth and Fifth Amendments of the United States Constitution.

Anyone else get the feeling that Bush is in way over his head? Maybe I'm just hoping this is the beginning of the end of Bush, but consulting private counsel in connection with one's work as President of the United States is a big deal. No matter how nonchalant the President acts about it, it is a very big deal that he went and saw his own lawyer.

Ray McGovern on "Credible Intelligence" 

Ray McGovern is a former intelligence professional who advised the first George Bush. He has been tireless in trying to publicize the manipulation of intelligence by Bush administration officials since Bush took office in January 2001. This latest piece raises an issue I had not thought about, and that is that the risk that Bush and officials serving under him could be prosecuted for war crimes if Bush is not reelected may cause Bush et al. to mount a even more serious effort to win reelection by resorting to illegitimate means. I am not normally an alarmist about such things, but I think Ray McGovern has a very good point considering the lengths to which this administration has gone to avoid being held accountable for grave errors in judgment and for finding any way possible to skirt the law.

t r u t h o u t - Ray McGovern | Beware of "Credible Intelligence"

Wednesday, June 02, 2004

The Government's View of Padilla 

Before retiring, I had to say a few words on the Justice Department's press conference announcing the release of information it has obtained against Jose Padilla. In summary, the government's story portrays Padilla as admitting to meeting with leaders of Al Qaeda and agreeing to blow up an apartment building, using either natural gas or a radioactive "dirty" bomb. The Deputy Attorney General gathered the information, in part due to a request from Sen. Orrin Hatch, so he could tell the American public why the President and officials in his administration treated Padilla as they have.

First, I have learned from experience that there is always more than one side to every story. The press release did a very good job of advocating the government's point of view about the intelligence it allegedly gathered. But we don't know the true circumstances of what was said, when, to whom, and how.

Second, the beauty of the President's position (for the President anyway) about keeping Padilla (and others) in a military prison indefinitely, at his sole discretion, with no authority in the federal courts to intervene, is that it permits the government to make whatever assertions it wants about why it is holding Padilla without having to prove it under oath in a court of law. In fact, Deputy Attorney General Comey who announced the information explained that none of what Padilla told them while in military custody would be admissible in court. He's probably right since Padilla was denied all of the constitutional protections normally provided to persons in federal detention facilities. Anyway, the point is that Comey can make a very convincing case that the government has ironclad evidence, including admissions, that Padilla was and is a threat to innocent US civilians.

Third, as far as the hope that government acts objectively in the interests of its citizens, including the accused, this is yet another case of: not when Bush is charge. Comey revealed that he wanted desperately to release the information he knew about Padilla to (1) "help people understand the president's decision," and (2) "so that in the court of public opinion people could better understand why we've done some of the things we've done." He acknowledged that the administration would have difficulty securing a conviction in criminal court without Padilla's confession, and admitted that any confession would be inadmissible for having been obtained in violation of his constitutional rights, at a minimum his Sixth Amendment right to counsel and his Fifth Amendment right to be free from coerced confessions.

So now we have yet more confirmation that one of Bush's strategies in fighting the so-called war on terror is to remove suspects from society, detain them indefinitely and interrogate them until you are satisfied that they no longer have any information significant enough to warrant denying them counsel. No trial, just a good 'ole, trust us, we're the government, we're here to protect you. Hmmm, sounds like conduct we'd expect from Ronald Reagan's "Evil Empire," the Soviet Union.

Fourth, my own experience in government tells me that government officials more often than not act in good faith and in the interest of protecting the citizens they serve. Really, I do believe that. But I also know that huge mistakes can be made, and when that happens, the human desire to deny, avoid, and thereby compound the errors can take over for some.

Fifth, people who cling to the notion that a little deprivation of liberty of one man of such potential danger is worth the strain on constitutional norms show no compassion for the accused or an understanding of what it means to be denied freedom. Ultimately, the most precious things human beings have is time. An innocent person denied his or her freedom unjustly can never be compensated for the time lost while incarcerated. And the deprivation of liberty has serious ramifications external to the accused him or herself. In many cases, a family loses the primary breadwinner, and innocent kids suffer. Those same effects are present when a criminal is sent to prison fairly, but the point is that an unjust confinement does not affect the innocent accused alone.

Sixth and finally, Comey appeared genuine when he said that the timing of his announcement was driven by when the information was finally gathered and approved for declassification -- no sooner and no later. But I remain a little suspicious. Is it possible that someone from the Supreme Court leaked the majority decision to subject Padilla's detention to judicial review, and thus the administration wished to "soften" the court of public opinion? Sure is possible, but I doubt it. We'll see how this story develops, but for now I accept Comey's explanation.

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