A federal appeals court in the 4th circuit ruled yesterday that George Bush can't simply declare a US resident an "enemy combatant" and then lock him up for life without a trial. The first surprise from this case is that Bush lost. This is the widely considered to be the most conservative appellate court in the country. Having said that, the administraiton will appeal to the full court - so that all the judges have to hear the case (only 3 of them ruled on the case decided yesterday) - so that may change the odds to Bush's favor. And in fact, the Post notes that:
The 4th Circuit, based in Richmond, is considered one of the most conservative in the country, but the three-judge panel that heard the case was not. Two judges known as moderates, both appointed by President Bill Clinton, made up the majority in the decision.
Still, what the court ruled, and wrote, was so basic, and so obvious, a description of our democracy that it is troubling that it need be explained at all:
"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.
George Bush, and those Americans who support him and his policies, need to explain why the American justice system isn't capable of handling a few bad terrorists? I mean, we give a lawyer and a jury trial and appeals to mass-murderers of children like John Wayne Gacy, to traitors who spied on our country for the Soviets, to men who would kill the president, but when it comes to terrorists, suddenly American democracy isn't up to the task. Because the threat is greater than ever before? Tell that to the parents of the children murdered by Gacy. Because our very democracy is at stake? Tell that to the Senators and House members who almost got blown up by Puerto Rican separatists.
As an aside, I have to laugh when people argue that terrorism poses a new and uniquely dangerous threat to our democracy. Really? A bigger threat than the British in the late 1700s when were struggling to defend our newborn democracy? A bigger threat than the civil war, that almost ripped our country in two? A bigger threat than World War I and World War II? A bigger threat than the Soviets? Oh yeah, big bad Osama is much worse than thousands of Soviet warheads. Other than the fact that their names are awfully hard to spell, the new crop of bad guys are no worse than the old crop. Yet now suddenly we're to believe that America's justice system and America's freedoms just aren't up to the task.
As Colin Powell noted this weekend on the Sunday shows, no one has given a very good explanation for why our tried and true, time-honored, system of justice supposedly falls short when the bad guy is named Osama or Ahmed?
I would close Guantanamo — not tomorrow, this afternoon. I’d close it. And I’d not let any of those people go. I would simply move them to the United States and put them into our federal legal system. The concern was, well, then they’ll have access to lawyers, then they’ll have access to writs of habeas corpus. So what? Let them. Isn’t that what our system’s all about? And by the way, America, unfortunately, has too many people in jail, all of whom had lawyers and access to writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantanamo and I’d get rid of the military commissions system, and use established procedures in federal law or in the manual for courts martial. I would do that because it’s more equatable and it’s more understandable in constitutional terms. But I’d also do it because every morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds. So essentially we have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open and creating things like the military commission.
Worse, we've shaken our belief in America's justice system - we've told our own citizens that American justice isn't up to the task of dealing with the big bad terrorists. And we give Osama a mighty pat on the back by declaring publicly that he's such a super-villain, that he poses such a danger to our democracy, that we have to bend the rules in order to deal with him. I can't think of a greater compliment anyone could give a criminal. Osama and the rest of them should be treated like the street thugs they are.
