Judges Rule That Government Officials Can Commit Crimes With Impunity

Last Tuesday, a Federal Appeals Court upheld the dismissal of Valerie Plame's lawsuit against those who revealed her identity, setting a dangerous precedent that goes beyond even the "Nuremberg Defense." The specific case involved is of course politically volatile, but the specific parties are less the victims than is the Rule of Law, itself.

Government employees who engage in questionable acts, such as abusing prisoners at the Guantanamo Bay facility or engaging in defamatory speech, cannot be held individually liable if they are carrying out official duties, the court said.

"The conduct, then, was in the defendants' scope of employment regardless of whether it was unlawful or contrary to the national security of the United States," Appeals Court Chief Judge David Sentelle wrote in the opinion.

At Nuremberg, former Nazi officials claimed that they were just following orders, and were thus not liable for the attempted extermination of European Jews and other atrocities, but this decision goes beyond even that defense, claiming that any action, ordered or not, performed while in office is beyond punishment. The consequence of such a decision should be immediately apparent. Here, federal judges state in clear terms that the law does not apply to government officials. There is nothing inherent in the decision which would preclude murder or random imprisonment of selected demographic groups or any other number of crimes, so long as the perpetrator currently held office. Indeed, under the decision, Holocaust would not be a punishable offense.

What one may think of Plame and her husband -- granting that the fact that Joseph Wilson was telling the truth apparently means less to some than that he opposed the invasion of Iraq -- all should be fearful of the grounds on which the case was thrown out. Far from manipulating the typical "standing" argument used to throw most cases out, the judges stretched the entire body of American law to the breaking point, making it almost unrecognizable, and surely inapplicable in the corridors of power.

Examining the Judge writing the opinion, Judge David Sentelle, leaves no doubt as to where his loyalties lie (hint: it's not with the Constitution). A Regan appointee, mentored by Jesse Helms, and a favorite of the Federalist Society, Sentelle has a long history of siding with individual conservatives in lieu of interpreting the law as written.

On the DC Court of Appeals, Sentelle voted to overturn the convictions of Oliver North and John Poindexter. He was also a cog in the push to replace Robert Fiske with the more aggressive Kenneth Starr, indicating that perhaps he sometimes thinks the law applies to government officials, should they be members of the right party. In 2007, Sentelle voted to pretend that the Constitutional clause guaranteeing habeas corpus simply didn't exist, or at least need not be applied if the Chief Executive so wishes.

What is clear is that the specific parties in this case have been allowed to trump the rule of law. Exacting vengeance on a political opponent has been lifted above upholding legal precedent. Indeed a new precedent has been set in the process, one that goes well beyond even the defense used at Nuremberg and looms ominously over the future of the Constitution.

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FISA and the Death of the Constitution

After months without much movement, the House on Friday approved a new FISA bill that grants the telecoms a free pass for their cooperation in the Bush administration's bid to gut the Constitution, specifically the Fourth Amendment. Presented as a compromise and an exercise in 'bipartisanship' (read: capitulation), the deal as written is anything but.

The bill requires only two stipulations to have civil suits thrown out: a, if the phone company was assisting the government in its surveillance program or, b, if the company received a letter from the government assuring them their action was legal.

The effective result of this language is make the written language of the Constitution second to the whims of the Executive branch in determining legality, clearly a chilling precedent to set. On inauguration day, the President swears to uphold and defend the Constitution, not to rewrite it as he sees fit.

There are a few things about the debate that need to be established, as they have been conspicuously absent from public discourse concerning the issue. First, the debate was never, at any point, about national security. It was always centered on granting immunity. In all public statements in support of the immunity deal, proponents invoked images of an intelligence community hampered by outdated and outmoded laws that left the country in peril. But the evidence that such statements were red herrings and inaccurate was overwhelming.

For instance, foreign-to-foreign communications that pass through US networks were held up as a reason to pass the bill, but no member of Congress would have rejected such a bill, making it clear that it was immunity for the phone companies that was the real target. The Attorney General at one point even fabricated a story about the US not being able to spy on a phone call made from a safe house in Afghanistan (until he changed countries as he squirmed under scrutiny), hoping no one would catch on that such a call would have been fair game even under the original FISA statute.

At every opportunity, the debate over the FISA bill was brought full circle to an accusation that anyone who didn't support immunity was somehow in bed with terrorists. That every member of Congress would have been willing to grant the intelligence community every single tool they needed, sans immunity, is invariably left out. That the argument is allowed to continue without the slightest question raised is infuriating, as one would hope that anyone of functional intelligence would be capable of discerning the glaring logical inconsistencies inherent in the argument.

For an idea of just how restrictive the FISA court has been since its conception, consider that between 1973 and 2007, the court rejected a total of 9 applications while approving 25,360. That's an incredible 0.035 percent failure rate. The court is nothing but a rubber stamp, but apparently that's still too big an obstacle for the Executive branch to uphold the Constitution.

As with the debate over habeas corpus, the proponents of immunity toss around the idea that the US should be able to spy on foreign agents and terrorists while simultaneously attempting to bypass the very apparatus used to establish that point. Again, and it can't be stressed enough, the issue is not whether such individuals should be spied on. The only thing at stake is whether in a Constitutional republic the rule of the founding documents should take precedence over the fleeting whims of a rogue Executive branch. That anyone is considering the latter over the former is intriguing. That the entire legislative branch, presumably a large portion of which are lawyers, defies credulity.

Indeed, upholding the Constitution has somehow become a partisan issue, a curiosity of American political history.

Much has been made since the House vote of the capitulation of the Democrats, but anyone surprised by the action wasn't paying much attention. Liberals like to pretend that the Democrats are free from corporate influence and believe them to be more like the populist campaign image than the same, tired Washington players they are in the space between. If history hasn't dispelled this notion by now, there can be no hope of a revelatory moment anytime soon.


Related:

Sunset (Il)logic, February 24
Capitulation on Telecom Immunity, June 15
John McCain and the Telecoms, June 9

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Habeas Corpus: How Protecting a Written Guarantee Becomes 'Activism'

Last week's decision by the Supreme Court to uphold habeas corpus for Guantanamo Bay detainees has set off a predictable firestorm riddled with precarious assumptions and outright falsehoods. Coverage of the decision has given plenty of time to these presumptuous hypotheticals, but been lax in examining their shaky foundations.

The easiest tenet of the opposition's argument to put down is that which supports the Executive branch's ability of eliminate habeas corpus outright. The ability to challenge detention is not culled from context or some obscure jurisprudence facet of Constitutional law, it is guaranteed explicitly in Article 1, Section 9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

As the US is neither in a state of rebellion or invasion, there is no legal justification for suspension of the writ, and no amount of semantic two-step can work around the clear, succinct language of the founding document. Proponents of Bush's policy often point to Lincoln's suspension of habeas during the Civil War, but as that was a rebellion, it was supported by the Constitutional provision. That is not the case in this instance, and the example is clearly erroneous, though its veracity is rarely questioned despite its false pretense. The text of the Constitution could not possibly be any clearer on this point.

The only question then, was whether or not the rule of law applies in what is officially Cuban territory. But, despite Cuba's nominal dominion over Guantanamo, it is obvious that the US is in actual jurisdiction over the base. Even were it not so, the implication of allowing that line of reasoning to pass--that Guantanamo is completely insulated from Constitutional governance--is that the government could ship anyone, including citizens, to the base and be exempt from the law. It should remain without question that pockets of immunity would not have been endorsed by the writers of the Constitution.

All that is left is to examine the presumptive nature of the opposition to the ruling. John Yoo, that distinguished Constitution-phile, provides a nice bulleted rundown of the fallacies in today's Wall Street Journal.

Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

The whole idea of habeas corpus is to establish that the detainees were indeed fighting the US. Yoo, though, presumes that is the case even as he fights against the statute which would be used to establish such a presumption.

In fact, many detainees were not doing anything of the sort when captured. Many have been detained because they were rounded up and turned up by people wanting to profit off of the bounties promised by the US. Others were simply pointed out by others to settle old scores. This was commonplace in Iraq as well, as devoid of a centralized government stamping out sectarian conflict, neighbors sold out neighbors to settle old grudges. Many were simply picked up off the street. Whatever the case, stating categorically that every detainee was captured battling US forces is blatantly false.

Yoo also addresses German POWs during WWII, but again Nazi soldiers were captured on the battlefield and were uniformed members of an enemy force. At the end of the war, they were no longer POWs. The War on Terror is a different animal. By definition, it continues ad infinitum, thus allowing under the MCA indefinite detention of prisoners. Clearly the two cases are not parallel.

In his oped, Yoo returns to his favorite crutch of the President's position as Commander-in-Chief. But the title makes him the top general of the armed forces, and does not grant carte blanche to eliminate provisions of the Constitution outright. To fill a room with 5 lawyers who believed that was the founders' intent would be nearly impossible.

It is the continuing attempt to apply the rules of finite wars such as WWII or the Korean War to the interminable War on Terror that is the most frustrating. By constantly pointing to examples, however ill-applied, from those wars, people like Yoo continue to obfuscate the fact that the US is fighting against an idea--terrorism--and not a defined enemy. The same pretext cannot possibly be applied to both situations.

Predictably, Yoo refers to the Court's decision as yet another example of judicial activism, the sacred cow of the right when confronted with the frustration of its recurrent attempts to eliminate Constitutionally-guaranteed rights. Yoo pretends that the 5 justices in the majority somehow pulled habeas out of whole cloth, when in fact it is written clear as day in plain text. Activism, in this case, would be to declare that certain inconvenient phrases from the document can simply be whitewashed at will.

The debate over the decision invariably regresses to 'support' or 'don't support' the War on Terror, but that is a false argument. The decision made by the Court was not whether or not the US was allowed to detain dangerous individuals. The Court decided that the President, even with Congressional subservience, is not allowed to unilaterally declare the Constitution null and void as the mood suits him.



Related:

Tortured Logic, April 14
Trickle-Down Responsibility, May 9

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