Friday, June 13, 2008

It's about Goddamned time

Now, you all know what I'm going to post about this morning, right?


There's a reoccurring theme in many movies and TV shows that is absolutely guaranteed to elicit hysterical laughter from my lovely wife: i.e. the patented Hollywood "Kick in the Nuts" (tm). When some jerk takes a shot in the family jewels my wife just cracks right up. She finds it especially funny if the blow is delivered by a small child or an angry woman. As a man, I cringe at such scenes, cover my crotch with my laptop, and manfully endure the five minutes of cackling from the other end of the couch. I rarely, if ever, find the "Kick in the Nuts" funny because I think it's often used gratuitously.

I also rarely find it funny, because as a man, I have been kicked in the privates once or twice and the pain is absolutely indescribable. I've been seriously injured on more than one occasion, and I'm sure that most men will agree with me when I say that I'd rather take a bullet than a kick in the balls.

But every once in a while, I admit to finding a good Kick in the Nuts hysterical.

Especially when it happens to somebody I despise.

Like this morning, for instance, when the Supreme Court kicked George W. Bush right square in his little shriveled Habeas Corpus.

They kicked him so hard that his feet came off the floor. He's somewhere in Europe right now, curled up in fetal position, clutching his crotch with both hands, sobbing and sucking air through his teeth in an effort to just keep breathing.

Bawahahahaha, now that's funny.

Clever guys, those Founding Fathers of ours, and my admiration for their genius and the system they designed for America has never been higher than it is right now.

For those of you not paying attention: Yesterday SCOTUS ruled 5-4 that it the President's high handed suspension of habeas corpus rights for those detained at Guantanamo Bay is unconstitutional. Detainee's now have the right to pursue habeas challenges to their detention in US courts.

The writ of Habeas corpus, the Great Writ, is one of the fundamental principles of US Constitutional law. When the US was founded, for the concept to be incorporated into the Constitution was so revolutionary that it sent shock waves throughout the world. Prior to that singular event, the rights of an individual to challenge his or her detention was solely at the whim of whatever ruler happened to be sitting on the throne at that time. Under the US Constitution, habeas corpus basically says that any prisoner, or prisoner's representative, may petition for relief from unlawful detention. Once issued, the writ is a summons, backed by the power of court order, directing the detaining authority to bring the prisoner before the court and provide lawfully obtained evidence sufficient to determine if the prisoner's detention is legal within the framework of US law. It means that the cops have to do their job correctly and within specific guidelines, it means that evidence must be obtained through specific methodology, it means that the government can't just arbitrarily decide to drop you into a deep dark hole like Edmond Dantes in the Count of Monte Cristo. The right to petition for a writ of habeas corpus is the single most effective defense against tyranny yet devised, and forms the principle bulwark of individual liberty. The great British constitutional theorist, Albert Venn Dicey, wrote that habeas corpus acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty," and truer words have rarely be spoken.

One of the things that scared our Founding Fathers more than anything else, and justifiably so, was unlimited governmental authority. Above all, they prized individual liberty for all men. It is indisputable that they themselves didn't personally live up to that lofty ideal during their own time - more than a few of them were slave owners, and additionally when they said "all men," well, they meant "men," as in males and landowners in particular. However, the great genius of their design is that over time it changed the very fabric of the United States until all men, now defined as all human beings, were free. And habeas corpus is the cornerstone of that design. Under the US Constitution, habeas corpus applies to all prisoners. All of them. Every damned one, American citizens and otherwise. Period. Every single prisoner, indicted, convicted, detained, rendered, and etcetera has the fundamental right to challenge their imprisonment, not just entitled hereditary landowners. Not just wrongly accused citizens. Everybody. Even the terrorist shitheads.

And it matters. More than anything. Either the law applies to all equally - or it is no law at all. If individual liberty is determined solely by one man, solely by the whim of the current leader - then that leader is not a President, he's a King, the light of liberty has died, and the law is an arbitrary decree beyond the ken of the common citizen.

Presidential suspension of habeas corpus is unconstitutional. It is against every principle this country was founded on. It is dishonorable. It is cowardly. It is the first refuge of the tyrant. It is unAmerican. The President swore an oath to uphold and defend the Constitution and the principles it embodies, and he sure as hell shouldn't need the court to explain that to him. This disregard for liberty, more than anything else, is what's wrong with this administration. The President's oath, his principle duty, is to support and defend the Constitution, all else is secondary - even terrorists.

Now, any Conservative coming into this post without knowing me will think, "Oh sweet baby Jesus, another hand wringing Liberal, whining about rights and the Constitution and blah blah blah. Pissing and moaning about the poor detainees. Don't you know, Jim, that these guys tried to kill us? They're terrorists, for the love of God, and you just want to let them go? God Bless America and George Bush and hot apple pie."

Save it.

See, a couple of those shitheads are sitting in a cell in Gitmo because I helped put them there. I know full well how damned dangerous some of those men are. I know better than most just how much they'd love nothing better than to kill us all. And just to set the record straight, I have no love or sympathy for these men, none, Fuck them and the camel they rode in on. I would cheerfully take them out back and put a bullet in their collective heads and then go home and sleep soundly and without remorse of any kind - providing that they had a fair, public, and lawful trial first.

Because that's the whole point here - the end does not justify the means. Let me repeat that, it's important: The end does not justify the means. Period. Either we are a nation of law and liberty, or we are not. Either the law applies to everyone within our jurisdiction or it does not. You cannot have it both ways. Liberty is hard. It is contrary to human nature in many cases. We are self centered, greedy, vengeful creatures by and large and it takes a conscious effort to live up to high ideals. It took a civil war, and a century of sustained effort to extend liberty and freedom to all Americans, whatever their skin color, and it's still not over. It took a hundred years of suffrage movements to extend liberty and freedom to all Americans, no matter what their sex, and it's still not over. We fight every dammed day to maintain the vision of our founders, but if we begin to believe that the end does indeed justify the means, then we have lost sight of what that vision really means. Habeas corpus does not apply to the alleged terrorist detainees for their sake, but for ours.

SCOTUS's ruling does not grant new rights to the detainees, it simply reiterates what we should all know, our law applies to all equally. Period. And that's a good thing, it's a great thing, in fact, because it forces this President to finally confront the law, the Constitution, and his duty head on. This administration has always taken the easy road, it's the defining criteria of this president. It was a lot easier to attack Iraq instead of hunting down the real perpetrators of 911. It was a lot easier to read intelligence reports that said what the White House wanted to believe, rather than demand verification and supporting evidence from multiple sources. It was a lot easier to monitor Americans without having to do the legwork necessary to get a warrant, ditto for physical searches of their homes and property. It was a whole lot easier to create secret no-fly lists, without having to justify what amounts to an unassailable guilty conviction. And it's a whole lot easier to hold secret trials without regard for the law and the Constitution. It's a whole lot easier when the defendant can't defend himself. It's a whole lot easier when the government is right because the government says it's right and not because it actually has to prove its position before its citizens. SCOTUS's ruling requires that the White House finally has to do the proper work and follow the law, same as the rest of us. The administration now has to do exactly what any prosecuting attorney has to do, i.e. put their cards on the table. Either they've done the work and compiled the evidence and can prove that these men are guilty - or they can't. And that's the best thing that's happened in this whole idiotic 'War on Terrorism.' Put the evidence on the table for all to see, try these men publicly, fairly and in strict accordance with the rule of law so that the whole world can see beyond a shadow of a doubt who and what they are. Show the world that they are nothing but criminals and garden variety scumbags - not martyrs, not heroes, not freedom fighters, not holy warriors. Just another Timothy McVeigh, just another Unibomber, just another crazy-assed mass-murdering asshole who got caught.

Habeas corpus is the foundation of our freedom and the very core of liberty for all. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer, and Anthony M. Kennedy should be praised for keeping the founders' vision alive, for living up to their oath to the Constitution, and for taking the high road. Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas should be ashamed for bowing to politics and personal bias and for failing to remember that their duty, their first and only duty, is to the Constitution and the principles upon which it was built.

And George W. Bush should start wearing a cup, he's going to need it.


For those of you who are not regulars here at Stonekettle Station, and you think you've stumbled into the den of a squealing bunny thumping liberal - before you decide that you know me from this post, you might try reading this one first. It has a direct relationship to the subject here, and it might help explain exactly who I am and what I believe in - and why.


  1. Hee! HeeHeeHeeHeeHee!

    The mental image of our asshat CinC "curled up in fetal position, clutching his crotch with both hands, sobbing and sucking air through his teeth in an effort to just keep breathing" just fills me with unholy glee.


  2. Enjoy yourself, but note that it was Congress who passed the law that was tossed.

  3. Duly noted, Anon, however it was at the behest of the President and he has been the sole arbiter of its implementation.

    And I am enjoying myself, thank you.

  4. A phenomenally good post, Jim.

    Unfortunately, I suspect that the only thing you're wrong about is the President's reaction: his "Unitary Executive" theory (which looks a lot like monarchy in small-"r" republican drag when you think about it) essentially means that he doesn't really give the Supreme Court any more precedence than he gives the Congress. As Dahlia Lithwick notes in a fine piece over on Slate today, one of the problems we have now is that this isn't really the first time the SCOTUS has handed the President a setback--and in six years, we've had how many trials and hearings? From the perspective of a Gitmo detainee, whether he's innocent or guilty, nothing's likely to change. That sinking feeling is only reinforced by the AG's announcement that trials would pretty much go on as planned, which presumably means that nothing will change since there's only a handful of trials even ostensibly calendared.

    The part of your post that I especially appreciate, Jim, is your comment that you know how dangerous some of these guys are and you still want them to get their due process of law. That's the part that I hope and wish conservatives will notice more than anything. At the risk of sounding like an ass-kisser, it's a rare and enlightened attitude that I wish was shared by more Americans, especially those involved in law enforcement. I know you don't like to be thanked for your service, but I do want to thank you for it and, more than that, your perspective on it. So, thank you. And thank you for the post.

  5. Eric, as a lawyer I was especially interested in your response to this post. Thanks.

    As you noted, this is the third major set back SCOTUS has handed the president - not much has changed with the two previous rulings, but I'm hoping that because HC is such a fundamental principle of our law, that the detaining authorities will be forced into a change in course.

    Believe me when I tell you that many of us in uniform take the Constitution very seriously, or at least those of us in the middle levels. When I hunted drug runners in South America, believe me most sincerely, when I say that due adherence to habeas corpus rights for shithead drug smugglers was the foremost thing on our mind every single mission. Any violation of civil rights would have been dealt with most severely from the Captain on down. Habeas corpus, and our strict adherence to that principle, was first and foremost in every briefing, intercept, and detainment of prisoners. For a number of reasons,

    First because we considered ourselves to be the good guys, our job was to uphold the law. Period. I repeatedly briefed my men on habeas corpus, the rules of engagement, and the use of force until each and every one of them were experts.

    Second, because we wanted to make damned sure that the convictions would stand up in a court of law. Period, no arguement. Otherwise we were risking our lives for nothing.

    It's the same here. Sooner or later, we're going to be held accountable for our treatment of these detainees, and if we did our job right, the accounting will reveal that they are exactly who we said they were. But even if they are who we say they are, hiding them away, denying them due process under the rule of law, makes us the bad guys in the eyes of the world and undoes everything those of us in uniform fought for.

    It matters because it defines who we are as a people.

  6. To go off in a different direction for a bit, they made an interesting point on the news today.

    Once we finally have these trials, some of these men are going to be found innocent. Because accidents happen, and sometimes innocent people are swept up. (I believe some have been found innocent in the trials that have already happened?)

    So now we have someone who has been held in solitary confinement, who has been completely cut off from the world for seven years.

    What is going to happen to these men when we release them? Do we think they'll go home and speak well of the US in that justice was finally served? Or will they instead go home and go on TV and tell of everything that happened to them some true, some made up perhaps?

    We've created individuals around whom militants can rally.

    We have, for those individuals, made ourselves into the evil empire we have in the past accused others of being.

    I am extremely glad of the Supreme Court ruling, however, will those who have been affected understand the nuances of this ruling? Will they understand that their illegal detainment is due to the actions of a handful of individuals, or will they blame the entire country?

  7. It matters because it defines who we are as a people.

    Amen brother!

    Michelle, a good point as well.

  8. Good post.

    Note however that habeas corpus and adherence to it does not date from the time of the Revolution, but Magna Carta, 1215.

    Even medieval warlords understood how important it was.

  9. Yep, as I've said elsewhere, this is a not a war about who they are, this is a war about who we are.

    As the President likes to keep on saying, "They hate us for our freedoms" (which is idiotic, but I digress). I really wish he'd stop trying to win by denying the enemy their target.

    Oh, and Monday on the Diane Rehm Show (NPR, out of WAMU, there are internet feeds) she's going to discuss GITMO with people who have been there. Diane always does a great show.

  10. Note however that habeas corpus and adherence to it does not date from the time of the Revolution, but Magna Carta, 1215.

    Aye, Steve M. However, while the magna carta in theory limited a king's power and bound them to law, in reality it was far more of a symbol than binding law. In actual practice the provisions of the various magna cartas had to be forced upon a king, such as John who was forced to sign the Articles of the Barons or basically lose his throne. Note that in this case habeas corpus applied primarily to landowners and highborn, serfs and peasants rarely if ever had the right of appeal or challenge. Acknowledgment of habeas corpus for the common man by the royals and those in power varied widely and with varying degrees of significance, sincerity, and force of law.

    The US constitution made, for the first time, habeas corpus a right of all citizens and incorporated it into the vary fabric of the country. It didn't have to be forced upon the government, it was a fundamental part of the government.

  11. Jim (you squealing bunny thumping liberal, you) -

    - while it's still not quite anniversary time, yesterday *was* the fancy-dinner-and-gift occasion. Which means I can now report that Jenny really, really liked the bowl. [As well as the jewelry within - but the bowl was the bigger hit, I think.]

    Thanks, again.

  12. Ewan, I'm glad to hear it. You sound like a hell of a romantic guy and Jenny sounds lucky to have you.

    Knock it off already, will you? You're making the rest of us look bad. ;)

  13. Well - if you actually met Jenny, you'd realise that it's strongly in my interests to maintain her delusion that I'm worth keeping for as long as possible :).

    [My office-mate did note that her husband has not, in twenty years of marriage, ever bought either jewelry or dinner. I think *he's* in trouble!]

    Sorry for hijacking the thread, btw!

  14. Sometimes I get confused about what's going on in this country. It's a complicated place. But then I read Stonekettle Station, and all becomes clear.

    You're so very, very right. It's about us, no matter how awful they are. 'We have seen the enemy, and he is us.'

    While we may need comics to remind us who we are, your points are dead on.

    I don't want these sumbitches to go home in glory, but I want to avoid being the one I hate even more.

  15. Mr. Wright,

    I have your gauntlet on my mantle, you or your friends may collect it at your convenience.


    Mr. Graves

  16. Mr. Graves, what's the matter? Get beat up over on Scalzi's site and figured you'd fare better here?

    Take a look around my site, read a few posts, if you really think you're going to dazzle me with your clever trollish wit, by all means go ahead.

    First be advised of my moderation policy: To Wit, I tire very quickly of people who are their own biggest fans. I do not feed the trolls, and I don't allow anybody else to do so. I'm willing to listen you up to a certain point, that point being when I decide that you're just arguing to hear yourself speak - and considering the shear number of comments you've left regarding this subject on the Whatever I think you're pushing the edge of that envelope right now. If you're pestering me because you've got nobody else to play with, you're barking up the wrong tree.

    If you have something to add to this post, if you feel I'm in error, if you've got something to add that you haven't already said on Scalzi's site - then state your case. Otherwise shut the fuck up.

  17. Mr Wright,

    Been here, done that.

    Didn't come here to defecate in your private pond. Just a friendly reminder that my offer stands.

  18. Mr Graves,

    Aye. Understood.

    Two things:

    1) I'm not particularly clear on your offer. Near as I can tell you feel that the President needs defending, I don't. I dislike this president intensely, I think he's a cowardly, dishonest, and dishonorable excuse for a man, I've said why and in detail on numerous occasions, both here and elsewhere. If you have a counter arguement, if you honestly feel that you can convince me that the president is above the law, again, have at it.

    2) Only Junior Officers and my son's friends refer to me as "Mr. Wright." The first out of abject fear, the second out of respect. I suspect that you are neither. Call me Jim.

  19. Mister Wright,

    I do believe I'll stick with the formal mode of address. It helps remind me that while I can, have, and sometimes still do curse like the sailor I was, I can express myself without the use of such language. Furthermore, being somewhat old school, I hold that first names are appropriate amongst friends and friendly co-workers.

    You state in the comments:

    "I'm not particularly clear on your offer. Near as I can tell you feel that the President needs defending, I don't."

    Come now. Foreign enemies making war upon the people and interests of the United States merit legal protections never before afforded such, yet the duly elected President of the United States (a fellow citizen, no less) does not merit a defense? Quite an interesting standard that.

    Furthermore, in your original article you state:

    "Like this morning, for instance, when the Supreme Court kicked George W. Bush right square in his little shriveled Habeas Corpus."

    "They kicked him so hard that his feet came off the floor. He's somewhere in Europe right now, curled up in fetal position, clutching his crotch with both hands, sobbing and sucking air through his teeth in an effort to just keep breathing."

    "Bawahahahaha, now that's funny."

    And you know, I'm under the impression that he's a busy guy. So are the folks who would normally stand in his stead for such a situation. He, and they, can't be here, despite the vital importance of your opinion, to defend himself. And while the President has done more than a few things that cause me real heartburn, I just couldn't stand to see that gauntlet lie there.

    So I reiterate. I have picked up your gauntlet. It now resides on my mantle.

    If we can manage to get a discussion of the issues going in a relatively civil way as well, that's fine. You don't strike me as persuasible, so I rather doubt that will be happening.

    But if you want that gauntlet back, molon labe.

  20. Mr. Graves,

    Let me reiterate: I'm willing to listen you up to a certain point, that point being when I decide that you're just talking to hear yourself speak. - You're there.

    Unless I suffer a brain injury, it is highly unlikely that comments such as your last will either change my mind or my speech habits - that is what you had in mind with the not so subtle rebuke in the first paragraph, right? - as such I see no point whatsoever in reading any more of your nonsense.

    If you're so concerned about GWB's gauntlet - pick it up, put it on, and later tonight you can pretend George is giving you a handjob for your diligent defense.

    Now, we're done. Go away.


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