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Great Supreme Court Decision! . . . But Not Ours


The front page of the New York Times highlights an important judicial decision by the highest court in the land. In a case involving the government’s practice to “detain foreign born suspects of terrorism indefinitely on secret evidence and without charges,” the Supreme Court’s Chief Justice, speaking for a unanimous court, reaffirmed one of the most sacred and essential foundational principles of US Constitutional law. The Chief Justice declared:

“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin wrote in the ruling. [emphasis mine]

Chief Justice Beverley McLachlin?? I wish I could report that Justice Beverly McLachin was the Chief Justice of the United States Supreme Court and that she was speaking for a unanimous US Supreme Court, but alas, that is not the case. Justice McLachlin is the Chief Justice of the Canadian equivalent of our Supreme Court, and she was speaking for the Canadian court in a Canadian case: Canadian Court Limits Detention in Terror Cases.

We have Chief Justice John Roberts, and Justices Alito, Scalia, and Thomas, whose loyalty to these bedrock legal principles is . . . uh . . . unclear. When our Supreme Court had the opportunity to rule on the Constitutional reach of habeas corpus in the Hamdan case regarding prisoners being held at Guantánamo, Roberts abstained and Alito, Scalia and Thomas dissented, though on different grounds. The majority, while striking down the military tribunals as violating statutes and the Geneva Conventions, ducked the Constitutional issue, restricting its holding in that case to an interpretation of a federal statute, which of course Congress can change.

And that’s just what the last Congress did. When it passed the despicable Military Commissions Act last year, the Republican dominated US Congress, along with all too many spineless Democrats like Joe Lieberman, showed it also had no respect for the essential legal principle of habeas corpus. (If you need a readable refresher on the MCA, read Bob Geiger’s analysis posted after Senator Dodd introduced his bill to repeal the most egregious features of the MCA.)

We can hope that the Canadian Supreme Court decision will help convince US courts and Congress to take a stronger stand in defense of these important legal principles. That’s long overdue.

The [Canadian] decision reflected striking differences from the current legal climate in the United States. In the Military Commissions Act of 2006, Congress stripped the federal courts of authority to hear challenges, through petitions for writs of habeas corpus, to the open-ended confinement of foreign terrorism suspects at Guantánamo Bay, Cuba.

A federal appeals court in Washington upheld the constitutionality of that law this week, dismissing 13 cases brought on behalf of 63 Guantánamo detainees. Their lawyers said they would file an appeal with the Supreme Court. In two earlier decisions, the justices ruled in favor of Guantánamo detainees on statutory grounds but did not address the deeper constitutional issues that this case appears to present.

You can read more on the US federal appeals court 2-1 decision in this Times story, which has a pdf link to the appelate court decision. In the meantime, on Thursday, the Supreme Court denied, without issuing an opinion an application to order the Pentagon to provide to a Guantanamo Bay detainee, Yemeni national Sharaf Al Sanani, information on why he is being held as an “enemy combatant.” We do not know the reasons.

After 9/11, the Canadian government followed the Bush Administration’s lead in adopting a number of police state methods for dealing with suspected terrorists.

The security certificate system was introduced in a 1978 immigration law and has been used 27 times, mostly before September 2001. It allows the government to detain people indefinitely if the minister of public safety and the minister of immigration conclude that they are a threat to national security. The certificates, once signed, are reviewed by a federal judge who can rule to keep any or all of the evidence secret.

But the Canadian judicial system has been working hard to reestablish the rule of law:

The decision is also the latest in a series of events that has seen Canada reconsider some national security steps it took after the Sept. 11, 2001, terrorist attacks. Last September, a judicial inquiry rebuked the police for falsely accusing a Syrian-born Canadian, Maher Arar, of terrorist connections. Those accusations, in 2002, led United States officials to fly Mr. Arar to Syria, where he was jailed and tortured. Earlier this year, the Canadian government reached a $9.75 million settlement with Mr. Arar and offered a formal apology. The commissioner of the Royal Canadian Mounted Police also resigned for reasons related to the affair.

Left unsaid in the Times article, but noted by Glenn Greenwald, is the fact that the Bush Administration has refused to apologize for the US role in kidnapping and rendering Mr. Arar to Syria. And as far as I know, no US official has resigned or been disciplined or fired over this incident. Why is that? Even worse, as Glenn reports, the US Justice Department convinced a US court to dismiss Mr. Arar’s lawsuit against the US on grounds that the trial would reveal “state secrets,” which in the Bush/Gonzales DoJ means any of a thousand facts that could embarass the Bush regime but have nothing to do with protecting legitimate state secrets. Like so many other stories of the lawless mistreatment of detainess and DoJ manipulation of the courts, the Bush Administration’s handling of the Afar case is a scandal, an embarassment to our judicial system, and a stain on American honor.

How many more disgraceful and embarassing examples do we need of how the US justice system has been totally corrupted under the Bush/Cheney regime and their national security attorneys, including Attorney General Alberto Gonzales? How much longer will the Congress of the United States allow the Bush/Cheney regime and its unprincipled attorneys to continue turning the United States into an international legal pariah?

Update: In comment #56, long time DoJ watcher Mary reminds us that many of the ethical problems at the DoJ related to these issues began with Attorney General Ashcroft and his deputies.

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John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley