If the law doesn't suit, just ignore it
Sydney Morning Herald January 13 2006
By Richard Ackland
The way George Bush sees the proper functioning of the US justice system bears a striking similarity to the way the Iraqi justice system functioned under Saddam Hussein. In other words, whatever the President declares to be law, is the law. In that sense the US and the former regime in Iraq enjoyed an unexpected synchronicity.
The latest presidential "edict" is that aliens held at Guantanamo Bay have no right to have their habeas corpus cases heard in the US civil courts. To that end the US Department of Justice has moved to close the courts to about 300 detainees at the navy base in Cuba, including David Hicks.
The habeas cases essentially sought to have the US courts determine whether prisoners at Guantanamo are being legally detained and whether the military commission process set up by Bush is legal.
To get the full flavour of this potentially far-reaching and under-reported development we have to go back a notch.
At his Crawford ranch over New Year Bush signed a supplementary defence appropriations bill that incorporated congressional amendments outlawing the use of torture (the McCain amendment) and limiting access to the courts by the Guantanamo prisoners (the Graham-Levin amendment). Importantly, the White House issued what is known as a "signing statement" with this legislation. In fact it issued two signing statements.
These flourishes are designed to provide a view to the world of the executive branch's interpretation of the law. They have no legal authority of themselves, but they may prove persuasive in the courts. This is what Bush said when signing, on December 30, the defence authorisation bill: "I also appreciate the legislation's elimination of the hundreds of claims brought by terrorists at Guantanamo Bay, Cuba, that challenge many different aspects of their detention and that are now pending in our courts."
This incredible statement can be found on the White House website. Even John Howard and Philip Ruddock might be expected to insert the word "alleged" in a sentence referring to, among others, David Hicks.
The Justice Department needed no further encouragement and notified the courts it will seek to have all the Guantanamo appeals dismissed. Within 24 hours of that notice at least one judge, Reggie Walton, had given a petitioner until yesterday to show cause why his action shouldn't be dismissed for lack of jurisdiction.
Things are moving very fast, with important implications for Hicks's action (known as Rasul v Bush), first in line for determination by the District Court in Washington. The Australian Government has been silent on all of this - not entirely surprising since its position on due process in relation to "terrorists", even alleged ones, is equivocal.
Senator Carl Levin, a Democrat, who was the co-sponsor of the detainee appeal amendment, is leaping about saying that the legislation is meant to apply to prospective appeals, not to those already lodged by detainees.
The Administration simply is ignoring his protest, just as it is ignoring Senator John McCain's amendment which forbids torture of detainees. The President's signing statement in relation to that provision said he reserved the right to ignore the law under his powers as commander-in-chief.
Similarly he ignored the judicial warrant provisions of the wire-tap legislation, claiming the Government had the right to drop into any telephone conservation or email it wanted to.
The situation reached a perfect farce in 2003 when Congress tried to restrict Bush's extra-legislative manipulations by passing a Justice Department spending bill requiring the department to tell the legislators when the executive decided to ignore a piece of legislation on constitutional grounds. The bill was signed by Bush, who promptly issued a statement asserting a right to ignore the notification requirement.
Another of the Administration's most creative sleights of hand was to invent the category, unknown to international law, of "enemy combatant", claiming that this class of person fell outside the Geneva protections.
Now it wants to strip the courts of the power to hear appeals from imprisoned petitioners at Guantanamo Bay and is seeking to suspend habeas corpus, which together amount to a violent assault on the ancient bedrock of democracy.
Little wonder, given the reports in the US press recently that Bush had blurted out at a heated White House meeting that the constitution was "just a goddamned piece of paper".
The Bush regime's position is that the President should have the power to arrest and indefinitely hold prisoner anyone, anywhere in the world, without charge and without judicial review. The view from Washington is that checks and balances are for girly-boys. Saddam would approve.