Happy 154th Louis Brandeis - No Cake for You, Obama Administration

At the "Spaghetti Junction" confluence of Interstates 64, 65 and 71 along the Ohio River at Louisville, several large brick buildings sport huge portraits of famous Louisvillians on the side: Mohammed Ali, Paul Hornung, Tori Murden-McClure ... and Justice Louis Brandeis.

Peterr at Firedoglake:

From 1916 to 1939, Louis Brandeis sat on the United States Supreme Court, and was one of the most powerful voices for freedom of speech and the right to privacy ever to sit on the Court. Today would have been his 154th birthday, and I have no doubts that he would be appalled at some of what is being done by the Department of Justice today, in the name of the United States of America. Indeed, Brandeis seems to have anticipated the confluence of torture, warrantless wiretapping, and a federal government that seeks to defend its conduct merely by shouting “it’s necessary!”

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In a powerful and prescient dissent, Brandeis wrote:

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Moreover, “in the application of a constitution, our contemplation cannot be only of what has, been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

Justice Holmes concurred with Brandeis, adding a few brief comments of his own:

Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. . . . We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

It took 39 years, but Brandeis and Holmes were vindicated in their dissents when Katz v. United States overturned Olmstead in a 7-1 ruling.

Wiretapping and torture, all in the same dissent.

That can’t be a good combination for Attorney General Eric Holder to contemplate. He’s dealing with these same issues today, in a series of cases working their way forward, like al-Haramain, the GITMO habeas corpus cases, and others.

It's a continuing wonder to me that Justice Brandeis does not rise up out of his grave to strike corporate shill John Roberts dead.

Charles Swift for Supreme Court Justice

(Thanks to Blue Girl for reminding me about the Constitution-saving service performed by the JAG lawyers who defended Guantanamo detainees.)

You want to know what really makes a potential Supreme Court nominee tick? What he or she will do when presented with an impossible situation? Whether he or she will put the Constitution, the Rule of Law and the good of the nation above personal, political and pecuniary considerations? Read this 2007 Vanity Fair profile of Navy Commander Charles Swift, who beat the Forces of Darkness at - and within - the Supreme Court in Hamdan v. Rumsfeld, the case that restored the primacy of the 800-year-old Great Writ of habeas corpus.

Assigned to defend a Guantánamo detainee, jag lawyer Charles Swift joined up with legal scholar Neal Katyal and sued the president and secretary of defense over the new military-tribunal system. With their 2006 Supreme Court victory overridden by the Republican Congress, and Swift's navy career at an end, they are fighting on.

The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively—what some people call torture. Guantánamo and the military commissions are implements for breaking the law. Why build a prison here when there are plenty of prisons in Nebraska? Why is it, when we see photos of Abu Ghraib, we think that it is "exporting Guantánamo"? That it is the "Guantánamo method"? —Lieutenant Commander Charles Swift to the author, January 2007.

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October 15, 2006. The day I meet Charlie Swift, he attempts to sum up the legal morass of Guantánamo. "Justice," he says, "is based on a simple idea: it can happen to you." The line comes out minutes after he arrives at a Starbucks in the suburbs of Maryland, and the intensity of his delivery causes the teenagers making out at the next table to look up. It's a Sunday afternoon, shortly after the announcement that Swift is leaving the navy. A few days earlier, on October 11, The New York Times ran a harsh editorial commenting on the subject:

In 2003, Lt. Cmdr. Charles Swift was assigned to represent Salim Hamdan, a Yemeni citizen accused of being a high-ranking member of Al Qaeda—for the sole purpose of getting him to plead guilty before one of the military commissions that President Bush created for the prisoners at Guantánamo Bay. Instead of carrying out this morally repugnant task, Commander Swift concluded that the commissions were unconstitutional. He did his duty and defended his client.… The Navy gave no reason for denying Commander Swift's promotion. But there is no denying the chilling message it sends to remaining military lawyers about the potential consequences of taking their job, and justice, seriously.

The Times editorial made it seem as if a navy hero had been slapped down for trying to put a stop to the practices at Guantánamo. On the telephone, Swift was irritated about that. "There is nothing clear-cut about this," he insisted. "It is not black-and-white."

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The victory, however, was short-lived. On October 17, President Bush signed the Military Commissions Act of 2006, creating a new system of interrogating and prosecuting terrorism suspects and denying the 430 prisoners at Guantánamo and others around the world the right to file writs of habeas corpus. "The constitutional issue could not be more stark," Swift declared. "What they are doing is unprecedented."

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March 28, 2006. At three A.M. the night before they were to argue in front of the Supreme Court, Swift was on the courthouse steps in jeans. For days, protesters had been massing in the capital, and students had lined up on the steps for the night, hoping to be let into the trial the next day. A group of high-school students from Wisconsin began to talk with Swift. "Did Mr. Hamdan do it?" one of them asked him.

Swift recalls, "I told them, 'The question tomorrow is not: Did Mr. Hamdan do it? It is: Who are we? What kind of people are we? That is why it is so important that you are here today, because someday you will be able to tell your children who we are as a nation.… And something else: only in this country can a military officer take a disagreement with presidential power to court as a way of settling. Everywhere else they call that a coup.'"

And that's what I call a genuine American patriot who is uniquely qualified to serve on the U.S. Supreme Court.

What the Pentagon Defines as Terrorism

It's a damn good thing the Pentagon is keeping track of what those detainees released from Guantanamo get up to after they get back home.

Some of them are ungrateful, recidivist and unrepentant enough to perpetrate vicious acts of terror like this one:

What the DoD actually counted as their "return to the fight" was-- I hope you're sitting down -- the fact that one of them published op-ed in the New York Times. Here is part of his act of war column:

"I learned my respect for American institutions the hard way. When I was growing up as a Uighur in China, there were no independent courts to review the imprisonment and oppression of people who, like me, peacefully opposed the Communists. But I learned my hardest lesson from the United States: I spent four long years behind the razor wire of its prison in Cuba.

I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantanamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake.

It was only the country's centuries-old commitment to allowing habeas corpus challenges that put that mistake right -- or began to. (...) Without my American lawyers and habeas corpus, my situation and that of the other Uighurs would still be a secret. I would be sitting in a metal cage today. Habeas corpus helped me to tell the world that Uighurs are not a threat to the United States or the West, but an ally. Habeas corpus cleared my name -- and most important, it let my family know that I was still alive.

Like my fellow Uighurs, I am a great admirer of the American legal and political systems. I have the utmost respect for the United States Congress. So I respectfully ask American lawmakers to protect habeas corpus and let justice prevail. Continuing to permit habeas rights to the detainees in Guantanamo will not set the guilty free. It will prove to the world that American democracy is safe and well."

Well, now we know why Smirky/Darth fought so hard to eliminate the 800-year-old principle of habeas corpus: It's a terrorism tactic.

If only King John had known.

Meanwhile, Back on the Island

As we celebrate the baby step House Democrats have taken toward defying His Chimperator Catastrophe, take a moment to remember the still-suffering, still-dying
actual human innocent victims of this maladministration's monstrous policies.

... Abdul Hamid Al-Ghizzawi, who has been held inside America's legal black hole since March 2002. The U.S. government has never charged him with any wrongdoing. Military officials claim he has been given proper healthcare. But Al-Ghizzawi appears to have acute liver disease, among other ailments, and the military is allowing his condition to deteriorate without proper diagnosis or treatment, according to a doctor with the International Committee of the Red Cross who has observed Al-Ghizzawi and his medical records at the prison.

Even if you believe that all the Guantanamo prisoners that the United States has charged with terrorist acts are guilty, how can you justify this treatment of someone who, after five years in prison, has not been charged with any wrongdoing?

And don't console yourself that such injustice can happen only to foreigners and only at Guantanamo. Remember that the Military Commissions Act of 2006, that officially killed the Great Writ, removed habeas corpus protections from everyone, including U.S. citizens.

The same MCA that retroactively allows us to torture to death a Libyan farmer who was in the wrong place at the wrong time allows us to lock up an anti-torture protester who pisses off the wrong sheriff's deputy.

Whatever we allow to happen to Al-Ghizzawi, we make possible to happen to ourselves.

Cross-posted at Watching Those We Chose.