Will Liberty Succumb to Federalist Society Ideology?

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The US Supreme Court has taken up the issue whether the executive branch can detain people indefinitely merely by declaring them to be suspected terrorists or illegal enemy combatants. The case is a habeas corpus issue and, therefore, of the utmost importance. Without the protection of habeas corpus, government can lock away anyone on the basis of unsubstantiated charges as the Guantanamo detainees have been for nearly six years.

Reporting on the Court’s deliberations about Odah v. US and Boumediene v. Bush, Tom Curry, a national affairs writer for MSNBC, reports that Justice Stephen Breyer suggested to US Solicitor General Paul Clement that the executive branch could indefinitely hold people such as those in Guantanamo prison if Congress were to pass "some special statute involving preventive detention and danger, which has not yet been enacted."

According to Curry, senators Dianne Feinstein and Arlen Specter regard a preventive detention statute as a possibility worth considering.

Pray that Curry has misunderstood Breyer. A different interpretation of Breyer’s remarks is that the justice was telling Bush’s solicitor general that in the absence of a preventive detention statute there is no legal basis for holding the detainees. If there were such a statute, the case before the court would be its constitutionality.

Support for the latter interpretation comes from House Judiciary Committee member Jerrold Nadler (D, NY). Rep. Nadler thinks Breyer was merely "thinking out loud," not "floating an idea" and inviting Congress to pass an unconstitutional statute. Nadler believes that Breyer was telling Clement that as there is not even a preventive detention statute, the executive branch has no basis for holding the Gitmo detainees.

That Feinstein, Specter, Jon Kyl, and other US senators think it is "worth considering" for Congress to overturn habeas corpus, the greatest bulwark against tyranny, indicates how much the US constitutional tradition has been lost.

The importance of the case seems to be completely over the heads of the media, who appear to be looking for a technical solution that permits people accused without evidence to be held forever. The American press apparently believes that the US government can make no mistake or behave improperly and that the detainees, actually comprise, in Senator Kyl’s words, "a danger to our troops."

It is a "danger" that the Bush regime has been unable to prove even with torture and secret evidence. Half of the detainees have had to be released. According to news reports, the regime has been able to create cases against only 14 of those remaining. After all the years of illegal detention, harsh treatment, and denial of access to attorneys, the Bush regime has come up with 14 cases, and they are probably fabricated.

Where is the rule of law when hundreds of people can have years stolen from their lives?

It is uncertain how the court will decide the case. Bush’s solicitor general has told the justices that they should trust the executive branch to correctly balance "the interests of the prisoners" with the administration’s ability to "prosecute the global war on terror."

In other words, it is Waco all over again. The executive branch runs roughshod over the US Constitution and then demands, "trust us," which means don’t take away any of the illegitimate power that the executive branch has claimed and exercised or hold anyone accountable for abusing executive power.

Unfortunately for the future of liberty in America, a number of the Republican justices see the issue as one of the separation of powers. The Republican justices or most of them are, or were, members of the Federalist Society, an organization of Republican lawyers committed to increased power for the executive. These Republican justices will be inclined to decide the case in the interest of executive power.

The Federalist Society is a product of a past time when Republicans were said to have "a lock on the presidency" but could not get their agenda into law because the Democrats had a lock on Congress. Republican frustrations manifested themselves in attempts to heighten the president’s powers so that a Republican agenda could prevail over a Democratic Congress. Like generals who fight the last war, the Federalist Society is stuck in its assault on the separation of powers in the interest of "energy in the executive."

Many Federalist Society members join for social reasons and for networking, as the society provides the pool of attorneys for Republican appointments to the federal bench and for Department of Justice appointees. Many members mistakenly think that the society stands for "original intent," but as their real interest is career-driven, they don’t pay much attention to the society’s assault on the US Constitution.

Kings exercised the power to throw into dungeons people who offended them or whom they regarded as a threat. Once arrested, a person could be locked up forever without charges or evidence brought before a court. Habeas corpus was an English invention that provides quick release of a person unlawfully held by orders of the executive.

The Bush Regime has made the most determined assault the Anglo-American world has seen on the principle of habeas corpus. The previous assault was by Stuart kings who destroyed their rule by proclaiming the "divine right of kings."

Now Americans are faced with Bush/Cheney and the solicitor general of the US Department of Justice (sic), Paul Clement, proclaiming the divine right of President Bush and his Justice (sic) Department.

We must all pray that there are not enough Federalist Society members on the Supreme Court to uphold a Benthamite ruling of preventive detention.

Jeremy Bentham (1748—1832) was the Englishman who renewed the assault on liberty, which centuries of English reforms had created. Bentham believed that tyranny was no longer a problem, because people were empowered by democracy to control the government. He argued that any restraint placed on government’s powers would limit the ability of government to do good. To protect citizens from crime, Bentham favored preventive arrest of everyone whose social class, bone structure or other chosen indicator suggested a proclivity toward crime. "The greatest good for the greatest number."

The Bush regime is comprised of modern day Benthamites. Their agenda is to overthrow the civil liberties that make law a shield of the people instead of a weapon in the hands of the state. As anyone can be declared a suspect, the weapons that Bush would use to fight "the global war on terror" would soon be turned on the American people. Without habeas corpus, there is no liberty.

Paul Craig Roberts [send him mail] wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholarly journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury’s Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones — La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).

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