Down By Law: Murk and Spark in New MCA Ruling

Glenn Greenwald teases out the troubling implications and the faint glimmers of light in the federal court ruling yesterday that upheld at least part of the draconian "Military Commissions Act." The decision is, as Greenwald puts it, "a Judicial Victory for the Leader." However, if the ruling stands as is in the higher courts, it will apparently dispel at least some of the (deliberate?) ambiguities in the MCA, whose sloppy wording left open the question of whether American citizens could also be subjected to the Act's most barbaric provisions: i.e., subjected to lifelong imprisonment without any legal redress whatsoever at the arbitrary command of an unchecked "Commander-in-Chief."

At first glance, the ruling seems to retain habeas corpus rights for U.S. citizens and, perhaps, for aliens with some "substantial connection" to the United States. But, as Greenwald astutely observes, the ruling also upholds the MCA's rollback of 200 years of American legal history, which has moved steadily toward expanding habeas corpus rights. As noted here earlier this week (Presidential Tyranny Untamed by Election Defeat), as far back as 1866, in the still-roiling aftermath of the Civil War, the Supreme Court specifically extended the Constitution's habeas corpus protections to "all classes of men, at all times, and under all circumstances" in the landmark Ex Parte Milligan case:

The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place – but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced – in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes – but not always – seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.

It was this case that the Court – five of whom were Lincoln appointees – overturned in such a decided fashion. The ruling is plain: Constitutional protections not only apply "equally in war and peace" but also – in a dramatic extension of this legal shield – to "all classes of men, at all times, and under all circumstances." No emergency – not even open civil war – warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws."

Today's ruling, with its apparent restrictions on the reach of the MCA, does indeed have some heartening aspects. But many of the hopeful elements in the decision are, as Greenwald notes, implied only, and will certainly be vulnerable to challenge by Bush's willing executioners of liberty as the case moves back up the line. And it still leaves in place the heinous fact of the Act itself, which establishes in law the principle of presidential authoritarianism, taking away the judicial branch's power to exercise its Constitutional duties, and giving the president the power to seize and imprison forever any non-citizen or legal alien he choose. Nor does this ruling appear to address another sinister aspect of the MCA: namely, the fact that it gives Bush the power (which he has long claimed anyway) to declare any American citizen an "enemy combatant" and have them jailed. The only mitigation the new ruling seems to offer is that any American thus netted in the Bush gulag would at least have recourse to a habeas corpus hearing in U.S. courts.

The new ruling, by Clinton appointee and former civil rights lawyers Judge James Robertson, is certainly not the hammering shut of the last nails in the Republic's coffin that it could have been. But neither is it the kind of strong blow against the "transparently illicit and unconstitutional regime set up by the Bush Administration to prosecute its self-declared War on Terror" that all patriots would have hoped for. Many sinister elements remain embedded in the Act, as does its enshrinement of the dangerous "unitary executive" philosophy, which, as we noted earlier, has transformed the nature of the U.S. political system from something resembling an actual republic into something virtually indistinguishable from a cheap and rickety junta state. The only real answer is to junk the MCA altogether as a first step -- and just a first step -- toward dismantling the tinpot autocracy that Bush and his accomplices have foisted upon us. (And, as noted here, the MCA is just the tip of a very dark, bloodstained iceberg: The Deeper Evil Behind the Detainee Bill.)

Again, see Greenwald for an excellent first analysis of the ruling.