Fighting The Law

There’s a great old song—originally composed by Sonny Curtis of The Crickets and then subsequently covered by the Bobby Fuller Four and, later and perhaps more famously, by The Clash—entitled I Fought The Law. The song’s well-known refrain is: “I fought the law, and the law won.� What brings this tune to mind is the Bush Administration’s fight to use military commissions to try (and convict) enemy combatants without benefit of due process or the protections afforded by the Geneva Convention. As has been well-publicized, the Supreme Court recently ruled against the Bush cabal, in Hamdan v. Rumsfeld, on this matter. Thus, miraculously it would seem, the President fought the law, and the law won.

Or did it? The never-say-die folks at Bush Industries—a subsidiary of Halliburton—have continued their fight, seeking to enlist sympathetic members of Congress to draft legislation that would, in effect, sanction the very commissions that the Supreme Court has ruled illegal. (I believe this tactic is the equivalent of running to Mommy and kissing up to her after Daddy has laid down the law.) Not surprisingly, there are many who remain opposed to the U.S. employing such unlawful military commissions. While the Senate held hearings on the matter yesterday, the American Civil Liberties Union issued a press release urging lawmakers to “ensure that any legislation regarding criminal trials of detainees being held indefinitely by the federal government includes the basic due process protections valued by all Americans� and to “reject any proposal that fails to meet the recognized legal standards embodied in the Uniform Code of Military Justice and the Geneva Conventions.� Amazingly, the ACLU’s position appears to be supported by the military’s own lawyers, including the judge advocate general of the Army, as reported by R. Jeffrey Smith in today’s Washington Post:

Top Military Lawyers Oppose Plan for Special Courts

The military’s top uniformed lawyers, appearing at a Senate hearing yesterday, criticized key provisions of a proposed new U.S. plan for special military courts, affirming that they did not see eye to eye with the senior Bush administration political appointees who developed the plan and presented it to them last week.

The lawyers’ rare, open disagreement with civilian officials at the Pentagon, the Justice Department and the White House came during discussions of proposed new rules for the use of evidence derived from hearsay or coercion and the possible exclusion of defendants from the trials in some circumstances….

The basis for the lawyers’ concerns about administration policy, which they first articulated in private memos in 2002 and 2003 for top Defense Department political appointees, is that weak respect for the rights of U.S.-held prisoners eventually could undermine U.S. demands for fair treatment of captured U.S. service personnel.

“The United States should be an example to the world, sir,� Maj. Gen. Scott C. Black, judge advocate general of the Army, told Sen. Russell Feingold (D-Wis.) at the Senate Judiciary Committee hearing. “Reciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules for the commissions, and that’s the exact reason, sir. The treatment of soldiers who will be captured on future battlefields is of paramount concern.� [full text]

Other sorts of concerns—perhaps more relevant to you and I—about the draft proposal before the Senate were expressed in an opinion piece earlier this week by Marie Cocco, a columnist with the Washington Post Writer’s Group:

A copy of the draft made public by The Washington Post shows that, while an initial version anticipated military trials only for “alienâ€? enemy combatants, the word “alienâ€? is subsequently crossed out. Instead, the document refers time and again to “personsâ€? who are detainees — not foreign nationals picked up on the battlefield of Afghanistan or anywhere else. A “person,â€? under this draft, could be an American seized at a shopping mall, or in a suburban backyard.

Here, then, is how the government could treat American citizens if this draft were to become law: A citizen could be designated an “enemy combatantâ€? (a term the administration has never clearly defined) and held in a military prison — say, the encampment at Guantanamo Bay, Cuba. There, the citizen would have no right to a speedy trial. Any trials, the draft says, could occur “at any time without limitations.â€? The citizen’s wait for a day in court could be a month, a year, five years or longer.

Once the citizen is tried under rules that mock the constitutional protections he would receive in a federal court, or in a U.S. military court-martial, the outcome would mean little. An acquittal would not necessarily free the detainee. Neither would a sentence imposed, say, for two or three years and served in full. “An acquittal or conviction under this act does not preclude the United States, in accordance with the law of war, to detain enemy combatants until the cessation of hostilities as a means to prevent their return to the fight.�

Of course, “the fightâ€? as defined in the draft is not necessarily an armed battle. People may be designated “enemy combatantsâ€? and subject to these rules if the president and the Pentagon believe they are now or were once “part of, or supportingâ€? the Taliban, al-Qaeda or “associated forces.â€? Support isn’t defined. It could mean financial support. Or political support. It could mean shouting “long live Osama!â€? while walking down Pennsylvania Avenue.

All these powers — to sweep up American citizens and throw them in a military brig, to detain them without trial, to continue holding them even after they might be acquitted by a military commission — are rightly the president’s because he is commander in chief of the armed forces, according to the draft.

This is the precise argument the White House has tried, again and again, to get the Supreme Court to accept. It has failed. [full text]

Nonetheless, the Bush Administration’s fight against the law continues, thus serving as “an example to the world� not of compassion and justice but of arrogance and tyranny. As the Senate deliberates, one can only wonder, with more than a little apprehension, which side will ultimately prevail. When all is said and done, will we be able to proclaim that “the law won�?

5 thoughts on “Fighting The Law

  1. First, the military overall has been squarely and decidedly opposed to many of the Bush Regime’s policies, including torture and rendition. The reasons stated are that these policies contravene the Uniform Code of Military Justice; and, the military would be the first victims of reciprocal treatment; and, they don’t believe that torture works. (Anyone want to argue the “Ticking Bomb” scenario with me?)

    Secondly we can always dream about the next Dem president using this law to declare Bush, Cheney, Rummy, Perle, Wolfowitz, etc as “enemy combatants” and then turning them over to Syria for “questioning.” Hey, it will be legal.

  2. “I believe this tactic is the equivalent of running to Mommy and kissing up to her after Daddy has laid down the law.”

    David, our constitution declares the courts the interpreters of the law. When the courts rule something illegal, it declares it in violation of current law. It is perfectly reasonable, and very much constitutional, for Congress to pass new law or change existing law.

    I respect your opposition to the proposal, but it’s ridiculous to suggest the President is somehow exceeding his power or circumventing the Supreme Court.

  3. The Constitution also guarantees the right to a speedy and public trial, and this law would provide neither.

    And the 14th Amendment stipulates equal protection; you cannot deny rights to specific groups of people.

    Ergo, it seems like a constitutional amendment would be needed to effect the change that Mr Bush is requesting. This, in turn, entails that el presidente is seeking to implement an unconstitutional law. Which means, essentially, that the president is trying to break the law.

    Oh, btw, Mike. How are you going to pay for your splendid little war, if you repeal the estate tax? I have asked you that question several times, and you never have answered that question.

  4. I partially concede your point, Mike, although it is not just U.S. law that the Bush Administration has to worry about but also international law, specifically the Geneva Convention, which the Supreme Court cited in their decision on Hamdan v. Rumsfeld. With regard to U.S. law, it is not entirely clear if the draft proposal currently before the Senate adequately addresses the concerns expressed by the high court or would comply with the precedent established by the Hamdan ruling. The proposal certainly would be in violation of the Geneva Convention. I found an very insightful article on the topic on FindLaw. The link is as follows:

  5. Maybe this ought to settle it…

    FYI. Now keep in mind I have Sheldon on tape from an interview saying he would not Impeach Bush.

    Maybe that’s why plunderdome was handled by the feds instead of the A/G at the time….

    Seriously, this is significant bipartisan news. I hope you will share.

    ———- Original Message ———————————-
    From: “David Swanson”
    Date: Fri, 4 Aug 2006 13:12:46 -0400

    Conyers Releases Massive New Report on Bush-Cheney Crimes

    The minority staff of the U.S. House of Representatives Judiciary Committee, under the leadership of Congressman John Conyers (D., Mich.) has produced over the past many months a staggering report, just released, which documents the hard evidence of crimes and abuses committed by President Bush and his administration (breaking 26 specific laws). This report, “The Constitution in Crisis,” should provide the raw material for numerous news reports and point reporters toward fertile ground for additional investigations. Please take a look:


    Now, Take Action!

    1. Ask the media to cover Conyers’ report:

    2. Ask your Congress Member to sponsor H. Res. 635 to start an investigation.

    3. Buy this report as a book. Pre-order, and ask your friends to do so, and get it on the best-seller lists. Buy it here.

    Planning an Impeachment Blog Action

    Starting at noon ET on September 1, 2006, and lasting 24 hours, websites and blogs all across the internet are being asked to replace their front pages with the single word “Impeach” in simple white text on a black background. Here’s an example:

    Visitors to those sites and blogs will be able to click and link to the sites’ usual front pages. But first they will see a word that, standing alone, is as powerful as any word right now: it is banned by our political and media leadership but more popular among citizens and activists than perhaps any other. It is both shocking and welcome. For 24 hours, web surfers and blog readers will see that word first when they visit their favorite sites. In this way, we hope to get the public talking about the one tool guaranteed by the Founders to restore our Constitutional Democracy. Please encourage your favorite websites to take part in this action. If you plan to take part, please let us know here:



    “When Bush vetoed the embryonic stem-cell bill (the first veto of his presidency), he remarked that the implementation of this bill would have promoted the taking of innocent human life, something that “crosses a moral boundary that our decent society needs to respect.” Regardless of the merits or pitfalls of the bill, I find it ironic (to understate) that this president invokes morality as the reason for his action–this president who has crossed so many moral boundaries himself . . . to devastating effect….”

    Join the discussion:

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