Friday, June 13, 2008


I hate losing. This does not come as a large surprise. Oh, I don’t mind losing in a backyard game of volleyball—those are for the fun anyway. Or a game of cards with the kids.

I hate losing in court. With a passion. Experience has shown me—there are times I will lose. Sure, times when I win. Victories I can croon about. Yet there are times I lose, too.

See, every case or motion or hearing brought to a judge or jury will have a decision. And that decision will be for one side or the other. There is always a winner; always a loser. No one likes to hear a judge say, “I heard your side and was not persuaded by it. I am deciding you are wrong.” No one expects the loser to walk out the door yelling, “Yippee! I just learned a valuable lesson that I will remember for the rest of my life!” We appreciate the loser doesn’t like or agree with the decision. Goes without saying.

Yesterday, as you probably know, the United States Supreme Court rendered its third decision regarding the Guantanamo Bay Detainees in Boumediene v Bush. (Warning: PDF file.) Boumediene held, in simplest form, that the detainees had the right to pursue a writ of habeas corpus through the Federal courts.

Not that they would win. Not that they are entitled to be set freedom. The ONLY issue ruled upon was the detainees had the right to have access to the court to have their case heard.

When looked at in that light, doesn’t seem like much, does it? Simply the right to be heard? What is surprising, if you look at the legal history laid out, as to how hard it has been to even get this far. The detainees each brought a case of writ of habeas corpus (literally “You have the Body”) which is a test of the legality of the detention or imprisonment. Again, understand in each of these cases the government most likely has substantial evidence to support detaining these individuals and would likely prevail. This is NOT a claim to release the prisoners. This is NOT a trial as to the guilt or innocence of the individuals. This is merely a claim in which the government must show sufficient reason as to why these individuals are being detained. That’s it.

Initially the Federal District court dismissed the claim, stating it had no sovereignty over Guantanamo Bay. No Jurisdiction. The Federal Circuit court agreed on appeal. The Supreme Court disagreed, however, in Rasul v Bush noting Federal Law (28 USC 2241) extended habeas jurisdiction over Guantanamo Bay.

The Republican Congress understood what to do—amend the Law! (28 USC 2241). And guess what the new amendment said? It explicitly stated “no court…shall have jurisdiction…to hear an application for habeas corpus filed…by or on behalf of an alien detained . . . at Guantanamo.” Showed that uppity Court what to do! If the Supreme Court thought this law gave those detainees the right to have access to the court, then change the law.

Again, the Supreme Court in Hamdan v Rumsfield ruled that the amendment was inapplicable to these cases, as it was enacted AFTER the writs were filed. (We abhor ex post facto laws—laws done after the fact. Making what you did yesterday illegal and then charging you for doing it!)

Congress, no dummy, amended the law again to state no writ of habeas corpus was available to “enemy combatants” (no longer detainees), and again were confident they had prohibited these individuals access to the courts.

In yesterday’s decision, the Supreme Court held, despite this new designation of “enemy combatant” the detainees are still allowed the right of access to the court to see if they are being detained illegally. It has taken six years.

I was shocked at President Bush’s reaction to this ruling. He said, "We will abide by the court's decision. That doesn't mean I have to agree with it." The first sentence is fine. It is what he must do as President—uphold the Constitution. It is why we instituted and have the checks-and-balance three branches of government. So that when the Supreme Court interprets the Constitution, the Executive branch enforces that interpretation.

The second sentence was more troubling. Yes, we know President Bush doesn’t agree with it. We understand President Bush would have tortured, maimed and shot the detainees by now. To hell with what the citizens or the rest of the world thought of it. We understand he felt like a loser.

I freely support George W. Bush as a private citizen proclaiming to the world what he doesn’t agree with. He can tell us he is so upset he wishes the court was hog-tied and chicken-feathered. But as my President (as little as that is) I want to hear him say he will abide by the Court’s decision and SHUT UP! Who is the President of the United States to agree or not agree with the decision? It is his job to start enforcing the law—not liking it or disliking it.

President Bush went on, “It was a deeply divided court. And I strongly agree with those who dissented and that dissent was based upon their serious concerns about U.S. national security." Again, no problem with the first sentence. (Although “deeply” is a bit over the top.) Again, the second sentence was unnecessary.

We know you agreed with the dissenting opinion. You just said you disagreed with the majority opinion. Doesn’t take a genius IQ to figure out which one you agree with. What was more troubling, though, was that emphasis on “U.S. national security.”

I have no doubt the dissenting Justices have serious concerns about U.S. national security. I strongly suspect the majority Justices do as well. But understand—their job is NOT about U.S. national security! It is about interpreting the United States Constitution and protecting the rights enumerated therein!

I am stuck with a President who holds his interpretation of National Security Interest over all other interests. He doesn’t care about the economy. He doesn’t care about natural disasters. He doesn’t care about foreign relations, governments, social issues. He cares about killing Muslim terrorists.

President Bush doesn’t know what an 8th Grade Government class graduate does. Thank goodness the United States Supreme Court, despite the whine of the President as to what their focus should be, ignored him and performed their duty—follow the Constitution.

Amusingly, President Bush stated his staff would study the ruling: "We'll do this with this in mind — to determine whether or not additional legislation might be appropriate so we can safely say to the American people, 'We're doing everything we can to protect you.'"

Good luck. He has tried it twice with his Republican Congress, and each time the Supreme Court stuck to its job. Now that the Congress no longer holds a Republican majority, it is doubtful this law will be changed. For the third time.

Mr. President, I know you are genuinely doing everything you can to protect me from terrorists. Thank you. But the United States Supreme Court is doing everything they can to protect me from your complete abrogation of rights under the Constitution. Thank AND bless them for it!


  1. Just out of curiosity, are there ever situations where you expect to lose; where you're giving some tactic a try just because it's not completely unreasonable to think the judge/jury might agree with you on a good day?

    Mr. President, I know you are genuinely doing everything you can to protect me from terrorists.

    I hope you're just being polite here and that you don't really believe this.

  2. The Barefoot Bum,

    I do think President Bush is genuine in his quest to protect America from terrorists. Wrong in the execution of it—yes. Obsessed to the point of clinical insanity—yes. Consequently completely ineffectual at everything else—yes. But still genuine. He truly is baffled that people hold such distaste for him, since he thinks he is doing “the right thing.”

    I once thought nobody could combine incompetence with stupidity to the degree he has done; there must be some cleverness to the plan. He has now convinced me he really IS unintelligent.

    Obviously we rarely go into court expecting to lose. If I think I truly have a loser, I will negotiate the best position I can with what I have and move on. Or even agree with the other side to avoid charging my client to appear in court and lose. (There are economic implications as well.)

    Once in a while, though, one is bound to try a loser. The best example I can think of is being court-appointed in a criminal matter when the prosecutor is not offering any deal. I’ve tried a few tactics—but mostly we try to do the best we can with what we have.

  3. George Washington resisted the effort to make him president. He understood the concept of a 'king' and was against any semblance of a king. Not all presidents have the same attitude.

    It's hard for me to believe that Bush and the Bush government are all stupid.

    "[An] act of terrorism, means any activity that (A) involves a violent act or an act dangerous to human life that is a violation of the criminal laws of the United States or any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State, and (B) appears to be intended (i) to intimidate or coerce a civilian population;(ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by assassination or kidnapping." (United States Code Congressional and Administrative News, 98th Congress, Second Session, 1984, Oct. 19, volume 2: par. 3077, 98 STAT. 2707 [West Publishing Co., 1984]).

    Given our own official definition of "terrorism," the U.S. becomes terrorist. Who's going to protect us against our terrorist government if not the courts?

    Dagoods, you have noted in another place, how our government employs the use of the term "war" to get around all sorts of regulation. Calling it a "war on drugs" or a "war on terrorism" is propaganda at best. The end result is, our freedoms are being eroded in under the guise of fighting drugs or Islamic terrorists.

  4. I think it's also worth pointing out that it was a "deeply divided" (Bush's words) by "five lawyers" (Newt Gingrich's words) that put Bush into office in the first place.