April 2004
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Month April 2004

Hamdi, Padilla, and the Detention Cases

It’s a fantastic thing that the Supreme Court is releasing audio of oral arguments in significant cases. People all over the country can hear the arguments in critical cases that define our rights for years to come.

Rumsfeld v. Padilla, and to a lesser extent Hamdi, are such cases. Or could be.

There is less room to skirt the issues than last week’s cases involving non-citizens (e.g., Rasul v. Bush), but skirting is possible. If the Court wants to avoid the substantive issue for now, Padilla can be ruled on a jurisdictional error and Hamdi can be ruled on the interpretation that Guantanamo is not under U.S. jurisdiction — at least in an Article III sense.

One hopes the Court doesn’t skirt the issues, however, because good solutions exist. The normal powers of a Commander-in-Chief can persist, alongside the ability to gather intelligence data, while still affording the prisoner due process. In some cases, due process will be a military court as has been done in the past, but this is clearly better than indefinite and unrepresented detention.

In Padilla’s case, the written law seems clear — the Non-Detention Act of 2004 in addition to case law (e.g., Ex Parte Endo, Ex Parte Milligan) clearly indicates that Padilla must be afforded due process, unless there is a clear Congressional act to grant the Executive Branch extra-constitutional detention powers. No such grant exists, and so the government’s case depends largely on a massively expansive reading of the Authorization for Use of Military Force. A reading of the AUMF expansive enough to justify unlimited detention would clearly fall afoul of Ex Parte Endo, in which the Court required a narrow construction on broad powers which depart from clear constitutionality.

Perhaps the most important and poignant reason for ruling on the merits in these cases is given in the amicus brief filed by Fred Korematsu, the former Japanese detainee who challenged Roosevelt’s executive order and was sent to prison. Only 40 years later was his conviction overturned and vacated. Korematsu remains one of the most powerful reminders why Executive power should not be unlimited. Even the best, most far-seeing Presidents (including FDR) are capable of mistakes — even capable of abusing the power of the office under pressure. Korematsu reminds us that Hamdi and Padilla should be given trials, where evidence against them can be presented, a defense mounted, and due process accorded. How can we deny any citizen due process, if we expect to receive it ourselves if the need arises?

Clearly, the nation and homeland must be defended. What is unclear is that defense calls for a complete suspension of normal due process, except in truly emergency circumstances — the kind of situations already envisioned within the provisions of the habeas corpus statutes. The kind of discretion temporarily exercised by Lincoln with care and soul-searching during the depths of the Civil War.

Although I remain unconvinced that the Court will find a compelling reason to rule in favor of the detainees in Rasul v. Bush, I can see no clear path for the Court to rule against Padilla, and possibly Hamdi, as long as they decide to examine the merits, and not take the easy way out.

Tasting Notes

I had a couple of wine tasting opportunities this week. First, for a Board dinner on Wednesday, I served the Heitz Martha’s Vineyard 1992, which was OK but nothing special. The second wine, however, was the Clos du Val 1974 Cabernet and it was special. I’m not a huge fan of domestic cabernets, but this was terrific. A hint of maturity but still going strong in the glass for an hour, a bit of spice, but it didn’t turn to coffee or fading aromas.

With a group of friends last night over a grilled lamb dinner, we tried the Chateau la Nerthe Cadettes 1995 (courtesy of my friend Bill), and it’s still incredibly tight and shutdown, but with a ton of potential. More friendly at the moment were the Pallieres Gigondas 1998 and Tempier Bandol 2000 regular bottling.

Today, with my regular “serious” tasting group, we had a variety of wines, but the stand-outs were a Dauvissat Vaillons 1999, and for me, a Tempier Bandol 1992 regular. The Janasse Vielles Vignes 1995 Chateauneuf I opened was completely closed. The 1992 Bandol is showing the beginnings of maturity and won’t last too long since it’s from a light and somewhat underripe year. Turned to coffee aromas in the glass after an hour. We finished with a Robert Eymael 2002 Erdner Pralat Auslese that was light and full of effervescence, with a gorgeous nose.

I am convinced that the 1995 Chateauneufs are still in a tight, closed stage, without any real signs of maturity. And that’s a very good thing — along with 1989, 1990, 1998 they’ll be the wines I drink throughout the next decade with great pleasure.

Jurisdiction and the Guantanamo detainees

This week saw the oral arguments in two cases (Rasul v. Bush and Al Odah v. United States) involving non-citizen detainees in the Guantanamo Bay prison. Listening to the arguments, I have to say that John Gibbons, the attorney for the detainees, did a poor job in the arguments. He was unfocused, hesitant, and entirely reactive in his answers — never making any real positive points. At various points, Justices Stevens and Breyer threw him a rope, which Gibbons seemed not to notice.

Because the case is focused exclusively on whether jurisdiction in a U.S. civil court is possible, few of my general concerns in an earlier post are relevant this time. And the jurisdiction question looks like a complex one. Regardless of the verbal machinations during argument, it’s unreasonable to claim that the U.S. does not exert sole jurisdictional power at the Guantanamo base. The 1903 treaty states: “the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas…”

Nevertheless, the government’s point concerning the limits of habeas corpus in military situations is a subtle one. Clearly, everyone recognizes that enemy captives on the battlefield aren’t given habeas. Similarly, prisoners of war aren’t eligible for civilian legal remedies, and instead are treated under the Geneva Convention rules. In the current case, the Bush Administration is not calling the detainees POW’s, and they’ve been removed from the battlefield to a non-combat area and detained in a military prison. Thus, the plaintiffs argue, they are being held in Federal custody and are eligible for habeas corpus access to the Federal courts.

The government argues that Johnson v. Eisentrager is the controlling precedent, which disallowed habeas for enemy aliens imprisoned in American-occupied Germany. Federal habeas corpus statutes are also fairly specific about the need for specific territorial jurisdiction, and also say that “As a general rule, Federal courts will not entertain habeas petitions from a person in military custody unless all available military remedies have been exhausted.” Arguably — and sadly — the recent moves by Rumsfeld and the Pentagon to slowly determine status for the detainees probably means that “all available military remedies” have not been exhausted, since the statute doesn’t give the military a time limit for its processes.

Basically, I think the non-citizen detainees are screwed. It’s not a question of whether the Court could find an argument for extending habeas in this case — thus opening the door to lawsuits to determine the detainees’ individual cases. The Court could do so, since Eisentrager itself rests on partially overturned precedents. At the very least, the Court could construe the Constitution as requiring that the detainees must be processed by military justice, but that due process and representation are required, and that the detainees have a right to a speedy determination of their status.

But the Court won’t, I predict. It’s going to be too easy for the standard 5-4 majority to allow Eisentrager to control the case, and allow Scalia’s textualist approach to find no specific support for habeas in “grey areas” like this.

On the other hand, I think the Padilla case next week will go very differently. Eisentrager will be irrelevant. It’s much clearer when someone is a U.S. citizen, especially when arrested by civilian authorities on U.S. soil. Bush has labeled Padilla an “enemy combatant,” as if this label has the power to strip a citizen’s constitutional rights. Even during the Civil War, the Court has ruled (in Ex parte Milligan, for example) that American citizens arrested for aiding the enemy had a right to trial in civilian courts. It’s possible that the Rehnquist majority will decide against Padilla and other citizen detainees, but they’re going to have to work harder to patch together a justifying rationale.

And all of this is really less relevant than the question of how Congress and the Court haven’t pointed out that the President has unilaterally claimed the power to suspend constitutional privileges. Only Lincoln in previous times has suspended habeas, in the depths of extremity, but even he did so carefully and very temporarily. Bush shows no signs of caring whether he exceeds his constitutional powers. Congress and the Court, sadly, show little sign of holding him accountable for this breach.

And so, it will fall to the voters to do so in November.

Leaving aside every other issue, in November we need to elect a president who will uphold the Constitution, not ignore it.

The Best Brandenburg Concertos…a 17 year saga

I received a package in the mail today, which contained two CD’s and a note, from an old friend of mine who lives in Tucson and runs Eliot Books. The note reads (in part):

Enclosed find the Brandenburgs that I mentioned something like 17 years ago. They are the best. F**k the rest.

The story begins in the summer of 1987, at the University of Washington’s Archaeological Field School on San Juan Island. My friend was a staff member, and I was a student on the field school. He, in his wisdom, had brought a high-quality CD player and CD collection to the island, and we discovered mutual interests in classical music, partying our way around the island, and honing our expertise in “field bartending.” At the time, his Bach collection was serious and well-stocked, except for an obvious hole with the Brandenburg Concertos. His answer was that he wouldn’t buy the Brandenburgs until he found the perfect recording. Pinnock, Hogwood, all good conductors, all good recordings, but the best was an elusive recording by Karl Ristenpart. It remained elusive, and my friend’s collection lacked a copy of the Brandenburgs, all these years.

Until now. He found the Ristenpart recordings in France, and waited 9 months for the boxed set to be shipped to the United States. And today, I got an envelope with the Brandenburgs, as performed by Karl Ristenpart and the Saar Chamber Orchestra in 1960. What an amazing pleasure it is to hear them, after 17 years of anticipation.

Jasmin Cote Rotie 2000

While in New York last week, I visited Veritas with my business partner. Dinner was excellent, but of course the “main event” was the wine list. Not ordering actual wine, because most of the bottles I’d like to drink were fairly steep. The markups are pretty healthy, for the wines whose retail prices I know. But the list itself is a work of art — the PDF version on their website is 61 pages, and when you sit down, they hand you a weighty tome about 2″ thick.

Ultimately, in the interests of cost, I chose the 2000 Jasmin Cote Rotie. Having had the wine previously (most recently, at Jardinere in San Francisco last fall) I knew what to expect. The wine is fairly open, though with a good grip and tannic core. But it’s not shut down, or at least not enough to preclude a nice experience. The nose was dark fruit, with a beautiful floral (hawthorne, lilac, neither is quite right…) note. I didn’t buy any of this for my cellar, which I regret, but I’ll happily drink it whenever I encounter it.

The real importance of Rantisi’s assassination to Palestinian self-governance

Reading the newspapers, from the New York Times to Haaretz, you’d get the impression that the assassination of Abdel Aziz Rantisi was a simple exercise in Israeli hardline security. No mention is made, in any of the 10 articles I scanned, of the recent moves by Rantisi to discuss how Hamas could work with the Palestinian Authority (P.A.) to build a partnership for the governance of Gaza once the Israelis pull out.

Fortunately, however, the Economist (Apr. 10, 2004) had an article on the subject, which leads one to ask what the real motivation behind the assassination was. Certainly, Rantisi has a reputation of being even more hard-line than Sheikh Yassin. The Economist, however, had this to say:

…Hamas under its new leader is staking out three positions. First, unlike the P.A., which views Mr. Sharon’s Gaza withdrawal plan with trepidation, Hamas extols it as a victory for armed struggle. So, according to pollsters, do Palestinians of all political stripes. Second, Hamas says it will hold its fire in Gaza, though not necessarily in the West Bank (the bigger part of a Palestinian state) or in Israel proper, once the Israeli withdrawal begins. Third, Hamas says it wants a new “partnership” with its rivals who run the P.A., particularly Mr. Arafat’s Fatah, enabling them to run Gaza together once the Israelis go.

Clearly, this is new and marks a major change (if it is sustained). And there are signs that Fatah is welcoming the transformation — Arafat has said he would welcome Hamas in the P.A., for example. Should this occur, Hamas-as-political-party would dramatically revitalize the P.A. and strengthen its ability to control violence in the occupied territories.

Which may, in fact, be the reason by Rantisi was assassinated. Israeli sources claim the hit was planned for a long time, but it also seems likely that Sharon is deeply threatened by a transformation of Hamas into a political power. His strategy in giving up Gaza settlements is predicated on demonstrating that Israeli power is responsible for a victory over Hamas, and he would lose considerable credibility if formerly militant Palestinians were seen as forming a peaceful civil government.

One hopes that Hamas continues the course that Rantisi was apparently starting — a gradual transition from guerilla force to political party. Why do I hope this? First, while nothing justifies the killing of innocent civilians, history demonstrates the enormous validity of the Palestinian struggle against Israeli determination to ignore UN Security Council resolutions 242 and 338 (which call for Israel to withdraw from the occupied territories seized in the June 1967 war). Second, it seems clear that Sharon is using the Gaza plan to shore up domestic support, which the media recognizes to be very thin. Bush is assisting Sharon with his domestic political problem by offering support, even though this action effectively destroys even the illusion that the U.S. could act as a fair broker for a peaceful solution. And both leaders are claiming this as a major step forward towards Middle East peace, despite blatant non-compliance with every U.N. Security Council resolution on the subject.

What is really happening is that Sharon and Bush have set a trap. They’ve called this a “unilateral withdrawal” plan, as if the Israelis have been held back from a peaceful solution by the refusal of the Palestinians to negotiate. In reality, both the Israelis and the U.S. have refused to negotitate with the Palestinian Authority despite international recognition of their democratic election by the Palestinian populace. Two outcomes seem possible. If the Palestinians continue to fight, then Sharon can claim that his peace offer has been rejected and claim that further retaliation is required, while keeping West Bank settlements intact. If the Palestinians decide to reduce the level of violence themselves and create an effective political system for ruling a post-withdrawal Gaza, Sharon will have a harder time repeating the “Gaza Plan” in the West Bank without removing settlements per Security Council resolutions 455, 465, and 471.

Sadly, the first course of action will give Sharon and his fellow hardliners the ability to claim legitmacy in continuing their military activity against Palestinians, and will likely keep Sharon and Likud in power. Only the second course of action will result in the practical reality of Palestinian independence at this point. Sharon has demonstrated that violence will strengthen his perceived legitimacy, while at the same time revealed his greatest fear: effective peaceful political organization and governance among Palestinians. Evidence of the latter would swing “legitimacy” in the other direction — back towards Arafat and a newly effective P.A., along with world opinion. That’s why I hope that Rantisi’s anomymous replacement follows the nascent course of becoming a key part of the Palestinian Authority’s Gaza government. It may represent the best chance available for a peaceful solution which addresses both Palestinian needs, and compliance with U.N. resolutions.