Habeas Corpus and Bush-bot Bulimics

Swallowing that would hurt, at least twice: Stevie Starr is an illusionist who performs under the stage name "The Regurgitator." Here he prepares to swallow a billiard ball that will (apparently) return via a reciprocal route, which would be the (slightly) less painful alternative.


Thanks to the miracle of YouTube, Scottish illusionist Stevie Starr has been made known to hundreds of thousands of people once tragically ignorant of his existence.


Mr. Starr performs under the stage name "The Regurgitator," which lacks a certain subtlety but displays the virtue of candor: Nobody properly advised of the act has moral standing to protest if offended by the spectacle of someone swallowing and then disgorging large, unpleasant objects -- or at least appearing to.


A typical performance by Mr. Starr (who claims to have refined his gift for selective, on-demand regurgitation as a survival skill at an orphanage) might feature the performer swallowing, and then retrieving from his stomach, a light bulb, nails and coins of various sizes, live fish, and a billiard ball. His routine is embellished by sundry creative sound effects and a winsome line of patter intended to sell the audience on an act that depends on exceptionally cunning sleight of hand, tongue, and embouchure.





It is important to recognize that Starr is not actually swallowing solid objects much too large to pass through his esophagus, nor does he have the ability to select items from his stomach and evacuate them at will: This is a trick. (If you can stand to, pause the video and play it back very slowly from 2:48-2:50 and you'll see that the billiard ball was stored inside his left cheek.)


Convincing as Starr's act may be, it is humanly impossible to swallow something so big, and regurgitate it on cue. Impossible, that is, to everyone other than devoted Republican apologists, who routinely ingest and throw up falsehoods so large and unpalatable that they would make Stevie Starr retch. And in their case, there's no illusion involved -- ample self-delusion, to be sure, but where Starr is harmlessly fooling people who paid to be fooled, Republican slogan-spewers are engaged in a deadly campaign of public deception -- beginning, in many cases, with themselves. I'll examine one heartrending case study of this condition below.


The most recent outbreak of mass ideological bulimia among Republican apologists was triggered by the June 12 Supreme Court decision Boumediene v. U.S. (.pdf), which held that Congress had exceeded its constitutional authority by destroying the habeas corpus guarantee through the Military Commissions Act.


Boumediene was the result of lawsuits filed on behalf of several men detained as "unlawful enemy combatants" at Guantanamo Bay. Counsel on their behalf contended that the Military Commissions Act (MCA) nullified the habeas corpus guarantee in a way not provided for in the "Suspension Clause"(Art. I, sec. 9, clause 2 of the Constitution); that provision allows Congress to suspend the writ of habeas corpus in the event of invasion or insurrection. Those challenging the MCA were involved in neither invasion nor insurrection; Congress has neither declared war nor suspended habeas corpus in constitutionally legitimate fashion. But the MCA was designed to prevent individuals designated "unlawful enemy combatants" by presidential decree from mounting judicial challenges to their detention. That would be true whether or not the person thus designated is a U.S. citizen.


Except for the right to armed self-defense, there is no guarantee of individual liberty more elemental than the habeas corpus guarantee. If the Chief Executive -- be he or she a monarch, dictator, or president -- can summarily imprison anyone indefinitely without a trial or independent judicial review, then all of us are free only by the grace of our Dear Leader.



"The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom," wrote the majority in Boumediene. They likewise note that "protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights." In the debate over the MCA, Pennsylvania Senator Arlen "Magic Bullet" Specter described the MCA, with its provisions eviscerating that foundational due process guarantee, as a measure that would "set back basic rights by some 900 years." He then voted for the measure.


This must be understood: The MCA was not a counter-terrorism measure. It was an instrument of a claim to absolute executive powers that can only be called dictatorial. This was understood by its supporters in Washington, if not by those who dutifully devoured the relevant soundbites and slavishly spewed on command in defense of Bush's dictatorial ambitions.


The Bush Regime insists that 1) Gitmo, located on Cuba, is outside U.S. jurisdiction, and thus not subject to constitutional due process guarantees; and 2) that foreign "enemy combatants" are not protected by the U.S. Constitution. The Court dealt with the first objection by demonstrating that the Regime's denial of the Constitution's extra-territorial application was selective and self-serving, and that Gitmo -- a military base under essentially permanent lease to Washington, over which flies the federal flag -- is very much part of U.S. jurisdiction. In answering the second objection, the majority offered a detailed recap of the relevant history -- both in British and American law and practice -- to support its conclusion that "at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief."

Appeaser! Defeatist! Dhimmi! Thomas Jefferson pointed out that habeas corpus protects everyone within our government's claimed jurisdiction, citizen and alien alike.


Interesting and edifying though the majority's historical tour may have been (they drew comparisons, for instance, between Bush's claims and those of the tyrant Charles I, a theme explored in this space as well), they could have saved themselves some trouble by merely quoting that notorious appeaser and coddler of Islamic radicals, Thomas Jefferson.



It was Jefferson's understanding that the habeas corpus guarantee must apply to everyone wherever our government claims jurisdiction. Habeas corpus, wrote Jefferson in 1798 (during an earlier war frenzy during which another despotic president was tearing great, gaping holes in the Bill of Rights), "secures the rights of every man here, alien or citizen, against everything which is not law, whatever shape it may assume." (Emphasis added.)



The issue was not the identity of the individual claiming the right, but rather the legitimacy of the government's act in depriving him of liberty. This is why Jefferson, in his first Inaugural Address, described habeas corpus as one of the "essential principles of our government."


The majority opinion in Boumediene repeatedly struck Jeffersonian notes in its demolition of the Bush Regime's claim that the president, in wartime or any time, has supreme, unqualified, and unaccountable power to imprison anyone at his discretion for as long as he sees fit. "The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the independent branches," noted the majority decision. "This design serves not only to make Government accountable but also to secure individual liberty.... That the Framers considered the writ [of habeas corpus] a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension...." (Like Jefferson, I would prefer that the Constitution not permit the writ to be suspended at any time.)


Anticipating objections that the Court was intruding on the exigent powers of a wartime presidency, and thereby undermining "national security," the majority offered an elegant reminder that true "security" in the American tradition begins with protecting the rights of the individual, rather than the supposed prerogatives of rulers: "Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to to separation of powers..... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." So spoke the five-member "liberal" majority of the High Court.


"Don't ask me about that point of law; Jack Bauer hasn't yet shown us the way": Antonin Scalia, reality-challenged voice of neo-fascist "conservatism" on the Supreme Court.


To which the designated spokesthug for the four-member "conservative" minority, Antonin Scalia, replied, his voice thick with ignorance and glazed with contempt: "Yeah, but there are, like, weirdly dressed guys with beards tryin' to kill us and stuff, and have you forgotten 9-11?" Or words to that effect. At one point in his career, Scalia was regarded as a serious jurist with a taste for writing caustic dissents.


In recent years, he has apparently decided to abandon the Federalist Papers and other original documents as a source of wisdom regarding constitutional questions, choosing instead to consult the wisdom of Jack Bauer regarding the legality of torture, and -- apparently -- Republican-aligned talk radio regarding the open-ended conflict with "Radical Islam."


As a result, Scalia didn't so much write his dissent as regurgitate it, thereby inviting second-generation agitprop bulimics (I'll turn to a suitable specimen of the same anon) to retail selected samples to those within their sphere of influence. While Chief Justice Roberts wrote a separate dissent, it was written at a level of diction beyond the reach of the intended audience, for whom the statement "Muslims suck!" is a masterpiece of the polemical art.


Pancake makeup artfully applied to the forehead conceals the "vacancy" sign: Sean Hannity, whose unfortunate lack of higher cerebral functions gives him the ironic blessing of being zombie-proof.*


Scalia's dissent, on the other hand, was written in a key that the Hannity set could understand. It is a work of pugnacious sophistry, replete with rallying cries to the dead-ender Bu'uhists who still gather in their Mega-Church madrassas to feast on fear of the "Islamo-Fascists" and marinate in their untutored hatred of those who supposedly live for the sole purpose of hating us "for our freedom" -- while the government purportedly protecting us from the Mohammedan hordes destroys what remains of our liberties and prosperity.


"Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war," lied Scalia at the beginning of his dissent.



Every element of that statement is a conscious falsehood: The decision "confers" no right, but recognizes one long guaranteed by Anglo-Saxon law; those affected by the decision include civilians who have never taken up arms against the United States; and the base at Gitmo is as much United States territory as any embassy abroad.



Not content to leave wretched enough alone, Scalia emitted another pre-digested outburst that indicates his clerks have been researching his legal opinions by reading Republican-created chain e-mails (go here for a representative sample): "America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Daran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.... On September 11, 2001, the enemy brought the battle to American soil...."



It goes on like this for some time, sentence after sentence of sententious dicta intended to pre-empt rather than provoke critical thinking. (In reciting the history above, for example, Scalia could have usefully asked why Marines were stationed in Lebanon in 1983, or run the clock back to disastrous U.S. interventions in the Arab world beginning in the 1950s, were he possessed of a molecule of intellectual honesty.)



When he finally gets around to quoting "authorities," one of his first citations is to a brief co-written by John C. Yoo and William J. Haynes III, two of the chief architects of the Bush Regime's torture policies. After countless paragraphs of adolescent trash-talking and tendentious history, Scalia concludes with another ready-for-Hannity harangue.


After lamenting that the decision will allegedly tie the hands of "our military commanders" on the battlefield, Scalia darkly intones: "The Nation will live to regret what the Court has done today." Over to you, second-hand bulimics. Tragically typical of that cohort is Bryan Fischer of the Idaho Values Alliance, a man of short acquaintance for whom I have no small amount of respect.

Bryan Fischer of the Idaho Values Alliance: He's just as kindly as this picture would suggest.


In his organization's newsletter, Mr. Fischer -- who in this case was actually a third-hand bulimic, passing along twice-regurgitated soundbites by way of the demented and dishonest Hugh Hewitt -- literally picks up right where Scalia's gorge-casting left off. He refers to the Boumediene decision as an "incomprehensible" ruling "giving constitutional rights to terrorists who have never set foot on U.S. soil"; he recaps a handful of selected soundbites from Scalia and Roberts without so much as citing a syllable from the majority decision, which he apparently didn't deign to read.



In fact, Fischer displays no symptoms of first-hand familiarity with either the majority opinion, the concurring opinion, or the dissents; all he needs to "know" about the matter is what was pre-chewed on his behalf, and then shoved down his eager gullet, by apologists a little higher on the GOP's propaganda food chain.


Mr. Fischer, who yields to nobody in his concern over the distant and diffuse threat of "Islamo-Fascism," offers an unqualified endorsement of the real, immediate, and tangible practice of the all-American variety by way of brazen, dictatorial presidential lawlessness: "The ruling of the majority in this case has no constitutional, legal, rational, ethical or historical legitimacy and could and should properly be ignored by the Commander in Chief."



Once again, let this be understood: What Fischer is endorsing here is the notion that the president is, quite literally, our Living Constitution -- an individual whose word, will, and whim is law, not subject to checks and balances or the limits of any written charter of government. This is, in a precise and unmistakable sense, fascism.














Not surprisingly, this appears to be the course the Bush Junta will follow; they will proceed with the military "trials" at Gitmo -- which have been denounced as "show trials" in the totalitarian tradition by Col. Morris Davis, the man once assigned to serve as chief prosecutor therein -- and then simply ignore the decision for the rest of term. Their transparent hope is that Bush the Bloody will be succeeded by John "War Without End" McCain, who denounced the Court's decision and would appoint judges determined to kill the Great Writ for good.



That outcome is much to be desired, insists Fischer, because to do otherwise would be to set back "the rule of law beyond my lifetime and perhaps forever."


By "rule of law," Mr. Fischer apparently means the unaccountable, illimitable rule of the "Commander-in-Chief" -- at least this particular one, whose relationship to Mr. Fischer is roughly that of Imam to disciple. And in this Mr. Fischer is, once again, heartbreakingly representative of millions of genuinely decent Christian people who dutifully swallow any excuse for demolishing constitutional restraints on presidential power as long as the "right" politician is the immediate beneficiary. For such misguided souls, only the prospect of such powers falling into the "wrong" hands can trigger the long-dormant gag reflex.

__

*This diagnosis and observation comes courtesy of William Wallace Grigg, age 10.



On sale now!











Dum spiro, pugno!