Friday, May 01, 2009

Men in Black: How the Supreme Court Is Destroying America

With Justice David Souter's decision to step down from the United State's Supreme Court, speculation is rife as to whom Obama will pick as a replacement.

But, more importantly, it's an opportunity to reexamine the role of one of America's most venerable, yet controversial institutions.

The Supreme Court is exactly that - the ultimate court in the nation. Their role is in interpreting the Constitution - deciding whether laws or rulings violate the fundamental freedoms set down by the nation's founding fathers.

In recent years, however, the Supreme Court has been the target of sustained criticism - most notably from conservatives, who complain that liberal judges have used their positions to 'legislate from the bench' on notable issues.

This is actually a valid criticism - although accusations of bias go both ways. Conservative justices like Samuel Alito and John Roberts can just as easily be accused of making decisions based on their right-wing proclivities rather than the law.

Men in Black: How the Supreme Court Is Destroying America is an in-depth analysis of the criticisms leveled at the Supreme Court, written by Reagan-administration staffer (and conservative talk-show host) Mark Levin.

While Mark Levin is an insufferable blowhard when he's behind a microphone, he does possess two things that other right-wing hacks, like Glenn Beck and Bill O'Reilly, don't - a law degree and a brain.

In 'Men in Black,' Levin accurately points out the Supreme Court's fatal flaw - that a seat on the bench has become a political position, rather than a legal one.

Each of the nine justices on the Supreme Court have their own ideas - which influence how they interpret the law.

Recently, important issues (surrounding gun control and the war on terror, for example) have been decided on 5/4 splits - with almost all of the judges ruling along 'party lines', rather than legality.

This, Mark Levin sneers, makes them guilty of deciding what the law should be, instead of what it is. It effectively takes the power of the people, as represented by their senators and congressmen, and usurps it in favor of nine unelected, unaccountable individuals each with their own political axe to grind.

The failing of Mark Levin's book, however, is that he ends up being just as subjective in his rulings as the judges he's dismissed as 'radicals in robes.'

For instance, Levin attacks the 1944 Supreme Court ruling which upheld the detainment of Japanese detainees (Korematsu v. United States) during World War II - arguing that the ruling was unconstitutional and wrong (which it was - President H. W. Bush ended up paying $1.2 billion in reparations to those Japanese detainees.)

However, he later argued against the 2008 ruling in Boumediene v. Bush (which gave Guantanamo Bay detainees habeus corpus.) Surely that's nothing short of hypocritical - denying one prisoner liberty, while defending that of another.

In the end, it's this enthusiasm for contradictory arguments which undermine the effectiveness of Levin's case. While he nails several Supreme Court rulings (like how affirmative action violates the 14th amendment's promise of 'equal protection') he's less convincing on other topics - delivering somewhat blithe arguments that he emboldens with colorful allusions to 'tyranny' and 'judicial activism.'

At the end of the day, though, Mark Levin makes a convincing point, even if he doesn't offer a viable solution. The Supreme Court has violated its mandate on several occasions and looks like it'll continue to do so in the future.

With Obama's strength in the congress and senate, whoever he picks to replace Souter will no doubt lean similarly towards the left (ironic, as Souter was originally given his position by Bush Snr.)

And while a liberal new justice might mean more Supreme Court decisions I agree with, it doesn't necessarily mean they'll be the right ones.

I'm not entirely sure Mark Levin would agree with me, but I wish we lived in an America in which Aristotle's legal mandate was strictly adhered to:
The Law is Reason, Free from Passion.
Men in Black: How the Supreme Court Is Destroying America by Mark Levin is available from Amazon for $16.95.

256 pages, ISBN-13: 978-1596980099


Tom said...

The Korematsu case involved people who were legal permanent residents, and who individually were not even suspect of any crime.

Boumediene involved people who were captured on the battlefield as enemy combatants.

The battlefield is a very different place from the civilian world. If I was to shoot someone, I would be sent to jail for a very long time, or perhaps given the death penalty. But shooting enemies --- or people that are likely to be enemies, given that split-second decision-making is necessary --- is part of a soldier's job.

What's more, the fact that a soldier's job takes place in an area where the rule of law has broken down is important. A police officer rarely has to worry about protecting himself from sniper fire when reading a suspect his rights.

And so, I think it's reasonable, and hardly hypocritical, to treat Korematsu and Boumediene differently.

Roland Hulme said...

Hey Tom,

I think you have a really valid point and I half expected you to nail it with me when I wrote this post!

But my take on the Gitmo question is just how fuzzy the whole 'enemy combatant' question is. They had 13-year-old kids in Gitmo, and many of the detainees were released without charge - making it very difficult to argue that they're special cases - ESPECIALLY since our 'war' is kind of undefined. Have we ever declared war on anybody specific? Are we in a 'state of war'?

I think I used a shaky example to point out Levin's hypocrisy, but if you read the book I'm fairly sure you'll find at least one example you'd agree with too.

Tom said...

On September 18th, 2001, Congress declared "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This is the same sort of language that was used during the Korean, Vietnam and Gulf wars. So if those are wars, so is the War on Terror.

(Which is a terrible name, BTW.)

During World War II, we held a huge amount of German soldiers captive, and then released them at the end of the war. We didn't charge them with anything, since what they were doing was not illegal... war goes beyond what is legal in the civilian world. But we were right to detain German POWs until they were no longer a threat.

Now, Al-Qaeda isn't made of up of legal combatants. They're not POWs, they're unlawful combantants. (To be a lawful combatant, one has to wear a uniform, and not use civilians as human shields.)

The use of unlawful tactics should not convey additional rights. It does not make sense that a German wearing a uniform is denied access to US courts, while an Al-Qaeda terrorist is given access to those courts, just because the terrorist hides among civilians.

So, I think it's fine to hold enemy combatants without trial. It was fine in every other war, and it should be fine here. When we think these combatants are no longer threats, we can release them without a trial, much the same way we could have released captured Germans whenever we wanted.

If the enemy decides to use 13-year-olds as soldiers... we have the right to treat them as such. Don't try to make the enemy's moral failings ours.

Coffee Bean said...

Awesome responses Tom!

Roland Hulme said...

Hey CB! Tom's a pretty tough negotiator, isn't he?

I can certainly see the validity to what he's saying - he's made me see it was a poor example to call Mark Levin out on!

So the legal distinction I can admit is more separate than I argued - but still talking about the validity of it... These 'enemy combatants' aren't necessarily that. But they might be...

Most of them were picked up in Afghanistan or Iraq, many in combat with American soldiers...

But how many were Al Qaida 'combatants' and how many were people swept up into it? It's pretty wild out there... And America never declared war on Afghanistan, for instance.

If a foreign army rolled into Texas, to give an example, a hell of a lot of heavily armed Texan republicans would be there to oppose them - not because they were fighting against any country, or for any cause - but simply because men with guns were on their land.

Some of the people help indefinitely and without trial might/probably are terrorists - but plenty aren't. We, as a country that established such things in our founding document, have a responsibility to treat them with certain basic standards... Considering how hard Bush fought to deny them even their Geneva Convention protections, I'm not convinced that's been done.

Tom said...

Tom's a pretty tough negotiator, isn't he?I'm just trying to point out what I believe is right. I think we are at war with islamic extremists, and we need to fight and win that war as a real war, not with one hand tied behind our back.

There are people out there, right now, that want to kill you and me. "When someone tries to kill you, you try to kill them right back."

America never declared war on Afghanistan, for instance."the President is authorized to use all necessary and appropriate force against those nations ... he determines ... aided the terrorist attacks"

That's as close to a declaration of war as it gets. Compare the similar document from the Vietnam war:

"the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom."

But how many were Al Qaida 'combatants' and how many were people swept up into it?This is what military commissions should determine. This is not something subject to civilian law.

Common sense also helps determine this. If a man is captured in an Al-Qaeda camp, he might be there for poker night. But it makes sense to treate him as Al-Qaeda, since that's what he most likely is.

If signals intelligence shows a man to make a lot of calls to known members of Al-Qaeda, it's possible that he was just an old college buddy of them. But I'm not going to bet on that.

The "beyond reasonable doubt" standard doesn't apply in war.

If a foreign army rolled into Texas, to give an example, a hell of a lot of heavily armed Texan republicans would be there to oppose them - not because they were fighting against any country, or for any cause - but simply because men with guns were on their land.Are they wearing uniforms (or other distinguishing insignia, like a bandana or a shirt of a particular color)? Are they keeping themselves separate from civilians?

If they are, they are entitled to protection under the Geneva convention. If not, they are unlawful combatants.

The Geneva convention is a brilliant document. Basically, it asks warriors conform to certain rules, like wearing uniforms and not hiding amongst civilians. In exchange, it gives them certain rights, like being treated as a prisoner of war.

Unlawful combatants, like Al-Qaeda, are not protected by the Geneva convention. They have no Geneva convention rights.

This is a good thing, in the long run. If the next enemy (and there will always be a next enemy) decides that they'll be protected by the convention irregardless of what they do, there's no reason for them to obey it.

When reasoning about this, you need to think about it this way: Is there any advantage that I'm giving to people that ignore the convention, as compared to people who abide by it?

If the answer is yes: you're creating perverse incentives.

Tom said...

One more thing: We do treat prisoners with certain basic standards. We provide them with meals, medical care, religious rights, and we do not inflict permanent harm on them.

The debate is what those standards should be.