Reaffirming And Advancing The Rule Of Law:An Example From United States Supreme Court
Monday, 19 July 2004
“A state of war is not a blank cheque for the president when it comes to the rights of the nation’s citizens” …Unites States Supreme Court Justices, June 28, 2004 With those words above, The United States Supreme Court on Monday June 29, 2004, reaffirmed and advanced the course of the rule of law, the cause and essence of justice, with its much awaited, now hailed-welcomed decision, in connection with the cases involving indefinite detentions-without-trials of the so-called unlawful “enemy combatants” detainees, from President George Bush’s phantom war on terror. The decision has been acclaimed by lawyers, civil right groups and all libertarians.
The US Supreme court delivered its harsh rebuke to the President Bush administration, in a damning rebuke and repudiation of the Bush policies of indefinite detentions of detainees, without trials, coupled with the exclusion of judicial review; The US Supreme Court decision, is an affirmation or even a vindication of our position, to the effect that, the rule of law and due process should not be jettisoned by the Bush government, just because it is convenient to do so, because it serves exigent political circumstances for the day’s government, and the same applies to any government anywhere.
The majority decision led by the Honorable Justice Sandra Day O’Connor, offered stark criticisms of the Bush government, the court viewed harshly, Bush’s use of the so-called war on terror, as a blank cheque or carte blanche for random and indefinite detentions, that were made worse by the vexing fact of excluding judicial review or reviews by any other constitutionally established machineries or means, vide due process, the courts etc.
Clearly, this is an unambiguous statement, to those persons and government who would hide under any pretenses or pretexts, to thwart cherished personal freedoms and individual rights, under the guise of public safety, national security and even war.
Constitutional rights lawyers and civil libertarians are agog, as they have now obtained this long awaited relief and respite from the neoconservative onslaught, unleashed by the Bush administration since its inception, and more worrisomely so, after the September 11, 2001 attacks on New York World Trade Center and the Pentagon in Washington D.C.
The Supreme Court verdict, is a repudiation and rebuke for those, who spoke and acted without legal limitations, all in the name of safety and security, but, war time illegalities foisted on everyone, as the Bush administration contended that the president alone could determine the fate of enemy combatants and everyone in between.
Also recently, the overbroad demand for personal information by the US government at entry ports has been discontinued, because the issues raised by libertarians regarding invasions of privacy, finally prevailed, this, of course is not occurring from the kindness of the president and his administration, but instead, it as a direct result of the protests that met the introductions these overwhelming infringements on privacy and liberty of individuals that would have been subjected to these draconian law or rules
The US Supreme Court have historically not been in the forefront of matters like these, the court has in fact been found wanting and without courage in the past; The court dithered conservatively, while Rome literarily burned, in particularly egregious cases regarding African Americans, whether in defining them as one-fifth of a person, or in ambiguous pronouncement that inhibited their progress, cases abound, including, Crispus Attucks, Plessy Vs Ferguson or the Brown Vs Board of Education and integration with “all deliberate speed” gobbledygook! The US Supreme court hat whittled down the civil rights of African American for generations or actually declared such rights non-existent.
Another unsavory example of infamous legal complicities with injustices of society, was when the US Supreme court authorized or sanctioned the summary jailing of Japanese American citizens, who were jailed or interred, because of the dithering Supreme court, this amounted to a ringing endorsement to injustice that arose from another wrong-headed policies of the executive branch at the time, just like the Bush government now; the highest court of the land have at times failed its citizens, notably, the African Americans in their effort to emancipate from the shackles of slavery and its outgrowth, racism; Japanese Americans were quarantined during the Second World War, the quarantining of every American citizens of Japanese descent was for no offense at all, but for being of Japanese descent! And so for several years, Japanese Americans were uprooted from their various communities in America, hauled and jailed in the desert with their women and children, pets etc, because of the hostilities of war existing then between the US and Japan, during WWII, the US Supreme court historically, has had a mixed bag for standing up for justice, when it mattered or counted.
Given this historical backdrop, and the fact that the current US Supreme court leans to the conservative right flank, it becomes even more important that the court has give a very courageous verdict against the government of President Bush.
The US Supreme court in these cases of unlawful enemy combatants, ruled that President Bush and his government went too far; the court informed the president of the United States that war is no carte blanche or blank cheque when it comes to the rights of the nation’s citizens, this is so, because, in the words of The Economist magazine, “after the Al Qaeda’s attacks on September 11, 2001, the Bush administration moved to claim extraordinary executive powers in the war against terror, in the words of US Justice Department office of legal counsel, the president enjoys complete discretion in the exercise of his commander-in-chief authority and the US Congress said barely a word, or passed a law to rein in, the claimed authority”.
There have been clear attempt to arrogate unprecedented executive powers to the president of the United States, in the person of Mr. Bush and there were move to unhinge judicial supervision or oversight. And some were jumping unto the “war time exigencies” bandwagon to shred laws, treaties and even common sense… The US Supreme verdict, to a great extent, will now constrain the unbridled powers that the Bush presidency had assumed and this is the same attitude, tone and environment that led to the abuse of prisoners in Abu Gharib Iraq and Afghanistan.
In claiming these extraordinary executive powers, Mr. Bush and his government did not allow for a balance, even a delicate balance between individual rights, liberty, freedom on the one hand and the protection and preservation of national security on the other.
Mr. Bush simply claimed that prisoners of war or captives from Afghanistan conflict in 2001 were neither prisoners of war subject to the Geneva Conventions, nor ordinary criminals subject to American courts, but they were classified into a new polemical category, the so-called “unlawful enemy combatants” a classification of purely polemical or semantics and legal nonsense of worthless value! Three cases quickly arose as test cases, so, the enemy combatant mumbo jumbo, and legal wild ride by the Bush administration, came crashing down. The US Supreme court has now put paid to all that; As it has now ruled that prisoners, held by the US government must not be held indefinitely without trial or some judicial review, and according to the court, this rule applies to prisoners by whatever syntax or semantic! Prisoners in American jails or in the Island of Guantannamo Bay in Cuba, and even quite possibly, those in American custody in Iraq and Afghanistan.
US Supreme Court has offered President Bush a spectacular defeat, a complete repudiation and rebuke for his actions since the invasion and occupation of Iraq; the court has accomplished a resounding victory for libertarians, through its verdict on war detainees, who have been detained indefinitely for years now; The Bush administration’s policies are reminiscent of Decree #2 under the Buhari/Idiagbon government in Nigeria, in which indefinite detentions were determined by the executive branch, while the judicial branch was virtually render powerless. However, during those times, I represented one Mr. Saka Aderoju against the Chief of General Staff Gen. Idiagbon, government lawyers argued that we or the high court did not have powers to challenge detentions under Decree #2, but our argument which prevailed and gave Mr. Aderoju his freedom, was, a subsection of that infamous decree, provided that, detentions shall not be subject to quarterly review by the CGS or his designate, but no indefinite detentions, in our case the detention was similar to the detentions in Guantannamo (they were indefinite) and without the quarterly reviews as specified by the decree, that in itself, was a violation of the decree, such violation then reawakened the provision of the Nigerian constitution within which Mr. Aderoju’s rights were now adjudicated.
President Bush in overbroad manner, sought to detain Americans and non-Americans without reviews, without oversight and indefinitely! If that was not draconian, what exactly is? Now, the US Supreme court, has at least in a symbolic gesture informed Mr. Bush that he is no Mr. Idiagbon! Mr. Bush had through presidential fiats and pronouncement attempted to trumped the constitution of the United States, thrashed and trashed treaties and conventions to which the US is signatory, all in complete disregard for international law and norms! The US Supreme has now prevailed on Mr. Bush, to respect the rule of law and enthrone due process and yes, even when we are at war!
There therefore a sense of vindication for our position on indefinite detentions and all sorts of draconian tactics to which the President government had engaged in, since September 11, 2001 aftermath, the attendant multiple pronged wars in the name of fighting terrorism. Hopefully, the verdict by the US Supreme court will compel Mr. Bush to ease his disdain for rules, treaties, conventions, norms and for national international laws to which the United States is signatory. War, terrorism etc according to the US Supreme court, is not a blank check for President Bush to detain people indefinitely or engage in actions that would make tyrants and dictators blush.
We were unduly castigated for writing “America’s False Pretenses, Freedom and Liberties” We were informed in relentless and excoriating written pout and shrill, “this is war time” “this is a time of war” “this is national security matters” and all. We take consolation in the words of the great Walt Whitman writing in “The Leaves of Grass” he stated “The attitude of great poets, is to cheer up slaves and horrify despots!” Writing and arts are at their best, when put in the service of social issues and protests of wrong-headed policies.
Happily, we are witnessing the improvement of both procedural and substantive due process, thereby restoring our faith in the legal system, as the rule of law has triumphed, as it have been strengthened.