Thom talked about the Supreme Court decision yesterday that affirmed the right of those held at Guantanamo Bay to the writ of habeas corpus - the right to not speak against yourself, the right to bail, the right to a fair and speedy trial, the right to confront your accusers, particularly the dissents by Scalia and Roberts.
 

Thom Hartmann 's Supreme Court Habeas Corpus decision rant, 13 June 2008

The Supreme Court issued this decision yesterday, and what is mind boggling about this thing and I, as I said a little earlier, I've read the thing all the way through, in fact. The Supreme Court of the United States. It is, I don't know how many pages it is because actually the sections are broken, it's a couple hundred pages. And bottom line, and I just want to go through some of the language that's in it, the bottom line is that there's this thing called habeas corpus which basically means that you have the right, and it's not only enshrined in the constitution by the way, in two different places the constitution mentions it. That the suspension clause, the famous suspension clause, that the writ of habeas corpus shall only be suspended during times of insurrection or invasion. But it's also embodied in the fifth, sixth, seventh and eighth amendments to the constitution. Which basically give you the right to not speak, to not to speak against yourself, the right to bail, the right to a fair and speedy trial, the right to confront your accusers. Arguably the Fourth Amendment as well falls into the writ of habeas corpus.

And so the Military Commissions Act, and before that the Detainee Treatment Act, these two pieces of legislation that the Bush Administration has made the cornerstone of their assault on civil liberties were at some level decided yesterday and what's fascinating is the logic that was used here. The majority, five members of the court, Kennedy being the swing vote, the guy who sometimes goes conservative, sometimes goes American. In this case he went American, concluded that (a) the writ of habeas corpus cannot be suspended except if we're invaded or there's an insurrection like, you know, during a civil war or during an invasion. Pretty clear. And (b) that and we've had this lease with Cuba since 1898. It's been incorporated at law since 1902 in its most recent form. We've continuously occupied Cuba for a hundred years for this part, Guantanamo Bay, this part of Cuba and we control it.

And the argument of the reich in this thing, the argument of the Bush Administration, was that Cuba's a sovereign nation, and because Guantanamo Bay is in Cuba, and our contract, our lease with Cuba from 1902 says, identifies it as a sovereign nation, because this is on Cuban property, the writ of habeas corpus doesn't apply to the American government there. It might apply to the Cuban government but not the American government. And it's like, you know, splitting hairs on steroids. And by that logic, by the way, John McCain would not be able to run for president of the United States because that would mean that the Panama military base in the country of Panama where he was born was not American territory. Or some would argue it. The Supreme Court doesn't obviously address that issue.

But I'm going to work backwards from the end of the front this thing. This is incredible. Scalia first of all dissents. And he says, he starts out, he says, and this is I'm working backwards from the end of the decision towards the front. He says, "In sum, all available historical evidence", I'm quoting Scalia here, "points to the conclusion that the writ", the writ of habeas corpus, your right to face your accuser, your right to have a trial by jury, your right a speedy trial, "would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown." OK, he's talking about the history of the writ of habeas corpus. And again he's asserting that Cuba is outside our territory, therefore it doesn't matter. In fact on page seven of his dissent he says, you know, "the base at Guantanamo Bay. located within the sovereign territory of Cuba". And he goes on to say, "The Court admits that it cannot determine whether the writ historically extended to aliens held abroad", and they couldn't find a basis for that. He says, "If ...

so, the Court has no basis to strike down the Military Commissions Act". In other words, Cuba is, Guantanamo Bay, even though we control it, even though we have a lease for it, it's not part of America and therefore this doesn't apply there.

But here's the most bizarre thing of Scalia's dissent. This is where he started his dissent; the opening paragraphs. I am quoting Antonin Scalia. This guy, he is not a judge. This guy is a political hack. Listen to the language here. "America is at war with radical Islamists." That's his opening sentence! Really? I don't recall Congress having declared a war, Justice Scalia. He goes on to say, "The enemy began by killing Americans and American allies abroad". And then he goes through this whole list of, you know, the attack on the Cole and all of these things and then he says, "It has threatened further attacks against our homeland". Against our homeland.

I mean, he's using this word too. This is, this is, I gotta tell you, the homeland word

was something that Hitler brought into the German vocabulary, and just think back to before 2001. Did you ever hear the United States referred to as homeland? Never. We didn't use that word in the US because it was a Nazi term that was used by Hitler to, he talked about this in "Mein Kampf", that he wanted to give the German people a sense of individual racial identity. It was a word that he had borrowed from the Zionists of the late eighteenth century and he thought, 'okay, they're working for a Jewish homeland, we should have a German homeland' and Rudolph Hess introduced this word. In German the word is Heimat. And Rudolph Hess in 1934, at the Nuremberg rallies, the first big huge massive, the one that Leni Riefenstahl enshrined in in her movie. This was the first time that that word was used in Germany rather than Vaterland, the fatherland, which historically was how Germans referred to Germany. And here's Rudolf Hess. Notice he says, "Dank ihrer Führung" - thanks to the Führer now in this time, as I recall the translation, Germany has become a homelamd, a Heimat, Deutschland is a Heimat, a Heimat for "alle Deutschen der Welt", for all Germans all over the world. In other words, any German can come back here. Here's Rudolph Hess.

"Dank ihrer Führung wird Deutschland sein Ziel erreichen, Heimat zu sein. Heimat zu sein für alle Deutschen der Welt. Heil Hitler! Sieg Heil! Sieg Heil! Sieg Heil!"

So, back to Antonin Scalia. "It has threatened further attacks against our homeland", our Heimat, "one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one." Oh really, Justice Scalia? The fact that we're having a hysterical dog and pony show at our airports and that you guys are frisking us, we can't even walk into the capitol any more like we could for 200 years. That's proof, your hyper reaction is proof that we are in constant danger and therefore we should suspend the writ of habeas corpus? He goes on to say, "Our Armed Forces are now in the field against the enemy". Actually, according to the Pentagon, Justice Scalia, the majority of attacks on us are not coming from Al Qaeda. They're coming from Iraqis who want us to get the hell out of their country. Anyhow, "Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed. The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us." It's not a war, buddy, it's an occupation. Anyhow, he goes on to say, "It will almost certainly cause more Americans to be killed." This is in a Supreme Court decision.

Or actually, in the dissent from one. It's just mind boggling.

Roberts. John Roberts, the two million dollar a year corporate lawyer whose main job aside from tutoring the lawyers who, because he used to clerk for Rehnquist, the lawyers who argued Bush V Gore before Rehnquist, before these guys, tutoring them on how best to pitch Rehnquist. Here's John Roberts in his dissent saying, at the very end of it he says, "so who has won? ... Not the Great Writ", the writ of habeas corpus, "whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost." That would be Guantanamo. "... Not the rule of law, unless by that is meant the rule of lawyers... And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges." No, sir.

The American people have recovered the constitution. Your right wing buddies have lost a little bit of control. That's the case. He, again, Roberts in his dissent. He says, "The Court’s hand wringing over the Detainee Treatment Act’s treatment of later-discovered exculpatory evidence is the most it has to show after a roving search for constitutionally problematic scenarios."

It's just, the Court’s hand wringing? They're not wringing their hands, they're saying 'we're going to enforce the constitution'. It's what in Marbury v Madison in 1803 the court under arguably one of the most conservative justices in history said the court is suppose to do.

Transcribed by Sue Nethercott.