Thom Hartmann and ilk would be advised to follow the Congressional Democrats and “keep their powder dry” on the issue of Alberto Gonzalez’ confirmation as Attorney General.
Mr. Hartmann compares Gonzalez’ memo and advice to the President about detaining enemy combatants to King Charles I’s per speciale Mandatum Domini Regis. Basically, he says that Bush believes, with Gonzalez’ advice, the President is above the law and he can suspend habeas corpus without an act of Congress. (Habeas corpus is the long tradition of due process, i.e. you can’t be held against your will without having your case seen by a court of law.)
The Gonzalez memo nowhere states that the President is above the law or that he has the right to suspend habeas corpus. The memo only talks about the pros and cons of treating enemy combatants, caught in Afghanistan, according to the Geneva Convention. Of note is the fact that it does not consider the nationality of the detained (American, Afghany or otherwise). After one reviews the definition of prisoner of war in the convention, it can be convincingly argued that members of al Qaeda and the Taliban do NOT fall under that definition. In other words, they are not prisoners of war. So what are they? President Bush decided that they were enemy combatants. What’s that mean? Well, Donald Rumsfeld issued this order as a result of the President’s decision. “The Combatant Commanders shall, in detaining Al Qaida and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”
Hartmann goes on to suggest that this issue is still at hand, that the President continues to suspend habeas corpus and that people are detained illegally.
However, the issue was decided when the Supreme Court ruled in Hamdi v. Rumsfeld (in regards to American’s being held) and Shafiq v. Bush. Hartmann mentions the first case, but does not make explicit what it means. The court ruled:
“[A]lthough Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.”
So, citizens can not be held without due process. Case closed.
In Shafiq v. Bush, the court ruled further that Federal courts do have jurisdiction on Guantanimo and those non-citizens being held must have their day in court:
“United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
I want to point out that Justice Scalia dissented on both cases, but not because he was backing the President’s position. In the first case, he didn’t think the court went far enough; he felt that an American is entitled to be criminally prosecuted (rather than treated to some half-baked military tribunal). In the second case, his decent is more technical (and I think it has to do with his worries about federalism). In any case, its misleading to represent Scalia as a lone voice of decent in cases were Bush lost and Hartmann’s side won (Scalia was one of three dissenters in the Hamdi case).
There’s a lot of froth in Hartmann’s column but not much substance. The right things are happening in Guantanamo and from the looks of the Gonzalez memo, he’ll make a even handed and thoughtful Attorney General.