So the United States Senate, arguably the premier debating chamber in the world (after Tony Blair kicked most of the Hereditary Peers out of the UK House of Lords), can’t debate anything unless 60 Senators agree to? This isn’t democracy, this is partisan gridlock. This is another instance of house rules prevailing over the Constitution, which prescribes only a few instances of supermajorities. This and Joe Lieberman’s threatening to switch parties once again suggest re-looking at supposedly-close election results from ’06, ’04, and ’02!
And a federal appeals court says Gitmo POWs need to go to Cuban courts? Well, maybe they’ll finally get some justice! As if the U.S. will ever obey a Cuban court order!!! Actually, the “neocon” who recently said the Constitution doesn’t bestow the right of Habeas Corpus spoke correctly, but for the wrong reason. Neither the Constitution nor the Bill of Rights “bestows” rights: GOD DOES. (Remember “endowed by their Creator”?!) The Constitution and the B of R merely recognize them, entrench them in the Constitution (to borrow Canadian terminology), requiring a Constitutional Amendment to abolish or modify them (as opposed to a simple legislative Act like in the UK). (The Constitution only allows habeas to be suspended temporarily “in cases of invasion or insurrection when the public safety may require it.” This says to me it can only be suspended on U.S. territory experiencing an invasion or insurrection, because it’d hamper putting down the invasion or insurrection – imperiling the physical safety of residents of said State or territory – for a time to accomodate prisoners’ needs for court hearings. Or maybe the U.S. forces can’t provide the safety required for a court’s functions for a time during such a disturbance. Certainly not for a protracted period of time, nor concerning prisoners from an overseas conflict not touching on U.S. territory.) Because all governments and their agents in the USA are limited, there must always be legal recourse against their overreaching, otherwise they aren’t really limited. Therefore any human being who finds himself in the custody of an American government or agent anywhere in the universe may file a writ of habeas corpus in any American court, to make sure his detention is in keeping with the limited powers of that government or agent. (Hence I believe the court erred in ruling against the German POWs after WW2.) And nowhere in the Constitution does it say the federal government may do anything it wants with non-American prisoners outside U.S. territory, disregarding the Constitution itself, domestic law, and what even in the 18th century they called “the law of nations.” Rights don’t belong to Americans, but to human beings (even if their own legal systems don’t recognize these all the time) – in Common Law terms, from time immemorial. The fact that a prisoner is alleged to be an “unlawful enemy combatant” doesn’t allow their jailer to be unlawful too. “Two wrongs don’t make a right” (no pun intended). If our alleged enemies reduce us to their own level of alleged illegality, they win.
Finally, Republican administrations habitually pick-and-choose which laws of the land they will “faithfully execute” – a “high crime” in my book! Usually they fail to execute environmental and business/workplace laws. Bush II does it, Bush I did it, probably Reagan and Nixon did it too. Therefore, Congress should set up an organ, maybe called the Congressional Legal Office, similar in structure to the General Accounting Office and the Congressional Budget Office. This CLO should institute an ongoing legal audit, to determine federal laws of the land which aren’t being executed by the Executive Branch – under any administration from here on out – or any independent federal agency. These could be statutes passed by Congress and signed by a President or overriding his veto, or federal court orders, agency regulations, treaties (HAHAHA!), previous administrations’ Executive Orders or directives still on the books, or even Constitutional or Common Law provisions. Three things this probably should not include are Justice Department failures to prosecute outside the Executive Branch, expenditures of federal funds without actual authorization of both Houses of Congress, and clearly-unconstitutional laws on the books: prosecutorial discretion and limited resources are legitimate traditional restrictions on prosecution and litigation (most can’t devote themselves to oral sex like Mr. Starr did), and challenging constitutionality of expenditures or laws is not likely to be countenanced by lawmakers always when necessary…though all three of these are ripe for further investigation and action under other rubrics. What the CLO should do, though, is when it finds an unexecuted law, notify House and Senate leaders, and the President or agency head, giving a set period of time to execute the law in question – perhaps as long as 18 months, since it may require separate appropriation of funds in the current or following fiscal year. The CLO’s enabling legislation should grant blanket, standing authorization to go to court to order the Executive Branch or agency involved to execute the law in question, if they fail to after notification. If the law is a court order or case law, I think the CLO should first see if any parties to the case are still around to consult with, but shouldn’t feel restricted if they don’t wish to return to court themselves, since in the end it’s THE PEOPLE’S interest that the Executive execute the laws of the land. In such a case, I guess the CLO would need to become an intervenor in the case, and move for a contempt-of-court finding against the Executive Branch or agency. Otherwise it’s a full-blown court case, just like private citizens and organizations – like environmental groups – have to do today to compel execution. (Though that sounds like something there should be a writ or simplified process for, stating the unexecuted law and presenting proof of failure to execute it…slam dunk!) After that, it’s contempt-of-court, with the normal punishments that can entail, including daily doubling of fines (hopefully against the official’s private, and not public, funds!!), and indeterminate imprisonment until the cause for contempt is removed – even of a President. Imagine that!!