While some of our politically conservative neighbors in these United States might be mourning what they perceive as the death of marriage—a lament we should expect to hear many times in the future, wondering just how many times an idea can die—it seems almost ironic that we cannot say the same of the concept of good faith, largely because the patient’s condition is classified.
Michael Abramowitz last weekend brought us the front-page story of how the White House ignored legal advice that its detention policy for terror suspects was untenable. We should not be surprised that at least one lawyer would be willing to state the point clearly: “I can virtually guarantee you,” wrote John B. Bellinger III, in August, 2006, “without a legislative basis, federal courts are not going to be willing to uphold the indefinite detention of unlawful combatants”.
As the Washington Post article describes:
The e-mail, disclosed by former White House officials familiar with the intense internal debates over detainee policy, was one of several red flags for the White House in its fierce battle to keep the detention facility in Cuba free of judicial oversight.
The result, they said, has been a series of losses at the Supreme Court, including last week’s 5 to 4 ruling that detainees at Guantanamo have a constitutional right to a review of their detention in federal courts — a ruling that holds out the prospect of heavy litigation and close judicial scrutiny of decision-making that the administration has long argued is best left to the president.
“Through misjudgment and overreaching, the White House ended up with the very result it sought to avoid — heavy judicial involvement and erosion of deference to the president’s view of wartime necessities,” said Matthew Waxman, who worked on detainee affairs at the State Department and the Pentagon before leaving last fall to teach law at Columbia University.
“The administration pursued the policy course it wanted,” said former State Department counselor Philip D. Zelikow, who was involved in some of the debates over detainee policy. “It planned for the best instead of preparing for the worst, and decided that it would prefer to fight for what it wanted.”
Even some conservative allies of the administration agree that the White House may have mishandled elements of its strategy, but they pin most of the blame for the administration’s predicament on the leanings of the Supreme Court.
“It may well be fair to fault the Bush administration politically for failing to work with Congress early on to develop a statutory framework governing Guantanamo detainees,” said M. Edward Whelan III, a former Bush Justice Department official who now heads the Ethics and Public Policy Center. “But the narrow Supreme Court majorities in the Guantanamo cases deserve far harsher criticism for their gross misreadings of the law and their abandonment of sound precedent on which the administration reasonably relied.”
White House officials said it is unfair to second-guess their strategy, given the narrow divisions on the court. “I don’t think it takes a rocket scientist to say there was a chance that the administration could lose this case,” said one top official involved in detainee policy, referring to last week’s ruling. But he argued that “it would be very unusual for a Congress and executive branch to formulate national security policy based on the expectation that the Supreme Court would misinterpret the Constitution.”
Very unusual, indeed. Except these are fairly unusual times. Remarkably so. If a Democratic Congress elected specifically to repudiate the Bush administration’s war and terrorism policies can spend nineteen months handing the President every damn thing he wants, imagine what a Republican-dominated Congress would do. Actually, we don’t have to imagine. As House Democrats celebrate a “compromise” on government surveillance and intelligence operations described by one Republican Senator as “a better deal than [the White House] had hoped to get”, it does not seem so difficult a proposition that, in GOP hands, the legislative branch would join the executive in Constitutional “misinterpretation”.
And let us be honest: there is no misinterpretation about it. In April, for instance, Hearst correspondent Helen Thomas squared off against White House Press Secretary Dana Perino, an exasperating exchange in which Perino insisted that the United States had not committed acts of torture and Thomas lashed out at her tractable fellows in the White House press corps. The only grounds on which Perino’s assertion stands is built up around memoranda authored by White House and Justice Department advisors deliberately calculated in bad faith to achieve a specific end. When your way around a law that makes something illegal is to call it quaint or obsolete, when your excuse is that just because the statute says so doesn’t mean you have to obey, there really is no question about whether or not one is operating in good faith.
There is the catch. Abramowitz’s unnamed “top source” is pushing a thin line. Yes, it would be very unusual for a Congress and President to formulate policy based on the expectation that the Supreme Court might misinterpret the Constitution. But this administration has shown repeatedly, without question, that it does not give a damn what the Supreme Court thinks. And what expectation might we have of a Congress ruled by a party well-known for complaining about judicial activism every time their side loses in court?
Quite clearly, there was no good faith in the development of our policies for the detention of terrorism suspects. What has happened here is the kind of thing that used to be written off as the paranoid ravings of über-libertarian freaks and fringe-leftist maniacs. And it has happened in the bare light of day, by the grace of a nihilistic cynicism normally ostracized by conventional wisdom.
How about this for a question I never thought I’d be asking: What ever happened to the day when a president couldn’t even lose money in a land deal without a Congressional inquiry and sacrificial lambs rotting in jail on contempt of court charges for refusing to give testimony in a credit-card fraud trial about whether or not she had ever had sex with the man in the Oval Office?
Superstition suggests that the more I try to embrace the main streams of American culture, the more perverse and unappealing it becomes. Indeed, for everybody’s good, I ought to go back to sitting around in an all-night diner, smoking cheap cigarettes and drinking even cheaper coffee, making the occasional foray to some lonely cemetery or allegedly haunted house while a guy named Skunk draws pictures of the D&D-looking spirits he swears he saw, Spinner and Johan calculate spirit-names straight from postmodern elvin lore for the lot of us, and Angela writhes in semi-consciousness while muttering in tongues about an astrally-projecting cat.
Maybe then things will get back to normal.