Saturday, June 21, 2008

Politics or Justice?

Leonidas is confused. The confusion in this instance is the result of attempting to understand the "logic" of court decisions here in the wonderful U.S. of A. It all began many years ago in a court room in the South Bay judicial district of Los Angeles County.

As a young starry eyed deputy sheriff recently matriculated from a government university with a paper proclaiming to all interested parties (the Sheriff's Department was less than suitably impressed) that he had passed the required courses to be legally designated a "bachelor of arts" in political science and history, he was seated in the court room of one judge whom we shall name Smith. Leonidas' presence was the result of a subpoena to testify in the case of one John Doe to whom he had issued a traffic citation for proceeding through an intersection against a red traffic light.

The traffic court room was crowded with miscreants, officers of the law and a smattering of porch climbers attorneys. Apparently the Doe case was near the end of the calendar to be called so Leonidas settled down to be entertained by the unfolding human comedy. After the judge had disposed of several cases Leonidas was nudged by a colleague who whispered: "Do you see what's going on here?"

Sure enough, every other case resulted in a not guilty verdict. The testimony of the witnesses both police and defendant did not seem to be relevant. Often the defendants were tripped up in obvious lies by the prosecutor but this was apparently not germane to the verdict. Leonidas was at first incredulous, but having just completed a graveyard shift on the streets of the south central district of the Lennox Sheriff's station decided to extrapolate the anticipated decision of the judge in his case on the basis of this newly garnered logic. As luck logic would have it, by projecting the guilty/not guilty decisions down the calendar the Doe case would be decided as "guilty". Drat! It would make no sense for Leonidas to leave the court to retire to bed and have the judge simply dismiss the case. In the interest of "justice" he had to remain and participate in the charade.

Leonidas subsequently learned that Judge Smith had been appointed to the bench by Jerry Brown, California's then governor and now Attorney General.

Fast forward to a June 2008 Supreme Court decision. For the sake of analogy and a view of history let us examine the hypothetical case of Hans Backer. Hans is the highly trained skipper of a German U Boat in December 1941. He has the misfortune to have his boat sunk by depth charges from a British corvette in the north Atlantic. He and several crew members escape the doomed craft and are rescued/captured by the corvette's personnel. Due to overcrowding and security issues the brits turn Hans and his colleagues over to the Yanks who intern them in a POW camp in Alabama. In late 1942 Hans files a writ of habeas corpus with the US District court in Birmingham. The judge refuses to issue the writ and Hans appeals all the way up to the Supreme Court. Five of the 9 justices agree that as no "charges" have been brought against Hans and he was an enemy combatant captured on the battlefield by an ally, the US authorities must release him.

At this point there are two options: either return Hans to the Brits (who refuse to accept him) or release and repatriate him to Germany. For the sake of this hypothetical scenario let us assume that Hans is repatriated via neutral Spain to Germany where he is hailed as a hero and granted command of a newer and improved U boat which sinks an American troop ship carrying troops to England to be landed at Normandie.

These are the implications in the 5-4 decision in the Boumediene v. Bush decision. In a judicial/political coup to seize power from the legislative and executive branches, the 5 justices have rejected the concept that combatants captured during hostilities are to be held until the conflict ends to prevent them from reengaging in war against us. Wouldn't it be convenient if such a concept were accepted by our friends the Taliban, Al Qaeda, Hamas, Hezbollah et al?

A third alternative has been omitted here with regard to the Supreme Court's decision. In 1832 President Andrew Jackson objected to the Marshall Supreme Court decision in Worcester v. Georgia and refused to execute it saying: "John Marshall has made his decision, now let him enforce it!". Imagine that.

cross posted at: Eternity Road

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