I’ve seen hundreds of live concerts in my life. What I rate as my personal “favorite/best” concert performance I’ve ever attended was The Rolling Stones at The Forum in Los Angeles in 1975. And a big part of that was the opening of the show: Sympathy for the Devil. An amazing performance, impossible to forget. Seen lots and lots of great artists in great shows, but this one, this one…. Tonight’s video brings it back, totally different and yet…. Thanks.

So pay off S&P to confirm a AAA rating notwithstanding a “technical default”. Why not? It isn’t like they bear any financial risk for making bogus assessments, the “fallout” (meaning “lack thereof”) from the Financial Crisis shows that clearly enough. Bribe ‘em. They’ll “opine” that it’s only a “tecnical” glitch, this is after all the US Government, it will all work out … so, “AAA”. Interest rates stay down, inflation in check, Dow climbs to 16000 — who’s hurt? The only casualty is the charade that these guys have integrity and held in check by a risk of being held responsible, and nobody believes either of those things, anyway. How much could it cost to bribe the finite number of “credit rating gurus” when measured against the impact of threatened robodisasters flowing from a downgrade? ;) And I never emoticonize.

I agree with the panoply of reasons for dismay, but I will note that perhaps the thing that teed me off on my tangent was bmaz’s observation about the very construction of an appellate panel doing the most damage here:

“We have the smooth stylings of none other than Janice Rogers Brown, Lawrence Silberman and a chap who was actually an active part of the Bush/Cheney torture brigade prior to being elevated to the court, Brett Kavanagh. It would be impossible, even in the wildest Salvador Dali dream, to conjure up three judges more unsuitable for the task of deciding the viability, indeed existence, of Habeas Corpus in these circumstances.”

Granted, the executive branch apparently got the legislative branch to put lapdogs of choice on the court of appeal. But might that itself constitute the kind of programmatic manipulation that ought to be subject to express and independent review as a policy of unfairness, and not be limited to the individual review of the individual detainee’s individual appeal from individually diverse hatchet jobs? Put it this way: anyone think a Wall Street banker would be denied habeas? But we live in “dangerous times”, don’t we? And Wall Street’s activities could be dangerous to the state of the US, right? The creation of specific, racially-and/or-status-applied differential standards of justice, which couldn’t have been predicted by Boumediene itself and couldn’t even be predicted on a case-by-case basis even in the individual habeas proceedings, is classically suspect. A review of the fundamental unfairness of these proceedings, based upon a unitary record presented to a trial court in support of a request to renew habeas hearings (there is no “double jeopardy” issue, correct, since — to put in in legal terms which only heighten the obvious unconscionability of the circumstances — “jeopardy” hasn’t even “attached” yet) might allow somebody to say that it really really sucks to let judges with these specific backgrounds rule on whether the fruits of their previous involvement are A-OK or not….

Only if one reads Boumediene as contemplating unwinnable habeas proceedings should one accept the rulings setting up the results identified here. Not even the minority Justices would agree with that as a viable interpretation of the majority’s decision in the case.

Uh-huh. The effort that goes into this site is very much appreciated.

Thanks for the thoughtful response. May I add that I wasn’t really suggesting “petition” in the sense of a hoky internet petition (I agree wholeheartedly with your sentiment about that), but more in the nature of “petition for the redress of grievances” concept as stated in the Bill of Rights. A new habeas petition? A Bivens construct? A straightforward suit for invoking the Declaratory Judgments Act to declare it an insufficient basis to rebalance the standard of proof in a habeas case because “these are dangerous times?”? A rider to the next Judiciary Appropriations Act?

With all the erstwhile handwringing over governmental agents selling out the Constitution, what if somebody actually asked somebody like Obama, on camera, how it is that he considers assassinating a US citizen to be something he has the unilateral right to order? And if, as this set of circumstances suggest, the venerable Great Writ of habeas corpus is now effectively being written out of the Constitution (after having been written in to preserve nothing less than Magna Carta itself) by virtue of judicial conduct approaching outright collusion with the executive branch in order to circumvent even the policy direction of the Supreme Court itself, might somebody think it time to ask some of our leaders why they believe their oaths of office don’t prohibit that?

It kind of troubles me that there are a lot of people willing to suggest our Constitutional system is being undermined or even overthrown, but while a lot of people are leaning (not acting, just listing, sort of) toward the suggestion that there’s nothing to be done but wait for the collapse or take up arms to cause it, there seems to be very little momentum to advocate recognition that the crux of the problem is that nobody seems willing to hold our leaders accountable for the most fundamental obligation they are sworn to uphold. Is that obligation “hoky”? Is it “hoky” to suggest that it is not?

I get the impression that people don’t think the constitutional oath of office is important enough to consider realistically meaningful — that it’s a nice thought and all, but readily sacrificed in the name of pragmatism, expedience or, for god’s sake, re-election. But it’s not. None of the rest of the Constition is worth much if those entrusted to implement it aren’t held to a standard of respecting it. And more than any other interpretation, the past ten years are a testament to what happens when that oath is ignored and nobody does anything to compel that it be respected.

So now Habeas Corpus is on the slab. Anyone ready to say “enough”? The body is chilling, and we have to find a reprint of Pow Wow’s post here at Emptywheel to even get this news outside of, well, just how small a circle would that be? How can this circle be expanded? How can this be put in the face of “Powers that Be”? Maybe by putting in the context of how does this fit within the four corners of respecting and defending the Constitution of the United States?

It’s late. Thanks.

So then, is there a vehicle for publicly exposing and redressing the inelegant Klannish “justice” systematically imposed upon those “detained” at Guantanamo? In a way that might actually attract the attention of people in America by being presented in a way that emphasizes the similarity of this railroading to other circumstances now recognized as “considered expedient and OK” at the time but only later seen for the injustice that they were? Granted, there isn’t a lot of traction out there for things like “justice” if the word “Terra” is within a country mile of it, but who has an idea that might get more people than read this blog to understand, just understand, what has happened to the detainees who have tried to take the United States of America up on the constitutional guarantee that everyone thinks the Supreme Court emphasized was the law of the land in Boudemiene? It seems worthy of some kind of official petition in the nature of challenging the very actions of the judicial officers charged with the responsibility of implementing that Supreme Court direction.

Anyone left who can review the facts and the rulings, and set this right? Doesn’t seem that way. The Supreme Court says these detainees are entitled to a “hearing”, so they get one … and, lo and behold, they all lose. Yeah, so they kind of “won” until the appellate judges tinkered with those results until they found a way to reverse them, and then the Court which initially imposed the ruling “guaranteeing” these people “Due Process” found an easy way out: deny certiorari because the Supreme Court doesn’t sit as a “court of error” and it would be too time-consuming for the Supreme Court to decide whether the “factual determinations” were fair or not.

Accordingly, these detainees will remain detained indefinitely because, well, they got their opportunity for “due process” all the way to the Supreme Court. That’s the ticket. They just, you know, lost. They must be bahhhhd guys after all, as we all already knew because, well, our President told us so.

One of the most unsettling experiences in the system of appellate justice is the gnawing feeling of “equitable rationalization”, the sense that an appellate court has decided early on who they want to win, and has then “reasoned backward” from that predeliction to build a result justifying that ultimate conclusion. And as Pow Wow’s explication lays it out, this certainly seems to be exactly what has been going on in the DC Circuit. I find that reprehensible and I wish I could articulate some existing legal remedy for it, but I’m not aware of it. It seems to be no more than base and unconscionable racism — the appellate panels struggling to reverse favorable trial court rulings against these detainees seem no different in approach than the cop pulling somebody over for DWB, the jurists who accepted “separate but equal” to perpetuate racial discrimination in the Plessy regime, or those who advised FDR to intern people of Japanese descent in California during WWII.

The appellate panels here count on the expectation that they are essentially non-reviewable if they claim to base their decisions upon a “re-weighing of the evidence” and that, unless they too blatantly purport to adopt new “standards” which are contrary to some explicit aspect of the Supreme Court’s decision, they will evade reversal because the Supreme Court won’t accept review. So what are the options? Impeachment? Sure. And monkeys will fly ….

Could the group of now-defeated detainees articulate a cognizable claim for habeas corpus predicated precisely upon the hide-the-ball “unknowability” of the “standards” to which they were going to find themselves held in these Boumediene-referenced proceedings? Could their counsel themselves articulate personal/class claims on a Bivens basis against these judges based upon essentially the same pattern of conduct designed and implemented for the purpose of depriving these detainees of a fair proceeding or due process based upon a motivation of obvious prejudice rather than dispassionate justice?

What do you do when there is no justice after the Supreme Court rules that there should be? I vividly remember Professor Turley interviewed after Boumediene was decided, and acidly observing that the 5-4 majority decision that the Constitution applied “even in dangerous times” was in essence a bracing reminder that “even an idiot-proof system still has idiots.” Well, the post-Boumediene procedural debacle described here only demonstrates how prescient Professor Turley was — so, how can we address the kind of idiocy, meanness, prejudice and immorality reflected in the pattern of considered deprivation of due process rights reflected in these post-Boudemiene charades?

Instead of approaching this from the perspective of how hypocritical is is for a rethug to object to a president’s selective enforcement of law when the rethug liked the law being enforced (i.e., Newt likes DOMA), maybe the question might be asked whether some good might come from Congress actually debating the contours of presidential authority?

Yes, Bush’s signing statements announcing Cheney’s construct of a “unitary executive” were pernicious. The thing is, since nobody ever challenged those by impeaching Bush, that pernicious construct is still out there, waiting for the next rethug to seek to re-implement it regardless of whether Obama makes any noise about it during his terms.

It’s right to invoke the memory of Bush’s despicable “unitary executive” refusals to enforce the law, but perhaps less productive to do so to excuse Obama’s present policy announcement relative to DOMA. Is the analogy true? If they are the same act for purposes of constitutional scrutiny, then I’d rather have Obama chided by Congress and the “unitary executive theory” pulled into a congressional definition of what kind of presidential action will be subject to impeachment (and DOMA is headed for demise in the courts, IMO, so I don’t necessarily believe that an acceleration of that process due to a presidential edict is more important, in the long run, than having the Cheney “unitary executive theory” congressionally debunked once and for all from a constitutional perspective).

Isn’t the real question whether the presidential authority to act as Obama has acted relative to DOMA on materially different (i.e. solid) constitutional footing than was Bush’s series of signing statements? And if it isn’t, might there perhaps be value in daring the rethugs to pursue Newt’s threat?

Any reason for closing Gitmo is better than keeping it open. But sidestepping the idea that Gitmo is based on concepts anathema to the Rule of Law in favor of advocating closure because keeping it open “helps the Terraists” is not particularly encouraging.

Obams’s primary political accomplishment during his Presidency thus far appears to be that he has managed to remove Social Security from its position as the “third rail of American politics” and has placed the Rule of Law squarely in that position. It’s OK now to ignore torture, wiretapping, assassinations of US citizens, aggressive war under false pretenses — and it’s a mainstream presumption that nobody will do, or even say, anything about it — but it’s now OK to ponder what parts of the Social Security system need to be chopped to pay for such stuff.

No, it isn’t “progress” that the President of the United States is now revising his own history to try to fit even his prior commitment to closing Gitmo into a “we fear Terra” meme.