The Land of the Unfree and the Home of the Unwitting

opinion by William Hughes

Welcome to America, the land of the unfree! On June 28, 2004, in the case of Yaser Hamdi, the US Supreme Court, by a 5 to 4 vote, struck a severe blow that went directly to the heart of our revered liberties. And yet, as that poorly-reasoned decision tore into the foundation of our once-grand Republic, there was hardly a murmur of opposition heard throughout the nation or in the media.

The court gave the Bush-Cheney gang a green light to arrest any American citizen, and to hold him or her indefinitely without charges or trial. All the administration has to do in order to initiate that terrifying process is to classify an individual as an "enemy combatant." Tossing a bone to civil libertarians, the court rewrote the US Constitution, by upholding in its majority opinion, that the accused has a right to a hearing before "a neutral third party" to challenge the validity of his "enemy combatant" status.

Hamdi has been imprisoned without charges or trial in the Norfolk and Charleston Naval Brigs for more than two years, on the "allegation that he is an enemy combatant, who bore arms (in Afghanistan) against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time." (Dissenting Opinion, Hamdi v. Rumsfeld, 03-6696, Justices Antonin Scalia and John Stevens).

In his vigorous dissent, joined in by Justice John Stevens, Justice Antonin Scalia ripped into the majority view. Justice Ruth Bader Ginsburg and Justice David Souter also disagreed strongly with the majority, but for different legal reasons. These four judges are unanimous, however, in their belief that Hamdi should either be charged with a crime or released from custody.

Scalia took the position--grounded in common law, the history of habeas corpus, the interpretation of legal precedents and the writings of the Founding Fathers on the US Constitution (particularly the legendary Alexander Hamilton)--that the only time an individual can be detained without trial is if the Writ of Habeas Corpus has been suspended by a vote of the US Congress, pursuant to Art. 1, Sec. 9, cl. 2. The Congress has not done that. Scalia underscored, "Absent suspension...the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge." Scalia added these ringing words, "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.

Surprisingly, a supposed liberal on the Court, Justice Stephen Breyer failed to stand with those four brave judges that opposed granting the Bush-Cheney Gang the draconian power to detain a citizen, without charges or trial. Breyer's critical vote tipped the scales in favor of preventive detention. This is the same Justice Breyer, who, when speaking at the Columbia Law School, in NYC, on Sept. 12, 2003, bragged that the US could learn from "compromises Israeli courts have struck to balance terrorism and human rights concerns." He also insisted, totally ignoring the suffering of the Palestinian people for the last 37 years under Israeli occupation, that the Israelis have adopted "intermediate solutions" (Anne Gearan, AP, 09/12/03). Keep in mind also, that Breyer was hyping so-called Israeli "justice" only six months after the murder of American peace activist, Rachel Corrie, by an Israel bulldozer operator, at the Rafah refugee camp, in Occupied Gaza.

Ironically, Scalia, who is seen by many as the devil incarnate, came off in the Hamdi case, along with his other three dissenting colleagues mentioned above, as a valiant guardian of our most basic rights and liberties. He called giving Hamdi a hearing rather than either charging him with a crime or releasing him: "An unheard of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury." In other words, the proposed hearing for Hamdi will be a legal farce, that can only please the likes of Bush's Attorney General John Ashcroft and his Secretary of Defense, Donald Rumsfeld.

In summing up for his dissenting side, Scalia roared, "If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court..."

In conclusion, I believe, by its decision in the Hamdi case, that the US Supreme Court has opened up a pandora's box. It has put its imprimatur on the evil of preventive detention. Its cautionary words, that the ruling applies only to the "narrow circumstances" described in its opinion, are meaningless in light of the fact that the Bush-Cheney Gang has no respect for the law or the truth, as its illegal and unjust war in Iraq abundantly shows. The outrageous decision in the Hamdi case turns 217 years of American and Constitutional history on its head, while a nation of 281.5 millions mostly keeps itself mesmerized by watching mindless, and increasingly vulgar, Reality TV shows.

Under the present dismal circumstances, I wonder if the last line of our national anthem, the "Star-Spangled Banner," should be modified to read: "The Land of the Unfree and the Home of the Unwitting."

This article (c) William Hughes 2004. William Hughes is a Baltimore attorney and the author of "Saying 'No' to the War Party" (IUniverse, Inc.). He can be reached at liamhughes@mindspring.com.