October 25, 2006 at 09:33:25

Of The Conference On Presidential Powers, And Stealth Immunity For Bushman

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By Lawrence Velvel (about the author) Page 3 of 3 page(s)

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You know, it is possible that even today, and even in the federal courts, the Bushman wall is starting to crack. There is, of course, the deep, ever widening disgust with Bushman's incompetence and malperformance that is threatening the Republicans' current hold on both houses of Congress. There is the media's willingness to call Bushman the inept that he is -- and always was. (Just yesterday one read two comments by Richard Cohen, in The Washington Post's National Weekly Edition, that echoed points which have been made here for years: Citing the recent book by Bob (The Egomaniacal Bore) Woodward, as well as "everything else I've read about the 43rd president," Cohen said it was "apparent" that Bushman "had no accomplishment to his name that did not stem from premogeniture." He also cited Bushman's "steadfast belief that his is a divine mission.") And even the courts are not rolling over and playing dead quite so rapidly. Recently a number of federal judges, in addition to Anna Diggs Taylor, who has been written of here previously, have refused to immediately and with no questions throw out cases challenging the electronic eavesdropping on the governmental claim that the publicly admitted eavesdropping is a state secret. The other judges don't have Judge Taylor's background (also written of here previously), so their views have a more tentative, cautious, well-maybe-the-president-is-the-king quality to them, and maybe they will ultimately throw out the cases, but the fact remains that they did not dismiss them out of hand, as one would have thought likely.

So what will happen years from now, what people will think and do then, remains in the womb of time.

Then there is the point which one thinks the most important of all with regard to the wording of the immunity statute. The law says no court shall have jurisdiction to hear any action relating to the treatment of a past or present alien detainee who "has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (Emphasis added.) This looks to me to possibly be a hole big enough to drive the proverbial truck through.

Now, I don't know any of this for certain, but aren't there a lot of people who were detained, tortured or rendered for torture, and then released because ultimately considered to be innocent of any misconduct against the United States? Were these people ever "determined" "to have been properly detained as an enemy combatant"? If so "determined," by whom, where and when? -- weren't there in fact a lot of captives who never went before any tribunal? Or, if they did go before a tribunal, lots of them were found innocent, weren't they? -- Otherwise why have they been released? Were all of them released because they all had suddenly become a threat no longer, even though they had once been properly determined to be enemy combatants? Why do I doubt this? The bottom line here is that it is entirely possible, it may even be very likely, that there are lots of people who were tortured and will still have a right to sue, despite the new immunity statute, because they were never properly determined to be enemy combatants and/or were even found innocent.

Perhaps Bushman and company will claim that people were determined to be "properly detained as an enemy combatant" just because Bushman publicly said years ago that they were "enemy combatants" (although we now know that lots of these people never were combatants, but merely innocent guys who got swept up off the streets). Such a Bushmanian claim would, of course, make a mockery of the statute's apparent bow towards proper procedure. (In fact, the whole military tribunals aspect of the statute is a bow towards proper procedure.) In any event, we shall see what the Bushman gorillas claim and what the courts do.

It is conceivably worth mentioning in this regard that the case of the Canadian whom we snatched and sent to Syria for torture (Arar) and the similar case of a fellow named Khaled El-Masri would seem to fit the situation. These guys were finally, in practical effect, declared innocent and released. Did somebody ever "determine" that they were "properly detained" as enemy combatants? If not, shouldn't they be able to sue Bushman and company for the torture they suffered, notwithstanding the immoral District Court decisions dismissing their cases?

* * * * *

As the reader can see, there is a fair amount about the statute that this writer does not understand. This is in part because of the way statutes are often written, and the way this one is certainly written. Instead of clearly stating what they mean, for example, statutes will, as this one does in several parts, obscurely say that some other statute is amended by substituting some new word for some other word in some section of the other statute. Or statutes will say that certain sections of some other statutes constitute exceptions to the new one. Or they will trick things up in some other way. It is all very confusing to the layman, and equally to a lawyer who does not know and does not have time to read and study all the other statutes and the particular sections of them referred to. One frankly wonders about the morality of this method of writing statutes, a method that seems designed as much to hide the ball as anything else. (Of course, lawyers will give you lots of reasons why these convoluted ways of writing statutes are the only possible methods -- which I doubt, which I in fact think plainly untrue.)

In any event, it would be useful for someone to write some plain, easily comprehensible, knowledgeable piece about what the immunity statute means -- who it applies to, whom it doesn't apply to, and when. Right now some of this seems unclear -- and one wouldn't be shocked if it had been deliberately kept unclear lest lots of people learn what was being done and react against it. But until I learn that my understanding of the statute is wrong for some reason or is incomplete -- both of which are entirely possible -- it will be this writer's opinion that the statute has some loopholes which lawyers and some of their clients can use in an attack on Bushman, the Yale flunk-out, the Winnetka wrestler, and others of the utter bums, the truly bad human beings, who have been running this country.

In one man's judgment it is of the utmost necessity that this nation begins looking for leaders who are honest, smart, open minded, and moral, instead of being gorillas, thugs in suits, bums, like our current leaders. The Kissingers of this world (and we now have learned that the original Kissinger played a role in the current debacle as well as the last one), the Bushmen, the Winnetka wrestlers, the Yale flunk-outs -- none of these are honest or moral, maybe none of them are open minded, a couple are not even smart, and the one or two who are smart are evil smart and evil being a truly awful combination. Americans probably don't like to think about it -- instead we mostly like to think that any regular guy can do a good job -- but this country had better start looking to elect people who are honest, competent, smart and moral. Otherwise, we are just headed for ever more trouble.

Frankly, the need to elect much better people, especially to the highest offices, a need which is not often discussed, did not to my recollection obtain mention, except for one brief comment, even at the recent conference on presidential powers. That even such a conference would not consider this need is a measure of how far we have fallen in connection with the needed traits. It strikes me that this need, too, is something which should be the subject of inquiry, research and thought at colleges and universities.* **

*Perhaps I should note, for the many readers who may be innocent of the knowledge, that the original Bushman was a famous gorilla in the Lincoln Park Zoo in Chicago in the mid 20th Century. In those days gorillas were not presidents.

**This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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Lawrence R. Velvel is the Dean of the Massachusetts School of Law, which educates the working class, mid-life people, minorities and immigrants. He (more...)

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