Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

have been brought in the judicial district where he was then being detained, in South Carolina, where the government moved him during his incarceration in order to create this procedural default.

After he refiled his habeas corpus petition in federal court in South Carolina, Padilla scored an impressive victory. The lawyers in the Bush administration, fearing that the Supreme Court would uphold Judge Doumar’s logic in Hamdi, advised President Bush to release Padilla from military confinement. This was done after six years of solitary confinement with no charges pending against him.

The third case decided on June 28th 2004—and the one most devastating to the torturers in the Bush administration—was Rasul v. Bush.15 The lead plaintiff in the case was Shafiq Rasul,16 an alien being detained at Guantanamo Bay, Cuba. The Bush administration believed that Guantanamo prisoners were entitled to no due process, and it argued this position at the Supreme Court. To open his oral argument, Ted Olson, the solicitor general, stated:

Mr. Chief Justice, and may it please the Court: The United States is at war. It is in that context that petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court.17

Justice Stevens quickly interrupted, and asked Olson whether the United States could continue to detain people on Guantanamo even if the war hypothetically ended.18 When Olson responded affirmatively, it became clear that the Bush administration was not engaging in a “temporary program.” The “War on Terror” was simply the shield it used to protect its extra-constitutional behavior. Thankfully, the Supreme Court held, 6 to 3, that the United States maintained significant control over Guantanamo Bay such that the federal courts have jurisdiction to hear habeas corpus petitions filed by those detained there.

In response to Rasul, a major blow to the administration, Congress and the President teamed up against the Court. Congress passed the Detainee Treatment Act of 2005, which stated that “No court or judge shall have jurisdiction to . . . consider a habeas corpus petition from an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” The only route for these detainees was first through military commissions, and then review in the U.S. Court of Appeals for the District of Columbia Circuit.

The Court struck back in the case of Hamdan v. Rumsfeld,19 in which it held that the relevant provision of the Detainee Treatment Act applied only prospectively, not retroactively, to those petitions that were already pending in federal court at the time the law was enacted.

Congress, in turn, became even more specific. Section 7 of the Military Commissions Act of 2006 states the following: “No court or judge has jurisdiction over habeas corpus concerning any aspect of the detention, transfer, treatment . . . of an alien who has either been determined to be an enemy combatant or is awaiting such a determination.” The Act applies to all cases without exception, pending on or after the date of enactment.

On June 12th 2008, the Supreme Court ended the ping-pong match it was having with Congress and the president, and ruled in the case of Boumediene v. Bush,20 that despite the administration’s statutory restrictions on the habeas protection, Guantánamo detainees have a constitutional right to habeas corpus under Article I, Section 9, Clause 2. The Bush administration, despite all its efforts to break the law, could not avoid the Constitution. And since the right to habeas corpus vindicates a natural right (the right to be free from unlawful restraint), no president or Congress can permanently take it away.

Were Hamdi and Padilla tortured? These two Americans were denied all human contact, for six years in Padilla’s case and for two years in Hamdi’s. The Bush administration was so fanatical and demonic about denying them human contact that whenever it moved them from place to place in the prison system, their eyes were covered, their ears were blocked, their hands and fingers were covered, and their ankles were chained to each other. All this while no charges were pending. Is it any wonder that they babbled and drooled like babies when they first met their attorneys?

There is simply no authority in any federal statute permitting the government to treat anyone in this manner, much less an American against whom no charges had been filed. This psychological torment was torture, and those who authorized its administration knew it. They knew it because they took an oath to uphold the Constitution, the Eighth Amendment of which prohibits the infliction of “cruel and unusual punishments.” One member of President Bush’s cabinet actually suggested the following nonsensical argument: well, they were not charged with any crimes, so they were not tried or convicted, thus what we did to them was not punishment. Such “logic” would permit the rack and burning at the stake.

“We Tortured”

—Susan J. Crawford, a top Bush administration official21

The Bush administration repeatedly claimed that the United States does not support torture. We have just examined one of its arguments.

Then-Vice President Dick Cheney, an avowed proponent of torture, which he preferred to call “enhanced interrogation,” has stated that what constitutes torture is in the eye of the beholder, and that “you can get into a debate about what shocks the conscience and what is cruel and inhuman.”22 Debate all you want, Mr. Vice President, but you have laws, international conventions, and the United States Constitution to contend with. The United States Code, for example, defines “torture” quite clearly. Under 18 U.S.C. §2340, “torture” consists of an act committed by a person acting under the color of law, specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. According to the statute, “severe mental pain or suffering” is

the prolonged mental harm caused by or resulting from (a) the intentional infliction or threatened infliction of severe physical pain or suffering; (b) the administration or application, or threatened administration or