Clarence Thomas got a pat on the back the other day in Britain's Economist. Critics complain "that he is cruel," observed an unsigned essay on the Supreme Court justice and his new memoir, My Grandfather's Son. "Rather than seeking justice, he coldly applies the law as it is written. To conservatives, that is his chief virtue. Judges who conjure up rights that are not mentioned in the constitution--such as the right to an abortion created by Roe v Wade in 1973--undermine the rule of law." The writer sided with Thomas. "It is up to lawmakers to make laws, he reckons," went the essay's conclusion. "If the voters don't want change, politicians should persuade them, not just keep their heads down and hope that unelected judges will make the hard choices for them."
Yes, Thomas's critics do think he's cruel, but Roe v. Wade, a ruling he had nothing to do with, is a bad example of why. A much better one is Bowles v. Russell, a 2007 Ohio case involving a convicted murderer who sought habeas corpus relief in federal court. Bowles's petition was denied by a federal district judge and then rejected by a federal appellate court because his notice of appeal had been filed two days past the statutory deadline--the district judge had erroneously given him the wrong date.
Thomas wrote for the 5-4 majority that denied relief. Fairness to Bowles was not their concern. Under the law, Thomas wrote, once the deadline passed the appellate court lacked jurisdiction. For that matter, so did the Supreme Court. "Bowles contends that we should excuse his untimely filing because he satisfies the 'unique circumstances' doctrine," Thomas wrote. "Today we make clear that the timely filing of a notice of appeal . . . is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the 'unique circumstances' doctrine is illegitimate."
Thomas helpfully noted that time limits are statutory and Congress can change them if it wants.
Bowles v. Russell is a good illustration of how the federal courts at the moment are unusually enamored with the letter of the law. This is the wrong time to shrug off a particularly loathsome law with the thought, "Surely, they didn't mean it the way it reads." Maybe they didn't, but if it's what they wrote, we should assume that's how the courts will interpret it.
How will they interpret this passage from the Military Commissions Act of 2006?
"WRONGFULLY AIDING THE ENEMY. Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct."
The Military Commissions Act was Congress's response to Hamdan v. Rumsfeld, a Supreme Court decision handed down last year that held as illegal the military commissions set up to try prisoners in Guantanamo. (Thomas voted with the minority. Chief Justice John Roberts didn't vote.) The White House wasn't happy with Hamdan, but the Republican Congress put a smile back on its face. "The law does not apply to American citizens," said the New York Times, "but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening." Law professor Jonathan Turley of George Washington University said the act "essentially revokes over 200 years of American principles and values." Nat Hentoff wrote in the Village Voice that in denying prisoners access to the federal courts Congress was "defying our own Supreme Court."
But it wasn't the broad sweep of the Military Commissions Act that earned it first place in Sonoma State University's most recent Project Censored competition, which shines a light on "the news that didn't make the news." It was the above paragraph, which in the view of Project Censored made the act even more odious than almost anyone in the media understood.
"With the approval of Congress and no outcry from corporate media, the Military Commissions Act . . . ushered in military commission law for US citizens and non-citizens alike," read Project Censored's report. It faulted the media, particularly the Times, for giving "false comfort that we, as American citizens, will not be the victims of the draconian measures legalized by this Act--such as military roundups and life-long detention with no rights or constitutional protections."
Someone has to have reported the stories Project Censored singles out, otherwise it wouldn't know about them. In this case it was Robert Parry, writing at consortiumnews.com. Parry's a former reporter for the AP and Newsweek and author of the book Secrecy & Privilege: Rise of the Bush Dynasty From Watergate to Iraq.
Near the beginning of the 38-page act is this language about jurisdiction: "A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001." The Times apparently took it at face value. Parry was more suspicious.
To Parry, other passages of the act, in particular the one quoted above, introduced "legal ambiguity" that the White House could exploit as it wished. "Over the past six years," he reasoned, "Bush and his administration have routinely stretched legal language to aggrandize their power. . . . If the Times is correct that 'this law does not apply to American citizens,' why does it contain language referring to 'any person' and then adding in an adjacent context a reference to people acting 'in breach of an allegiance or duty to the United States?' Who has 'an allegiance or duty to the United States' if not an American citizen? . . . This section of the law appears to be singling out American citizens."
Suppose Justice Thomas and a majority of the Supreme Court were to read it that way too. The court would be interpreting the law to say that if you, an American citizen, knowingly aid one of our country's enemies, a military commission will decide how to punish you. As for what constitutes an enemy, and what constitutes aid, and whether a peace rally in Chicago constitutes aid to the enemy, that would be up to the government.
Reading the passage carefully, you might surmise that even though a military commission would set your punishment, a civilian court would decide whether you were guilty in the first place. Sorry, that doesn't seem to be the case. The passage appears in a portion of the law entitled "Crimes triable by military commissions." Parry thinks you should assume that an administration that decides you're objecting too loudly to a war it's fighting will consider itself authorized to arrest you and turn you over to the military for trial and punishment.
"Imagine," Parry wrote, "a terrorist incident or a threat of one somewhere in the United States. Amid public anger and fear, Bush or some future President could begin rounding up citizens and non-citizens alike. Once these detainees are locked up at Guantanamo Bay or some other prison facility, they could be held incommunicado and denied access to civilian courts under the law's court-stripping provision. It could take years before the U.S. Supreme Court even addresses these detentions and--given the increasingly right-wing make-up of the Court--there would be no assurance that the justices wouldn't endorse the President's extraordinary powers."
That reading of the law would strike some observers as un-American and cruel. Others would say the justices were merely enforcing the law as it was written.
All sorts of laws contain little secrets. Consider an antilittering ordinance passed by Chicago's City Council last February. Ron Roenigk, publisher of Inside, a free northwest-side weekly newspaper, spotted this passage:
"It shall be unlawful for any person to distribute or to cause others to distribute . . . newspapers, periodicals, and directories of any kind on any public way or other public place or on the premises of any private property in the city in such a manner that it is reasonably foreseeable that such distribution will cause litter. Unlawful methods of distribution include, but are not limited to, leaving stacks of papers on the ground without any means of securing them."
Hey, that's us! thought Roenigk. He sounded an alarm, alerting the Reader and every other paper he could think of that's dropped off in stacks, and also such worthy bystanders as the Illinois Press Association and the ACLU. He did some reporting, identified Alderman Manny Flores as the ordinance's principal architect, and got Flores to agree to discuss modifying the ordinance so that the distribution of legitimate papers such as Roenigk's wouldn't be unduly inhibited. And he went to press. "Rogue Newspaper," read the headline on the front page story in the October 10-16 issue of Inside. "City Hall Bans Distribution of Free Newspapers." And then the lead, in big bold type: "Beware, reading this newspaper may make you a partner to a crime."
Forgive the hyperbole. Roenigk recognized the actual threat, which is that the ordinance could become the tool of any alderman with a nose out of joint who wanted to punish whatever little local paper he or she felt abused by. If it can happen, it will happen--a legal principle worth living by.
For more, see Michael Miner's blog, News Bites, at chicagoreader.com.
Art accompanying story in printed newspaper (not available in this archive): Clarence Thomas photo by Chip Somodevilla/Getty Images.