Supreme Court decision just a small bump in the road to KGB-like 'midnight trials'

I'd like to go along with a lot of the media and say that the Supreme Court dealt a stinging rebuke to the Bush administration with their 5-3 verdict in the Hamdan decision opposing the use of military tribunals to try terror suspects beyond the reach of the U.S. court system. (chief justice John Roberts, who had sided with the Bush administration on the same case when he was on a lower court recused himself because he had previously heard arguments and voted on the case).

I'd like to say that, but I can't, because it's not true. It may be stinging like a slap in the face, embarrassing but not harmful at all, nor likely to change anything. The tribunals, which are designed according to the way that the Justice Department and the Pentagon say they are, already come perilously close to a Kangaroo court, with suspects not afforded the rights they would have in the American court system, including the presumption of innocence.

Further, the definition of a 'terror suspect' (in other words, who is subject to the tribunals) is also completely in the hands of those who also would be prosecuting the case (and as I blogged on December 6, they have made mistakes and carried out procedures which avoid due process against persons who turn out to not be terrorists at all.

So what we have is a system in which a person can be accused (for whatever reason) of being a terrorist, can be sent to a prison outside the United States, subjected to whatever we subject them to there, and (prior to the Supreme Court decision) tried by a military tribunal where Alberto Gonzales essentially writes the rules, and sentenced to punishment (with death being a possible punishment) without the right to appeal this in the court system.

The obvious comparisons to Stalinist communism aside, such a system is perilously close to reality. Far from stopping it, let's consider what the Supreme Court decision does.

First, it doesn't prevent this from happening at all. It specifies that Congress has to approve of it. And some Congressmen are already working on making that happen. But, suppose that they write legislation that the White House doesn't like? Simple, the President makes a 'signing statement' exempting his administration from following the law for 'national security' exemptions (which the administration decides what those are), just as he made when he signed the bill prohibiting torture. No one has done a darn thing about these self-proposed exemptions.

And even the very limited impact that this bill does have (limited in terms of forcing Congress to write some rules which the President has to go on record as exempting himself from following?) is in jeopardy. If we presume that Chief justice Roberts would have voted (had he not recused himself) consistently with how he voted in his lower court opinion, the decision is 5-4, with the difference resting only on Justice Kennedy's 'swing' position and Justice Stevens' heart. The urgency of taking control of the Senate, the Presidency or both at the first opportunity has never been more clearly painted.

This is even more so if we recall the games they played with the Jose Padilla case, steering it into Judge Michael Luttig's court, so that he could overturn lower court rulings and uphold their right to indefinite detention of a 'terror suspect,' at which time they immediately 'quit while they were ahead' and shifted the case to the civilian courts where they charged him with crimes that weren't even the same as what they claimed to be holding him on. In other words, like a video game player who cheats at the game by keeping on hitting 'reset' until they get the result they want, and then moving on with the game from there, they played their game in the court system until they got the result they wanted and then moved away from where it could be challenged. The administration played Judge Luttig (who was also hoping for a Supreme Court appointment) like a drum, to the extent that even the conservative justice finally walked away from the bench in disgust.

We are literally a heartbeat away from having a Supreme Court which will allow (if we take into account the Padilla case as well) a system in which anyone could in theory be accused of being a terrorist (just the accusation being good enough), then sent to a place outside the borders of the U.S. (you know, just 'happen' to show up there), be held as long as they decide, then subject to a tribunal who can try them according to the rules that have been written by the same people as are hiring the prosecutor, and can then sentence them to death (with appeals limited and within the same system.)

As I said before, doesn't this remind you of what we feared the most about the other side during the Cold War? I wonder if the tribunals will be held at midnight?