January
28, 2006
Cedar Fever and Bad
Law
By Jack D. McNamara
We joined our
neighbors last week in physicians’ offices and pharmacies. The great
Wheeze-or-Sneeze-off of late December and early January beset us and
engendered a revived respect for those in the helping health
professions.
From our own observations the culprit seems to be cedar fever. This is
a particularly Texas scourge and we have encountered it for several
years running. It starts as a nasal drip and quickly progresses to the
Big Wheeze. Contrary to our normal inclinations, we immediately seek
medical care and subside into semi-hibernation with a good book and a
pessimistic outlook.
One cannot blame the cedars for what they do. They are impelled to
scatter their pollen without consideration for our comfort. This is
evidence of larger things moving in the void according to logic
impenetrable to the mere mortals left gasping and coughing in the wake.
These deep inscrutable forces sometimes show themselves briefly in
order to remind us of their presence — but the forces do not explain
themselves because that would subtract from their awe.
In this mysterious
movement of unknowable forces, U.S. District Judge James Robertson
ruled that the continued detention of two men at the U.S. prison facility at
Guantanamo Bay, Cuba is unlawful—but the judge has no authority to release
them.
The men, both Chinese and both Muslims, are Uighurs (pronounced
wee-gurs) from the far western Chinese province of Xinjiang, an oil
rich high desert something like Odessa. They were seized by bounty
hunters in Pakistan as they fled bombing in Afghanistan more than four
years ago. A military tribunal ruled in 2004 they are not enemy
combatants. But the men cannot go home to their province because China
would likely do bad things to them under the rather one-way presumption
that any Uighur is a bad Uighur. The Washington Post, which is
reporting this story, writes that the U.S. has approached several
countries to accept the Uighurs but there are no takers. There are
another half-dozen or so held at Guantanamo Bay.
Lawyers for the two men announced January 17 that they would appeal
directly to the U.S. Supreme Court, saying the Court’s decision
“proclaims an Executive with unchecked power … to seize and perpetually
imprison persons from around the globe.”
These circumstances are described as “Kafka-esque” by the trial judge.
Certainly it is exotic that the U.S. Government will imprison
indefinitely in Cuba two Chinese Muslims kidnapped in Pakistan but it
is neither an isolated nor a unique problem. In the past five months
the U.S. Department of Homeland Security has vowed to abandon the
“catch and release” policy whereby illegal immigrants from countries
Other Than Mexico (“OTMs”) were arrested then let go pending an
immigration hearing. A pilot project got underway in south Texas a few
weeks ago to do just that. Almost immediately problems developed with
immigrants from El Salvador. It appears there was special legislation for them as
political refugees some 20 years ago which will complicate
prospective incarcerations. Are they bound for Guantanamo?
These are details about little people in the vast and complicated
tapestry of the U.S. Justice Department’s new responsibilities in the
world. True, there are more than 10 million people illegally in the
U.S. Any serious attempt to apprehend, incarcerate and deport such
numbers would keep several Justice Departments busy for a long time,
especially when they are unable to provide a just solution for two
Uighurs.
The holiday period
also provided us a horrible example of our predicament in the example
of what happens to someone who is not a little person.
Henry Cisneros, the San Antonio Democrat who was President Bill
Clinton’s selection for Secretary of Housing and Urban Development
(HUD) in 1993, saw his prosecutor fold up last week.
After more than 10 years and the expenditure of $22 million, Special
Prosecutor David Barrett was forced to end his inves- tigation. Long
ago Cisneros pled guilty to lying to the FBI about payments to his
mistress, a misdemeanor with no jail time.
But as Barrett submitted his final report he included lengthy charges
that Cisneros had lied on his income tax and it was covered up by the
Clinton Administration, charges denied by everyone involved in this
mess.
Barrett’s endless and expensive prosecution proved the likely end of
the high profile special prosecutors begun in earnest by the Watergate
scandals.
Henry Cisneros is no lonely Uighur. He has been frequently mentioned as
a possible candidate for high elective office. He can certainly afford
first class legal representation.
But there is
something very wrong with such a prolonged (and ultimately baseless)
jihad. Barrett diminished his office and the very idea of the rule of
law. Perhaps the most promising Democratic politician in Texas,
Cisneros shows no desire to enter elective politics again. David
Barrett, a bad lawyer, has narrowed our political life in Texas.
We are about to endure a year in which the meaning of the rule of law
in America is reexamined. On February 6 the Senate Judiciary Committee
will open hearings on the National Security Agency’s intercept (or
wiretapping) of 650 million daily messages without a warrant. The
assertion of Executive power by the Bush Administration is
unprecedented in the last 30 years.
On Tuesday the U.S. Senate Judiciary Committee voted on strictly party
lines to recommend Judge Samuel Alito to the U.S. Senate for
confirmation as a U.S. Supreme Court Justice. The most unexpected and
difficult issue was Executive power.
These are going to be political battles. Because something transpires
in a courtroom or a courthouse doesn’t mean it isn’t political.
Politics, among other things, is one group of lawyers attempting to
gain dominance over another. The rules are changing, as journalists are
discovering. It is going to be an exciting year. •
(Also
published by the Big Bend
Sentinel of Marfa, Texas January 26, 2006.)
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