Six Years Late

Yes, it doesn’t much matter now, but it happened again 


In a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled Thursday that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges.


Bush, speaking from Italy – where he’s hanging around with the Italian clown, now back in power, Silvio Berlusconi – said he “strongly disagreed” with the decision. But this the third time the court has repudiated him on the detainees. Bush said he might seek yet another law, again, to keep terror suspects locked up down Cuba way – but Congress in no longer in Republican hands and time is short. He was blowing smoke. He said the administration would comply with the court, but didn’t say when, of course. For his part, the jovial Italian fellow tried to cheer him up – Citing His Age, Italian Prime Minister Backs McCain. Berlusconi said he didn’t want to be the oldest guy at all the upcoming summits.


That quip may have hurt – Bush won’t be at all the upcoming summits. He’ll be in Texas, muttering to himself and sticking pins in his Scott McClellan voodoo doll while Silvio is having all the fun. And this Supreme Court ruling didn’t help:


Justice Anthony Kennedy, writing for the 5-4 high court majority, acknowledged the terrorism threat the U.S. faces – the administration’s justification for the detentions – but he declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”


In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”


But Kennedy’s side won this one. And of course that, as the AP says, “casts doubt” on the future of the military war crimes trials underway – nineteen of them, including the trial of Khalid Sheikh Mohammed and four other alleged plotters of what happened on September 11, 2001. And there are eighty more trials scheduled after these nineteen. Now what?


This is what:


Lawyers for detainees differed over whether the ruling, unlike the first two, would lead to prompt hearings for those who have not been charged. Roughly 270 men remain at the prison at the U.S. naval base in Cuba. Most are classed as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.


Some detainee lawyers said hearings could take place within a few months. But James Cohen, a Fordham University law professor who has two clients at Guantanamo, predicted Bush would continue seeking ways to resist the ruling. “Nothing is going to happen between June 12 and Jan. 20,” when the next president takes office, Cohen said.


In short, the ruling didn’t much matter. The AP quotes Justice Department spokesman Peter Carr saying nothing changes – “Military commission trials will therefore continue to go forward.”


But the maneuvering has started:


The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s one-time driver, said he will seek dismissal of the charges against Hamdan based on the new ruling. A military judge had already delayed the trial’s start to await the high court ruling.


It was unclear whether a hearing at Guantanamo for Canadian Omar Khadr, charged with killing a U.S. Special Forces soldier in Afghanistan, would go forward next week as planned.


Charles Swift, the former Navy lawyer who used to represent Hamdan, said he believes the court removed any legal basis for keeping the Guantanamo facility open and that the military tribunals are “doomed.”


So the whole premise for Guantanamo, and the tribunals – that these folks were not on American soil and no real rights anyway, that “constitutional protections wouldn’t apply” offshore – has been dismissed. Charles Swift states the obvious – “The court said the Constitution applies. They’re in big trouble.” Several Republican senators and congressmen called this a decision that put foreign terrorists’ rights above the safety of the American people, but there you have it. Too bad.


From the AP:


At its heart, the 70-page ruling says that the detainees have the same rights as anyone else in custody in the United States to contest their detention before a judge. Kennedy also said the system the administration has put in place to classify detainees as enemy combatants and review those decisions is not an adequate substitute for the right to go before a civilian judge.


And we know this history of all this. The administration argued first that the detainees had no rights, but then curiously said that the classification and review process was sufficient, so they had some rights, because we’re not really bad guys. They just couldn’t see the evidence against them, and any evidence obtained through torture was admissible – making us the first folks since the Inquisition who thought that was just fine – and they could not discuss how they were treated, claiming they were tortured or whatever, as that would aid anyone else we later grabbed (you don’t want people to figure out ways to resist us).


Chief Justice John Roberts buys that. In his own dissent chided the majority for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Alito and Thomas agreed. We’d been nice enough. Breyer, Ginsburg, Souter and Stevens didn’t think so, and joined Justice Kennedy to form the majority.


There was also Souter with separate opinion. Elapsed time was a problem:


“A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments; some of the prisoners represented here today having been locked up for six years,” Souter said. “Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military … could handle within some reasonable period of time.”


Souter doesn’t seem to like being jerked around, but Scalia said, you know, at least thirty prisoners have returned to the battlefield following their release from Guantanamo. Hey, maybe they were pissed off.


Yes, yes – the court had ruled twice that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. But each time the administration and Congress, then controlled by Republicans, “changed the law to try to close the courthouse doors to the detainees.” So now the court has specifically struck down a provision of the Military Commissions Act of 2006 that denies Guantanamo detainees the right to file petitions of habeas corpus. You just cannot do that – the courts can determine whether a prisoner is being held illegally. That’s what they do.


It is a sort of tradition, you see:


The head of the New York-based Center for Constitutional Rights, which represents dozens of prisoners at Guantanamo, welcomed the ruling.


“The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said CCR Executive Director Vincent Warren. “By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding.”


Bush, being a reasonable guy, has said he wants to close the Cuban facility once countries can be found to take the prisoners who are there. But no one wants them. What are you going to do?


The decision is here – Boumediene v. Bush and Al Odah v. United States – but easier reading can be found in Slate from Dahlia Lithwick who offers The Enemy Within. Her question – “Who are we more afraid of: enemy combatants or federal courts?”


She calls the decision both “enormously important and relatively insignificant” – if you think about it:


This is, after all, the third stinging setback and blistering rebuke the court has handed the Bush administration with respect to prisoner rights at Guantanamo. Yet you may have noticed that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ça change for the detainees there. At his pretrial hearing in April, one of the detainees “lucky” enough to actually face a trial, Salim Hamdan, pointed out to the presiding judge that winning his own appeal at the Supreme Court in 2006 got him precisely nothing.


“You won. Your name is all over the law books,” the military judge, Navy Capt. Keith Allred, told Hamdan that day, in an effort to persuade him that the system isn’t rigged. “But the government changed the law to its advantage,” Hamdan replied. Certainly the detainees at Guantanamo who don’t face charges were granted some substantive constitutional rights today (although whether Hamdan himself will benefit remains to be seen). But it’s a mistake to see this ruling for more than it is.


Yes, the Supreme Court determined that neither the president, nor the president plus Congress, could “strip detainees at Guantanamo of the ancient right to habeas corpus.” Congress tried that. See the 2006 Military Commissions Act (PDF).


But Lithwick says that “the concrete ramifications are still baffling to just about everyone.” Well, maybe not baffling to one Justice:


Judging by the tone of Justice Antonin Scalia’s dissent, however, you’d think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia. “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed,” Scalia wrote. He concluded his dissent with this warning: “The Nation will live to regret what the Court has done today.”


And for those who have allegedly “returned to the battlefield,” one did detonate a suicide bomb in Iraq in May, and Scalia points out that this “return to the kill” happened even after “the military had concluded they were not enemy combatants.”


Lithwick mocks him:


So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia’s mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives. For this proposition, Scalia cites the trial of Omar Abdel Rahman in federal court in 1995, in which the names of 200 unindicted conspirators were leaked to Osama Bin Laden.


Just to recap, then, everyone at Guantanamo is guilty, and the mere act of trying them will result in more American deaths. This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can’t reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed.


It is a closed loop. And Scalia’s claim that the majority “handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells” she calls “absurd on its face.” You just have to read the decision:


As Justice Kennedy is careful to point out in his majority opinion, the court is not ordering the release of any detainees; it is restoring their fundamental right to a habeas proceeding before a neutral fact-finder. The court did not get to the question of whether the president has authority to detain these petitioners. Nor did it actually grant anyone a writ. The majority did not strike down the MCA or find the military trials the Bush administration established to be unconstitutional. The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don’t substitute.


And there’s this:


Chief Justice John Roberts may insist that these tribunals represent everything a prisoner could ever wish for in the way of due process rights. But Justice Kennedy points out that the detainees’ lack of a real lawyer and their inability to rebut the charges against them make for a process that is, by definition, “closed and accusatorial” and thus open to “considerable risk of error.” (Not to mention that if a CSRT finds that you’re NOT an enemy combatant, they can just order a do-over!) Such error may result in a lifetime of detention. The majority isn’t persuaded the risk is worth it. Wrote Kennedy: “Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant too ignore.”


Lithwick hits on the essential conflict. One side here, the majority, is “worried about the very real risk of a lifetime of mistaken imprisonment.” It’s unclear what the other side is worried about, but she has a guess:


Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may – somewhere far down the line, and at the moment entirely hypothetically – result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.

Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials.


And the majority has a problem with all the time that has already passed. Six years is preposterous:


This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it’s been standing by for six long years. That’s how long it’s been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy.


Responding to the dissenters’ fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn’t even started, and “the costs of delay can no longer be borne by those who are held in custody.” As David Barron points out at “Convictions,” the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that – for all the change on the ground at Guantanamo – might as well have been losses are not exactly a ringing endorsement of the American legal system.


And this is precisely what infuriated many – the administration loses in court again and again and again, and nothing changes at all. This time may be no different.


And Lithwick says that Justice Scalia, meanwhile, is banking on someday cashing in the “I told you so” chit he wrote for himself in his dissent:


In the event that one of the prisoners who has suffered years of abuse and mistreatment at Guantanamo is someday actually released following a federal habeas proceeding and blows something up, Scalia wants to be able to point at Justice Kennedy as the man who let him go. Or if in the course of a someday trial, a piece of evidence is leaked that somehow strengthens a terrorist group, he can blame Kennedy for his blind faith in the federal courts.


But the minority here just doesn’t much like the courts:


The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo – among them people who were grabbed as teens and others who claim actual innocence – go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear.


But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench – with decades of judicial experience and the Constitution to light their way – might now do what they are trained to do: hear cases.


But as everyone agrees, nothing will happen soon.


But that doesn’t mean none of this matters. See Glenn Greenwald on what now is a stake:


Three of the five Justices in the majority – John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) – are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented – Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito – are expected to stay right where they are for many years to come.


John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It’s not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.


Andrew Sullivan gets it:


Protecting us from unrestrained executive power, as the Founders wanted, is a very powerful reason to vote against a Republican who would appoint Justices who would simply get out of the way of what Michael Goldfarb has called a “near-dictatorial” presidency.


Sullivan also offers a collection of other commentary here.


And we now all have a choice. Lindsey Graham has decided he wants to amend the United State Constitution to strip it of any those civil rights protections that have existed since the Magna Carta:


Sen. Lindsey Graham (R-S.C.) vowed Thursday to do everything in his power to overturn the Supreme Court’s decision on Guantanamo Bay detainees, saying that “if necessary,” he would push for a constitutional amendment to modify the decision.


Graham blasted the decision as “irresponsible and outrageous,” echoing the sentiments of many congressional Republicans and President Bush.


And there is Barack Obama:


Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain.


This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.


We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration’s extreme legal position.


The fact is, this Administration’s position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values.


Probably nothing will change in Cuba. But there is a choice to make.


About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Boumediene v. Bush and Al Odah v. United States, Bush, Civil Liberties, Guantanamo, Habeas Corpus, McCain, Obama, Silvio Berlusconi, The Law. Bookmark the permalink.

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