by the stormy present
Fri Jun 13th, 2008 at 06:40:14 AM EST
In case you missed it, the U.S. Supreme Court has trashed the Bush Administration's Guantanamo policy.
The Court yesterday said Guantanamo detainees have the right to habeas corpus, which means they can challenge their detention in federal court. This is huge. The Bush Administration, which established the prison camp at Guantanamo with the express purpose of refusing the detainees access to the U.S. justice system, was apparently rather unprepared to have the very basis of that policy overturned.
Within hours of the court's decision in the combined cases known as Boumediene v. Bush and Al Odah v. United States, attorneys were preparing to demand hearings for detainees long held without charges.
These habeas corpus hearings before federal judges will force the Bush administration to reveal its evidence and expose publicly how the detainees have been treated. Some attorneys think that the administration simply will start releasing detainees to avoid the potentially embarrassing hearings altogether.
New York Times:
Just last month Defense Secretary Robert M. Gates, who advocates closing the camp, told Congress that "we're stuck" in Guantánamo.
In his testimony to Congress last month, Secretary Gates said the Pentagon had "a serious `not in my backyard' problem" in finding a substitute for Guantánamo. He also listed other concerns that the administration says have kept it from coming up with a plan for closing the detention camp.
Among those, he said, is a Pentagon conclusion that some 8o detainees cannot be charged with war crimes, perhaps because the evidence is not strong enough, but are nonetheless considered too dangerous to release. About 80 other detainees are to be charged with war crimes, the Pentagon has said.
Ok, let's be clear about this -- these men cannot be charged with war crimes, or with any crimes, because if they ever set foot in a courtroom, the administration would have to acknowledge the conditions under which they have been held and interrogated, and because those conditions would virtually guarantee that the detainees could not be convicted. You cannot put someone you have tortured on trial. (edit: Legally you could if you wanted to, as Marek points out in comments, but IMHO it wouldn't be a very wise idea from a prosecutor's standpoint; I doubt the people who orchestrated this policy ever intended that these men would see the light of day again, let alone the inside of a courtroom.) And because evidence obtained by torture is inadmissible in court, you cannot call witnesses against him who have been tortured.
I've been reading all kinds of analysis of this decision, and I'm struck by something nobody's really saying. Yes, there are dangerous men at Guantanamo, but the Bush Administration's very tactics have ensured that those men can never face trial in U.S. courts. They have been illegally detained, and they have been tortured. Evidence gathered through such means is inadmissible in court. Their attempted end-run around the justice system has virtually ensured that the very people who do pose the greatest threat will go free.
And in the process, men (and boys) who present no such danger have been illegally detained and tortured alongside of them. The Guantanamo detainees include innocent people, turned over to the United States in exchange for a bounty on the head of any foreigner in Afghanistan, and they include men (and boys) who were in the wrong place at the wrong time, or who held land that someone else coveted, and so on, and so on.
So, to summarize, we have violated countless international laws and the human rights of innocent people in order to accomplish nothing. Worse than nothing.
Next, this might be minutia, but something in the Washington Post news analysis troubled me. Emphasis mine:
Others fault the administration for not pursuing a more pragmatic detention policy that recognized the Supreme Court's clear interest in more congressional involvement and meaningful legal rights for detainees. Lawyers inside and outside the administration warned the White House that it needed to move more aggressively to placate the justices.
"The court might have upheld a statute like this five years ago," said Martin S. Lederman, an associate professor at Georgetown University Law Center and former Justice Department lawyer. Administration officials "have made the court much more hostile and skeptical of the president and his wartime judgment than they ever had to. There was incredible goodwill and deference six years ago, and they squandered it."
Uh, what? I don't want a Supreme Court that's "deferent" to the executive branch, thankyouverymuch. The whole point of the checks-and-balances system is not to be deferent.
So it seems the Bushies were so over-the-top that they finally succeeded in reminding the Supreme Court what its job is supposed to be. Great.
Although apparently the new-ish Chief Justice, John Roberts, dissented, and John McCain agrees:
McCain, the presumptive Republican nominee, told reporters in Boston that he had not yet read the opinion, but he expressed concerns about the rights it might impart to the people being held there. "These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice [John] Roberts's opinion in this decision," he said, referring to the chief justice's dissent. "But it is a decision that the Supreme Court has made. Now we need to move forward. As you know, I always favored closing Guantanamo Bay and I still think we ought to do that."
There is something very sad and ironic about a former prisoner-of-war failing to support the legal right to due process for the indefinitely-and-illegally detained.