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Friday, June 13, 2008
Habeas hysteria
"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." -- Justice Anthony M. Kennedy, writing for the majority in Boumediene v. Bush

The authoritarian right has joined Crazy Tony Scalia in going absolutely ape-crap crazy over the Supreme Court's ruling yesterday granting the right of habeas corpus, which had been stripped from the constitution by our current presidential administration and his lackeys in the 109th Congress, to detainees held on the de facto U.S. soil called Guantanamo Bay. Scotusblog publishes one rollicking dissent today from a guy from a right-wing ... er ... "free market"... outfit called the Washington Legal Foundation.

Scalia got the ball rolling in his shrieky dissent yesterday, adopting almost word for word, the Fox News/right wing talk show formulation that "Americans will die" if our eternal detainees are allowed to challenge their endless detention in court.

The Wall Street Journal editorial board weighs in with its hysterical reaction today, directing their ire at Justice Anthony Kennedy, the Ronald Reagan appointee wrote the decision in the case of Boumediene v. Bush:
Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!

Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.
I'm quivering just thinking about it.

To arrive at their predictions of doom, the Journal board cites the cases of German soldiers tried (and executed) by military commissions shortly after World War II, and, wait for it, the detention of 400,000 Japanese Americans who were interred in their own country, by their own country, during that conflict. Correct me if I'm wrong, but citing one of this country's most shameful moments as justification for deleting habeas from the Constitution -- a right that goes back to the freaking Magna Carta, and giving one man -- the president -- the power to detain at will, anyone, anywhere, for as long as he sees fit (and to torture them, at that,) doesn't strike me as very persuasive.

The Boumediene case itself is troubling, involving Lakhdar Boumediene, a man detained by U.S. troops in Bosnia way back in 2002. He has been held in Gitmo ever since -- not charged with a crime, just held in extralegal limbo at the president's discretion. His case was filed along with those of 11 other men, also in limbo in America's gulag by the sea. In December, the BBC reported of Boumediene:
Lakhdar Boumediene, now 41, travelled to Bosnia with five other Algerian men during the civil war in the 1990s, and may have fought with Bosnian forces against the Serbs.

The six stayed in Bosnia, married Bosnian women, were granted citizenship and took jobs working with orphans for various Muslim charities.

In October 2001, the US embassy in Sarajevo asked the Bosnian government to arrest them because of a suspicion they had been involved in a plot to bomb the embassy.

The six men were duly arrested. But after a three-month investigation, in which the Bosnian police searched their apartments, their computers and their documents, there was - according to a report by the New-York-based Center for Constitutional Rights - still no evidence to justify the arrests.

Bosnia's Supreme Court ordered their release, and the Bosnian Human Rights Chamber ruled they had the right to remain in the country and were not to be deported.

However, on the night of 17 January 2002, after they were freed from Bosnian custody, they were seized and rendered to Guantanamo.

Since arriving in Guantanamo, the men have faced repeated allegations of links to al-Qaeda - but the embassy plot has never been mentioned.

It was alleged in a tribunal hearing that an unidentified source had said Mr Boumediene "was known to be one of the closest associates of an al-Qaeda member in Europe".

The men have persistently denied the allegations.

Their lawyers say the source of the bomb-plot allegations was the embittered former brother-in-law of one of the men, who ran a smear campaign against him.

The UN special rapporteur on torture, Manfred Novak, has said: "It's implausible to say that they are enemy combatants.

"They were fighters during the Bosnian war, but that ended in 1995.

"They may be radical Islamists, but they have definitely not committed any crime."

Families of the Algerians seized in Bosnia protest in Sarajevo
Families of the Algerians seized in Bosnia have protested in Sarajevo
According to the Washington Post, they were formally exonerated by Bosnian prosecutors in 2004.

The Journal's hysteria board fails to mention any of this, including the exoneration, and the absolute lack of evidence that Mr. Boumediene is an al-Qaida terrorist. And yet:
In March 2005, US Secretary of State Condoleezza Rice responded to a request for their release from the Bosnian prime minister by saying it was not possible because "they still possess important intelligence data".

All six men have said they have been treated brutally in Guantanamo, subjected to "enhanced interrogation techniques" involving prolonged isolation, forced nudity and sleep deprivation.
To what purpose? Are we now to believe that anyone who is Muslim, who has participated in any armed conflict, even the Bosnian conflict in which we fought essentially ON HIS SIDE, is an al-Qaida terrorist or associate? And on that basis, we can detain that person indefinitely, without charges, and torture him?

This, apparently, is the America that the right -- more pointedly, the authoritarian right -- desires. It's an America that is remarkably similar to the Iraq of Saddam Hussein, or the old Soviet Union.

The Journal goes on to warn that the SUPCO ruling could lead to the release of people like Mr. Boumediene, who will then turn around and kill Americans. Well let's see ... rendered thousands of miles from home and locked in a cage ... tortured ... interrogated repeatedly about things he says he knows nothing about ... tortured ... held incommunicado without so much as a hearing to explain WHY he's being held ... tortured ... yep. He probably IS likely to want to kill Americans now.

Does the ruling make life complicated for the Bushies? You bet it does:

The court rejected Bush administration arguments that Guantánamo's location put it outside U.S. constitutional protections.

"The United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory," Kennedy noted.

Kennedy and the four other justices further concluded that the detainees deserved full habeas corpus access to federal courts, despite congressional efforts to curtail it.

In a sense, the court told the administration that its time had run out. For more than four years, government lawyers have struggled to satisfy the court that some sort of process was in place in Guantánamo to separate those detainees who may pose a threat to the United States from those who were innocently caught up in the dragnet cast after the Sept. 11, 2001, attacks.

Thursday marked the third time the justices have rejected those efforts as being insufficient. And this time, there won't be a chance for another shot. It was clear from the tenor of the decision that the justices' patience had been exhausted. "Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention," Kennedy wrote.

The bulk of the detainees remaining at Guantánamo — about 260 — will have their cases heard individually by U.S. District Court judges in Washington in what's known as a habeas corpus proceeding. In these cases, the government will have the burden of showing why a prisoner should continue to be held without charges. "We think it's unlikely in most of the cases the government will be able to do that," Ratner said.

Compounding the problem will be that any evidence obtained through torture or coercion at Guantánamo is likely to be inadmissible in federal court. The inmate will also have the opportunity to offer exculpatory evidence.

The judge can then order his continued detention without a charge being filed against him; that the government charge the detainee or release him; or that he be released and transferred to another country.

The judge will also have the authority to block a transfer of a prisoner by the Pentagon on the grounds that he may be re-incarcerated or tortured if shipped to his home country, and perhaps order him transferred to a different country.

One of the next big questions — or embarrassments — could focus on what happens to detainees who win their freedom at habeas corpus hearings but have no place to go.

"The brutally frank answer is that we're stuck," Defense Secretary Robert Gates said recently. "And we're stuck in several ways: Either their home government won't accept them or we are concerned that the home government will let them loose once we return them home."

And yet, the United States, at least the America that existed before 9/11 gave the neocons a green light to build a fascist paradise for themselves and their corporate friends where we used to have a constitutional government, doesn't render, indefinitely hold, and torture people. What the Journal, right wing talk hosts and bloggers, and the rest of the right wing nut-jobs, who are driven by fear, and plied by greed, want, is so profoundly un-American, that these people should not, to coin a phrase, be heard in polite company. The ruling doesn't mean that anyone will be released immediately, but if any are, whatever happens next is squarely the fault of the Bush administration, and the Congress that let them run wild for so long.

Kudos to Anthony Kennedy and the other four members of the sane wing of the Court -- which should from now on be known as the American wing.

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