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TechnoratiThe last time anyone made headlines involving the American penal colony at Guantanamo Bay, it was Mitt Romney, eagerly promising to expand it. "My view is we ought to double Guantanamo!" he enthused during a Republican presidential debate in May.
A sober audiotape of arguments before the Supreme Court next week, where the legal future of hundreds of alleged terrorists still held without charge or trial at the prison in Cuba is to be decided, probably won't produce such a snappy sound bite. The high court's decision to release a tape immediately after it hears arguments on this latest round of Guantanamo cases-a rare instance when the justices believe an issue has significant public interest-shows the court is getting serious.
It has been more than three years since the Supreme Court ruled that the Guantanamo detainees indeed have a right to contest their confinement before a U.S. court, and that the circumstances under which they are held-without charge, without having seen the government's evidence against them and without the ability to gather evidence of their own-violate the Constitution and various treaties the United States has signed.
But that ruling in Rasul v. Bush didn't prompt compliance. It touched off a round of cynical circumvention.
The Bush administration immediately created a system of military tribunals that afforded the detainees no genuine opportunity to present or see evidence. Congress stepped up and cheered on President Bush, enacting two laws that effectively endorse his kangaroo courts and strip American courts of jurisdiction over claims made by the prisoners. In other words, the administration and Congress both heard the Supreme Court and shunned it.
"Three years ago I told my clients that the Supreme Court had said ... that they would have their day in court, but it hasn't happened,'' says Marc Falkoff, an assistant law professor at Northern Illinois University who has long represented a group of detainees whose cases are to be heard Dec. 5.
Now the court must decide how to weigh this presidential and congressional contempt for its ruling. More crucially, it is to decide the central question raised by the Bush administration's legal theory that a president during wartime has broad powers to override such bedrock constitutional protections as the writ of habeas corpus, or the right of an individual to have a judge review why he is being detained. Though Congress denied habeas corpus rights to the Guantanamo detainees, one issue for the Supreme Court to decide is whether the legislation is valid when the country is not in a time of "rebellion or invasion," as the Constitution proscribes.
Those who listen to the tape of the oral arguments, available on C-SPAN Radio, may become turned off by discussions of obscure legal theories. But everyone should pay close attention to the stories of the men whose fate is at stake. One case involves six Algerians who were seized in 2002 by U.S. authorities in Bosnia-not in Afghanistan or near any battlefield-for allegedly plotting to attack the U.S. embassy in Sarajevo. Bosnian prosecutors, police and courts had found no evidence against the men, but they were brought to Guantanamo nonetheless. They were officially exonerated by the Bosnian government in 2004, which asked that the men be returned home. The Bush administration has refused.
Now in their fifth year of incarceration, they languish at Guantanamo. Many others at the prison have been shown by the military's own tribunal system to have no clear tie to any battle or terrorist act. Since the Supreme Court last heard a case involving the Guantanamo detainees, an Army Reserve officer who participated in the tribunals has come forward to describe a sham process in which supposed "statements of fact" against a detainee "lacked even the most fundamental earmarks of objectively credible evidence." Lt. Col. Stephen Abraham also has said, in a sworn affidavit, that tribunal panels were pressured to reverse themselves if they found a detainee not to be an "enemy combatant."
The Supreme Court has given itself another chance to speak loudly, and put this injustice to an end.
Marie Cocco's e-mail address is mariecocco(at)washpost.com.
© 2007, Washington Post Writers Group
12 Comments so far
Show AllI e-mailed Mark Falkoff, the lawyer mentioned in the article above, about the possibility of a suit to force the president and/or Congress to set up fair hearings for the detainees. He was kind enough to answer right away.
Unfortunately, both the Bush administration and Congress have "conditional immunity" to a lawsuit, because the constitutionality of maintaining detainees at Guantanamo is still undetermined. And apparently there would be other legal roadblocks aswell, but Dr. Falkoff didn't elaborate on what those would be.
So justice, even in a democracy, is as fragile as this. It is only as good as the leadership's willingness to go along.
BUGS B BUNNY -- Good catch about the laws are "valid when the country is not in a time of "rebellion or invasion"
Consider that it is not beyond the beast masters to
declare an internal war against 'those forces that would destroy democracy from within',
which although it is really them doing the destroying,
they nonetheless use that as a plausible guise to do exactly the opposite of what they say that they are doing
-- Oh so righteously wrong
Namaste … … … … … … … … … … … … … … … … … Mahatma Gandhi … … … … … …
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This is the sentence that grabbed me >>> "...one issue for the Supreme Court to decide is whether the legislation is valid when the country is not in a time of "rebellion or invasion," as the Constitution proscribes."
In looking through the Constitution, I don't see anything that forces the President or Congress to obey a Supreme Court decision. Perhaps the detainees' lawyers should file a class-action suit against the Bush Administration and Congress to force compliance.
This is the sentence that got me:
"Now the court must decide how to weigh this presidential and congressional contempt for its ruling."
Notice the "congressional contempt" part? Does that mean that the SCOTUS is actually going to look into the fact that congress is complicit in this travesty?
Just askin'
Siouxrose said:
"Scary for all of us that what we took for a representative democracy has come to become such a poorly orchestrated show of smoke and mirrors, "Full of sound and fury signifying nothing."
'Cause representative democracy is neither representative nor democracy?
Republic? or Monarchy?
There is another choice!
Democracy!
Republics were formed from 1776 to the 1900's. Direct Democracy is the peaceful political movement for the next century. Technology newly developed, now enables everyone to propose, debate and vote on any or all matters of law and policy. We all have our own demons to destroy, such as unemployment, debt and injustice, and our goals to achieve such as peace, freedom, stability, prosperity and environmental conservation. Dispersing the concentration of power from a few to all citizens, enables a stable government working steadily toward these aims. A mutually agreed constitution enables the government of the people, by the people and for the people, to be a government of principle and protection for the individual.
Participate in the forging of history! Contact us at the Direct Democracy Forum.
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COMMANDER N CHIMP & BIG BAD BOB: I agree. I had a female friend who as an accountant, used to write a check from one account and deposit it in another (This was before everything was electronically expedited) when there was NO money in either. The procedure was done to tie things up for a few days until she knew CASH would be on hand to cover this little fiscal jig. This image came to me when I read this article, as the varied "separate powers" are all operating inside the same charade, with a few notable principled exceptions. Scary for all of us that what we took for a representative democracy has come to become such a poorly orchestrated show of smoke and mirrors, "Full of sound and fury signifying nothing."
SCOTUS........Ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha !
The Supreme Court went into hurry-up mode to steal the election from Al Gore, but when it's a question of giving a fair trial to people being tortured in a goddamned concentration camp, year after year passes while Bush/Cheney evade judgement with ridiculous pretexts that return the whole process to square one, again and again.
Goddamn them all!
it's not hard to imagine a future 10 or 20 years down the road when any US citizen who has attended a peace rally, criticized the government to friends and neighbors, or made comments on sites like this will be rounded up and imprisoned without benefit of law. oh, well--at least i won't have to worry about saving for retirement.
The Supreme Court as an institution died on the night of December 11, 2000 when it made its ruling on Bush V. Gore. Since then, its zombified corpse has been rampaging through Washington devouring our constitutional rights.
It's telling that the US supports Musharraf's replacement of the Pakistani Supreme Court. The same thing is happening in slow motion in the US. Clearly there is no shortage of American yes men, even among the lawyerly class (witness Gonzales and his successor as attorney general). Tell me these types would not snap at the chance to get on the bench. Then, as in Pakistan, you will find that a surprisingly large number of previously unlawful things are now legal and vice versa.