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TechnoratiArguing About Gitmo
Yesterday the Supreme Court heard arguments in what may be the most important constitutional case of the decade: whether the men detained at Guantanamo have a right to a fair trial before a real court. I spoke with Erwin Chemerinsky about the case - he's professor of law at Duke, and Dean of the new UC Irvine law school; and he represents one of the Gitmo detainees whose case is before the court, Salem Gherebi.
At issue is the Military Commissions Act, passed by Congress in 2006. Chemerinsky called it "one of the worst laws in all of American history with regard to civil liberties." The provision before the court yesterday says that no non-citizen held as an enemy combatant shall have any access to federal courts, including by writ of habeas corpus. They can go through a military proceeding--if one is convened by the government - and then they can get reviewed by the Court of Appeals for the District of Columbia circuit.
The key issue, Chemerinsky said, "is there's nothing in the Military Commissions Act that requires that a military proceeding be convened. The government can hold all of these people for the rest of their lives without ever bringing them before a military tribunal. Then the have no ability ever to go before a federal court." And no matter how long they are held, they can't come to federal court with a writ of habeas corpus.
The Constitution says the right of habeas corpus shall not be suspended, "except in cases of rebellion or invasion." "I don't think there's a rebellion or an invasion," Chemerinsky said, "and I don't think it matters whether a person is a citizen or noncitizen. The government can't keep a person locked up forever without due process."
John Yoo, former deputy assistant attorney general for George W. Bush, now professor of law at UC Berkeley, defends the Military Commissions Act. On NPR recently he argued that granting terrorists the right to a regular trial in a regular court would hamper the war on terror and give aid and comfort to the enemy.
"He's assuming they ARE terrorists," Chemerinsky replied. "The whole point is that we don't know. My client has been in Guantanamo for more than five years, and I still have no idea why he's there. Maybe he's a dangerous person, or maybe he's there because the US paid a warlord who picked him out because they wanted to get the bounty. The only way we can know if somebody is a terrorist or a criminal is to have due process of law."
Yoo argues that we should trust the military when they say that only the most important and threatening of our enemies have been detained at Guantanamo.
Chemerinsky replied, "Here I say let's trust the Constitution. The Constitution expresses a great distrust of executive power. The Constitution is clear that nobody should be able to be held just on the say-so of the executive, without due process."
Court-watchers agree that the vote will be 5-4, with Justice Anthony M. Kennedy holding the swing vote. If Kennedy votes for the plaintiffs, what happens then? Do they actually get a real trial in a real court with real lawyers?
"Not for years to come," Chemerinsky replied. "Then what will happen is that we'll go back to federal district court, where they can present their habeas petitions. Then the issue is going to be what does due process and international law require for these detainees. And my guess is that's going to be fought over for a long time, then appealed to the DC Circuit, then it will go to the Supreme Court.
"The sad reality is that, even if my client wins today at the Supreme Court, what my client wins is the prospect of going to court for years to come. The problem is that if my client loses today, he loses his lawyer and he can be held forever without ever getting his day in court."
John McCain recently commented, "it's not about who they are, it's about who we are." Chemerinsky agreed: "That about sums it up," he said.
Jon Wiener, a contributing editor of The Nation and a professor of history at the University of California, Irvine, is the author of several books, including Gimme Some Truth: The John Lennon FBI Files, Professors, Politics and Pop and Historians in Trouble. He lives in Los Angeles.
© 2007 The Nation
9 Comments so far
Show Allremember when they passed the horrendous military commisions act? and hardly anyone noticed? that thing really needs to be repealed. as it stands, if it stands, no one has any rights. the court could say well according to this law, only the president or who he says can say who is an enemy combatant. and then we don't have jurisdiction. no court, no appeal, no habeas, no lawyer. that thing is just the most totally totaletarian thing ever passed by any country anywhere. joe stalin couldn't have done it better. how did we let this happen?
and yes redjeff why the hell is this such a short thread? mca makes me, and probably most of us, enemey combatants.
Please say Corporate Media and not MSM because the former explains more. Sorry, for beiing annoying, but in this case it matters.
Just a couple of notes in response to DD's posts: If one really cares about what is taking place before the Supreme Court, the transcripts of arguments are posted daily on their website a few hours after the arguments. While this may not have the same impact as watchin' it on TV, the content is largely the same.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html
Also, there is an excellent program about the Guantanamo Bay detainees, Habeas Schmabeas, available for streaming on the This American Life website.
http://www.thislife.org/Radio_Episode.aspx?sched=1185
unkanny,
I think you're right about Bush being afraid to let go of Gitmo (and the detainees) for fear of losing face.
I think this is also the reason we got a new and contradictory National Intelligence Estimate recently (and oddly) released on Iran---so we can not bomb Iran with Bush still pretending "strength" to his base.
If Kennedy, the swing vote, likes Habeus Corpus, Bush will have an excuse to downramp that grievous error too, and never admit he needed to "voluntarily" change his mind.
Another Gitmo article with a very short thread. This is, as Jon Wiener suggested, the most important constitutional case of the decade.
Unkanny--you know the stakes are high; there's a fundamental element of justice in the balance. It doesn't matter who they are or what they are said to have done. Government has no right to punish anyone without proof of guilt. I can't believe John Yoo got all the way through law school without learning that.
Bush isn't holding them as a form of terrorism. Too few. So far. He's holding them because he can't let go. If he does, then he'll look bad (because he is, but I'm talking about the suspension of disbelief here). By refusing to let them go, his supporters see him as strong. They want a father figure to invest all their faith. Such a person must not make mistakes or seem weak. He acts as a 'unitary executive' (dictator) would. After all, Gonzales assured him that US citizens don't actually have a Constitutional right to habeas corpus. How can a terrorist have what citizens do not?
Even if the Supreme Court rules for habeas corpus, I'm afraid the ruling will weaken that right beyond my lifetime. A 5:4 ruling will show a future Bush that he/she just might get away with doing away with habeas corpus with a different Court. Without habeas corpus, the rest of the Constitution is fairly pointless. The NRA should sit up and take notice - detainees don't get to keep their firearms. Do they really want to risk Hillary getting her hands on that kind of power? I don't think so.
Bush wants to deny them their day in court because he is using the threat of indefinate dentention as a form of terrorism.
He does not care if they are guilty or inoccent, so long as he can terrorise the American citizens, and everyone else in the world, with a lifetime of torture and detention for not falling in line with his fascist regime
If a democrat gets in the number of justices should be increased so a majority are not like Thomas et al
Last night the MSM played a couple of audio clips by Justices questioning the attorneys in this case, accompanied by artists' drawings.
If we had any sense as citizens, we would demand that the proceedings of the Supreme Court be covered gavel to gavel like C-Span. Arguments about the most profound questions of our country are being made while we, the citizens, are relegated to "Court TV" being
Judge Judy, the O.J. trial, and a bunch of divorce bickering and CSI stuff over whodunnits.
Yes, I know the Supreme Court makes its own rules and does not like cameras, nor does it like "intrusion" by the citizens. And I also know we, for the most part, now have Justices there who are far too recalcitrant on many other things, too. The individual votes on this Gitmo case are going to tell us much about what kind of Court we really have in charge of our Constitution.
I think we may find that we need some new Democratic appointments, and we'll only get those from Democratic presidents.