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Impatient Justice
The forceful language of Justice Anthony M. Kennedy's decision in the case granting detainees at the Guantanamo Bay prison camp the right to contest their confinement in federal court is the voice of a Supreme Court majority that is fed up.
The writ of habeas corpus -- the ancient premise that the executive must not have the sole and unchallenged say on whether and for how long someone should be in prison -- is so fundamental to the Constitution that it was written into the document before there was a Bill of Rights. It must not, Kennedy wrote, "be subject to manipulation by those whose power it is designed to restrain."
Manipulation was the very motive underlying the placement of prisoners at Guantanamo.
The idea cooked up by the Bush administration was that since the Navy base in Cuba is not on U.S. soil, those brought to its confines -- from Afghanistan and other locations around the world -- would have no rights under U.S. law. The administration has argued, as well, that the prisoners have no rights under international law. It has refused to give the detainees the most basic screening called for under the Geneva Conventions. The screenings, used extensively during the Persian Gulf War waged by the current president's father, are meant to separate innocent bystanders caught up in a war zone from dangerous combatants.
For six years, we have been told that the detainees are the "worst of the worst" terrorists. Yet no independent observer has been able to verify whether this is the case. Only a handful of detainees actually have been charged with complicity in terrorist acts, and the prosecutions of their cases may fail because of abuse -- or torture -- or any one of an assortment of legal problems that bedevil the military proceedings set up for them.
Four times, beginning with cases it decided in 2004, the Supreme Court has told President Bush that he cannot continue on this path. Yet the president has persisted along roughly the same course: "Delay, delay, delay," in the words of Michael Ratner, president of the Center for Constitutional Rights and one of the lead lawyers for the detainees.
Twice Bush got Congress to change the laws regarding detainees so that they are denied legitimate hearings. The high court has again said this is not enough, that the Constitution must prevail. "The laws and the Constitution are designed to survive, to remain in force, in extraordinary times," Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."
Now again, the White House and its allies in Congress have signaled they intend to limit the edict that the detainees be given a federal court hearing into the reasons for their incarceration. The administration floats the idea of yet another legislative end run around the high court-indeed, around the Constitution itself.
But Bush always has had a simple and legal way out of this quagmire. Dangerous detainees can have their day in U.S. courts-just as the perpetrators of the 1993 World Trade Center attack were successfully tried in a case that led to other convictions for conspiracy to blow up airliners flying across the Pacific. "Had they put those people into federal court immediately, and done what the FBI says is the way you interrogate people, they would have had some trials and success by now," Ratner says.
Those who may be prisoners of war but who cannot be charged with specific terrorist acts can be held under the Geneva Conventions or tried under international law as war criminals, if that is what they are.
What this nation must no longer endure is a president who continues to use fear to cajole Congress into concocting yet another excuse for his failure -- after nearly seven years -- to bring to justice even a single individual responsible for the heinous attacks of Sept. 11, 2001.
Bush has said he wants to close Guantanamo. But he shows no urgency about the task nor even an inclination to respect the most recent Supreme Court ruling that the prison camp has no legal reason for its existence. If Bush continues his slow march toward doing nothing, then Congress should relieve his successor -- and the country -- of Guantanamo's burden. It must set a timetable for the camp's closure and, ultimately, cut off the money that keeps this embarrassment alive.
--Marie Cocco
© 2008, Washington Post Writers Group
9 Comments so far
Show AllLet's not forget that at least twice since the invasion of Iraq, after public outcry, hundreds of inmates at Guantánamo, the supposed "worst of the worst", were summarily relaeased. Apparently they either were not the worst or were Saudi royal family members, like those allowed to return home without questioning after 9/11. So the "worst of the worst" argument is already a lie.
Speaking of 9/11, how did a country with an intelligence community so unorganized that it could not piece together its own information on the hijackers moves, an airline security system so porous the hijackers just walked onto the planes, a National Security advisor so unprepared that she never heard of al-Qaeda until after 9/11, and a President so incurious that he ignored the PDB about bin Laden, come up with the names of 19 hijackers so soon after the attack? How did they immediately pinpoint bin Laden as the culprit? Why should we believe that 9/11 blew away their incompetence along with 3000 lives?
" his failure — after nearly seven years — to bring to justice even a single individual responsible for the heinous attacks of Sept. 11, 2001"
He can't..how could he function without his cabinet and advisors?
The scary question is this: why is the Cheney/Bush cult so determined to claim the power to "detain" anyone they want for as long as they want without ever having to say why said person was detained? It's clearly not to "protect the homeland," or "win" the "war" on the tactic of "terrorism." And no one fights this hard for something if there wasn't a strong motivation - so what's theirs?
frank1569,
you are asking one of those "dumb" and immensely useful questions. i have been asking it of myself in the form of "what really is going on in their heads?" but your approach, dealing with specific cases, is at this point more useful.
frank and kloro: The answer seems to me quite simple: to prove they can. In other words, raw power for power's sake.
Since Watergate, Cheney and those around him have been adamant that the post-Watergate reforms unconstitutionally limited the inherent plenary power of the President/Unitary Executive (and his delegatee, the Vice-President). So once they got into power, they have systematically pushed the envelope in every conceivable way (and some that no one else had thought of) to prove that the President could do whatever he wanted regardless of what Congress or the Courts said. They have succeeded remarkably well, so well that it isn't clear whether even the best-intentioned President and congress can reverse course.
Of course this isn't just about people captured far away on some alleged battlefield. Jose Padilla was an American citizen arrested at O'Hare airport, if I remember correctly, and given the same detention-without-hearing treatment. That means, if successful, that every one of us is potentially subject to the same treatment. If that holds, people will be too afraid to protest, or even join progressive organizations (which the President can on a whim designate as "terrorist") and the President can do whatever he likes about anything.
One can only hope that the Supreme Court's decisions have put somewhat of a dent in this scheme. I suspect, however, that they have just made the lawyers work harder to find a work-around so they can keep the scheme going. It is scary, and outrageous, especially given the close 5-4 decision. As Al Gore said last night, the people's choice of the next President has never mattered more than it does this year.
WC DEVINS: IF 911 was not an inside job, you make a scintillating case for incompetence and its juxtaposition with "the instant official story" becomes all the more telling as a result. Excellent insight!
The Supreme Court majority is fed up? After having appointed Bush, lets see if they'll set things right by indicting him for the mass murder of over 4,000 of our troops and hundreds of thousands of Iraqi men, women and children.
Read "The Prosecution of George W. Bush for Murder" by Vincent Bugliosi
I keep remembering Shumer and other high-placed Dems remarking that they didn't want to waste their capital on fighting SCOTUS nominees.
Can't remember them using it for anything, frankly.
Those morons who allowed this zealot president to benifit from 9/11--after disregarding all warnings,and then displaying his absurd 9/11 photo opts--must assume blame for his disasterous policies which have caused more damage than those of any other president in our history.