The Bush administration has taken several important steps in recent days to resolve the legal status of some of the hundreds of people that the United States has detained without access to lawyers for the better part of two years.
Last weekend, the administration indicated that it would begin repatriating some of the 660 people detained without any judicial review at the U.S. naval base at Guantánamo Bay, Cuba. A few days later, the Pentagon announced that it would begin making arrangements to allow Yasser Esam Hamdi, a U.S. citizen, access to a lawyer after more than 20 months of incommunicado military detention.
These steps are welcome. But they should be understood as part of a broader strategy. The announcement on Guantánamo comes just weeks after the Supreme Court decided to review a lower court holding that the federal courts had no jurisdiction to evaluate the legality of the Guantánamo detentions. And the decision to allow Hamdi access to a lawyer was announced on the day final briefs were due to the Supreme Court, which is now deciding whether to take the case. It is difficult to see the timing as coincidental. For the past two years, the Bush administration - far more so than previous "wartime" executives - has been very effective at keeping the courts out of the business of checking executive power.
In the two years since the Sept. 11 attacks, the administration has established a set of extra-legal structures designed to bypass the federal judiciary. It has maintained that those detained by the United States outside U.S. borders - at Guantánamo and elsewhere - are beyond the jurisdictional reach of the U.S. courts altogether. Individuals subject to military commission proceedings - which two years after their announced creation have yet to begin - are to have their fate decided by military personnel who report only to the president.
In the "enemy combatant" cases involving U.S. citizens that have made their way into lower courts, the administration has balked at observing a federal court order requiring that it give its detainee-citizens access to counsel, and has consistently demanded of the courts something less than independent judicial review.
This refusal to be bound by established rules - to pursue ad hoc justice at best - is what makes the recent steps of small comfort. And while the military released 20 Guantánamo prisoners last week, those released were simultaneously replaced with the same number of new prisoners. It is unclear who the new arrivals are, where they were held before arriving at Guantánamo, and what will be their fate now that they are there. Likewise, it remains unclear how the administration determined which prisoners should be released, which must stay, and which - if any - will eventually be brought before military commissions for actual determinations of their status as prisoners of war, or their guilt or innocence of any particular offense.
What is more striking is that the Pentagon, in announcing that it would be making arrangements for Hamdi to have access to a lawyer "over the next few days," insisted that such access was only being granted "as a matter of discretion and military policy," not to comply with any requirement of domestic or international law. Indeed, the Pentagon maintains that its decision for Hamdi should not in any way "be treated as a precedent" to be used in any other such "combatant" case.
In any event, the decision to grant Hamdi access to counsel after nearly two years did not commit the administration to providing any more than that - for example, international law protections for the treatment of prisoners of war, or constitutional requirements that he be afforded notice of any charges against him and an opportunity to be heard by an independent court.
As made clear in the cases that the administration has cited in support of its sweeping claims of authority - including the use of military tribunals and the internment of Japanese-Americans during World War II - the Supreme Court has not always acted to enforce rights in favor of the individual against the executive asserting special "wartime" power. But the Supreme Court's involvement in those cases conveyed a critical message that even in times of greatest strain, executive power remained subject to the rule of law. The court's published opinions clarified the nature of the executive's claims of authority, and provided a basis against which to judge the executive's subsequent conduct.
In vigorous and public dissenting opinions, minority justices in those cases gave expression to the strong opposing arguments on the resolution of the legal questions presented. Perhaps most important, the Supreme Court's decisions provided Congress, legal scholars and the American public a means for understanding and, in the relative calm of postwar decision-making, for re-evaluating the political wisdom of the executive's conduct.
In 1971, Congress established that "no citizen" shall be "detained by the United States except pursuant to an Act of Congress." And in 1988, Congress awarded reparations to the remaining survivors and descendants of Japanese-American citizens interned by the military during World War II.
Despite the Bush administration's best efforts of late to convey the appearance of action, the Supreme Court - poised to hear the Guantánamo case, and now deciding whether to hear the case of Hamdi - should not be misled by atmospherics. At stake in the cases now at the court's doorstep is one of America's most basic ideals as a nation - that the rule of law is a matter of right, not a matter of grace.
The writer directs the U.S. Law and Security Program for the Lawyers Committee for Human Rights, and is editor of "Assessing the New Normal," a book on liberty and security in the United States since the Sept. 11 attacks.
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