All the usual suspects are in full throat, declaring that the Supreme Court – only recently declared to be in the president’s pocket – has now delivered the often predicted, much deserved, feverishly anticipated presidential rebuke:
“The executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration’s arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.
The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like “fantastic,” “amazing,” “remarkable.” Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, “It doesn’t get any better.”
Well, maybe. I guess if you’ve been going the distance hoping that here! Or maybe, HERE! would be the final presidential come-uppance, a slice of the loaf will have to do, the half loaf being pattently unattainable, and the whole thing an ephemeral but optimistic flash back to the 60′s era of acid, Viet Nam and free love.
But what it seems to me that the Supremes have done is to remind the executive that, nice try, “E” for effort, you rascals, but there doesn’t actually seem to be any room inside the Uniform Code of Military Justice for the kind of tribunals that you’ve been recommending. Best to go and get another co-equal branch of government on board and jigger something up, what do you say? And in the meantime, Mr. Hamdan? Don’t plan on going anywhere.
At least for the duration of hostilities (pdf).
Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm.
A majority in Congress seems ready and willing to act to set all things to right. If they’re not careful, this momentarily sweet victory will turn to ashes on the tongue if the Times’ allies in Congress decide to strike poses in favor of those who body-guarded bin Laden while he dreamt his little dreams of jet liners, and the WTC.
Two Republican senators, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said in a joint statement that they were “disappointed” but that “we believe the problems cited by the court can and should be fixed.” They added, “Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute.”
Fair enough. Sit tight, Mr. Hamdan. We’ll get back around to you.
All in good time.
And you other guys? The ones who appear to think that the Moussaoui farce is the height of jurisprudence?
Don’t over-play your hand. You might be surprised how many people disagree with your foundational assumptions on good and evil.
One of the people locked up is David Hicks, an Australian national. So I have been taking an interest in this for quite a while.
I’m not saying the bloke is guilty, innocent or otherwise, but you would think that 5 years of incarceration without trial is long enough – would you guys do something with him already?
It isn’t incarceration; it is “internment”.
It isn’t a trial he is awaiting. If his status on the battlefield were in doubt, he would be awaiting a “tribunal” to determine his status (i.e.: POW, Civilian Internee, Retained Person, Displaced Person, Other Detainee) (the categories covered in GCs).
If he is determined by competent tribunal to not be entitled to the privileged status of POW (we call them EPW here), and he engaged in battlefield activities contrary to his status, he could be awaiting a military commission to try the unlawful activities that he is alleged to have committed.
Any which way you look at it, unless he is really a Displaced Civilian, he is pretty much stuck “for the duration”, (unless convicted of war crime and executed, but even then your embassy will receive plenty of advance notice before the sentence is carried out).
Hope I didn’t put any incorrect ellipsis(s) in there.
He is awaiting trial, as a matter of fact, it was due to begin on 18th November last year. The proceedings have been stayed until the decision of the Hamdan case is decided. The distinction between internment and incarceration is probably moot if you’re banged up in Gitmo. I’m no legal expert, nor have I claimed to be.
Again, because it clearly needs to be stated, I am not on Hicks side – he should not have been there, doing what he was doing. But nor do I support what has happened to him since. Two wrongs and all that.
Since precedent (Previous conflicts WWI & WWII) will not have an effect on the legal situation of the nice folks currently residing in Gitmo, I wonder what might be done with future detainees.
If a beligerent is caught on the battle field, no uniform, no apparent chain of command and no i.d., will this mean summary executions? I think executing these sorts of hostiles was common in previous conflicts. They were considered spies.
After all, the enemy follows no rules. They kill military and non-combatants without second thoughts. Torture, (REAL torture, not the amateur stuff) seems to be an added goody to be enjoyed by the noble terrorists, as they show the captive Allah’s mercy. Nobody in the press or in Human Rights groups seem to be upset with them or their tactics.
I’m not suggesting we start acting like the terrorists, just using time honored methods for Terrorist Removal.
One more thing: Could we reopen the FLTTRAGRU in Gitmo? I was never more misierable in my life (including SERE School) than when I was onboard FFG’s and DD’s, enduring six week REFTRA. We could teach the detainees the Gitmo 5! Would ACLU and Amnesty Int’l think that the training provided was torture?
Chris-
I’m pretty much on your side.
I note the British have had their citizens released, I also note it seems the US Court system is adequate to try US citizens accused of terrorism offences.
I have no problem with terrorists being imprisoned, I do have a large problem with an Australian being held indefinitely without anyone ruling it ought to be.
I’m glad the court acted the way it did. Especially with two Bush nominees on it, so it belies the idea that they are just lapdogs. ( Yes I know that Roberts had to recuse himself….).
Try them. With lawyers and rights. If some get off, oh well. The US will have made a better statement on the rule of law than the current arrangement does. Furthermore, the rest of the world does not see the distinction between GTMO and the other notorious prisons of the world. (Lefortovo comes to mind….). So try them. Or give them to the elected government of Afghanistan that we support to incarcerate. The current situation is just not good in the long run.
Plus closing GTMO would free up all those IA’s to go back to doing the real work of a Navy, not doing something they have no business doing or should be run by the Army.