“If another nation’s leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the president for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections. These realities make the Supreme Court’s decision in Hamdan v. Rumsfeld, issued on the last day of its 2005-2006 term, in equal parts stunning and crucial.” In related news, as seen at both Salon and Mother Jones (as well as the New York Review of Books), author and law professor David Cole underlines the importance of the Hamdan decision in preserving the rule of law and throttling Dubya’s unchecked power grabs of late.
Tag: Indefinite Detention
Post-Hamdan Politicking…
As the legislative and judicial branches struggle to rein in Dubya’s excesses, recent Senate testimony on the treatment of Gitmo detainees reveals fissues within the administration’s approach to the Hamdan ruling: “The testimony has shown that the Justice Department — which had insisted on the legality of the existing policy — is eager to sharply limit the impact of the Supreme Court’s decision, while military lawyers and some other Pentagon officials are celebrating it as a vindication of their long-held concerns about U.S. detainee policy.” Update: “The President is always right?” (Via Looka.)
Geneva comes to Gitmo.
In a happy day for the rule of law, and following the Supreme Court’s recent decision in Hamdan, the Dubya White House and Pentagon reverse themselves and announce that the Geneva Conventions will now apply to Guantanamo detainees. Yes, good news indeed…Still, given that this administration can so rarely be taken at its word, vigilance will be required to see if the treatment of detainees actually changes at all: “Neither the White House nor the Pentagon provided any immediate details as to what would be done differently or how the decision would effect the controversial policies on interrogation, which have provoked an international outcry as well as considerable domestic controversy.“
Win Some…
In a blow to the monarchial presidency that may also affect future rulings on warrantless wiretaps and torture policy, the Supreme Court strongly rebukes Dubya for his Gitmo tribunals, declaring they “were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949.” As Justice Stephen Breyer summed it up in a concurring opinion: “The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.‘”
The Gulag Suicides.
“This is an act of desperation because they have no way to prove their innocence. A system without justice is a system without hope.” Three detainees at Guantanamo commit suicide by hanging themselves in their cells, a tragedy to which the U.S. camp commander, Rear Adm. Harry Harris, responds with freakishly bizarre war-on-terror gibberish: “They have no regard for life, either ours or their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” Say what? “‘They are smart. They are creative, they are committed,” he said.” Um, they’re dead, by their own hand, after being indefinitely detained for years. How about a little perspective here?
UN: Do As You Say, not as you do.
“The State party should cease to detain any person at Guantanamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention.” A day after an ugly prisoner uprising, the UN Committee Against Torture implores the US to close the prison at Gitmo. The report (PDF) also calls for the US “to expressly ban controversial interrogation techniques, and to halt the transfer of detainees to countries with a history of abuse and torture.“
Whistle Blown.
“[Y]ou have somebody being fired from the CIA for allegedly telling the truth, and you have no one fired from the White House for revealing a CIA agent in order to support a lie. That underscores what’s really wrong in Washington, D.C.” Following the recent dismissal of CIA historian and Africa specialist Mary McCarthy for telling the Post about our secret gulags, several Dems, including John Kerry and Rep. Jane Harman, question the Dubya double standard regarding leaks. Update: Was it not McCarthy after all?
Jose, can you see?
“‘Even if the Court were to rule in Padilla’s favor,’ Kennedy went on, ‘his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.” By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla’s dilemma has been rendered “hypothetical” now that he’s been transferrred into the normal justice system.
Justice Ginsburg disagrees: “This case…raises a question of profound importance to the Nation. Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an ‘enemy combatant’? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.“
Hearing Hamdan.
“The president’s consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government’s case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.” Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself…as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could “find that ‘conspiracy’ — the only charge against Hamdan — does not violate the law of war.“
Update: The Court hears the case, and it seems a majority — Scalia and Alito notwithstanding — are not amused with the Dubya administration: “Without Chief Justice John Roberts…the argument seemed lopsided against the government.” Still, as was expected to be the norm on the Roberts Court,”the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy.”
Report Card: Incomplete.
By way of a friend, the State Department releases its mandated yearly human rights report for 2005 (here), finding cause for alarm in Iran, Russia, China, Venezuela, Burma, North Korea, Belarus and Zimbabwe and (surprise, surprise) progress in Iraq and Afghanistan. The report doesn’t delve into human rights violations here at home (although China tries to fill that gap in response every year), but it does unequivocally state — in bold, no less — that “countries in which power is concentrated in the hands of unaccountable rulers tend to be the world’s most systematic human rights violators.” Hey y’all might be on to something. Deadpans the head of Amnesty International: “The Bush administration’s practice of transferring detainees in the ‘war on terror’ to countries cited by the State Department for their appalling human rights records actually turns the report into a manual for the outsourcing of torture.”