Habeas Corpus – the Silent Killer!

The Supreme Court, in a narrow 5-4 decision (with Kennedy being once again the swing vote between liberals and conservatives), struck down the current arrangements devised by the White House and previous GOP-led Congress to handle initial “review” of detained “enemy combatants” in Guantanamo Bay.

Court Says Guantanamo Detainees Have Right to Challenge Detention – washingtonpost.com
Justices Rule Terror Suspects Can Appeal in Civilian Courts – NYTimes.com 

In a harsh rebuke of the Bush administration, the justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

“The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal role that some court-watchers had foreseen.

The court noted that there remained prisoners at Gitmo who, after 6 years of detention, had still not had any sort of opportunity to protest their detention or assert that they should not be detained.

The conservative dissenters voiced their objections to the majority ruling vehemently.

Justice Antonin Scalia took the unusual step of summarizing his dissent from the bench, calling the court’s decision a “self-invited . . . incursion into military affairs,” and was even stronger in a written dissent joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

“America is at war with radical Islamists,” Scalia wrote, adding that the decision “will almost certainly cause more Americans to be killed.”

Yeah, that ol’ deadly right to habeas corpus — what the hell were those Founders thinking when they said that people had a fundamental right to have an independent judge review whether there’s ground for you to be in the slammer? That’s just crazy-talk!

After the SCOTUS ruled in 2004 that that insane “habeas corpus” loophole extended to prisoners at Gitmo, the White House and Congress came up with an alternative.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

At issue were the “combatant status review tribunals,” made up of military officers, that the administration set up to validate the initial determination that a detainee deserved to be labeled an “enemy combatant.”

Of course, it’s not like the tribunals were, um, independent and impartial arbiters.

The military assigns a “personal representative” to each detainee, but defense lawyers may not take part. Nor are the tribunals required to disclose to the detainee details of the evidence or witnesses against him — rights that have long been enjoyed by defendants in American civilian and military courts.

Under the 2005 Detainee Treatment Act, detainees may appeal decisions of the military tribunals to the District of Columbia Circuit, but only under circumscribed procedures, which include a presumption that the evidence before the military tribunal was accurate and complete.

The majority ruled that, no, that doesn’t really represent the right to habeas corpus. Duh.

But what of the tremendous risks being faced by the country by this ruling? Isn’t it just plain old safer to let the Executive take care of all that legal decisionating, rather than the Courts?

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Commie.

Note that the majority isn’t asserting (nor am I) that the 300-odd remaining Gitmo detainees are all innocent. But the fact is, we don’t have a basis for presuming they’re guilty, either. Someone, somewhere, in field conditions, over the last seven years, thought they might be terrorists or “enemy combatants” — and, on that basis, they’ve been sitting behind chain link, with no actual chance to actually hear about what they are accused of, or be heard as to whether those accusations have any merit. Are we really safer knowing that the government and military have done that?

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

Well, I certainly am sleeping easier knowing that those guys are out of circulation and haven’t had any chance to argue their way out of it. I mean, if the Bosnian police think they’re potential terrorists, that’s good enough for me!