Thursday, June 12, 2008

Obama and McCain are right. Close Guantanamo.

Blogging has been light lately for two reasons. First, I became a grandfather on Friday, June 6th. Second, as a result of storm damage in the Lansing area I've been without internet access since Saturday. But, onto the topic of this post's title.

Today's SCOTUS decision to extend Constitutional protections to enemy combatants - foreign nationals whose boots have never contacted US soil - reverses a 1950 precedent that nonresident alien enemy combatants have no right to habeas corpus. Guantanamo is now useless as a detention center for terrorist suspects. Unfortunately, the Bush administration was foolish enough to believe the precedent would protect the United States from having to reveal secret intelligence at trail before Civil courts.

Here is a small excerpt from Justice Scalia's dissenting opinion:

...The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950) , when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006) , when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act … represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
I recommend reading the whole thing.

This is a sad day. Five SCOTUS Justices, in the name of preserving American justice, have instead demonstrated the insidious weakness of Western Civilization's leftist guilt-quest for cultural self-esteem.

Sadly, Osama, we may indeed be the weak horse. Our Supreme Court is a pony, at best. And it's riding us.

4 comments:

Mitch said...

The sad truth of this is going forward, there will be in many instances an informal policy of executing all prisoners on the field (aka "rule 303" from the film "Breaker Morant") as a decision will be made that they we are better off with them killed on the field than detaining them and letting some ACLU-natic judge set them free.

Either that, or they will be transferred to foreign run camps where such excessive sensitivities are dismissed.

JGillman said...

Aside from intelligence revealed to the bad guys, MY fear is that of populations of radical islamists further corrupting the minds of those already incarcerated for violent crimes. Further endangering our population if they are reintegrated into society.

The Infidelis Five are wrong.

Anonymous said...

I find it amazing that you decry the lack of democracy in BC and defend Mark Steyn and a couple of entries later you bemoan the Supreme Court decision that says that captives held without trial, without charges, and without access to lawyers, should actually have to be proven guilty. That's ALL that decision said, yet you find that sad.

So your idea of democracy does not include the right to be proven guilty for everybody, just those you support like Mark Steyn. It's really too bad about that silly system that provides for a Supreme Court, isn't. it. Maybe the Constitution should just be ripped up and replaced with a system where, oh I don't know , Duane decides who should be imprisoned indefinitely without habeus corpus. Won't that be a pleasant little world!

I eagerly await your post explaining how granting the right to be proven guilty demonstrates "the insidious weakness of Western Civilization's leftist guilt-quest for cultural self-esteem." I admire your ability to frame that phrase about this decision. I couldn't do it, the internal self-contradiction would make my head explode.

Hershblogger said...

Dear Anonymous,

Well, it's the attack on democracy in Canada as represented by Section 13 to which I object, but that's a quibble.

I do find it interesting that you would compare Mark Steyn to enemy combatants. In the latter case there is a proven existential threat. Some of those already released from Guantanamo have returned to killing Americans and others. I doubt not they'd fly a jetliner into the Sears Tower, given an opportunity.

Mark Steyn, on the other hand, is being “tried” for raising a warning about a more leisurely existential threat. Unlike a civilian trail of a Gitmo detainee, "evidence” introduced in the BC tribunal cannot reasonably be said to represent a security threat to Canada. But the Steyn/Gitmo axis is not really your problem, I think. You consider that laws of the United States ought to apply to foreign nationals on foreign soil. I can't help but remember chief CHRC investigator Dean Steacy's comment that, “Freedom of speech is an American concept, so I don't give it any value.”

This is a digression, however. Your point that the SCOTUS decision was solely about “captives held without trial, without charges, and without access to lawyers, should actually have to be proven guilty” is inadequate, as Justice Scalia amply demonstrated in the excerpt in the post above. I'll point out that, at minimum, this decision reversed established precedent that such “captives” do not have habeas corpus rights. The decision turned on defining a US military base on foreign soil as property of the United States. If these “captives” were in say, Abu Ghraib, the issue would not have come up. Facilities like that are certainly where future captured enemy combatants will be housed. At least until they lawyer up. And, by the way, had the Gitmo detainees not had access to lawyers, the Military Tribunals they were to have faced years ago would long since have been conducted.

My idea of democracy, under the Constitution of the United States, is that it is not a suicide pact. I have not advocated disbanding the Supreme Court, as you suggest. I simply think this decision is dangerous to the United States and that it was made, as the phrase you admire indicates, from the Supreme Court's drift into considering that the sensibilities of other countries should be applied when interpreting the Constitution of the United States. I contend the motivation arises from cultural guilt parallel to the Shelby Steele model: It has far more to do with the moral redemption of the 5 Justices than with the law, a sentiment prominent in Mr. Steyn's writings regarding how moral relativism has corrupted the very idea of multi-culturalism. YMMV, as may your hat size.

On a related note TOC has previously mentioned the inappropriateness of interpreting the US Constitution through the filter of foreign law. Interestingly, Ontario figured in that post.

An illuminating debate on this topic between Antonin Scalia and Stephen Breyer can be found here.

In short, there is no justification in law for the decision. Quite the opposite. A well established SCOTUS precedent had to be ignored. Those in dissent have the right of it.