One of the worst decisions in history

Saturday 14 June 2008 — This is over 16 years old. Be careful.

Conservatives are wailing and wringing their hands over the Supreme Court’s ruling that Guantanamo detainees are entitled to challenge their detention. John McCain hyperbolically called it one of the worst decisions in history.

I’m not sure why people (even conservatives) think this is so horrible. If, as John McCain asserts, these are “bad people”, then judges will agree that they can be detained. It will take time to hear those cases, and the government will have to defend their detention. But if these men are as bad as we say, then judges will agree to hold them. We are not in danger here of some kind of Get Out of Jail Free card. Mention has been made a few times of their food being an issue in these cases. Oh, please. Let’s give federal judges some credit here.

McCain said it was “terribly unfortunate because we need to go ahead and adjudicate these cases”. We’ve been holding some of these people for six years. As near as I can tell, the only thing keeping us from adjudicating their cases is the extensive process the Bush Administration has undertaken to invent a parallel legal system outside the U.S. Constitution.

Perhaps it is no surprise, but I agree with what Obama said about the decision:

This is an important step toward re-establishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus.

Comments

andrew 8:28 AM on 14 Jun 2008

I am pretty sure that habeas and the rest of the Constitution was only meant for citizens of the USA and/or foreign nationals on US soil. The practical result of this decision is that terrorists and killers will go free and kill again. That, and their posh detention on GTMO will be replaced by rendition to Egypt (where they really know how to take care of their guests) and by short battlefield interrogations and summary executions.

The majority in Boumediene (the liberal bloc + Kennedy) knew how they wanted to decide, they just needed to figure out a way to get there.

Ned Batchelder 8:39 AM on 14 Jun 2008

Part of the ruling is that Gitmo counts as US soil because it is a US base that has been so for 100 years. If John McCain was born on US soil (at a Naval base in Panama), then these detainees are on US soil! :)

But Andrew, I wonder on what grounds you think the judges will let these detainees free? Is our case against them so slim that you really think they will be released once their cases are exposed to light?

I hope you are wrong about the result of this decision being that we move away from the application of considered justice. I'd like to think that we are right that they are bad guys, and that we have cases against them that will hold up to scrutiny...

Braden Anderson 9:11 AM on 14 Jun 2008

Man, I'd been waffling after hearing that Obama voted for the farm bill, but that's horrific.

andrew 11:00 AM on 14 Jun 2008

Most of the detainees are there because of evidence that is classified. In a civilian court, because of discovery, the evidence either has to be de-classified (and perhaps blowing the cover of an operative or a mission) or the evidence is withheld, resulting in a mistrial and the case being dismissed.

So, the government either has to choose between a civilian trial (with all the OJ-like circus) or potentially killing an operative.

A reverse question: what was so improper about a military tribunal? They are equipped to handle classified evidence without disclosure to the press. Are you saying that there is no way that these choirboys can get fair trials from the military? My, what a low opinion you must have of our military institutions.

Josh 11:51 AM on 14 Jun 2008

I don't care if we're talking about citizens or foreigners -- it's un-American to hold accused people indefinitely without trial. We're not apartheid South Africa or a totalitarian state. At some point we have to decide what to do with these detainees, and the time is finally here.

Also, andrew, your false dichotomies do not lend your arguments credit. Terrorist fearmongering, such as silly "trial = the death of intelligence" carping, is tired.

JohnMc 12:19 PM on 14 Jun 2008

The fundamental error is the consideration of the Geneva Accords which having been ratified by the Senate binds the US to their observance. Accordingly, the fact is AQ is not recognized as a military force. The accords treat such individuals at two levels -- spys or terrorists. Neither of which afford protections under the accords. Their detention in Gitmo is humane in comparison to the options that are available.

The second error in my view is the extraterritoriality of the decision. The Court in extending habeas pretty much took them out of the military realm. I would view it at that point that US law would not extend to a party captured and detained in another country as there is no chain of jurisdiction.

Its a bad decison for reasons other than these suckers getting released. That is bad enough as it is.

Giacomo 2:56 PM on 14 Jun 2008

JohnMc, you assume these people were members of Al-Qaeda, which is something the Bush administration asserted. It might even be true, but they might as well have said they were members of the Gonzo Club: just because the Afghan military was structured in unconventional ways, it doesn't mean that fighters cannot be considered "member of a military organization". By all means and purposes, these were members of the Afghan military forces organized by the Taliban. Ergo, the convention applies.

(Cheney)Bush tried to pull a Nuremberg, he failed. Which, considering that up to that point he had full support from pretty much everyone in the rest of the world, is a fenomenal achievement. This sentence will do for foreign relations much more than dozens of useless presidential visits abroad; you should be happy about it.

W^L+ 7:38 AM on 15 Jun 2008

These people are NOT conservatives. Conservatives love the stabilizing influence of our Constitution to the extent that we often try to convince other nations to emulate it. We love to point out the way we have amended it over the years to correct oversights (ie, civil rights for women and minorities), and that the difficulty of amending it protects us from the mania of the moment.

Above all, we point to the Constitution as the thing that has kept us from being like our Latin American neighbors, with revolution after revolution, death squads and dictators. The Constitution prevents us from becoming the next Nazi Germany or Communist China. Take that away, and we are one power-mad leader away.

REAL conservatives always were and still are against these "extra-constitutional" and extra-legal practices, simply because the Constitution applies to the actions of our government, whether here or abroad. Don't think for a moment that the officers behind the Guantanamo camps and Abu Gharaib scandal won't retire and become police chiefs or heads of corporate security somewhere. We should have stopped this before it started, or failing that, as soon as it was revealed. It is to our shame that we haven't stopped it yet and that we actually have people arguing against stopping it.

David Boudreau 2:11 AM on 16 Jun 2008

Andrew, I for one have a low opinion of our military institutions, particularly since Abu Gharaib. I've got to agree with Ned on this point about habeas- although McCain has done a lot to rebuild credibility regarding unjust treatment of prisoners and putting a stop to things like he experienced himself so I'm a little surprised here. Also I don't know what you mean about Egypt- McCain said he'd move them to Fort Levenworth... just not sure what he means by "adjudicating". If it includes just calling them prisoners, even that's better than "foreign combatant detanee so it doesn't count" or whatever the term is. Sorry Andrew, but you don't get to describe it as "posh" at the same time you'd force it on them.

Bruce Perry 11:47 AM on 16 Jun 2008

The scary thing about this decision to me is that it was a 5/4 decision on one of the oldest legal rights in the western world. I thought conservatives were in favor of preserving our existing constitutional rights? We're one supreme court justice away from losing major constitutional rights

Andrew, you have it wrong. The evidence is classified because the evidence is mostly crap. They're not revealing it because it won't stand sunlight. Most of the people confined at Gitmo were just at the wrong place at the wrong time. Some were outright sold to us as terrorists by enemies.

jaime 12:44 PM on 16 Jun 2008

Bruce,

How can you assert the evidence is crap? If it is classified you have not seen it.

And does habeas apply only to people on U.S. soil? That is the big question. As far as I'm concerned if you surrender in a war, you're a POW, not a detainee of the state. The rules certainly should be different for the two, imo.

Bruce Perry 9:18 PM on 16 Jun 2008

You're right that I haven't seen the official evidence, but logic and a certain amount of reading tell me that they'd find some way to use it by now (6 years later)if it were any good. I'm not saying that everyone there is innocent, but probably a majority are. The number of innocent people there is certainly large enough to embarrass the Bush administration. And then there's the question of just how many of these people have been tortured. Don't forget, Geoffrey D. Miller was in command of Guantanamo and Iraqi prisons and his recommendations for ways to "soften up" prisoners were blamed for the abuse at Abu Ghraib.

The detainees aren't currently allowed to see the evidence against them. One prosecutor quit because he objected to allowing evidence obtained by torture. There have been efforts to rush the prosecutions so as to get them out of the way before the 2008 US presidential campaign.

BTW, the Bush administration has been to quite a lot of trouble to deny the Gitmo detainees POW status. I don't insist on POW status for them, but locking them up forever with no chance exonerate themselves is just wrong.

If the US wants to be taken seriously in the world as an advocate for democracy, we need to fix this mess.

Nate 4:28 PM on 17 Jun 2008

Honestly, if our courts can't find them guilty of something, they deserve to go free. If the evidence against them is classified then they either need to declassify it, or try them without it. They have to weigh the value of both actions, but simply not acting is unconstitutional. I don't give a flying fudgsicle if our laws technically cover them or not. They're under our power, so they should be under our law. If our laws say that we can't imprison them, then they should be set free, and our laws should be reviewed. What we're doing now, by ignoring the spirit of our own laws, is unconscionable. We might as well not even have any laws if the President can decide who is and is not covered by them at a whim.

DavidM 10:06 AM on 22 Jun 2008

These people were caught fighting our troops out of uniform. In WW2 we caught germans fighting in GI uniforms. Once caught they were not sent to Gitmo, but lined up and summarily shot. Fighting out of uniform puts ALL civilians in danger because legitimate troops do now know who the enemy is.

In Hamdan versus Rumsfeld, the court ruled that the executive did not have the right to go through with military tribunals but it could be granted that right from Congress. Congress then bestowed that right with the Military Commissions Act of 2006.

Habeus corpus is in regards to people on US soil, which Gitmo is not. This is an usurping of power by the SCOTUS which rightfully belongs to the Executive and Legislative Branch. If you like separation of powers then you should agree with McCain.

Bob Lauer 10:14 AM on 23 Jun 2008

What a pathetic discussion - as if anyone here knew what's going on in Gitmo. Heck, even the Red Cross isn't alowed to talk about everything
they see there. And even in cases where the general public does know
a fair deal about a particular case - e.g. that some detainee's files
say that there is no evidence against him whatsoever - then nobody seems
to give a damn. In other cases there is some evidence against a guy,
and he's being released because he happens to be a Brit, and Tony B
ask his pal George W B for a favo(u)r.

What was wrong with the goold old democratic court system?

W^L+ 10:58 AM on 12 Feb 2009

I still maintain that if we just *read* the Constitution, we see that habeas corpus is not about whether the accused is a US citizen or on US soil. It applies to the actions of OUR GOVERNMENT, limiting what our government and its various agencies are allowed to do. The Constitution grants no exceptions when the accused is not a US citizen, nor when the accused is not held on US soil.

That is why I said that Bush, Cheney, et al are not conservatives. They considered the Constitution an obstacle to get around, not the guiding principle that determines what they should do. Between politicizing the Supreme Court over the past twenty or thirty years and actions like torture at Guantanamo, Abu Gharaib, and other places, and the misguided and continued bailouts shielding bankers and other financial industry firms from the consequences of their incompetence, this nation's prospects do not look very well right now.

One of the worst decisions in history

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