June 17, 2008

Framing the debate on the Gitmo ruling

Harold-Kumar-Guantanamo_l.jpg Most of the editorials and pundits praising the Supreme Court's
Guantanamo Bay ruling have actually been playing right into the hands of their opponents. The line they've all chosen to take is, Even though we're at war it's important to safeguard liberties. The Dallas Morning News captured the misguided spirit best: "By extending this key constitutional protection to alleged foreign terrorists, the high court has made it more likely that bad men will go free. But the court also made it more likely that innocent men will not be consigned to a U.S. dungeon in perpetuity... We applaud the court for risking error on the side of liberty."

Such mealy-mouthed liberalism is music to the ears of anti-liberty radicals, who know that they have a winning talking point (and campaign issue) in "The Supreme Court is risking your lives for the sake of some pre-9/11 high-falutin' principles."

The Buffalo News frames the story more accurately and more effectively: "The terrorists lost one Thursday."

The point of the terrorist attacks of 9/11 was not to bring down anything so small as the World Trade Center. Al-Qaida’s target was America’s long-standing principles of justice and the rule of law.

At just about every turn, the Bush administration has been unthinkingly complicit with its own enemies. The White House, with far too much help from a fearful Congress, has found practically no portion of the Constitution that it was unwilling to bulldoze or evade in its crusade to hunt down the terrorists and give Americans the illusion of safety...

Somewhere in his cave, Osama bin Laden knows he missed his target by one Supreme Court vote. Americans should remember that when they cast their votes this November.

Posted by Daniel Radosh


Thanks for giving this some more play. And three cheers for the Buffalo News. Despite hopes to the contrary, 2008 will be another year when lazy reporting -- and lazy prejudices -- will need to be pointed out, challenged and rebutted every single day.

What utter bullshit. You're suggesting that bin Laden gives a crap whether detainee status is reviewed by the CSRT and the DC Circuit Court under the generous procedures established under the MCA and the DTA, or by the district courts according to some undefined standard to be established on the fly. I'm betting you didn't even read the opinions and have no idea what the above acronyms mean. But hey, the Bush administration lost, so it must be good, right?

Hey, I read them! I know what they mean!

What they mean is that there was sufficient evidence for 5 judges that the CSRT's were kangaroo courts in practice, regardless of what the guidelines said they should be. That the access to evidence for detainees was essentially nil. That the ability to appeal decisions in the CSRT granted to detainees was limned so tightly as to be useless. That there is a moral responsibility to treat humans in your custody in accordance with one's own standard of justice and indefinite, un-adjudicated detention does not meet that standard.

Four members of the court responded "BUT WE THINK THAT THEY MIGHT BE TERRORISTS!!!"

Give me more credit than that, John. No, I didn't read the opinions, but I read enough analysis, from liberal, conservative and neutral sources, that I have a pretty good idea of what they mean.

Of course I don't literally think Bin Laden cares about the details (or that what Bin Laden personally thinks is all that relevant to the future of jihadism), but terrorists always want their victims to respond excessively. The nature of asymmetrical warfare is to provoke a response that will ratchet up tension and advance the cause of the terrorists by seeming to demonstrate its validity. If you think Al Qaida doesn't love Gitmo as much as Dick Cheney, you're nuts.

Charles, if you really did read the opinions, you didn't understand them. There's nothing at all in there about the MCA/DTA system "in practice." How could there be? There hasn't ever been an appeal through the MCA/DTA system.

Daniel, I'll give you credit for understanding the opinions when you demonstrate that you do. Since you're responding with what are basically non sequiturs (this case is related only tangentially to the debate over whether prisoners should be kept at Gitmo), you fail.

("Anonymous" above was me.)

You're a smart guy, John, so I suspect you're being deliberately dense. Charles' use of "in practice" referred specifically to CSRT. My use of "Gitmo" was shorthand for permanent detention without recourse (which is why Gitmo was set up; also, to allow torture, which you'll notice I didn't even mention).

Yes, "in practice" referred to the CSRT. But maybe you didn't read Boumediene, John.

It is true that no appeal of a CSRT has been completed, but that is, to some extent, a point the Court made. The Court referred to the three(!) interlocutory rulings of the DC Circuit in Bismullah to inform its decision and it evaluated the severely limited review that the DC Circuit was permitted to undertake under MCA/DTA "appeals" process.

The Court ruled that exhaustion was pointless because all Congress permitted the detainees was a sham trial followed by a rubber stamp.

Roberts dissented on the apparent grounds that the Court should have waited an indefinite period of time for one these miscarriages of justice to run their course. I haven't read the Scalia dissent yet, but I read his joke of an introduction and suspect that he spends the rest of the opinion in the Channel Islands and the POW camps in Germany contesting the history of the writ.

I don't lack the history to figure out the pre-Revolution history, but I definitely agree that Eisentrager is inapposite. Scailia's reference to the 'good faith reliance' of the Administration in establishing Gitmo as a legal black hole is one of the most chilling sentences in the history of American jurisprudence.

I don't lack the history?

What the hell? Did I write that? Suffice it to say that I have no idea what the crown did with the writ in Guernsey or with captured Spanish seamen.

The Fourth Amendment is trampled daily right here by the NYPD, and since the Republican convention mass abduction and detention of innocents in 2004 even white people are feeling it. The latest trick to circumvent civil rights is to drag people to Bellevue, tie them up and drug them, and then interrogate, threatening to keep them in such a state indefinitely if they don't fully cooperate. Doctored records and phony witnesses are easily materialized should a victim sue. This B-movie cloak-and-dagger crap has been instigated since Mayor Michael "make the customer think he's getting laid when he's getting fucked" Bloomberg hired David Cohen, former #4 at CIA, to head NYPD's "intelligence" unit. Yeah, what a patriot. Cohen is a shadowy figure who shuns interviews and cameras, but made himself available for this fascist-friendly puff piece in 2005.

The Court ruled that exhaustion was pointless because all Congress permitted the detainees was a sham trial followed by a rubber stamp.

Well, sort of, but the majority actually went a lot further than that, suggesting not just that the MCA/DTA process is constitutionally inadequate, but that there was no way it possibly could be constitutionally adequate -- even though the Court explicitly said in Hamdan, in an opinion that four of the five justices in the majority signed onto, that Congress could create tribunals that would be constitutionally adequate.

Not deliberately dense, Daniel, just a little prickly about policy arguments being shoehorned into an argument that's ostensibly about the Constitution (a criticism I'd also level at some of Scalia's dicta, by the way, though in his defense Kennedy started it). The pernicious premise of the absurd "bin Laden missed his target by one Supreme Court vote" line seems to be that bad policy is automatically unconstitutional.

They didn't really go any farther than I said they did, John. They interpreted the text of the statutes and found that the procedures authorized therein were facially inadequate. Taken alone the Court may have tolerated a lack of counsel (much less counsel of one's choosing) or the inability to confront witnesses or the inability to gather evidence to mount a defense or the admission of multiple levels of hearsay or a practice of keeping from the defendant (and his advisor, a US military officer) not just the evidence but the specific charges of wrongdoing or... I could go on. Collectively, it was too much for the court.

That CJ Roberts claims that it is "the most generous" process ever given to similarly situated detainees (were there any?) shows only how shabbily any prior detainees had been treated, not that such treatment comported with the Constitution.

All that said, I finally read Scalia's opinion. While I am still not willing to take a slog through five centuries of cases, I do feel that I should read Eisentrager. Nino challenges the Kennedy interpretation of the case in interesting ways that give me pause about how the case was distinguished. I still think that - even if Scalia is right about the Eisentrager court's rationale - that case was wrongly decided, but the stare decisis argument in Boumediene would be much more compelling.

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