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The War Council

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I’ve mentioned it before, and I will certainly mention it again, the Knight Ridder team, since acquired by McClatchy Newspapers practiced some stand-up journalism with respect to Iraq, asked some tough questions, and did not fall for the ginned up case for war in Iraq as most other news institutions did. (See generally: The Reporting Team That Got Iraq Right).

The tradition continues with Tom Lasseter’s report on the legal team responsible for the framework of detainee imprisonment in Afghanistan and Guantanamo. (A framework that has been rejected recently, at least with respect to the attempted evisceration of habeas corpus rights). This is not policy that comes from military minds who think the detainment framework is a good idea; rather it came from five lawyers high up in the Bush administration: 1) David Addington – Cheney’s chief of staff; 2) Alberto Gonzales – Disgraced, memory-challenged former Attorney General and White House counsel; 3) John “Torture Memo” Yoo – former member of the Office of Legal Counsel; 4) William J. Haynes II – Former Pentagon general counsel; suspected of wanting the military tribunals to operate as kangaroo courts and who abruptly resigned earlier this year; and 5) Timothy Flanigan – former deputy to Gonzales who resigned amidst mounting questions over his role in drafting the administration’s torture policy.

Their attempts to grab power for the President and generally avoid accountability appears to have made a hash of things:

Now it appears that reinterpreting the law to lift legal protections for detainees could backfire. On May 13, the Pentagon announced that it was dropping all charges against Mohammed al Qahtani, a Saudi man held in Guantanamo who’s accused of planning to take part in the 9-11 attacks as the “20th hijacker.”

The official overseeing the case, Susan J. Crawford, gave no reason for the move, which followed the leak of an interrogation log that detailed harsh attempts at Guantanamo to break Qahtani mentally. Among the methods used were forcing him to act like a dog, putting women’s underwear on his head, keeping him in stress positions and accusing him of homosexuality.

Military lawyers attempted to warn the five; dubbed “The War Counsel” but were shut out:

The military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld were replacing decades of U.S. military policy on handling detainees.

When they protested, the War Council shut them out.

“We were absolutely marginalized,” said Donald J. Guter, a rear admiral who served as the Navy’s judge advocate general from 2000 to 2002. “I think it was intentional, because so many military JAGs spoke up about the rule of law.”

And, it goes on and on:

“What they were looking for was the minimum due process that we could get away with,” said Guter, who’s now the dean of Duquesne University’s law school. “I felt like they knew the answer they wanted to hear.”

Romig recalled tense discussions with Yoo in November and December 2001 about setting up military commissions to try detainees.

“John Yoo wanted to use military commissions in the manner they were used in the Indian wars,” Romig said. “I looked at him and said, ‘You know, that was 100-and-something years ago. You’re out of your mind; we’re talking about the law.’ ”

The military commissions that the U.S. used against Native Americans during the mid-19th century were often ad hoc and frequently resulted in natives being hanged or shot.

“As they viewed it, due process is legal mumbo jumbo,” said Romig, who’s now the dean of Washburn University’s law school. “They wanted to get them, get the facts and convict them. … If you’re caught as a terrorist, you’re presumed guilty and you have to prove you’re innocent. It was crazy.”

I just want to quote the whole damned article, which isn’t appropriate, so just go read the whole thing. As I’ve said on numerous occasions, I’m not a religious guy. But, I probably get closest to idolatry with respect to my reverence for the Constitution. When you look at history and look at how miserable societies were generally with a dog-eat-dog sensibility that stemmed in large part from might equaling right, you start to realize how amazing our Constitution and system of justice has been. Sure, you can point to any number of bad results, but over all, the civilizing effect of our respect for the rule of law has been astounding. Then you have guys like Yoo and Addington who are willing to piss it all away for momentary (and largely illusory) gain. If I’m wrong about this religion thing, there’s a special place in hell for people like that.

Supreme Court decides against Bush Admin in Gitmo Habeas Case

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Scotusblogand others are reporting that the Supreme Court issued a 5-4 opinion finding that Gitmo detainees have habeas rights.

The case is Boumediene v. Bush. I have not read the opinion, but Scotusblog summarizes as follows:

[F]oreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

Justice Kennedy wrote the majority opinion and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Souter wrote a concurring opinion in which Justices Ginsburg and Breyer joined. Chief Justice Roberts wrote a dissent in which Justices Scalia, Thomas, and Alito joined. Justice Scalia wrote another dissent in which Roberts, Thomas, and Alito joined.

Update The following is a summary after a cursory review of the majority opinion:

Section 7 of the Military Commissions Act of 2006 operates as an unconstitutional suspension of the writ of habeas corpus. The court specifically does not address whether the President has authority to detain the petitioners nor whether a writ of habeas corpus should issue. These are matters that must be addressed by the District Court.

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The court reviews the history of The Great Writ as it’s come to be known. The writ was one of the few safeguards for liberty included in the original, pre-Bill of Rights Constitution. The right to be free from unlawful detention was enshrined in the Magna Carta, but the use of the writ of habeas corpus as the mechanism by which to enforce that right had a more gradual evolution. Originally, it was mostly used as a mechanism by which the King could enquire as to the right of a jailer to detain one of his subjects. But, from an early date it was also recognized as applying to the King himself. “The King must not be under man but under God and the law because law makes the king.”)

Still, use of the Writ was imperfect and often ignored. It wasn’t until after Parliament took up arms and relieved the King of his head that limits on his power were more respectfully recognized. And, it was in this post-Charles I execution (1649) context that the Framers of our Constitution were operating when they wrote into the Constitution that “the privilege of the writ of habeas corpus shall not be suspended, except when in cases of rebellion or invasion the public safety may require it.”

Alexander Hamilton, in Federalist No. 84, wrote:

“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: ‘To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the BULWARK of the British Constitution.’ ”

The U.S. Government argues that Guantanamo is special because it’s not under its sovereign control. The Supreme Court rejects this notion because the terms of of the lease between the U.S. and Cuba specifies that the U.S. exercises “complete jurisdiction and control,” there is no other law than that of the United States that governs Guantanamo, and, in particular, Cuba has no practical control over the area. The necessary implication of the Government’s argument is that it can acquire territory, surrender formal sovereignty to a third party, enter into a lease that grants total control of the territory back to the United States and thereby govern without legal constraint. (My personal view is that there is no government outside the Constitution — that document constitutes the government and acting beyond it, the actors cease acting as the government and begin acting as individuals.)

In the present case, the detainees deny that they are enemy combatants and the Court finds that the procedural safeguards in place to determine whether they are enemy combatants are insufficient to take these individuals beyond the reach of the writ of habeas corpus. In particular, the detainee accused of being an enemy combatant is not entitled to counsel and has only limited ability to rebut the case against him. The Court also cites lack of historical parallel; noting that this involves individuals detained by executive order for duration of a conflict that, if dated from September 11, 2001 to the present, is already among the longest wars in American history. The detainees are being held in territory that, while not technically part of the United States, is under the complete and total control of the United States.

The court holds that Art. I, sec. 9, cl. 2 of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees currently before the court, Congress must act in accordance with the Suspension Clause. The Court further holds that the procedures put in place by the Military Commissions Act does not provide an adequate substitute for habeas corpus. At a minimum, such a substitute would have to provide a prisoner with a meaningful opportunity to demonstrate that he is being held due to the erroneous application or interpretation of relevant law, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. More may be required depending on the circumstances. As currently constituted the review tribunals come with a considerable risk of erroneous findings of fact even where everybody involved operates in good faith. This is an inherent risk in any process that is closed and accusatorial.