It certainly is a search.Jon Carroll - Habeus Corpus
Monday, August 4, 2008
Even when we think we're paying attention, we're not. We're riveted by the campaign, we're bemused by the notion that an African American candidate for president could be called "overconfident" by pundits and many people would nod sagely ("Hey, I'm the black guy! History is on my side!"), we're alarmed that the Democrats in Congress, the majority party, still can't seem to get anything done.
And how much time do we spend thinking about Boumediene vs. Bush? Not a lot. And yet, as Ronald Dworkin points out in a fine article in the New York Review of Books, it's the biggest victory for the rule of law that we've had in some time. You want the audacity of hope? There it is.
Lakhdar Boumediene, born in Algeria, was arrested in Bosnia in October 2001 and charged with being part of a plot to blow up the U.S. Embassy there. He was almost immediately released by the Bosnian Supreme Court for lack of evidence, and then rearrested by American troops (evidence? That's what interrogation is for!) and shipped to the Guantanamo detention facility. He's still there today.
Naturally, Boumediene has not received any kind of trial. His lawyers have not been allowed to see evidence against him. He is, like almost all the people at Guantanamo, a hearsay prisoner with an indefinite sentence, imposed arbitrarily by ... well, somebody. He is an enemy combatant because the Bush administration says he is. He may be a bad guy, but he may not be. He has served six years behind bars and has yet to be charged with any crime.
That's kind of illegal, say many people.
Boumediene wants a hearing. He and some other prisoners sued the government, and the case went to the Supreme Court. The case was decided in June. To quote Dworkin: "The Court held by a 5-4 vote that aliens detained as enemy combatants in Guantanamo have a constitutional right to challenge their detention in American courts. The decision frees none of them, some of whom have been held without trial for six years, but it makes it possible for them to argue to a federal district court judge that the administration has no factual or legal ground for imprisoning them. If that judge is persuaded, he must order their release."
The entire article is available at nybooks.com.
As usual these days, Judge Anthony Kennedy was the swing vote. Almost everyone is looking for a way out of Guantanamo, now a national embarrassment as well as a disgrace; Kennedy and the other "liberal" judges (I use the quotes because the meaning of the word doesn't actually refer to any particular political philosophy anymore) decided that the way out had to be through the Constitution.
Dworkin again: "Senator John McCain called the decision 'one of the worst' in the country's history. The conservative press was horrified: The Wall Street Journal said that Kennedy had turned the Constitution into a 'suicide pact.' No one explained why it would destroy America to allow people who claim innocence of any crime, or threat, a chance to defend that claim before an American judge who is presumably just as worried about his family's security as the president is. Why would it be suicidal to allow them the same opportunity for defense that we allow people indicted as serial killers?"
The Bush administration doesn't see it that way. We're now involved in a war on terror, and all the rules must be rewritten. Of course, within our short history, the White House burned and Washington was sacked; the prisoners at Guantanamo have been there longer than the War of 1812 lasted. We have seen Ohio and Pennsylvania invaded by an army representing a new nation claiming the right to enslave all people of African descent; the prisoners at Guantanamo have been there longer than the Civil War lasted. We fought a two-front war against an enemy who murdered 200,000 Chinese citizens in six weeks and another enemy who murdered 6 million Jews in five years; the prisoners at Guantanamo have been there longer than World War II lasted.
What is special about the war on terror? There are, of course, real terrorists and real threats. The "war on terror," however, is a convenient rubric that allows the Bush administration to do whatever it wants to do. As its incompetence is becoming obvious, it has struggled with an ever-expanding cover-up effort. One aspect of the cover-up: The prisoners at Guantanamo must never have real trials, because then the real - and often flimsy - evidence against them will come out.
The Supreme Court, by a slim but real majority, said: not on our watch. That's a real cause for rejoicing.