Painted Into a Corner

Last Thursday, in a landmark ruling, the Supreme Court struck down the Bush Administration's contention that it can hold people at the Guantanamo Bay prison camp without recourse to legal remedy. The 5-4 majority decision in Boumediene v. Bush states that the constitutionally guaranteed right of habeas corpus review applies to those imprisoned at Guantanamo Bay as "enemy combatants," and predictably, those who have backed the serial arrogation of Constitution power by the White House have worked themselves into the kind of ignorant, fear-mongering frenzy that we have come to recognize as the trademark of neoconservative authoritarianism.

John McCain called Boumediene "one of the worst decisions in the history of this country," and former Speaker of the House Newt Gingrich portended - as he has done repeatedly and disturbingly about a growing number of things - that the Supreme Court ruling "could cost us a city." Meanwhile, John Yoo, solidifying his hold on the title of Worst Constitutional Law Professor in the Country, trotted out a laundry list of falsehoods he clearly believes support his argument that the Court came to the wrong decision, but which merely serve to demonstrate his complete ignorance of the Constitution and the function of the judicial branch [emphasis mine]:

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

Guantanamo Bay, Bagram Air Base and other extra-legal U.S. prisons are known to have held large numbers of men who should either never have been interned at all, or who were clearly not the terrorist masterminds White House PR efforts claimed. Gitmo alone was originally home to around 700 prisoners, but now houses fewer than 280, including 82 who have been cleared of wrong-doing but not released. As McClatchy has reported:

Detainees at Guantanamo had no legal venue in which to challenge their detentions. The only mechanism set up to evaluate their status, an internal tribunal in the late summer of 2004, rested on the decisions of rotating panels of three U.S. military officers. The tribunals made little effort to find witnesses who weren't present at Guantanamo, and detainees were in no position to challenge the allegations against them.

Clearly, there is - or ought to be - a very high level of doubt that many, if not all, of the men caged at Guantanamo Bay deserve to be there; the military has demonstrated repeatedly that it is more than capable of having incarcerated the wrong people. The Boumediene decision merely states that each of the remaining prisoners has the right - as guaranteed by the Constitution to foreigners on American soil or de facto territory - to know the reason for their imprisonment and to challenge it. Given the number of people snatched from their homes and now known to have been locked up in the legal blackhole of Guantanamo Bay in error, it is exceedingly difficult to argue honestly that there is any other choice to be made, unless one believes that the lives of innocent foreigners have no value. As Steven Taylor notes in an excellent post over at PoliBlog [h/t Glenn Greenwald]:

It is incredibly selfish and myopic to take the attitude that because foreigners are being detained that it somehow doesn’t matter that innocent people are being caught up in the dragnet.

To put it another way, when the FARC kidnaps someone for political reasons and holds them without chance of release simply because they believe they have the right to do so within the context of a self-defined cause, we all find that to be an abomination. Why is it is any different if the U.S. government engages in the same activity?

This is frightening power to give to any human being, and yet it seems that some believe that that power ought to reside, unchallenged, in the hands of the President of the United States...

It is important, also, to realize that, for all the hand-wringing, doom-saying and collective pants-wetting from supporters of limitless government power, the current situation and legal quagmire surrounding the Guantanamo Bay prison camp is entirely of their own making. If the Bush administration had paid any attention whatsoever to the Constitution, or simply gotten even reasonably competent legal advice, none of this furor would ever have taken place. Under the law, there are two very clearly defined types of prisoners:

1. Prisoners of war (POWs), who do not have to be convicted under domestic law to be held, and can be interned until the cessation of hostilities. POWs are under the authority of the Geneva Conventions - to which the United States is signatory - and cannot be abused.
   
2. Criminals, who have the same legal rights as any person accused of crime - including habeas corpus - and who cannot be held indefinitley without judicial review. Criminal suspects may also not be abused.

That's it. Period. There is no third category that satisfies the dictates of the U.S. Constitution, despite repeated efforts to create a group called "enemy combatants," which is why the provisions of the egregious Military Commissions Act allowing denial of habeas were struck down in an earlier Supreme Court ruling. Bluntly, the Bush White House wanted so badly to not only disappear people into legal limbo, but mistreat and abuse them however they so desired, that the "crisis" surrounding the legal rights of prisoners is entirely of their own making. The men locked up at Guantanamo Bay were stridently declared not to be POWs, and since Boumediene effectively declares the fanciful "enemy combatant" designation meaningless with regard to individual rights, the Administration is left with no alternative but to begin treating the detainees as criminals rather than soldiers.

Of the remaining prisoners, only fifteen have been formally charged, and Democratic presidential candidate Barack Obama is completely correct when he observes:

Let's take the example of Guantanamo. What we know is that in previous terrorist attacks, for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated... And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world.

Add to that the fact that, through routine abuse of prisoners - and as with the war in Iraq - American detention camps have become a breeding ground for extremism, and the arrogance and stupidity with which the Bush Administration has pursued its hyper-aggressive and illegal policies are once again crystal clear. While this White House has demonstrated a blindered and willful incompetence across a wide range of policies and issues, there is some small comfort that Boumediene occurred early enough that the Bush Administration may be forced to clean up some of its own horrific mess. Unfortunately, while the president and his minions have unquestionably painted themselves into a corner with the Guantanamo Bay prison camp - a mushrooming embarrassment that has deeply damaged the reputation of the United States while leaving its citizens less safe - where they have shown themselves repeatedly to be inept in most other areas, they have exhibited nothing but expertise in avoiding responsibility for their destructive blunders.

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The McClatchy Company was just about the only major news outlet to actively pursue and debunk the Bush Administration's claims about WMD in Iraq prior to our invasion of that country. In the years since, they have continued to distinguish themselves with the kind of in-depth investigative journalism that has largely disappeared from the corporate media landscape. Be sure to check out their outstanding and exhaustive reporting on the prisoners in the "War on Terror," the product of eight months of work, here.