The unheard Minority view point on Gitmo Prisoners
Jun 13th, 2008 by David Anderson
I am torn in my view of the recent Supreme Court ruling granting appeals to federal court for the Gitmo prisoners who were captured on the battlefield. I think part of the problem is that the administration resisted the Constitutional method of declaring war. If that had been done, Geneva protections would have applied to the lawful combatants, but we would have been able to keep us safe by detaining these guys until the war’s end. There wouldn’t be this legal mess. I question the legal advise given to the President. For those who wonder why I struggle with this issue, it is because Congress passed a law limiting the Court’s jurisdiction. The Court’s violation of that law expands their power and threatens our representative government. So now I have to decide do I want an imperial court or an imperial president? I have to choose between defending Constitutional rights of individuals or the right of innocent people not to killed by terrorists as happened when some where released. One way out may have been the Scalia dissent or maybe not. I don’t know, but what I do know is that this point of view has been under reported and is worthy of your consideration. It is excerpted as follows.
Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.
I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.
I
America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.
The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.
In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies…
McCain is the best person to lead out country right now. He understands the tough situation that the Supreme Court was in because while they had to uphold the law and give these criminals their rights, they also want to keep terrorists behind bars. McCain would do wonders for this country and clean up the mess that Bush left for him to clean up. We need to reduce the bloated and wasteful spending of the federal government to reduce the deficit and get our house in order. Who would know better about our national security than someone who has first hand experience fighting for our freedom. Obama has no idea how to run a country and it is obvious from his willingness to meet with some of the world’s most evil leaders.
Cody, it sounds like you are calling for more Bush.
McCain wants to continue our occupation of Iraq for an indefinite period. Please note that he has yet to define “victory”.
McCain wants to continue the Bush tax cuts without telling us how he is going to pay for it. Moreover, that represents a further skewing of the income distribution we have, which is not sustainable without eventual rioting in the streets by the hungry and the poor.
Now to the Supreme Court decision. David, your take, and the dissent, calls for the Supreme Court to be “activist”. For example, look at this: “THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; ….”
I find this to be a radical statement because it puts a restriction on habeas corpus such that we must just accept the word of the military without requiring that the evidence be produced in a court and subject to cross examination. This position, as you note, is taken for a war undeclared by the very same Congress that passed the Detainee Treatment Act. To have the military be the judge and jury goes against our basic sense of justice based on the roots of the principle of habeas corpus. Not only can the military arbitrarily label a prisoner a terrorist, but also can equally arbitrarily define the end of the war. Thus, detainees face an indefinite period of confinement with no redress, and in some cases with a good dose of torture thrown in.
Another point: This dissent calls for holding detainees without a trial because if released they may do harm. So fear of harm takes precedence over justice? We do not do this for civil cases; we should not do this for detainees. If the evidence against them does not withstand judicial scrutiny in a court of law, we cannot hold these people indefinitely. In essence, that is the majority opinion.
Senator McCain condemned the decision as one of the worst ever. He is a critic of the Gitmo process but recognizes the problem of having the military have to divert resources to act like police fighting crimes. I don’t like that we seem to have no good positions presented to us in this case. It shouldn’t have been that way in the first place. I disagree with this court ruling, but I don’t blame the majority to much because they had two compelling interests to address and they had to choose. The problem is they went out of their lane and violated their legal jurisdiction and that could have terrible consequences in the future.
If you are on the battlefield, will you need to Mirandize everyone one day? This is a slippery slope. I do agree with Perry in part that we should have declared war and not have overreached in the first place. It is a tough issue. That is why it was 5 to 4.
There are other reasons why I don’t like this ruling including the fact that it was a bait and switch. Congress was told in a previous court ruling what would be acceptable and when they did it, it wasn’t. That brings its own problems. Next Congress has the right to suspend habeus in time of war and it can also limit the jurisdiction of the courts and set up special courts for these situations. It is right in Article 1 and Article 3. My concern is that if Congress allows the loss of that authority, there would be no check and balance on the Courts by the elected branches. My concern goes to other issues.
David, I think this Court ruling is meant to restore the balance of powers that has been so distorted by this President and his Executive Branch.
Let the President, as Commander in Chief, call anyone he/she choses a terrorist and detain that person until he/she determines arbitrarily the end of the war — is this what we want? Not I, because in my mind it holds the door open for the continued movement toward an imperialist Executive Branch!
Don’t you see this danger, and how this court decision nullifies the danger?
Perry: The balance of powers, as you state, has been eroded by the SCOTUS with this decision, not by any BDS-induced perception that Bush has done so. This decision overturns over 200 yrs. of court deference to the executive in times of war.
This ruling will come back to haunt us during a more conventional war, when thousands of POWs (legal combatants, which should have MORE rights than the illegal combatants that were just granted civilian court rights by the SCOTUS) demand court reviews of the cases in civilian courts.
Hube, another term for the behavior of this President is his abuse of power. Bush has acted as though Congress had declared war. And then you have his signing statements, in effect overruling the actions of Congress, and much more (see Scott McClellan). This is not my understanding of the Constitutional concept of the balance of powers.
Hopefully, this ruling will encourage future Presidents to go to Congress for a declaration of war, as per the Constitution, in which case your point is moot.
The legal arguments are beyond me. Being a Soldier is difficult. I do have a few opinions. If we control our own military base, the UCMJ is in effect and so are the rest of the rules of the USA. We control that base, regardless where it is located. Guantanamo is NOT CUBA. Do you think for one minute that base is ruled by Cuban laws?
Next, I believe we treat prisoners much better than most other countries. Korea, China, North Vietnam come to mind first. Then Turkey, and other middle east countries. John Mccain has first hand experience with torture. I believe politics prevents him from expressing his real opinions. I believe he is the best person to end this war, I believe he wants to end it, and I believe that he would change the treatment of prisoners ( NOT POW’s) when he has the power to do so. These prisoners have no Nation to represent them.
I believe his opponent is clueless.
After we interrogate the prisoners, Pass them on to more ruthless nations. That will be the end of them, it will stop the court case, and I hope it will make the Liberals reconsider their criticism of this country in comparison to the alternative. The prisoners and their defenders will be begging for us to put pink panties on their heads.
I believe politics prevents him from expressing his real opinions. I believe he is the best person to end this war, I believe he wants to end it
So all his “100-years-in-Iraq” talk is just clever psy-ops to distract the enemy from his secret plan to end the war?
I don’t care about how long we are in Iraq as long as we end hostilities. If we can best end them with everyone out by this time next year, great. If we can best end them by a longer term presence, so be it. McCain is right that it is casualties that matter.
BTW, this ruling has nothing to do with torture or anything like it. It doesn’t affect interrogation. Not to mention by all accounts the people at Gitmo are treated very well. Some have challenged their exit because they didn’t want to leave. The conditions are good for a holding facility. I am not saying that it is better there than free, I wouldn’t want to be locked up in a Hilton for years let alone any holding facility. The purpose of us holding most of these people is that they are dangerous illegal combatants. There is no place to exchange prisoners. There is no country to take responsibility for their parole like you would with POW’s who you agree to let go in exchange for their not fighting you. It is not an easy issue like Justice Kennedy would like it to be.
Once Obama is elected, he’ll release the terrorists anyway, so it’s a moot point.