Boumediene under Submission, American Due Process on Trial

Oral arguments were presented yesterday in the Supreme Court case of Boumediene vs. Bush, a case which tests the tenacity of the "Great Writ" of habeas corpus in the wake of Congressional stupidity in passing the Military Commissions Act. Seth Waxman, who was Bill Clinton's Solicitor General back in the era of American Enlightenment, appeared on behalf of six Bosnians who have spent the last six years of their lives in Guantanamo cages, looking for a forum to present the argument that they are not members of al-Qaeda, never fired a shot at an American, and certainly never had plans to blow up the U.S. Embassy in Sarajevo, the putative reason that American government agents gave for kidnapping them in Bosnia and flying them to Guantanamo. As Mr. Waxman stated in his brief, these six Bosnians had been cleared of all charges by a European commission and by Bosnian courts, but were betrayed by Bosnian police acting under pressure from American forces on January 17, 2002, the day of their official, and very short-lived, Bosnian exoneration.

One gets the impression from the indifferent American press and the indifferent American Congress that the inmates at Guantanamo must indeed be the "worst of the worst," as Donald Rumsfeld once described them. In fact, we have no way of knowing if they are or not, and the reason we don't is because the Bush Administration, with the collusion of Congress, has systematically removed the avenues of due process which would lead to a speedy determination of their culpability, if, after six years, one can employ such an adjective without morbid irony.

So that was the question presented: is it Constitutional to maintain a system of indefinite detention in Guantanamo, where the prisoners have no legal recourse other than the kangaroo system of Combatant Status Review Tribunals to test their innocence? Or should they be allowed the writ of habeas corpus in federal court, as provided by the Suspension Clause of Article I, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The United States is not in rebellion and we're not under invasion, other than in the perfervid nightmares of George W. Bush. So two questions remain: should the Bush Administration be allowed to get away with locating its dungeon in Cuba, outside the supposed territorial reach of American courts? And does the court review provision in the Detainee Treatment Act provide an adequate substitute for habeas corpus, if the answer to the first question is "no?"

Mr. Waxman answers the first question "no," and the earlier case of Rasul vs. Bush seems to back him up; however, his case was made much harder by the excision of habeas corpus by the Military Commissions Act. I recall that Arlen Specter, the self-proclaimed great champion of the Constitution, denounced this move as "unconstitutional," then proceeded to vote for the bill, which makes me wonder about his interpretation of his oath of office. The second question is more difficult and gives the hard Right wing of the Supreme Court (Scalia, Thomas, Alito and Roberts) a way to deny the petitioners any hope without ruling on the habeas corpus question. If a prisoner waits long enough and he eventually gets tried for some "war crime" (a term which has never been exactly defined for the Guanatanamo inmates), then at long last he can appeal the decision to the District of Columbia Court of Appeals, who can review, in a limited manner, what the military commission decided. Maybe that's ten years, maybe that's twenty years after initial arrest, and after twenty years of living in a cage on the hot and dusty eastern end of Cuba; and maybe then the D.C. Circuit decides the prisoner never should have been jailed in the first place. Sorry about that; you're a casualty of the Great War on Terror, and after all, you are a Muslim.

Bravo to Mr. Waxman, for his strenuous efforts pro bono publico. He operates in the noble legal tradition of John Adams, who defended the British soldiers tried for the Boston Massacre, as a guarantor of fundamental due process. Sadly, the remedies at this point can never undo the lost six years for those Guantanamo detainees who have been wrongly detained. For make no mistake about it, do not be fooled by the grand references to the "Great Writ," and the eloquent descriptions of "habeas corpus as it existed in 1789," and the august solemnity of litigation in the Supreme Court, with all its "may it please the Court" stuff, and its Roman-numeraled briefs, and the rest of the fancy dress-up. George Bush is running a dungeon in Guantanamo for the same reasons that tyrannical kings in England threw their political opponents in the Tower. As a demonstration of power and to satiate the blood-lust of his foaming-mouth base. It has nothing to do with protecting America; that could be accomplished best by capturing Osama bin Laden and bringing him to trial in a federal court in New York City for crimes against humanity. Osama bin Laden had no right to kill innocent people because of his ideological fantasies; it was a form of collective punishment that is expressly outlawed by the Geneva Conventions. War, to the extent it can ever be legal under international law, is to be fought by the soldiers of one nation against the soldiers of another. But neither should Bush imprison Muslims arbitrarily, forever, without meaningful recourse in American courts, simply to demonstrate that he's "tough on terror," for just as assuredly, that is collective punishment as well.

Mr. Waxman closed his argument (you can hear the recording by going to www.Scotusblog.org) with a heart-rending description of how this "system" leads to perversions of justice. He discussed a former Guantanamo inmate, named Kurnaz, who was held for two years without charges. He was told at his Combatant Status Review, where he had no counsel (since none is permitted) that he had associated with a German terrorist named Bilgen, who, during Kurnaz's detention, had blown himself up. Kurnaz was lucky; ordinarily the detainees not only have no lawyers, they are not told the names of their "accomplices." Such information is "classified." "Kafka-esque," as Mr. Waxman describes it, is not too strong a word. But a lawyer working for Kurnaz on the outside obtained a transcript of the CSRT hearing and within 24 hours produced Mr. Bilgen, who was not only alive and well in Dresden, but had nothing to do with terrorism. The question that hangs in the hot, humid air over Guantanamo, where perhaps hundreds of men wait to see if the Supreme Court still believes in due process as envisioned by Thomas Jefferson: how many more Mr. Kurnazes are being denied a chance to prove their innocence?