Infinite Monkeys

My dissent from the Gitmo dissent in these parts

There are lots of other people who can provide better analysis of yesterday's Supreme Court ruling allowing Gitmo detainees to challenge their detentions, so I'm going to let them. But I do have a few disjointed thoughts to share. Bear with me:

• The court ruling seems to rely on the Constitution's provision that habeas corpus can't be suspended except in case of "invasion or rebellion." Since the Gitmo detainees are A)foreigners who were B) picked up overseas, it seems logical to me that they were neither invaders nor rebels. So score one for SCOTUS.

• Of course, one could argue that the detainees aren't Americans and they aren't held in America -- so they're undeserving of the habeas protection. But the Bush Administration has spent much of its energies since 9/11 trying to create a legal black hole -- in the form of Gitmo and those roving detention ships -- where neither the American Constitution nor international law is applicable. And while Andy McCarthy might spin that as a "loss to radical Islam," it seems to me that we're all better off if the government isn't allowed to evade the rule of law.

• On a related note, here's what happened yesterday in a second, less-noticed but very-related case:

Divided as the Supreme Court was in this case, the justices were unanimous, surprisingly so, in a second habeas corpus ruling on Thursday. Again rejecting the Bush administration’s position, the court held in an opinion by Chief Justice Roberts that two civilian United States citizens being held in American military custody in Iraq were entitled to file habeas corpus petitions.

Proceeding to the merits of the petitions, the court then ruled against the two men, Mohammad Munaf and Shawqi Ahmad Omar, who are facing criminal charges under Iraqi law. Their release through habeas corpus “would interfere with the sovereign authority of Iraq to punish offenses against its laws committed within its borders,” Chief Justice Roberts said.

The administration had argued in the case, Munaf v. Geren, No. 06-1666, that because the men were technically held by the 26-nation multinational force in Iraq, federal courts did not have jurisdiction to hear their habeas corpus petitions. Chief Justice Roberts said that, to the contrary, what mattered was that the men were held by “American soldiers subject to a United States chain of command.”

In other words, the Bush Administration was trying to argue that American citizens can also disappear into that legal black hole -- it was arguing that American citizens under American control were not subject to American legal protections. And SCOTUS, God bless 'em, put a stop to that. But it's a sign of why the administration's legal approach needs resistance.

• Here's Sen. Lindsay Graham:

"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said. "Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact."

But as Republicans, in particular, have been so fond of telling us in recent years: The War on Terror is a different kind of war. In World War II, for example, it was pretty easy to see a definable end game: Either Germany would completely take over Europe, having defeated Allied forces, or Berlin would fall. It was easy to see that there would be an end to the period of armed conflict, one way or the other.

So here's a question: When will we know we've won the War on Terror? When will we know it's over? We haven't actually been attacked on American soil since 2001 -- perhaps it's already over? I doubt it, but here's the problem: It's impossible to tell how -- if -- we'll ever reach the end. There's nobody to make a treaty with, no one with whom to exchange POWs. Can we really live in an unending state of emergency AND preserve a democratic rule of law?

• Which, contra McCarthy and Graham, brings me to the wisdom of one of Spencer Ackerman's friends today:

Justice Scalia, hoisting the mantle of fearmongering,

[W]arned that some detainees will be freed and return to war against America: “The nation will live to regret what the court has done today.”

No. If the government believes the detainees to be guilty of nefarious acts against the United States, then the government needs to get on their motherfrakking job and MAKE THE CASE against any habeas corpus petitions, in accordance with the law and in accordance with the Constitution. Why is this so hard to understand?

Right. Unlike McCarthy, I'm not sure why it's a "loss to radical Islam" to ask to government to prove -- in a non-kangaroo court setting -- that the people it's keeping locked up forever actually deserve to be kept locked up forever.

• Finally, a lot has been made of Chief Justice John Roberts' dissent:

So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine—through democratic means—how best" to balance the security of the American people with the detainees' liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.

Emphasis added. It seems as though Roberts' argument -- as it often seems in these cases -- is that the Supreme Court owes Congress deference no matter what. It's long been recognized that President Nixon was full of it when he suggested that "if the president does it, that means it's legal." (I'm paraphrasing here.) Roberts seems to believe that "if Congress does it, that means it's Constitutional." And if that is what he believes, why is he sitting on the Supreme Court? Can it ever say "no" to Congress? Even if Congress is acting unconstitutionally?

Perhaps this should've been a series of blog posts?

Posted by Joel at June 13, 2008 08:12 AM