It seems like only yesterday that the Brookings Institution was wringing its hands and whining about how disastrous it would be if the issue of Guantanamo detainees made it to SCOTUS. Brookings declared: 'the Courts Can't Fix Guantanamo'. Brookings not only got it wrong but often shot themselves in the foot.
As the case heads towards the Supremes, you'll no doubt hear a lot about suspension of the Great Writ of habeas corpus--the ancient device by which courts evaluate the legality of detentions. And you'll also hear a lot about Guantanamo as a legal "black hole." It's all a lot of rot, really, albeit rot a majority of the justices might well adopt. Cut through it, and Guantanamo poses a set of difficult policy problems, not legal ones. And, while judges have a role in the solution to those problems, that role isn't the one most liberals seem to want them to play.Brookings, which apparently pulled its own paper --Total Acts of Terrorism in the US 1980-98, America's Response to Terrorism --works backward from conclusions, not a recipe for getting to the truth. In the meantime, I challenge them to re-post their above mentioned article obviously pulled because it supports a proposition that Brookings was and remains politically uncomfortable with: terrorism is worse under GOP regimes. Brookings, like everyone who supported George W. Bush's so-called 'war on terrorism', tried to have it both ways. Brookings shills called Bush's acts of terrorism against the people of Iraq 'war' whenever doing so allowed the Bush regime to accrue the arbitrary or illegal powers of war. With respect to other issues --GITMO prisoners, for example --it was not a 'war' and GITMO prisoners were, therefore, to be denied the protections afforded to prisoners of war by law and by treaty. My question to Brookings remains: was it war or was it not war? Brookings would have it both ways depending which way the winds were blowing.
... nobody seriously believed that the federal courts would entertain challenges by aliens who had never set foot in this country to overseas military detentions--or, at least, nobody thought so who had read the Supreme Court's emphatic pronouncement on the subject. "We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction," the Court wrote in 1950. "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."--Brookings Institution,Brookings had swallowed the 'Kool-aid', the idea that somehow Bush's so-called 'war on terror' was a different animal, completely unforseen by the founders, never thought of by distinguished jurists, never envisioned by great philosophers, jurists, or ordinary lawyers.
The only problems with adjudicating the often unfairly labeled 'terrorists' at GITMO were those associated with acts of buying into Bush's false dichotomy, his phony paradigm.
If the courts try to dictate how the executive branch should handle these detentions, they will be wading into some very deep water without a life vest. Overseas military action, after all, is an area about which judges know little and which is peculiarly resistant to principled legal decision-making. While any reasonable approach to this problem would likely make use of judges, who are highly skilled at reviewing evidence and holding it up against legal standards, it's a big leap from there to letting judges define those legal standards and set the rules for handling the relevant evidence.It is the role of the courts to keep the executive 'honest' with respect to human rights, civil rights and matters of Constitutionality in general. If the courts don't or won't do this, who will? Who must? Who can? Brookings --not surprisingly --misses the point time and again! Brookings went on to say that "human rights groups and lawyers for the detainees would have to drop their insistence on habeas corpus litigation as the essential mechanism of judicial review in this conflict". A 'Sacred Cow' it is called. One wonders how many other 'sacred cows' Brooking would have us give up?? Due Process of Law, perhaps! The right to trial by jury, perhaps! The right to legal counsel?
The justices can pretend that the Constitution, international humanitarian law, or the laws of war answer the questions posed by the detentions. But it's the wrong way to fix this system; it probably won't work well, and its unintended consequences will, in any event, overwhelm whatever good it does.Ironically, the outlines of a good system are already in place. Right now, military tribunals determine whether the administration has rightly classified a detainee as an enemy combatant, and the detainee can then appeal the tribunal's judgment to a federal appeals court. The real problem here isn't the lack of habeas jurisdiction.
It is that these tribunals are too cursory. The detainee has no right to assistance from a lawyer and often doesn't see the evidence against him. The consequence is that the tribunal that consigns him to indefinite detention has no clear picture of the evidence, and any reviewing court has only the most limited record to evaluate.Yet in this flawed system lies the nucleus of a procedure better than either the current one or any attempt to supplant executive power with judicial power. The compromise would beef up the combatant-status tribunals, making them fairer and more robust--and clarifying the form of judicial review that would follow them.
--Brookings Institution, The Courts Can't Fix Guantanamo
It is clear to me that it was and remains the intention of the founders, the intention of those drafting US Codes criminalizing violations of our international commitments that government may not exercise arbitrary and unrestrained powers to decide what is an inviolate 'right' and what is but a 'sacred cow'! Taken to its logical conclusion, the Brookings position means that US obligations to the Geneva Conventions and Nuremberg are moot, that there is no mechanism by which the US government may be held --under law --to its commitments. If Brookings had been or were correct, then no nation is wise to enter into agreements or treaties of any type with the US which may simply abrogate upon a whim and less than a moments notice. I believe this to be a recipe for mayhem and anarchy.
Clearly --Brookings is dead wrong and indefensible. It is a fact that the illegal practice of torture was carried out at Abu Ghraib, GITMO, and various US gulags and hell-holes throughout Eastern Europe. By any Orwellian name given it by Bush or his minions, it is torture.
Recent ACLU-compelled disclosures of previously concealed DOJ documents reveal many of the details of what has been long known: that the highest levels of the Bush administration secretly implemented an illegal torture regime. But while those torture programs began in secret, we have gradually learned more and more about them. The more time that goes by and the more we learn — particularly if we do nothing meaningful to stop it — the more the responsibility for these policies shifts from the administration to all of us collectively.--Glenn Greenwald: Growing Responsibility for the Bush Torture RegimeTorture is a crime which if it results in death, the penalty is death. That law applies to the architects and defenders of the policy of torture. It applies to Bush --its chief architect, defender and practitioner.
The disclosure that the Justice Department advised the White House in 2002 that the torture of al Qaeda terrorist suspects might be legally defensible has focused new attention on the role President Bush played in setting the rules for interrogations in the war on terrorism.... An Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel, addressed to Gonzales, said that torturing suspected al Qaeda members abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists.The document provided legal guidance for the CIA, which crafted new, more aggressive techniques for its operatives in the field. McClellan called the memo a historic or scholarly review of laws and conventions concerning torture. "The memo was not prepared to provide advice on specific methods or techniques," he said. "It was analytical."Attorney General John D. Ashcroft yesterday refused senators' requests to make public the memo, which is not classified, and would not discuss any possible involvement of the president.In the view expressed by the Justice Department memo, which differs from the view of the Army, physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For a cruel or inhuman psychological technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last "months or even years."A former senior administration official involved in discussions about CIA interrogation techniques said Bush's aides knew he wanted them to take an aggressive approach. --Memo on Torture Draws Focus to BushJust as Brookings wrote doggerel about wars that were not wars and non-wars that were, Bush himself took center stage to defend practices which he had denied took place --the best clue yet to his guilt of capital crimes.
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.--US CODES, TITLE 18 > PART I > CHAPTER 118 > § 2441Brookings contends that the US must 'stop pretending that, legally speaking, this is a war like any other and requires no additional legislative imagination.' Brookings does not go far enough. In fact, not only was the 'war on terrorism' not a 'war like any other', it was not a war at all. It was and remains the act of a mass murderer ordering acts of mass murder by proxy.
Acts of aggression, mass murder, and torture are not war! They are simply acts of mass murder, torture and aggression. Stop calling it war. A corrolary: Bush was never a 'war time President'. He was simply a perverted sadist criminal who hijacked the apparatus of state for his evil purposes.
On the one hand, Brookings claims that the issues were not a matter for the courts, not a matter for the legislative branch. How convenient! Had the legislative declared war, it might have been a matter for the 'legislative' --but as the Constitution itself was violated when Bush ordered the war without a declaration, the matter is, indeed, a matter for the courts: the International Court at the Hague.
Given that Bush's war was from the outset illegal --a war crime --none of the GITMO detentions were legal. Each detention is a war crime! If SCOTUS was not up to the task of ordering an immediate release, then who was, who could, who would? As the US is signatory to treaties prohibiting Bush's actions, what has Brookings to say about the undeniable fact that George W. Bush committed war crimes violating both US Codes and US treaty commitments, crimes for which the penalty is death?
Brookings is cowardly silent!