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Reports

Impatient Justice

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Posted on Jun 16, 2008

By Marie Cocco

    The forceful language of Justice Anthony M. Kennedy’s decision in the case granting detainees at the Guantanamo Bay prison camp the right to contest their confinement in federal court is the voice of a Supreme Court majority that is fed up.

    The writ of habeas corpus—the ancient premise that the executive must not have the sole and unchallenged say on whether and for how long someone should be in prison—is so fundamental to the Constitution that it was written into the document before there was a Bill of Rights. It must not, Kennedy wrote, “be subject to manipulation by those whose power it is designed to restrain.”

    Manipulation was the very motive underlying the placement of prisoners at Guantanamo.

    The idea cooked up by the Bush administration was that since the Navy base in Cuba is not on U.S. soil, those brought to its confines—from Afghanistan and other locations around the world—would have no rights under U.S. law. The administration has argued, as well, that the prisoners have no rights under international law. It has refused to give the detainees the most basic screening called for under the Geneva Conventions. The screenings, used extensively during the Persian Gulf War waged by the current president’s father, are meant to separate innocent bystanders caught up in a war zone from dangerous combatants.

    For six years, we have been told that the detainees are the “worst of the worst” terrorists. Yet no independent observer has been able to verify whether this is the case. Only a handful of detainees actually have been charged with complicity in terrorist acts, and the prosecutions of their cases may fail because of abuse—or torture—or any one of an assortment of legal problems that bedevil the military proceedings set up for them.

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    Four times, beginning with cases it decided in 2004, the Supreme Court has told President Bush that he cannot continue on this path. Yet the president has persisted along roughly the same course: “Delay, delay, delay,” in the words of Michael Ratner, president of the Center for Constitutional Rights and one of the lead lawyers for the detainees.

    Twice Bush got Congress to change the laws regarding detainees so that they are denied legitimate hearings. The high court has again said this is not enough, that the Constitution must prevail. “The laws and the Constitution are designed to survive, to remain in force, in extraordinary times,” Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

    Now again, the White House and its allies in Congress have signaled they intend to limit the edict that the detainees be given a federal court hearing into the reasons for their incarceration. The administration floats the idea of yet another legislative end run around the high court—indeed, around the Constitution itself.

    But Bush always has had a simple and legal way out of this quagmire. Dangerous detainees can have their day in U.S. courts—just as the perpetrators of the 1993 World Trade Center attack were successfully tried in a case that led to other convictions for conspiracy to blow up airliners flying across the Pacific. “Had they put those people into federal court immediately, and done what the FBI says is the way you interrogate people, they would have had some trials and success by now,” Ratner says.

    Those who may be prisoners of war but who cannot be charged with specific terrorist acts can be held under the Geneva Conventions or tried under international law as war criminals, if that is what they are.

    What this nation must no longer endure is a president who continues to use fear to cajole Congress into concocting yet another excuse for his failure—after nearly seven years—to bring to justice even a single individual responsible for the heinous attacks of Sept. 11, 2001.

    Bush has said he wants to close Guantanamo. But he shows no urgency about the task nor even an inclination to respect the most recent Supreme Court ruling that the prison camp has no legal reason for its existence. If Bush continues his slow march toward doing nothing, then Congress should relieve his successor—and the country—of Guantanamo’s burden. It must set a timetable for the camp’s closure and, ultimately, cut off the money that keeps this embarrassment alive.
   
    Marie Cocco’s e-mail address is mariecocco(at)washpost.com.
   
    © 2008, Washington Post Writers Group


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By ocjim, June 18, 2008 at 12:47 pm #

Elect McCain and you can solidify a Bush legacy.

A recent statement of McCain clarifies his appointment philosophy. He has promised to insist on persons who were faithful to the Constitution and that had such a record. Then he went on to say, “that is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees.”
  Roberts’ dissenting statement smacks of control and politics: “The decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges,” he added.
  What happened to the Supreme Court’s focus on the Constitution and insuring individual rights?
  Did anyone notice that Justice Antonin Scalia’s dissenting opinion is quit strident on the side of fear, order, and politics, predicting “devastating” and “disastrous consequences” from the decision. “It will almost certainly cause more Americans to be killed,” he said.
  Does this sound like a concern for preserving the Constitution and God-given rights?
  Scalia and Thomas were Bush’s prototypes for Roberts and Alito. Roberts and Alito are the McCain mold for his own appointments.
  If Bush leaves any kind of legacy, it most certainly will be one of politics, fear, and tyranny. Even after Bush is mercifully gone, his court appointments will continue on.
  McCain, if elected, can solidify a real legacy for Bush, giving a court majority that supports what Bush has always stood for: a tyranny of purpose and a priority of politics.

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By gatlinggun6, June 18, 2008 at 12:09 pm #

4 Justices agree with the President, that’s absolutely astonishing!!!! 4 justices, all of whom we have been told are extraordinarily intelligent. They agree that a President may deny anyone the simple right to face their accuser and ask why am I in jail? What have I done? and May I see your evidence? According to those 4 justices the President may answer No, No, No! Talk about Catch 22.

An “Enemy Combatant” may prove his or her innocence provided they are not told why they are an “Enemy Combatant”. If I had any doubts at all about the judges who should be named, speak no evil, see no evil, hear no evil and the 4th watch evil happen, their dissent leave nothing to the imagination. To those justices the U.S. Constitution is, as one founding father noted, a piece of paper that grants nothing unless the people demand it.

How on earth can we speak of freedom and democracy coming to other parts of the world when the King and his men here in the so-called bastion of freedom are judge, jury, and executioner.

McCain and other nut cases keep referring to the people imprisoned in “Gitmo” as terrorists, and we will all die if they gain even the basic right to ask why! My God while the founding fathers fought over much of what is in the Constitution, as far as I can tell, the right to challenge one’s accuser (read the State, the government) was accepted without question or controversy by all.

They would have us believe they have been infallible in designating persons as “Enemy Combatants”? There is no possibility we have detained innocent men?

Are we still in America? If any other country abducted or took any American citizen into custody, declared them enemies of the State, tortured them, declared them terrorists, and detained them indefinitely without even a hint of a hearing, what would we say? We would be seething to say the least.

Until we right this wrong, instead of God Bless America..maybe we need to close with God help America, for surely we have lost our way!

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By leequinn, June 18, 2008 at 10:10 am #

Both McCain and Obama would close it!

Check out:

http://www.2008electionprocon.org/waronterrorguantanamo.htm

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By AT, June 18, 2008 at 12:53 am #
(Unregistered commenter)

Professor John Yu is invited to testify in front of the HOUSE Judiciary Committee on June 26, 2008. Dont forget who was behind him .(remember JOHN ASHCROFT?)

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By Don Stivers, June 17, 2008 at 5:58 pm #

Even with the strong language, are the innocent people who have been harmed by the actions of our government going to see justice?  Is it that a single person is not as alive as the President of the United States?  If illegal harm has come to others as a result of the illegal actions of our government officials then should not they be punished just as Martha Stewart was punished, not for WHAT she did but for not revealing what she did.

And the Republican Party goes on about how this country is about LAWS.  Saddam was hung for murdering the people who tried to over throw his government.  (He was guilty of a lot more too).  Why is it not appropriate to give Justice to those who have died at the hands of our government’s actions?  Many have died violent death’s….on both sides.

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By blueshift, June 17, 2008 at 4:36 pm #

Unfortunately we have a mentally ill (not stupid) president and a quartet of justices bent on subverting the constitution, identified by their codename, ‘constructivist.’ McCain, to the fascistic right’s dismay, has won the nomination but has clearly been brought to heel. He is singing their hymns.

We are teetering at the edge of an abysmal precipice as this dark side is but one justice shy (or another malevolent president short) of accomplishing the evil even bn Laden couldn’t begin to accomplish.

Am I afraid of bin Laden? No chance. I am terrified of what the Republikans are trying to do to our nation.

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By Purple Girl, June 17, 2008 at 10:53 am #

Why is it Our ‘Supreme court’ is not given the autority to indict those who undermine the very documents they are intrusted to uphold?Granted a number of Justice are complicty with the Orgnaized Crime Syndicate which has seized our gov’t- but they ahve revealed their complicity (thus reason for revoke of position) by their rulings and their own Documented Confession (Scalias ‘torture’ propraganda interview).When is it their Duty to take control the nations Law enforcement when the other two branches have proven their Crimianls intents and complicity?
Frnakly I think th eSupreme Court should be mandated to oversee the other two branches. The Executive sets an agenda, the Congress decides if we can afford it and the SCOTUS decides if it is Legal and in accordance with our Principles.What ‘Balance’ do they serve if they only set down rulings on such issues as Abortion.Should they not be the Law & order of the land and capable and mandated to monitor the other Two branches?If Not then we are wasting Money with their existence- leave these things to federal Courts.Waht use are they as the ‘third Arm of Gov’t’ if they have no power or Influence in or over Gov’t ‘Public Servants’?
the House & Senate have proven their ineptitude and impotence in this regard, why is it not th eresponsilbity of th e3rd Branch to take up this National Issue.they should be the ‘Watchers’ of the Other Two. In fact that is Why they should NOT be appointed by these Bodies- but most be appointed by theri Peers in the realm of Justice. And must possess a Law Degree in Constitutional Law, have a Record and a history of their Defending It before consideration for such a high Office.also they must be re evaluated on a regular basis to continue to serve- No Life time Appointments, absolute Power Corrupts absolutely.Personally I think the Other two Branches have intentionally limited the Power of the 3rd Branch and the Intentions for which the founding Fathers saw it’s Importance- To avoid dictatorships and Abuse of Power- by th eother two branches.the Supreme court has not been a Check & Balance, it has been used as a reservoire of BS legal distractions which could easily be managed in the lower courts. The DoJ should be a Branch of the SCOTUS, Not the Executive Branch- serious conflict of interest.We have been lead and deceived away from the Real intent of the 3 Branches of Gov’t and Now we are seeing the effects.What is more an issue of Constitutionality then Crimes committed by those in the highest Offices in the other two branches?

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By Aegrus, June 17, 2008 at 9:20 am #

After every interview I see of the president, and the recent information in Scott McClellen’s book, it’s so difficult to discern whether GWB is actually just a mindless ideologue who justifies any means to achieve his goals of democratizing the Middle-East or if he’s just trying to make every effort to distract from the corporate plunder and the Wall Street robber barons. Maybe its both, or just criminal negligence. It’s just ridiculous.

I have no idea what to think anymore except that it speaks volumes how when a supreme court justice can rightly point out the ultimate importance of Habeas Corpus to Constitutional Law, yet the Congress refuses to see it as a high crime to actively seek methods to circumvent this core principal to our Republic as an impeachable offense.

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By samosamo, June 17, 2008 at 2:51 am #

Why would the ‘stacked’ supreme court do anything that would not further the neocon’s wreckless agenda? Wasn’t the idea of replacing o’conner with alito for the purpose of keeping the project for the new american century(pnac) on course? Trying to go against the conservative agenda makes it appear as if 1 of these conservative members is trying to atone for their past sins such as the 2000 election and the total compliance to this disastrous administration’s course.
The current court is as discouraging for america as the revelation of obama maintaining the status quo of w & dick’s crap. But maybe, just maybe, IF obama is elected, he may get to replace the 1 or 2 members of the court that might retire or pass away but I doubt it that would be like hoping the war in Iraq would all of a sudden come to an end.

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