A Welcome Verdict Cont...

More reaction from last week's Supreme Court ruling in Boumediene v. Bush.

The Post:

The [ruling] that those held at Guantanamo Bay have a constitutional right to challenge their detentions in federal court is a welcome victory for due process and the rule of law. It completes a signal and totally avoidable failure by President Bush, who will leave office with the nation's regime for holding al-Qaeda combatants in shambles. A 5 to 4 majority of the court correctly concluded that habeas corpus, the ancient right to contest one's detention, extends to those held at the U.S. Navy base in Guantanamo Bay. Although it only leases the property from Cuba, the United States exerts complete legal and military control over the base; those held there have nowhere to challenge their detentions other than U.S. courts. To have forbidden the detainees access to those courts would have left the executive branch almost unfettered power to hold people indefinitely -- a proposition that is untenable.

The LA Times:

The 5-4 decision also broke important new ground. In 2004, the court held that detainees imprisoned at Guantanamo, a de facto U.S. territory, could challenge their confinement in a U.S. court under a federal habeas corpus statute. Rather than accept that ruling, Congress obliged the administration by passing legislation making it clear that the habeas statute didn't protect the detainees and purporting to strip federal courts of jurisdiction to hear such appeals. It was a craven capitulation to an administration that has made cutting legal corners the trademark of its anti-terrorism policy.

Bush can rail against the Supreme Court or he can honor the spirit as well as the letter of this ruling and work with Congress to reform a system that has delayed justice for detainees and dishonored America in the eyes of the world. And he should do what both of the men aspiring to succeed him have promised to do - close Guantanamo.

Justice Kennedy: "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say 'what the law is.' While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody."

Justice Scalia: “It will almost certainly cause more Americans to be killed. The nation will live to regret what the court has done today.” He said the decision was based not on principle, “but rather an inflated notion of judicial supremacy.”

Chief Justice Roberts: The decision represented “overreaching” that was “particularly egregious” and left the court open to “charges of judicial activism.” 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.”

Barack Obama: "Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."

Senator John McCain: "The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country."

A Welcome Verdict

Salon has a great piece today that captures the implications of today's Supreme Court ruling in Boumediene v. Bush.

For the third time in four summers, the U.S. Supreme Court has slammed the Bush administration's detention policies at Guantánamo Bay - locking up terrorist suspects indefinitely and beyond the law. And this time, some real progress might even come out of it. In a 5-4 decision drafted by Justice Anthony Kennedy, the court ruled in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus - that is, to challenge the legal basis for their detention in a federal court.

Let's be clear, the decision doesn't do a number of things. It doesn't shut down Guantánamo. It doesn't order all detainees who have not been charged with an offense to be released. And besides saying that the detainees are entitled to a "prompt habeas hearing," it doesn't even say what factors the courts should consider when deciding whether the U.S. government can hold them. But the decision does achieve things that the Bush administration has been fighting against tooth and nail for years.

First, the court upholds the fundamental right to habeas corpus, which has been part of the common-law tradition for centuries and was held dear by America's Founding Fathers. More than any other protection, habeas corpus means that the executive branch cannot arrest and detain you without a legitimate legal reason. The Bush administration wanted to whittle down that right. The Supreme Court said no.

Second, the court makes clear that Guantánamo can't be a law-free zone. The main reason the administration started sending those apprehended in the "global war on terror" to Guantánamo in 2002 was so that it could hold people without intrusive lawyers and courts getting in the way. The court said no; detainees can challenge their cases before the courts.

Third, the court said that laws enacted by Congress at the administration's urging in response to earlier Supreme Court rulings are no equivalent to the right to habeas. Under the Detainee Treatment Act (2005) and Military Commissions Act (2006), detainees who sought to challenge their being held as "enemy combatants" were entitled to bring their claims in special proceedings before the D.C. Court of Appeals. But the court said that this was no substitute for a regular habeas appearance: To require those who have been held for six years to complete this "before proceeding with habeas actions would be to require additional months, if not years, of delay."

Because the Boumediene decision is rooted in the Constitution and not federal statutes (as well as the political realities of the lame-duck administration), it will be much harder for the Bush administration to railroad through Congress new legislation to keep the courts out of the process.

Finally, the ruling may have important implications for the military commissions recently under way at Guantánamo. The administration seems hell-bent on pushing through the military commission trials of several 9/11 suspects, including Khalid Sheikh Mohammed, before the November presidential elections. The inability of the military commissions to provide anything resembling a fair trial has long been clear. The Boumediene ruling has no direct effect on the commissions, but they might have difficulty proceeding if the very basis for their jurisdiction - that the defendant is an "unlawful enemy combatant" - is still subject to litigation.

In the end, Boumediene says that the U.S. president cannot be a law unto himself. It says that anyone held in what is de facto U.S. territory - no matter what crimes he may have committed or where he is from - is entitled to challenge his detention. And that's something really worth celebrating.

From Italy, President Bush said Thursday that he disagreed with the ruling but "we will abide by the court's decision" -- as if he believes the administration has a choice in the matter. In the past, the administration has shown an incredible tenacity for seeking to undermine the rule of law. But then again, maybe President Bush will come to realize that his Guantánamo approach hasn't worked. That detaining hundreds of people who were later released without charge causes more harm than good. That trying people before ad hoc military commissions is a doomed process - and that the federal courts can competently prosecute people for acts of terrorism, as they already do regularly. And that making the U.S. safe against acts of terrorism can be achieved with the help of the law, rather than by riding roughshod over it. Don't hold your breath.

And what was the reaction from Congressional Republicans who repeatedly urged the Supreme Court to clarify the matter? Was it finally realization that a conservative-leaning Supreme Court came to a just verdict on the issue after thoroughly deliberating the matter? Of course not. They reacted with predictable disdain for an outcome that completely undermines their political rhetoric and fear-mongering. For these folks, national security consists of nothing less than throwing the Constitution out the window and waving an American flag.

Senator John Kerry: "Today, the Supreme Court affirmed what almost everyone but the administration and their defenders in Congress always knew. The Constitution and the rule of law bind all of us even in extraordinary times of war. No one is above the Constitution."

Senator Joe Biden: "Today's opinion is an important and much-needed check by a coequal branch of government on an administration which has shown utter contempt for the rule of law."

The Green Light

A fascinating article in this month’s Vanity Fair explores the following question:

The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantánamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantánamo?

Former Attorney General John Ashcroft: "Why are we talking about this in the White House? History will not judge this kindly."

Senator Ted Kennedy: "Who would have thought that in the United States of America in the 21st century, the top officials of the executive branch would routinely gather in the White House to approve torture? Long after President Bush has left office, our country will continue to pay the price for his administration's renegade repudiation of the rule of law and fundamental human rights."

The Ticking Time Bomb

In light of recent Senate debate on the issue of prisoner detention and interrogation, a group of retired Generals sent the following letter to Senator Hillary Clinton. It provides a thoughtful perspective and some compelling arguments on the “ticking time bomb scenario” that’s always levied by those who have no aversion to allowing water-boarding and similar techniques to be at the lawful disposal of American interrogators.

April 19, 2007

Honorable Hillary Rodham Clinton
United States Senate
Washington, DC 20510

Dear Senator Clinton:

Thank you for meeting with us and the other retired general and flag officers last Friday. We appreciated the opportunity to have an exchange of views about U.S. policies on detention and interrogation of prisoners and the implications of those policies for the safety of our troops and the values they fight to defend.

We believe it is important for the President of the United States, as Commander-in-Chief, to ensure that all U.S. personnel adhere to a uniform standard for interrogating and detaining enemy prisoners that is effective, lawful and humane. These are issues that the next President of the United States must face and which every candidate for that office will undoubtedly be asked to address throughout the campaign.

We said we would follow up with you to share some additional thoughts from the group about the issues we discussed. In particular, we promised to explore further a topic that has been ubiquitous in the public discourse around these issues: the question of whether it is ever acceptable or wise for a President and Commander-in-Chief to leave open the possibility that he or she would authorize torture or other unlawful treatment in cases of dire emergency. As you know, this question – commonly referred to as the ticking time bomb scenario – is frequently put to presidential candidates on the campaign trail in an attempt to prompt them into admitting that they would violate fundamental American values in order to save American lives.

We recognize this question as the trap it is intended to be. As Commander-in-Chief, it would be your duty to set a clear policy for everyone under your command, not to make tactical decisions like the one presented by this hypothetical. We also know from experience that a situation like the ticking time bomb is extremely unlikely, if not impossible, as it would require a simultaneous triumph and catastrophic failure of intelligence. In order for the scenario to become reality, we would have to know virtually everything about an impending attack – that it was imminent, that it would be catastrophic, that the person we had in custody knew the one vital piece of information we needed to stop it, that he would divulge that information under torture – everything except that one vital piece of information.

People are understandably fearful about another attack like the one we sustained on 9/11 and, fed by what they see on television and in the movies, they are naturally drawn to the collective fantasy that torture in a ticking time bomb situation can spare us from suffering such an attack. Because of that, we understand the need for candidates to address the ticking time bomb question. But we believe you should use the opportunity of answering this question to lead the American people away from the grip of fear that prompts the question in the first place. In that spirit, we offer the following thoughts on how to defuse the ticking time bomb.

While the standard ticking time bomb scenario as presented on television and in hypothetical questions to candidates is a fiction, there is another sense in which the ticking time bomb scenario is painfully real. Our soldiers in Iraq confront ticking time bomb situations every single day, in the form of improvised explosive devices (IEDs). There is no question in our minds that the proper way to deal with people who might have information about these threats is to abide by the law and by our
training. We know what works in these situations. And it is not torture.

We also know that the risks of hitting the panic button in a ticking time bomb situation are numerous and grave. First, torture is unlikely to produce accurate or actionable intelligence; to the contrary, since torture of a determined enemy is more likely to produce lies than the truth, applying torture in a true ticking time bomb situation is the surest way to guarantee that the bomb will go off. Torture does not work, and nothing about the urgency of a ticking time bomb situation – nor any amount of wishful thinking – will change that fact.

The case of captured terrorism suspect Ibn al Shaykh al Libbi underscores the gravity of this risk. After initially cooperating with FBI interrogators, al Libbi was transferred to CIA custody and then to Egypt, where he was reportedly subjected to waterboarding and other torture. Under torture, al Libbi told interrogators that Iraq had trained al Qaeda to use biochemical weapons. It came out later that al Libbi had fabricated the story in order to stop the torture, and all the information he provided was deemed unreliable and discredited. But by that time, we had already used his information as part of the case for going to war with Iraq.

Second, even if one attempts to limit the use of torture only to rare situations of dire emergency – real ticking time bomb situations – it always spreads. Any degree of “flexibility” about torture articulated by the Commander-in-Chief will drop down the chain of command like a stone, and the rare exception will fast become the rule. Every American soldier, sailor, airman and Marine takes an oath in which they swear to obey the lawful orders of the President as Commander-in-Chief. If you become President of the United States, these men and women will look to you not only for their orders but for the guidance and standards that inform those orders. Our men and women in uniform need clear and consistent standards, and the military provides those to them.

But if the Commander-in-Chief muddies that message by saying that he or she would be willing to authorize torture in some circumstances, we cannot expect our troops on the battlefield, who face death every day, to eschew it. As military professionals, we can say with certainty that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality.

Third, permitting torture in any circumstance does grave damage to America’s moral authority and, by fueling jihadist recruitment, undermines our security. Our country cannot hope to lead the world if it forsakes the most fundamental rules and standards it insists other countries uphold. This long war in which we are now engaged is in many respects a war of ideas, and it will be won or lost not on the battlefield but in the minds of those in the region who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave and imminent danger, we drive those undecideds into the arms of the enemy. This is a recipe for defeat.

And finally, as officers who were entrusted with the safety and moral integrity of the young men and women under our command, we believe strongly that any Commander-in-Chief who would authorize torture under any circumstances must understand the impact of that decision on those who would be ordered to carry it out. When we take young men and women from their parents and train them to be soldiers, we do so with the implied promise that they will be returned to their families better people for having served their country. That is a solemn obligation, and we breach it when we equivocate about the use of torture and other cruelty. We urge that you keep this obligation foremost in your mind when you are asked whether there are circumstances – even the most dire – under which you would authorize the use of torture.

Our country must return to the values our forefathers had the wisdom to set out in our Constitution and Declaration of Independence. Terrorism is a serious problem that we must confront using all our strength, persistence and ingenuity. But our values – as set out in these founding documents – are an asset in that fight as well, and we forfeit that asset at our peril. We need strong positive leadership that will replace fear with enthusiastic optimism that our Nation’s future is bright and secure. Our citizens and the world are searching for that leadership.

We look forward to further discussions with you about these issues of such importance to our Nation.

Sincerely,

General Charles C. Krulak, USMC (Ret.)
General Joseph P. Hoar, USMC (Ret.)
General Paul J. Kern, USA (Ret.)
General Merrill A. McPeak, USAF (Ret.)
Lieutenant General Robert G. Gard Jr., USA (Ret.)
Vice Admiral Lee F. Gunn, USN (Ret.)
Vice Admiral Albert H. Konetzni Jr., USN (Ret.)
Lieutenant General Charles P. Otstott, USA (Ret.)
Lieutenant General Harry E. Soyster, USA (Ret.)
Major General Paul D. Eaton, USA (Ret.)
Rear Admiral Donald J. Guter, USN (Ret.)
Major General Fred E. Haynes, USMC (Ret.)
Rear Admiral John D. Hutson, USN (Ret.)
Major General Melvyn S. Montano, ANG (Ret.)
Brigadier General David M. Brahms, USMC (Ret.)
Brigadier General James P. Cullen, USA (Ret.)
Brigadier General Murray G. Sagsveen, USA (Ret.)
Brigadier General Stephen N. Xenakis, USA (Ret.)