Bulldozing the moral high ground.

I must confess, I do not understand all of the right wing “outrage” about the Supreme Court decision concerning the detainees at GTMO. Do people even hear the things they are saying?

In a nutshell, the Court said that Habeas Corpus follows the flag-and if the US chooses to exercise jurisdiction, it has to live by its own laws and legal tradition for better or worse. For some reason that bothers a hell of a lot of people.  Anyone who dares to agree with the fact that the Supreme Court made a decision that erred on the conservative side-and it was a divided decision-is judged in the opinion of one somehow worthy not to serve.

Insert: According to one commenter at the other place, ” I’m damned glad you’re not on active duty.” Well,  I am sad that people who cannot think for themselves are on active duty these days too-so I guess we are about even. However I will point out that I served long and well.  And I’m proud of my service.

Do people even take the time to understand the issues any more? Or listen to what they are saying? I don’t think so. The popular way of doing business is to listen to a commentator, agree with his position, then attack anyone who does not. Fine, that is how commentators and others make their money-it is not a path to rational thought.

And Craig-since I am “naive”, perhaps you could bear with me while I run it through again for both yours and my benefit.

That people disagree with the decision is to be expected. That it opens the Court up to criticism is also to be expected-but to call this the worst decision in the Court’s history is, to me, way over the top. Given the other decisions the court has made during the last few years-trying to reign in the adminstration’ desires to have a blank check legally with those it wishes to prosecute-it is actually pretty consistent.

1)All the Court did was say that the Government of the United States had to make a case against thouse who it holds in captivity for a long time. And that it cannot simply hold them indefinitely without making one:

The Supreme Court’s lead opinion in the Guantanamo Bay cases Thursday declares simply: “The detainees in these cases are entitled to a prompt habeas corpus hearing….The costs of delay can no longer be borne by those who are held in custody.”

But that does not mean any detainee is going to be released soon — although that ultimate remedy does have to remain available as a potential outcome. Much was decided on Thursday — particularly in terms of constitutional magnitude — but much remains open for the future. What is next, and where might the decision lead in the end? Answers, but only preliminary answers, can be suggested.

First, however, some policy and political calculations have to be gauged. The decision does leave President Bush and Congress with the power to try again (assuming they could find some common ground) to head off habeas. Even though Thursday’s decision was a constitutional ruling, the Court did not say that there can never be any substitutes for habeas review of detention. But, as a matter of political reality, a Republican President with only six months left in office and historically low popular approval ratings, and a Democratic Congress that is less and less deferential to the Executive even on war-on-terrorism issues, very likely will not be able to agree in the short time realistically available to find an alternative to habeas that has any chance of surviving a court test.

The Pentagon, too, still has some options open to it. It can scrap the existing system that decides who is to be designated as an “enemy combatant” and thus must remain confined. The Court did not strike down the so-called Combatant Status Review Tribunals; indeed, it said, they “remain intact.” But, the less such a filtering system protects a detainee’s legal rights, the more chances he has to challenge the enemy label and the detention in court, according to Thursday’s decision. Does the Pentagon have a military interest in expanding detainee’s rights up-front? Given its history with CSRTs, the answer is probably not.

The Pentagon perhaps also might ponder some changes in the system for trying detainees on war crimes charges — the so-called military commissions that are ponderously moving forward at Guantanamo. But the Court said nothing about the commission system Thursday, so the military may have no incentive to re-think a system that it has struggled to keep going amid a host of difficulties, major and minor. Still, the Court’s ruling does portend some serious challenges to the military commissions through habeas cases, even though the specific cases decided Thursday involved challenges only to detention, not to prosecution.

It did not, in any way shape or form invalidate the right to continue the prosecution.

2) This is really not a surprise given the other decisions the court has made in the past. What is surprising is the strength with which the court asserted its role as arbiter of the rights of those accused under provisions that are found in international law, not necessarily US law. In so doing it took the conservative approach, “first do no harm”

But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, “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.” Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments. But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it. That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety.

3) The contention that the prisoners in GTMO have no rights because they are persons without status, so called “unlawful combatants” is weak. If they have no rights why bother to bring them to GTMO? Shoot them on sight. We don’t do that because we want to show ourselves to the world as being above that type of brute force justice and in so doing prove ourselves better than those we fight-and who attacked the US in 2001. The people coming unglued because the Supreme Court agreeed with that premise hang that whole thread on the fact that they are not worthy of legal considerations because they are not fighting on behalf of a state.

And they call me naive? GTMO as currently set up makes for bad law and for bad PR. Given that we claim we have extracted lots of intel from these guys-then we have probably more than enough evidence to convict-the arguement that it will expose intelligence is just flawed from the start, we have ways to get that out with selling the farm. The situation at GTMO makes a hell of a publicity problem even with our allies. Even if people are not being tortured there, a significant portion of the world believes they are-and so our moral authrority is undermined, even with those who agree with us.
Futhermore when exposed to deep scrutiny-most of the claims that valuable intel has been compromised in terrorist trials has later been proven to be a false claim:

Relying on a minority report by Republican Senators Kyl, Sessions, Graham, Cornyn and Coburn, and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al Qaeda satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.

As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, claim 1 is demonstrably false and claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost 2 and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn’t even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn’t. As with all such discussions of how well suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can’t conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can’t possibly deal with terrorism cases.

Furhtermore-just a day later the Court wrote a second opinion saying that Habeus applies to people being detained overseas:

By refusing the Bush Administration’s plea to block any habeas claims against U.S. military jailers in Iraq, the Court has dropped a hint that, in the new global village, habeas will follow the American flag overseas — possibly, everywhere except an active battlefield. It very likely does for U.S. citizens. But it will be totally unsurprising if lawyers now make a real effort to claim the same rights for military detainees who are foreign nationals, too, and that might not be a forlorn effort.

Of course, the fact that the Court was unanimous, in an area potentially fraught with deep controversy, suggests caution in analyzing Munaf ‘s portents. This is not a collection of judges that think alike on habeas rights, generally speaking.

But one still has to assume that, at least within the ranks of Bush Administration lawyers, it was not a foregone conclusion that their basic argument against extending habeas to U.S. military detention facilities overseas during wartime was going to lose unanimously. Relying upon a post-World War II decision by the Supreme Court (Hirota v. MacArthur in 1948), Administration lawyers thought they had a chance to deny U.S. courts any authority to intrude into the actions of American military custodians holding prisoners in Iraq, especially since the U.S. forces were there to act as part of a multi-national force.

Chief Justice John G . Roberts, Jr., writing for the Court, reacted bluntly to the government’s reliance on Hirota, saying “that slip of a case cannot bear the weight the government would place on it.” But he did go on to make considerable efforts to keep the decision narrow. He stressed that it involved “only American citizens” and only the statutory right to seek a habeas writ (and thus did not encompass alien detainees or constitutional habeas rights). He also emphasized that the captive citizens were being held by the U.S. military in temporary detention until Iraqi criminal proceedings against them could go forward. And he relied upon the fact that the detention was being maintained overseas by “American soldiers subject to a United States chain of command.”

And, of course, the Court, while finding that the two citizens involved could file habeas claims against their military captors, also decided that they were not entitled to be released and not entitled to be held back from transfer to Iraqi authorities for criminal proceedings. That, at least superficially, made it seem that the habeas right did not amount to much – once you sought it, you could not win the relief you pursued, it appeared.

Bottom line-they still have to prove their case and that is easier said than done.

So yea, I go back to my original premise-this is not the end of the world for anyone. However it does prove what many of us have argued for years-if you are going to claim that the GWOT is a moral crusade-you cannot have it both ways.

So yea Justice Kennedy appears to have gotten it right all along: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law,” .

Just saying that we are at war-and anything is justified because we are the good guys, does not cut it anymore. Truth be told-it never did. Despite the weeping and wailing of those who argue otherwise.

Tomorrow as Scarlett said is yet another day. Let the lawsuits begin!