Lawyers for the Bush administration argued today that hundreds still held at Guantanamo Bay, in Cuba, have "no constitutional right to challenge their detention before U.S . federal judges;" moreover, they called for dismissal of hundreds of lawsuits. (Reuters) What curious timing on the part of the Justice Department in light of the filing Tuesday, in German court, of criminal charges against ousted Defense Secretary Donald Rumseld alleging that he was complicit in war crimes, and "sanctioned torture."
The administration claims it has a mandate to hold prisoners at Gitmo, and in secret detention cells around the world, based on the passage of Congress, last month, of the Military Commissions Act of 2006, which all but suspends habeas corpus, and due proccess. As you recall, administration counsel worked overtime, this fall, to devise legislation to offset the damage done to a hyperactive executive branch by a recent Supreme Court ruling challenging the president's right to set up a system of military tribunals after the September 11 attacks. The appeals court is expected to decide on the legality of trying to deprive hundreds of those held access to federal courts later this year, and yet another trip to the Supreme Court appears certain.
Justice Department lawyers claim that habeas corpus is not a constitutional right "for an enemy alien outside the United States," specious reasoning given that Guantanamo Bay is a naval base, and protectorate of the United States. Further, does the government have the right, under this newfangled legislation, to suspend Fourth Amendment rights to American citizens labelled "enemy combatants," held in Cuba, Iraq, and other undisclosed locations?
Now that we have an historic changing of the guard, and the minority, in Congress, has become the majority, one wonders if our newly elected representatives will bother to read future insults to civilization like the so-called "USA Patriot Act" which most of them profess never having read. One wonders, too, if in his remaining two years, Mr. Bush, or Mr. Gonzales, will be able to apply their linguistic, and legal sophistry to the passage of more antediluvian, and medieval acts such as the one that passed in October. Oh, and by the way, the Military Commissions Act of 2006 also grants retroactive immunity from prosecution for war crimes.
Still, attorneys for Bush and Co. contend that detainees receive military review to determine if the term "unlawful enemy combatant," coined by Donald Rumsfeld, can justifiably be applied to them. But, who could have come up with the phrase "Combatant Status Review Tribunal?" It's right out of the Battle of Grunwald.
The stage is now set for our government to slap other American citizens like Jose Padilla with the label "enemy combatant," subject them to cruel and inhuman punishment, hold them indefinitely without charge, without access to counsel, and all but shred their any presumption of innocence. What constitutional remedies they have may be lost just as they were for Padilla when the 4th Circuit Court ruled in favor of the Bush administration. Moreover, to add insult to outrage, the Bush administration now wants hundreds of lawsuits by detainees who want judicial recourse from detention to be thrown out based on the presumption that the Military Commissions Act of 2006 gave the government the right to pursue them, with impunity, as they would hunted animals, all in the name of a war on terror.
One can only hope that when the German Federal Prosecutor prepares to read the criminal complaint on behalf of a dozen victims--11 Iraqis detained at Abu Ghraib, one held at Guantanamo Bay, that attorneys with the Center for Constitutional Rights will prevail, and that those who have held jurisprudence hostage, for the past five years or more, can no longer consider themselves immune from prosecution as war criminals.
If, and when, this administration's attempt to divest hundreds of Guantanamo prisoners of their constitutional rights makes it to the Supreme Court, they will be well-served if reminded of something Supreme Court Justice Antonin Scalia once said: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." And, one might add, with the collusion of Congress.
(This piece first appears on The Huffington Post)