At The Precipice
by digby
I find myself feeling a little bit depressed today. It’s not the spectre of war with Iran, although I admit that scares the hell out of me. It’s this:
The Supreme Court rejected an appeal Monday from two Chinese Muslims who were mistakenly captured as enemy combatants more than four years ago and are still being held at the U.S. prison in Cuba.
The men’s plight has posed a dilemma for the Bush administration and courts. Previously, a federal judge said the detention of the ethnic Uighurs in Guantanamo Bay is unlawful, but that there was nothing federal courts could do.
Lawyers for the two contend they should be released, something the Bush administration opposes, unless they can go to a country other than the United States.
A year ago, the U.S. military decided that Abu Bakker Qassim and A’Del Abdu al-Hakim are not “enemy combatants” as first suspected after their 2001 arrests in Pakistan. They were captured and shipped to Guantanamo Bay along with hundreds of other suspected terrorists.
The U.S. government has been unable to find a country willing to accept the two men, along with other Uighurs. They cannot be returned to China because they likely will be tortured or killed.
[…]
Lawyers for Qassim and al-Hakim filed a special appeal, asking justices to step in even while the case is pending before an appeals court. Arguments at the U.S. Court of Appeals for the District of Columbia Circuit are next month.
Justices declined, without comment, to hear the case.
Bush administration Supreme Court lawyer Paul Clement told justices that there were “substantial ongoing diplomatic efforts to transfer them to an appropriate country.”
Clement said that in the meantime, the men have had television, a stereo system, books and recreational opportunities: including soccer, volleyball and ping-pong.
The detainees’ lawyers painted a different picture, saying that hunger strikes and suicide attempts at Guantanamo Bay are becoming more common and that the men are isolated.
“Guantanamo is at the precipice,” Boston lawyer Sabin Willett wrote in the appeal. “Only prompt intervention by this court to vindicate its own mandate can prevent the rule of law itself from being drowned in this intensifying whirlpool of desperation.”
I would say the US is at the precipice and the rule of law is breathing its last gasp. How can we have a system that operates this way and still call ourselves a country of laws? They are just making this stuff up as they go along.
Guantanamo is a vivid example of what happens when governments panic and make errors out of hubris, rage, greed and opportunism and refuse to right their wrongs after the fact. We have created a Kafka-esque nightmare that, unless we return to the rule of law very quickly, is going to be embedded in our system, ready to be exploited by any tyrannical figure who can trump up an emergency for political gain.
Don’t the Republicans see how dangerous this is? It isn’t a matter of partisanship. Any shallow reading of history shows that bad people can emerge from any movement, ideology, religion or party. That’s why we have the rule of law — so that our system doesn’t depend upon the good-will of whomever is holding the office.
The Talking Dog (who is also a talking attorney in NYC) has been interviewing various lawyers who defend Guantanamo inmates for some time now. He happens to have one up this morning featuring an attorney who represents a legal US immigrant Ali Al-Marri, who has been held in the same limbo as Jose Padilla for years. I’d never heard of him:
Jonathan Hafetz: Certainly, his case has received less publicity than Padilla, who is, of course, a citizen, whereas Al-Marri is a legal immigrant. The fact is, the government’s argument as a basis for holding him is the same as Padilla: that the entire United States is a battlefield in the administration’s “war on terror.” While the Hamdi case concerned a citizen engaged in hostilities on a foreign battlefield, thus far, the U.S. Supreme Court has not ruled on the legality of the government’s detaining a civilian arrested in the United States itself (and it avoided the opportunity to do so recently in Padilla’s appeal).
As to Ali’s case, the District Court Judge Floyd, the same judge who ruled in Padilla’s case, denied our motion for summary judgment but ruled the courthouse doors were open for Mr. al-Marri to challenge the government’s allegations. We are presently litigating Al-Marri’s entitlement to due process to challenge the government’s factual basis for those allegations, and demanding a hearing consistent with due process of law.
The Talking Dog: Is it not the case that this is a still-live case presenting virtually the identical issue as Padilla (which the Supreme Court just ducked)?
Jonathan Hafetz: Certainly, the issue is very much live, and presents a danger to us all insofar as the government is asserting the right to strip any one of us of all due process rights and constitutional protections. So yes, that is definitely still the case– Al-Marri’s immigration status as opposed to citizenship doesn’t change that.
He concludes with this:
Jonathan Hafetz: The United States of America, since its inception, has stood for the rule of law. The actions of our government associated with the war on terror– notably, the arbitrary deprivations of due process, in violation of the Constitution, laws and treaty obligations – have fundamentally jeopardized that. What has been done has undermined our standing in the world, and is not an effective use of our resources, either. We have been holding some men over 4 ½ years, without charge or trial or any notion of due process, and insist on our right to detain them for life, even though they have never been, and may never be, charged with crimes. The war on terror will doubtless present us with more challenges. One of those challenges should not be the sacrifice of the rule of law.
In my view, the very existence of these issues speaks to the fact that we are not in a war at all. If we were, we would be able to invoke the many laws that have been in effect for eons regarding warfare. This is something else. We need to figure out what it is, and act accordingly. Going down this road is going to destroy us much more quickly than bin Laden could have dreamed.
If you are interested in this topic, be sure to read all of the Talking Dog’s interviews with Guantanamo lawyers, linked at the bottom of his post. It may depress you, but you have to at least feel some gladness that there are lawyers out there willing to do this important work. After the government went after attorneys in the Stewart case, if would have been easy to walk away. They didn’t.
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