SCOTUS Throws A Life Preserver To The Rule Of Law

by dday

I gotta say, I didn’t expect this to happen:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court’s liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

If it weren’t for Anthony Kennedy or any of the more liberal justices, of course, that would no longer be true. Which is yet another reason why this election is so vital. Check out this quote from the Chief Justice. It reads like a comment at RedState:

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

This action that has now been ruled invalid, the decision that Guantanamo detainees had no legal rights under the Constitution or Geneva, was the original sin that led to all the other abuses. And it won’t surprise anyone to learn that it was “the stupidest fucking guy on the planet” Doug Feith’s idea. In his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, which is excerpted in this much-discussed Vanity Fair article, Philippe Sands talks to Feith, who’s proud of his achievement of getting the Administration to agree that detainees had no rights:

He was keen to talk about his role as the architect of President Bush’s decision of February 7, 2002. He didn’t buy the argument that the decision had the effect of casting the detainees into a great legal black hole. On the contrary, the President’s decision was actually a strike for the Geneva Conventions and for international law. “This was something I played a major role in,” he said with pride […]

In late January 2002 Feith and (Chairman of the Joint Chiefs Richard) Myers went to meet Rumsfeld to talk about Geneva. Before they got to Rumsfeld’s office, Myers turned to him. With fire in his eyes he said: “We have to support the Geneva Conventions… if Rumsfeld doesn’t go along with this, I’m going to contradict them in front of the President.” Feith was amazed. It was an unusually tough statement, and the reference to the Secretary as “Rumsfeld” was uncharacteristic. As they approached Rumsfeld’s office he was at the door, not wanting to let them into the room as he had other matters to attend to. Myers was grilled by Rumsfeld, who asked questions but didn’t adopt any position. Rumsfeld was “more of a lawyer than most lawyers when it comes to precision and question,” a stickler for the law who constantly invoked the Constitution and statutes, Feith reported.

As Rumsfeld fired his bullets at Myers, Feith described how he jumped protectively in front of Myers. He paused and looked me straight in the eye. “I gave a little speech – I remember – I don’t often remember what I said in meetings – but this I remembered. This was an interesting moment.” This was how he put it.

“There is no country in the world that has a larger interest in promoting the respect for the Geneva Conventions as law than the United States, and there is no institution in the US government that has a stronger interest than the Prentagon.” And then I said something else that was kind of interesting to them. “Obeying the Geneva Conventions is not optional. The U.S. Constitution says there are two things that are the supreme law of the land – statutes and treaties.” He said, “Yeah.” And I said, “The Geneva Conventions are a treaty in force. It is as much part of the supreme law of the United States as a statute.” […]

I was impressed, but how had they gone from that discussion to the decision that none of the detainees had any rights under the rules reflected in Geneva? Feith seemed surprised by my question and went on to explain […] In his view, Geneva didn’t apply to Al Qaeda fighters, because they weren’t part of a state and so couldn’t claim rights under a treaty that was only binding on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status because they hadn’t worn uniforms or insignia […] He referred again to the incentive system that was built into the Geneva Conventions, providing the greatest protection to non-combatants and the least protection to “fighters who don’t obey the rules.” “If we promiscuously hand out POW status to fighters who don’t obey the rules,” Feith offered, “you are undermining the incentive system that was wisely built into the Geneva Conventions.” This was at least arguable, I thought. But what should have been left was the safety net provided by Common Article 3, including the prohibition on abusive interrogation. But that too went: none of the detainees could rely on Common Article 3 since its provision only applied to “armed conflicts onot of an international charter.”

This was the legal argument that the SCOTUS rejected today. It’s simple to do, since Common Article 3 was backed up by customary law, every judgment of international courts and tribunals, and the official commentary to Geneva. Feith spun this as a protection of Geneva, when it in fact was a destruction.

Because Feith’s argument rested on defending Geneva, the senior officers were confused with the ruling, and more so the soliders carrying out the dictates. As Sands says in the book, “with confusion comes uncertainty, and with uncertainty comes a greater likelihood of abuse.” And this original sin created intentional confusion. If the detainees had no legal rights, there was no restriction on doing whatever necessary in interrogation to extract intelligence.

Sands, by the way, appeared on Capitol Hill this week to discuss his findings in the book, but Republicans attempted to use a rare objection to unanimous consent to force the Senate into recess and shut down the hearing. They didn’t even want these words to come out. Unfortunately for them, they couldn’t shut down the court.

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