Administration Strategy for Detention Now in Disarray
By Michael Abramowitz Washington Post Staff Writer Friday, June 13, 2008; A01
In the days following the Sept. 11 attacks, President Bush and his advisers sought to create an unprecedented parallel system to detain suspected terrorists far from the normal scrutiny of the U.S. judiciary. The naval base at Guantanamo Bay offered a way to indefinitely hold those individuals the administration considered among the most dangerous in the world.
But the Supreme Court's decision yesterday to grant habeas corpus rights to the detainees struck at the very core of the administration's approach, as a narrow majority ruled that even hardened suspects are due the basic right to challenge their custody in federal court.
The ruling throws into disarray the administration's detention strategy, almost certainly leaving to Bush's successor and the next Congress the dilemma of what to do with the Guantanamo Bay detainees.
. . . The naval base at Guantanamo Bay offered a way to indefinitely hold those individuals the administration considered among the most dangerous in the world.
Ah, the most dangerous in the world. If that were true, the process would still be irreparably constitutionally damaged, because at the heart of American justice is the planet's most revered principle--that we cannot know the guilt or innocence of the accused without free and open trials that admit all evidence.
The most dangerous in the world have thus far included an innocent German citizen, pulled off a bus for no apparent reason while a tourist, an Australian we were forced to repatriate (with a hand-slap, face-saving minor prison term) and a Canadian we snatched from an American airport, who turned out to be yet another innocent abroad. The simple fact is that we do not know the guilt or innocence of those held without a trial and the administration's basis for accusation has been and continues to be so murky and in most cases downright opaque that there will be no way to know, absent an uninfected system of justice.
That system exists. That system has been a beacon to the world for over 200 years. That system has traditionally contained all the protections necessary for our 'national interest' as spies and foreign agents have been successfully prosecuted for a couple hundred years without the need of secret courts.
There is no veil here we need fear to lift except the shame of how these detainees were treated and the circumstances under which evidence against them was gathered.
"Even administration officials are uncertain about their next steps, and their surrogates were bitterly blaming the Supreme Court for seizing policy that they say the White House and Congress should set. They noted that the White House had done as the court previously demanded, working with Congress to put lawmakers' imprimatur on detainee policy."
The administration had indeed done as the court previously demanded and what the court is saying is that they did it badly. The court exists in order to evaluate congressional legislation for its constitutional content and it does so, not arbitrarily, but only when a test-case is brought before it. What is so strange about this decision, except in the minds of those who cannot and have not been able to justify their actions?
This is not an 'activist court' working against the tide of American opinion, it is a court maintaining the integrity of American law at a time when it is under siege. Time and time again this administration has asked its FBI, CIA and military to do the most unspeakable and (until evidence surfaced) unknowable tortures and humiliations in the name of 'terrorist threat.' The White House is desperate to keep those actions from the public view, close Guantanamo and somehow wipe the slate clean of what it has done in our name.
The Supreme Court has said that wrongheadedness, hubris and panic are no proper reasons to take down the proud tradition of fairness before the bar of justice. How else to separate false accusation from criminal intent? How do we separate the hardened jihadist from the innocent cab-driver, when they are indiscriminately swept off the streets by those who don't even speak their language, terrified of what lies ahead for 'terrorists?'
By a five to four vote, we have not yet replaced the supreme board of review with the water-board.