The Justices Won't Close Gitmo
I think it's great after years of executive-branch bullying that President George W. Bush finally is conceding to the nation and the world that the federal courts have a vital, even dispositive role in determining how the detainees held at Guantanamo Bay ought to be handled. And, of course, the U.S. Supreme Court, perhaps as early as tomorrow, will have a lot to say about whether and to what extent our military tribunals can be used at Guantanamo to process the hundreds of warrior/criminal/terrorists/innocent victims held there. But no one, including the President, ought to expect the Justices to issue a ruling that forces Gitmo closed or does anything other than put the tribunal ball back into the hands of the U.S. military. And, anyway, rhetoric aside, there is nothing stopping the President now from giving the detainees the due process rights their attorneys are asking for.
First, the case of Hamdan v. Rumsfeld, captioned in honor of Salim Ahmed Hamdan, who may or may not have been one of Osama Bin Laden's driver, and the chief of the American military which controls Gitmo, may not even generate a majority ruling that represents the last word on the issue. Only eight Justices will weigh in on Hamdan's claims-- the Chief Justice, John Roberts, appropriately recused himself because he was a voting member of the lower appeals court that ruled against Hamdan last summer. A 4-4 tie would leave in place that lower court ruling-- a victory for the feds, but with hardly the sort of clarity and precedential force the President is telling the world that he is hoping for.
Second, the case isn't about closing Gitmo. It's about which procedures the military must follow to prosecute the detainees through military tribunal. That proper tribunals (i.e. ones that comport with constitutional due process, however that happens to be defined) 0 wcan take place really isn't a close issue anymore. The Supreme Court has long been on record as declaring that so long as Congress consents the use of tribunals is nice and legal. Some folks, a little unclear on the concept, say that the Court could effectively shut down Gitmo with an adverse ruling. I just don't see. And I'm not sure that even any of the litigants see it. And for those of you looking for some sweeping and historic ruling that completely changes the political and moral dynamic of the Gitmo situation remember that the Supreme Court historically only decides what it has to decide to resolve a case-- and nothing more.
I can't help but think that the White House is signalling the Court to help it out of this mess. But I'm not even sure how that works or looks. If the Justices affirm the lower court ruling, than tribunal proceedings can begin (much to the dismay of defense lawyers, who say they are blantantly unfair) and the logjam currently in place can begin to unwind. Or, the Justices could reject the lower court ruling and require the government to offer detainees more due process rights, in which case the feds then will either have to eat crow and do it-- just to get the line moving-- or take the political and diplomatic hit and keep on fighting the issue out in court. Either way, a court decision still leaves the ultimate fate of Gitmo's detainees in the hands of the executive branch. And you can bet that the Justices will be sensitive to the idea that they are being set up as fall guys and gals for a miserable policy.
Finally, what no one is saying, alas, is that the Justices could have prevented this whole mess two years ago, the first time the issue came up, when Justice Sandra Day O'Connor famously said that "war is not a blank check" of presidential power but then signed on to a passive decision that limited that power in some ways but refused to adequately define the scope of it.
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Posted by: James Byrnes | June 22, 2006 01:18 AM
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