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.

By Andrew Cohen |  June 21, 2006; 2:28 PM ET
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The courts have nothing to do with unlawful combatants. The military, and only the military should process these cases. These combatants have no rights under the Geneva Convention either. They do not belong to a signature government to the treaty, nor do they belong to any government.

Posted by: James Byrnes | June 22, 2006 01:18 AM

Byrnes, you said it.
Mr. Cohen, you don't provide any arguments for why you think the treatment of prisoners of war does not fall within the executive rather than the judicial power. Instead, you write dismissively of "executive-branch bullying". But the Constitution provides a lot more support for the President's position than for yours.

Posted by: Josh Levy | June 22, 2006 05:21 PM

As the country that claims to uphold the flames of freedom for those who are not free, as ones who are trying to bring democracracy to the brutal dictatorships in Iraq and Afghanistan, it seems absurd that we fail to be democratic in trying criminals from these places.

Whether or not those rounded up are guarteed legal rights, they should be accorded the same legal rights as other prisoners. It is the moral and just thing to do.

Of course, there is also the question of whether these prisoners are actually even unlawful combatants. Many were just randomly rounded up and haven't been charged with anything. Plenty have been released and returned to their home countries. Obviously they were a threat.

To claim the power to subvert the Constitution is somehow in the Constitution is just about the most preposterous argument that the right wing has ever made and that's saying a lot.

Posted by: Steve Jackson | June 22, 2006 10:29 PM

Neoconservatives, who appear to be running our country, insist that we are at war. A state of war is essential to the repressive actions they support. But are we really at war?

Terrorists neither have nor claim sovereignty. Terrorists are criminals, not soldiers. They should be treated like the criminals they are according to the rule of law.

The so-called war in Iraq is not a war. It is an invasion of a sovereign country by a foreign country in violation of international law. Iraq has not declared war on the United States. So far as I am aware, no foreign country has declared war on the United States. Have we declared war on Iraq? Where is the war?

When the Bush cabal speaks of war they are talking metaphorically about the hell they have created and using the metaphor to justify their criminality.

Bush and his neoconservative advisors are ignoring the legal definition of war as defined by the rule of law and are deliberately engaged in rewriting our Constitution and international law.

Posted by: Robert Castle | June 24, 2006 01:12 PM

the issue with the prisoners is that they have never been granted the Geneva Convention review that determined whether they were actual combatants or just people snatched off the field and "detained" without recourse. As one who knows a postman arrested (in full USPS uniform and with mail bag, on a charge of resisting arrest) and detained overnight, on the streets of San Francisco back in the 70's when the police decided to arrest everybody in the area of a protest, I can witness to the fact that government will exercise authority, legal or not, in pursuit of a self defined "greater good". Had the administration followed the requirements of our laws and treaties, this issue would not exist today. It is the abject arrogance of the Executive that prolongs this injustice. (btw, the postman was released when the hearing judge determined that one cannot be arrested for resisting arrest sans any arrestable charge)

Posted by: john | June 24, 2006 05:26 PM

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