Bad Due Process Begets Bad Due Process

The New York Times Sunday had a fine piece about the tug-of-war inside the Bush Administration over terror detainee policies. What was striking to me, reading the lengthy article by Tim Golden, is the extent to which hardliners within the White House, especially Vice President Cheney and his underlings, fought against Pentagon and State Department experts over what the new policy would be. How nasty the infighting was. How high up it went. How broken seems the system of internal debate within the Administration. How much that might explain how and why the White House has made the political decisions it has over the past few years. Read the piece. And then tell me you don't feel worse about the legislation Congress passed last week.

Equally fascinating is the notion, fleshed out by Golden, that some government officials now believe the new legislation "might fail to meet a primary goal of those inside the administration who had advocated change; quelling domestic and international criticism and moving past the federal lawsuits that have tied up parts of the detention apparatus since 2002." Golden quotes one administration lawyer saying this: "'There have been so many times when we thought we had broken through and turned things around, and then the forces on the other side kept charling back... [now], even after what was supposed to be this major legislation to resolve these issues we are going to be back at it.'"

"It" being more litigation, more delays, and more uncertainty over the fate of the 450 or so detainees now at Guantanamo Bay, Cuba. The irony, of course, is that a legislation that takes due process away from those men, and resident aliens who also now can be detained without charges, came about in large part because of a breakdown in due process along the corridors of power.

By Andrew Cohen |  October 3, 2006; 7:00 AM ET
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The outright suspension of habeas corpus at this point is consistent with previous changes in the law limiting the right to habeas corpus relief, in particular, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Congress has already made access to the writ such a procedural minefield that this last and most drastic step is totally unnecessary, unless it is being taken with the specific intent of making otherwise unlawful and unconstitutional acts against a particular class of individuals unchallengeable. Gee, where in history have we seen this kind of thing happen before?

Also, I hope you get around to addressing the allegedly "murky" unlawfulness of Rep. Foley's actions against Congressional pages. One of your writers said the law in this respect - whether a criminal act was committed and then covered up - is murky. In my state we have a number of statutes that prohibit eliciting a sexual performance by a child or using one's office for "official oppression" or even engaging in harassing electronic communications. There is also the possibility that there is a civil rights problem. I expect that Foley can also be prosecuted in all states where the e-mail transmissions were received - which I think is a great idea. I don't know that the issue of unlawfulness is so much "murky" as it is difficult to sort out which level of offense to start with first and in what jurisdiction(s).

Posted by: attorneyofrecord | October 3, 2006 09:06 AM

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