On Gitmo, It's Groundhog Day at the Supreme Court
We have been here before. In a momentous oral argument this morning, the Supreme Court will try to identify, for the third time in six years, the rights America owes detainees held as "combatants" ("enemy" or otherwise) during this war on terrorism.
The past two times the White House and Pentagon have been hauled before the court, it has not gone well: Both times the court halted executive branch practices and policies. Both times administration critics rejoiced at the idea of the judicial branch standing up to its sister branches.
But for the detainees, nothing has changed. Six years on, the detainees -- many of whom have nothing whatsoever to do with terrorism -- are still languishing in Cuba. The White House and Congress are still cutting legal corners.The Justice Department is caught in between. And the court takes forever to act. It's Groundhog Day.
There are two main reasons for this. The first is a relentless series of choices by the White House to push its terror law policies past the point of legitimacy. All of the detainees could long ago have been "processed" out of Guantanamo Bay had the administration promoted fair trial rules to be used by military commission officials. Instead, the government repeatedly has tried to skew its tribunals (in the name of national security, etc.) in favor of prosecutors. Why? My guess is that the feds realize that some detainees would be found innocent if the rules were fair. This, apparently, the feds cannot countenance.
The second reason for the lack of progress is the court's traditional role as the "reactive" branch of the government. For centuries, the justices have been loath to offer solutions to the legal problems with which they are faced. Justice Sandra Day O'Connor famously declared in 2004 that a "state of war is not a blank check" for presidential power.
But the court was unwilling to declare with equal eloquence precisely what the White House, the Defense Department and Congress could and could not actually do when it came to the detainees. It's like a game of 20 questions; the justices keep telling the other branches where they've gone wrong, but are unwilling to tell them precisely how to get it right.
Into this court-inspired ambiguity came the Military Commissions Act, a deviously cutting measure passed last December by the lame-duck, Republican-controlled Congress. The act is designed to further limit the rights of detainees (and others) to challenge their confinement in federal court. The justices may or may not receive it favorably. If they do not, the detainees will be forced to remain in limbo for another year or so. That's the way the current legal and political constellations align as 2007 turns into 2008.
What is it going to take to break this cycle (which would never be tolerated if it affected Americans instead of faceless foreign detainees)? Either a bold, decisive ruling, or a new administration with a different approach to the legal war on terror. Don't bet on the first proposition and don't hold your breath for the second. We are 13 months away from a new president, and many more moons after that from a new policy on the legal war on terror. It may not sound like long, but it's an eternity to those detainees who don't deserve their fate.
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