At High Court They Talk; At Gitmo They Wait

At the Supreme Court yesterday morning, they talked about jurisdiction. They talked about habeas corpus. They talked about remands. They talked about the Detainee Treatement Act and the Military Commissions Act. They talked about Spanish sailors and ancient English case law.

They talked and they talked and they talked. And, if you weren't listening closely, you would have sworn they were talking about some hypothetical problem affecting some theoretical group of people somewhere. It was all so sterile and academic -- as if no one really wanted to address or even think about the real reason they were there.

Two of those reasons are Murat Kurnaz and Mustafa Ait Idr. They are among the Guantanamo detainees who, for half a decade now, have suffered the effects of the legal terms and concepts floated about by the justices and the two opposing counsel in the latest iteration of the "enemy combatants" case. They are the symbols of a short-sighted and self-destructive series of policy choices our executive branch officials and their Congressional colleagues have made since Sept. 11.

Kurnaz, as The Post reported yesterday, was deemed innocent -- proven so in 2002 to the satisfaction of U.S. intelligence officials -- until he was not. He is still in detention down in Cuba.

Idr suffered his own Kafkaesque indignity during this shameful interrogation.

They know what the White House and Pentagon mean when they say they are giving more than their fair share of "due process" to "enemy combatants."

And they're far from the only detainees whom own military has determined have nothing to do with terrorism. Seton Hall Law Professor Mark Denbeaux and his attorney son, Joshua Denbeaux, studied hundreds of Combatant Status Review Board letters Among their findings: "Fifty-five percent of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies... Only 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban."

This is the underreported truth about Guantanamo. This is what our politicians and judges know or should know about the detainees whose fates they are deciding.

Having absorbed the transcript of yesterday's hearing, I hereby declare that I have no idea what the court will do. Justice Anthony Kennedy, the swing vote, didn't seem hot-to-trot over the government's arguments. But what this means I couldn't tell you. I can't see the court directing the other two branches to finally "fix" the detainee problem by opening up civilian courts to the prisoners. But I can't see the court signing on to all the sweeping rights restrictions of the Commissions Act. There will likely be plenty more talking before Kurnaz and Idr get to see things made right.

By Andrew Cohen |  December 5, 2007; 4:15 PM ET
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Mr. Cohen might want to read the articles he links to - the one about Kurnaz in yesterday's Post quite clearly states that he was eventually released from Guantanamo in 2006 as a result of pressure from Germany.

Posted by: Jon Torrance | December 6, 2007 10:20 AM

It is not quite clear what Andrew wants here (as if that is a surprise).

Is he demanding that we abandon our current system of justice, which is supposed to be dispassionate and leap with emotions to conclusions about the suffering of individuals? Couldn't that be achieved through executive clemency or Congressional intervention.

Is he suggesting that "facts not in evidence" (the Denbeaux report) be accepted as fact without jury or judicial review? Does that not tear down the foundations of system of our system of justice and turn us into a nation of men (of passion) rather than laws?

I think Andrew forgets or wants us to forget that in addition to the plaintiffs that there is a second party to this law, the People of the United States. And while the freedom of individuals is at stake, so is the security of hundreds of millions of American citizens.

That's why the old saw starts with the truth that the wheels of justice grind exceedingly slow.

The Supreme Court must be cognizant of the impact of its decision on future law as well as near team policy. Legally and under treaty it seems that these people fall into a legal twilight zone. There are many such holes in both national and international legal structures.

Besides, one might hope for some consistency from Andrew. When it comes to Justice Thomas Andrew condemns because he does not talk enough from the bench, today Andrew has eaten a spicy breakfast burrito for breakfast and therefore concludes justices talk too much.

Posted by: Constitutionalist | December 6, 2007 11:21 AM

The "security of hundreds of millions of American citizens" is not at all affected by the vast majority of the the men who are imprisoned at Gitmo. Why can't the Bush apologists see the wrong in what has been done to these men?

Posted by: purplehawk | December 6, 2007 01:34 PM

Constitutionalist, Americans have long claimed the moral high ground as far as liberty and justice are concerned.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

This ideal, as stated, excludes no person on the planet. That's what Americans claim to stand for.

Can't you see that failure to extend the same legal rights and protections to ANYONE in the custody of the US government, not just those with a blue passport, is a direct repudiation of (supposed) American values? Can you not see the blatant, corrosive, hypocrisy and inherent injustice of the situation? Even if convicted (and there have been REMARKABLY few prosecutions, let alone CONVICTIONS, in the ensuing years), the process is so tainted with INJUSTICE and a lack of credibility that the convictions will be forever suspect.

America has little world standing left to criticize even the most totalitarian regimes after her infantile, short-sighted, reckless, illegal, immoral activities (Guantanamo, Iraq invasion, Abu Ghraib, et. al.) under the current, justly reviled administration.

The entire situation for these prisoners needs to be removed from the administration's hands and handled in the criminal court system with a true adversarial format with both the defense and prosecution having equal access to evidence. That would be a good step in repairing the reputation of the US in the rest of the world, a process I expect will take a decade or more IF America can summon the courage to confess her sins and try to atone for them.

Better yet, turn the whole thing over to an international court.

Posted by: | December 7, 2007 04:03 AM


There are a large number of detainees who are in Gitmo because the U.S. military offered the Afghan warlords bounties for every "unlawful combatant" they could round up. Those warlords were more interested in the money than whether the people upon which they collected actually were combatants at all. To be sure, there are al Qaida members at Gitmo. But how is is possible to sort out the ones who were in the wrong place at the wrong time from the real terrorists when they are not allowed to contest the charges against them?

It is my opinion that the preconditions to suspending Habeas Corpus established in the constitution (insurrection or invasion)have not been met and that these men should be able to avail themselves of the Federal Courts to contest their detention.

Posted by: Nellie | December 7, 2007 11:31 AM

If I remember correctly, we as a nation took a very dim view of our citizens being held incommunicado in Tehran. By duplicating such inhumane and clearly illegal behavior, in violation of all standards of decency, to say nothing of international law, we as a nation, do violence to the memory of those who gave their lives in defense of the Four Freedoms we once held dear. A sad commentary on this day, the anniversary of the attack on Pearl Harbor.

Posted by: Hugh R. Bruce | December 7, 2007 03:23 PM

If the Supreme Court rules in favor of the "US Goverment" and "vs. Bush" in these two combined cases, it would be perfectly legal to pick up anyone from any place on the planet, move them to a designated place deemed "outside US law", declare them "an Enemy Combatant", and hold them indefinitely. From what I understand of the law passed by Congress relating to this case, any resident alien living in the US (and certainly those resident outside the US) could be stripped of the right to habeas corpus if designated "an Enemy Combatant". In fact if every person designated as an "Enemy Combatant" by the US government is stripped of Habeas Corpus rights, then even a US citizen would not have the ability to contest their incarceration. This person most likely would not have the means to prove they are a US citizen, through the US Judicial System (because there is limited access to US courts for such individuals -- no writ of habeas corpus for "Enemy Combatants"). This would amount to a "Catch 22" legal issue. They would be at the mercy of the primitive military judicial system that strips them of access to counsel and even the evidence against them (which the military tribunals must assume is accurate and genuine. The government could simply state that they were no US citizens and there would be nothing the "enemy combatant" do about this false statement.).

Frankly, as an American (60+ year old) I am ashamed of this administration and the Republican lead Congress that removed habeas corpus rights for non-US citizens ( in reality for any US citizen labeled an enemy combatants.) My hope is that Justice Kennedy will do the right thing and vote to overturn this monstrous legislation. (I am assuming he will cast the deciding vote.) I have given up on Justices Scalia, Thomas, Roberts and Alito. I cannot fault their intelligence, but their "morale" IQ is certainly not up to the standard I have come to expect of the US Supreme Court.

W. Falicoff

Posted by: WFalicoff | December 7, 2007 08:47 PM

I meant to say "Moral" not "Morale" IQ in the last sentence of my comment above. Although the morale of the US Supreme Court may shortly reach a new low assuming the "conservative gang of four" is on the side that decides this case in favor of the Bush Administration.

W. Falicoff

PS. my apologies to the grammarians on this blog for the typos in my previous statement.

Posted by: W. Falicoff | December 7, 2007 08:57 PM

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