Arguing About Gitmo

Yesterday the Supreme Court heard arguments in what may be the most important constitutional case of the decade: whether the men detained at Guantanamo have a right to a fair trial before a real court. I spoke with Erwin Chemerinsky about the case – he's professor of law at Duke, and Dean of the new UC Irvine law school; and he represents one of the Gitmo detainees whose case is before the court, Salem Gherebi.

At issue is the Military Commissions Act, passed by Congress in 2006. Chemerinsky called it "one of the worst laws in all of American history with regard to civil liberties." The provision before the court yesterday says that no non-citizen held as an enemy combatant shall have any access to federal courts, including by writ of habeas corpus. They can go through a military proceeding--if one is convened by the government – and then they can get reviewed by the Court of Appeals for the District of Columbia circuit.

The key issue, Chemerinsky said, "is there's nothing in the Military Commissions Act that requires that a military proceeding be convened. The government can hold all of these people for the rest of their lives without ever bringing them before a military tribunal. Then the have no ability ever to go before a federal court." And no matter how long they are held, they can't come to federal court with a writ of habeas corpus.

The Constitution says the right of habeas corpus shall not be suspended, "except in cases of rebellion or invasion." "I don't think there's a rebellion or an invasion," Chemerinsky said, "and I don't think it matters whether a person is a citizen or noncitizen. The government can't keep a person locked up forever without due process."

John Yoo, former deputy assistant attorney general for George W. Bush, now professor of law at UC Berkeley, defends the Military Commissions Act. On NPR recently he argued that granting terrorists the right to a regular trial in a regular court would hamper the war on terror and give aid and comfort to the enemy.

"He's assuming they ARE terrorists," Chemerinsky replied. "The whole point is that we don't know. My client has been in Guantanamo for more than five years, and I still have no idea why he's there. Maybe he's a dangerous person, or maybe he's there because the US paid a warlord who picked him out because they wanted to get the bounty. The only way we can know if somebody is a terrorist or a criminal is to have due process of law."

Yoo argues that we should trust the military when they say that only the most important and threatening of our enemies have been detained at Guantanamo.

Chemerinsky replied, "Here I say let's trust the Constitution. The Constitution expresses a great distrust of executive power. The Constitution is clear that nobody should be able to be held just on the say-so of the executive, without due process."

Court-watchers agree that the vote will be 5-4, with Justice Anthony M. Kennedy holding the swing vote. If Kennedy votes for the plaintiffs, what happens then? Do they actually get a real trial in a real court with real lawyers?

"Not for years to come," Chemerinsky replied. "Then what will happen is that we'll go back to federal district court, where they can present their habeas petitions. Then the issue is going to be what does due process and international law require for these detainees. And my guess is that's going to be fought over for a long time, then appealed to the DC Circuit, then it will go to the Supreme Court.

"The sad reality is that, even if my client wins today at the Supreme Court, what my client wins is the prospect of going to court for years to come. The problem is that if my client loses today, he loses his lawyer and he can be held forever without ever getting his day in court."

John McCain recently commented, "it's not about who they are, it's about who we are." Chemerinsky agreed: "That about sums it up," he said.

Comments (6)

1. I heard some of the arguments from the Supreme Court hearing today and Justice Scalia and Justice Breyer really hammered the attornies for the plaintifs. Justice Scalia noted that habeas corpus has never been granted to "aliens" not living in the US in 220 years. He asked for an example of such a case and the lawyer couldn't answer it. Will be interesting to see how this plays out.

   Posted by ACook at 12/06/2007 @ 12:28am

2. The real purpose of indefinite detention and secret trials of POWs is not to coerce them to talk, but to silence them - to prevent the public from learning what these Saudi and Yemeni POWs might say about the Saudi sponsorship of al Qaida and the Taliban.

   Like Dr. Pavlov, Rove and Cheney have elicited predictable responses from both Right ("whatever it takes to stop terrorism") and Left ("Yes, but . . ."). Neither side gets it: the traitors in the White House are sitting on intelligence about the Saudi 'Islamic charities' that have laundered contributions to the terrorists, Saudi 'religious schools' that have served as recruiting centers and arms depots, and the high-ranking Saudis, including members of the royal family, who have been contributing millions of petrodollars to the terrorists, and getting away with it courtesy of the traitorous Republicans.

   Posted by samcrossett at 12/06/2007 @ 08:16am

3. Posted by ACOOK 12/06/2007 @ 12:28am

   As noted to LVLIB...if they're POWs then they have some right to expect to be released when the war ends...

   but if as many neo-cons say the "GWOT" is "generational"...then they face INDEFINITE detainment.

   Additionally, with no civil adjudication, we are forced to accept ONLY the CIA/Military's word that all these people ARE "terrorists".

   Yet LL claims "the lefties" are trying to give them "more rights than the Geneva Convention"....while saying that they are going to be held for decades with NO right to hear what they're charged with, much less have even a chance at being released in their life-times.

   Posted by Mask at 12/06/2007 @ 10:30am

4. "You are an alien terrorist because I say you an alien terrorist. I will keep you in Gitmo because you are an alien terrorist. I will deny you legal representation because you are an alien terrorist. I will not allow you to appeal in a US court because you are an alien terrorist. I will submit you to a military tribunal without legal representation - or not submit to a military tribunal at all - because you are an alien terrorist. I will hold you till kingdom come because you are an alien terrorist. You are an alien terrorist because I say you are an alien terrorist..."

   Posted by oneworld at 12/06/2007 @ 1:36pm

5. Posted by ONEWORLD 12/06/2007 @ 1:36pm

   Again, you forgot to add the line "The War on Alien Terrorism will go on for years and years, so you must remain in custody (Like NO OTHER "POW" in history) for years and years"

   oh and "Anybody who complains about it... 'wants the alien terrorists to win'!".

   Posted by Mask at 12/06/2007 @ 2:25pm

6. Friday, December 7, 2007

   Washington, D.C. – U.S. Senator Sheldon Whitehouse (D-R.I.), a member of the Senate Select Committee on Intelligence, delivered the following remarks on the floor of the U.S. Senate today:

   "To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

   1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

   2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

   3. The Department of Justice is bound by the President's legal determinations.

   ...

   Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- "The United States Department of Justice." Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

   Then think about this statement:

   The Department of Justice is bound by the President's legal determinations.

   If you don't feel a difference from what you were feeling a moment ago, well, congratulations - there is probably a job for you in the Bush administration. Consider the sad irony that this theory was crafted in that very building, by the George W. Bush Office of Legal Counsel.

   In a nutshell, these three Bush administration legal propositions boil down to this:

   1. "I don't have to follow my own rules, and I don't have to tell you when I'm breaking them."

   2. "I get to determine what my own powers are."

   3. "The Department of Justice doesn't tell me what the law is, I tell the Department of Justice what the law is."

   When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution's principles and protections.

   We simply cannot put the authority to wiretap Americans, whenever they step outside America's boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God's green earth they may travel. [my emphasis]"

   http://whitehouse.senate.gov/record.cfm?id=288537&

   Posted by hsuBfools at 12/07/2007 @ 5:16pm