The Bush Administration Continues Its War on the Rule of Law

I have previously noted that, despite the view taken by most of those concerned with individual rights and civil liberties, the three Supreme Court decisions about the Bush administration's treatment of prisoners in the"War on Terror" were, in fact, almost a complete victory for the executive branch. In that earlier post, I also quoted one article which pointed out that the Supreme Court left the door wide open for the administration to continue to avoid the most basic requirements of our legal system.

So all of this was entirely predictable:

In its Rasul decision, the Supreme Court recognized the Gitmo detainees' right to file a writ of habeas corpus in federal court. But the high court never said this had to be a meaningful right to habeas corpus, nor did it define the practical parameters of such a right. Issues like the right to counsel and the proper location for habeas corpus suits were left to the imagination. Not surprisingly, the administration has seized on this ambiguity to resume its post-9/11 legal offensive in the courts. The essence of the legal strategy is to litigate every single procedural and technical issue to the full extent of the law, using the vast resources of the Justice Department to delay judicial action as long as possible. The implicit purpose is clear: to delay justice so that detainees can be held and squeezed for intelligence.

The Justice Department's lawyers make no attempt to hide this legal strategy. In footnote 14 of their filing before the federal district court in Washington, D.C., in Al-Odah v. United States, the administration's lawyers explicitly reserve the right to litigate niggling procedural issues, such as whether this is the proper defendant in a habeas corpus action, and the proper location for such suits. There is some irony here, because those are the two grounds the Supreme Court used to kick back the lawsuit by Jose Padilla, a U.S. citizen held as an enemy combatant in South Carolina. Even though the Justice Department lost in the other two terrorism cases before the Supreme Court, it now hopes to use the same procedural tactics it used to defeat Padilla's claim to avoid petitions for habeas corpus from detainees at Guantanamo. The strategy appears the same: deny every right, and fight every claim, for as long as possible, so that interrogations and intelligence collection at Gitmo can continue unimpeded by legal process.

I recommend you read the entire article, written by a former U.S. Army officer. And the writer notes the broader significance of the administration's tactics:

The issue here is not so much the detainees' rights per se (although the detainees might say otherwise) as the need to restore the U.S. commitment to the rule of law in the eyes of the world. To date, the United States has not been able to enlist many of its allies to help shoulder the burden of Iraq, and Sen. John Kerry is unlikely to do much better given the current state of animus toward the U.S. in the world. Treating the wartime detainees fairly by giving them a fair hearing before a neutral magistrate (as ordered by the Supreme Court) would go a long way toward rebuilding bridges with our allies abroad. American moral leadership on these issues will also help win hearts and minds in Iraq, where the parallels between the Abu Ghraib abuses by U.S. soldiers and Saddam Hussein's henchmen are all too easy to draw. But none of that will happen if the United States continues to drag its feet, kicking and screaming at every step of the way. Indeed, if the fight to implement Rasul takes as long as the fight for equality after Brown, then many of the detainees at Gitmo could die in captivity before they see their rights vindicated.

And I must note again the truly awful irony of the fact that while Bush, et al. tell us we are fighting to establish"freedom" abroad, they seek to undercut already existing and Constitutionally-guaranteed freedoms here at home.

It is hardly a winning strategy, for the simple yet profoundly important reason that it undercuts our moral authority on the deepest level. And even if our own leaders fail or refuse to recognize that fact, many others around the world are not so blind. It also hands our genuine enemies an invaluable weapon with which to attack us -- a weapon which the administration could remove at once, if it only chose to do so. The fact that it does not, and apparently will not, is a deep stain on our country, a profound wrong to the detainees (and impliedly to all of us), and a shame that will not begin to be erased until the administration reverses course.

(Cross-posted at The Light of Reason.)