Two of the more sober assessments of today's court ruling on the constitutional rights of 50 enemy combatants being held by the U.S. military at Guantanamo Bay in Cuba come from The New Zealand Herald, and Fox News.
According to today's federal court ruling, the 50 suspects - part of a larger group of 540-plus Gitmo detainees drawn from the ranks of The Taliban and Al Qaeda - can challenge in court their indefinite confinement as enemy combatants. This, as opposed to facing military trials, procedures for which are being reformulated in response to a separate court ruling. The judge today said the suspects must be allowed their Fifth Amendment right "not to be be deprived of liberty without due process of law..."
More from the Fox story:
Judge Joyce Hens Green, handling claims filed by about 50 detainees at the U.S. Navy base at Guantanamo Bay (search), said the Supreme Court made clear last year that they have constitutional rights that lower courts should enforce.
Actually, Green may be overeaching. The Supremes said last year the Administration does not have a "blank check" (4th graf, here) to indefinitely detain enemy combatants. Exactly what more the Court might intend in that respect has not yet been made clear.
Green also ruled that hearings set up by the government to determine if the prisoners are "enemy combatants" are unconstitutional. Those hearings, called Combatant Status Review Tribunals had been criticized by civil rights groups because detainees are not represented by lawyers and are not told of some of the evidence against them — including some information that the judge said may have been obtained by torture or coercion.
....The decision conflicts with a ruling two weeks ago by another federal judge in the same court who considered a similar lawsuit brought by a different group of detainees. U.S. District Judge Richard Leon found last year's Supreme Court ruling did not provide Guantanamo detainees the legal basis to try to win their freedom in American courts.
At the White House, presidential spokesman Scott McClellan took issue with the ruling, noting that it was directly at odds with the earlier one and saying the Justice Department "will review this matter."
An article in Tomorrow's Palm Beach Post says, "appeals of both decisions are virtually certain, and the subject could again land before the U.S. Supreme Court."
DOJ and the Bush Administration have been very concerned that public exposure in a court of law of evidence against terrorist suspects will compromise national security. And they likely believe the principles underpinning Leon's decision should have applied in Green's ruling today. Sounds like the White House may be spoiling for an appeal of today's decision. Fine, and if they ultimately regain some lost legal ground, I won't be bent out of shape, as will be civil libertarians. The Gitmo detainees are by and large, and perhaps almost entirely without exception, terrorists who wish to see our country - and paradoxically, the many freedoms and rights it grants - destroyed.
All the more reason they should be able make a legal bid for civilian court review of their cases. Like DOJ and W., they will have to live with the final outcome when all appeals are exhausted. Our system is working as it should.
Posted by Matt Rosenberg at January 31, 2005 04:58 PM
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You are quite right to suggest that Judge Green's opinion may be "overreaching." In Hamdi v. Rumsfeld, the Supreme Court ruling that creates a Fifth Amendment right for American citizens detained as enemy combatants to "be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," Justice O'Connor, writing for the Court, specifically states that "There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal." (Slip opinion, June 28, 2004, at pp. 1 and 31.)
But it is not necessary to parse the latest rulings from on high to see the weakness of Judge Green's opinion. A simple thought experiment will suffice. What would we make of the contention that our treatment of prisoners of war during World War II was constitutionally imperfect because the Executive was obligated to give each and every one of them a trial, or release them forthwith? Would we not consider it an outrageous interference with the War Power of the President to comply with an impossible administrative burden or to disgorge the prisoners into an on-going conflict?
How, exactly, do international terrorists differ from this? Are un-uniformed, stateless combatants who fight largely, if not exclusively, by violating the laws of war to have more procedural rights than combatants who obey the laws of war? Would such a ruling not encourage our enemies to adopt precisely the forms of warfare we seek to deter?
Judge Green's decision could only make sense on the assumption that there is no such thing as a War on Terror, that Jihadists represent nothing more than a criminal conspiracy readily dealt with by the ordinary criminal process. That judgment may be right or wrong--I happend to believe profoundly wrong--but it is manifestly an empirical and political judgment, not a legal conclusion. It is the kind of judgment that only the political departments are qualified to make, and, if Judge Green insists upon usurping it by judicial fiat, and a higher court cannot be persuaded to overrule her, we shall simply have to reverse it by political fiat.
The Constitution is not a suicide pact, as Justice Robert Jackson once remarked, notwithstanding the efforts of many in the legal profession to prove him wrong.
Posted by: Tom Rekdal at January 31, 2005 08:09 PM