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The enemy within
In a trio of cases, the Supreme Court shines some light into the Bush administrationís gulag. But for Ďenemy combatantsí both here and in Guantánamo, itís not yet time to celebrate.
BY HARVEY A. SILVERGLATE

WHEN THE SUPREME Court decided three pivotal "enemy combatant" cases on June 28, media hosannas to the contrary, it was not exactly a stellar day for liberty in an age of terror. Thatís not to say there isnít some cause for cheer. Faced with the administrationís argument that the judiciary should not interfere with the militaryís handling of foreign citizens captured on foreign battlefields, the court asserted its authority as a co-equal branch of government. And in contradicting the claims of the imperious troika ó President George W. Bush, Attorney General John Ashcroft, and Secretary of Defense Donald Rumsfeld ó that the ongoing war on terror justifies giving them a blank check to handle prisoners as they see fit, the court seemingly dealt the administrationís hubris a punishing blow.

But when the details are examined, this was neither the courtís nor libertyís finest hour. Most of the news media have latched on to the majorityís soaring rhetoric: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile." But the reality is far more sobering: "Enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict."

The stakes for civil liberties in these cases were high. The first, Rasul v. Bush, involved foreign citizens who allegedly fought on behalf of Americaís enemies or otherwise supported terrorist groups like Al Qaeda or the Taliban, and were rounded up by the military on various battlefields in Afghanistan and the Middle East. These prisoners were taken to a makeshift detention facility at the American Naval base at Guantánamo Bay, Cuba, which is occupied by American military forces under a perpetual lease. Prisoners at Guantánamo brought a petition in the federal courts challenging the militaryís authority to detain them incommunicado for an indefinite period of time (possibly for life), with no formal charges, access to legal counsel, or trial. Rasul concerned the most ancient and revered right in the Anglo-Saxon legal tradition, the "writ of habeas corpus," which compels a jailer to either justify the prisonerís detention under a valid law or set him free.

The other two cases, Hamdi v. Rumsfeld and Rumsfeld v. Padilla, involved American citizens apprehended and transported to military facilities located in the US, after the president declared them "enemy combatants" subject to indefinite detention at the whim of the executive. One (Yaser Hamdi) was purportedly seized by the Northern Alliance on the battlefields of Afghanistan and turned over to the American military; the other (Jose Padilla) was arrested at OíHare Airport, in Chicago. Like the Guantánamo plaintiffs, each sought habeas corpus relief.

Readers of this column know that we found the administrationís April 28 oral arguments in Padilla "breathtaking," notably its position that the court was practically obligated to grant the president virtually unregulated power to detain American citizens without anything resembling "due process" (see "Scientific Uncertainty," News and Features, May 7). And when the Abu Ghraib prisoner-torture pictures were leaked on that very day ó mere hours after the governmentís lawyer denied that acts of torture were being committed ó we predicted that an otherwise "closely divided" court would likely "shift ... in libertyís favor" (see "Hiding the Gulag," News and Features, May 28).

And shift it did. Six of the nine justices rebuked the administration by voting to assert judicial authority to review the legality of the imprisonment of any foreign-born captive at Guantánamo who challenged the governmentís accusations. Even more lopsided was the courtís eight-to-one rebuke of the administrationís assertion that it could designate American citizens enemy combatants and hold them indefinitely in this country. It appeared to be a huge victory for civil liberties. But while it is true that the administrationís authority was in theory rebuffed, the nature and extent of the oversight decreed by the Supreme Court could turn into a Pyrrhic victory. Hereís why.

IN THE Guantanámo case, Justice John Paul Stevens, writing the majority opinion for himself and four other justices, concluded that the Cuban-American lease gave the United States such control over the Naval base that prisoners held there could appeal to the authority of the federal courts. (A sixth justice concurred in the result, giving the prisoners six votes out of nine.) In an opinion that could hardly be praised for its clarity, the majority said that, as long as the federal courts had geographic jurisdiction over the relevant officials in the case ó President Bush and the secretary of defense, among others ó it did not matter that the prisoners were outside US territorial boundaries. The court left vague its view on the tantalizing question of what happens to prisoners held by the military in territory ó say, Qatar or Afghanistan ó over which the United States does not exercise the formal control it has in Guantánamo by virtue of the unusual leasing agreement with Cuba. What if the administration moves prisoners from Guantánamo to a location over which the United States does not have total control? This jurisdictional ambiguity could pose a huge problem for such prisoners.

Yet having determined that the federal courts have some theoretical role in responding to the habeas petitions of foreign enemy-combatant prisoners held at Guantánamo, the court said little about how the lower courts should go about wielding that power in practice. "What is presently at stake," concluded the court, "is only whether the federal courts have jurisdiction to determine the legality of the Executiveís potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." Given the narrow question of jurisdiction that the court had agreed to review, this limited response was no surprise. However, it means that we still do not know whether the courts will play a real role in monitoring governmental overreaching, or whether they will simply rubber stamp, after cursory review, the Guantánamo prisonersí perpetual detention.

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Issue Date: July 9 - 15, 2004
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