Four Strikes, You’re Out

Andrew Cohen: High Court Justifiably Checks Executive And Legislative Branch Power Over Terror Trials - Again

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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It was a ruling as predictable as it was avoidable. For the fourth time in four years the Supreme Court has forcefully said to the White House and the Congress “not good enough” when asked whether the other two branches had created rules sufficient to fully and fairly treat the terror suspects now held at Guantanamo Bay.

The 5-4 decision, with Justice Anthony M. Kennedy again providing the swing vote in a controversial case, all but assures that not a single major terrorist-detainee - including ringleaders Khalid Sheikh Mohammed and Ramzi Binalshibh - will be prosecuted, convicted and sentenced through military tribunal during the Bush Administration. There will be plenty of whining in the days to come from White House officials and Pentagon lawyers but it’s really quite simple: when you employ legal shortcuts, and when those trimmings undercut the rights of men, sooner or later the courts will send you back to the drawing board.

And back to the drawing board go approximately 200 pending cases brought by Gitmo detainees, cases that had been stayed pending resolution of Boumediene v. Bush, which now joins the Hamdi, Rasul, and Hamdan decisions as the Supreme Court’s restraining quartet of cases that have effectively checked executive and legislative branch power over terror trials. Back to the drawing board, too, go the high-profile military trials that were begun just last week down at Gitmo. I don’t see how they can proceed until the men have had their say in federal court.

The dissenting Justices Thursday were correct to express concern that an already chaotic situation - remember how terror suspects just last week turned their arraignments into political theatre? - has just become more so. But no one ever said that the Constitution guarantees neat and tidy results. And the blame for the chaos of the past seven years and the chaos yet to come does not rest, as Chief Justice John G. Roberts, Jr. suggested in his blistering dissent, with his five colleagues in the Court’s majority. It rests with the White House and the Congress.

Over and over again, those two branches have stubbornly tried to bully the judiciary into accepting tribunal procedures for the detainees that are patently insufficient both legally and diplomatically. Reasonable compromises which years ago would have given the detainees more rights (and given the government more trials) were rejected by cynical politicians in the name of expanded executive branch power and a go-it-alone swagger that, as we have seen in the military and historical context as well, never seems to work.

This is (by my count) the third or fourth time I have written this very column - each time after the Supreme Court has risen up and struck down another kangaroo-court scheme to get the detainees convicted as quickly and as quietly as possible. Already the Supreme Court is coming under fire from administration apologists for siding with terrorists even as we wage war on terrorism. But that’s plain nonsense. The Court is doing what it is supposed to do. And history will judge it and the five Justices in the majority accordingly; as bulwarks against bad ideas and unfairness drummed up by the John Yoos and David Addingtons of the world.

Justice David Souter, concurring with the majority, summed up well the Court’s perspective upon its latest reflex action. “It is enough to repeat,” he wrote, “that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.” This is the essence of the ruling.

President Bush Thursday said he would abide by the majority’s decision even though he did not agree with it. Sen. Lindsay Graham (R-S.C.), a proponent of the doomed-from-the-start Military Commissions Act of 2006, immediately denounced it and said he would begin to work in Congress to fix the problem. Memo to Graham: you’ve been hearing from legal opponents for years now about how to do it right. You know what you need to do. You and your mostly conservative colleagues on Capitol Hill simply haven’t been willing to do it. Maybe now it’s time to listen; maybe now it’s time to get it done.

Indeed, if we are to get anywhere with these detainees, if we are to finally process them through some sort of justice system, the White House must in its waning months end its catastrophically-misguided legal approach to the detainees. If there is good evidence against the men, classified or not, they will be convicted and their convictions will mean something. It’s time the Administration stopped being fearful of allowing that evidence to be tested in a meaningful way. It’s time to accept meaningful compromises offered by civil libertarians and, in some cases, by the government’s own attorneys.

Chief Justice Roberts, in dissent, said the two federal laws designed to strip the detainees of their habeas corpus rights were entitled to much more deference than the Court’s majority was willing to give. “The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate,” Roberts wrote. “The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date.”

This is both factually wrong and historically suspect. Both the MCA and the Detainee Treatment Act - the two laws that got crushed Thursday - were cobbled together in response to earlier Supreme Court decisions; both were shoved through Congress (the former during a lame-duck session following the GOP defeat in November 2006). And the "shapeless procedures" Roberts complained about will remain so only until the Congress and the White House get their act together again to do things right - the way those branches should have back in 2002.

In law, as in life, you reap what you sow. The White House sowed this ruling for years, long after the Court itself made clear, over and over again, that this is what the feds would reap. Now, who is to blame for that - and for this ruling? The same people who are to blame for the fact that they will be long gone from Washington before their "swift justice" comes to the terrorists they’ve locked up now for the better part of a decade.

[quatermass2]

"Indeed, if we are to get anywhere with these detainees, if we are to finally process them through some sort of justice system, the White House must in its waning months end its catastrophically-misguided legal approach to the detainees."

First, quit calling them "detainees" - they''re prisoners, plain and simple. Next - go to the Geneva Conventions. Article 5 of the convention regarding prisoners:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Well, what do you know? After 6 years, are we finally getting around to having some of these tribunals? I''m quite willing to bet that 50% of the prisoners we''re holding in GTMO were turned in by someone simply for reward money. And I''m also willing to bet that at least 50% of them have been subjected to "Outrages upon personal dignity, in particular, humiliating and degrading treatment". If we don''t return to basic American principles and the moral high ground, we have only ourselves to blame when some of our soldiers are captured and mistreated.

[cosmotopper]

Speaking as a Republican, it enrages me that opposition to the Bush administration''s incompetence and contempt for our Constitution earns me labels ranging from "liberal", to "unpatriotic" and I would imagine "traitor", although I have not heard that one yet. No one has done more to legitimize terrorists than George W. Bush himself. Most recently, just the attempt to open the proceedings on their kangaroo court, made a spectacle once again of our official hypocrisy on anything resembling principles of justice or rule of law.

You are so right to lay the blame with Congress as well. Senator Lindsay Graham was also the one who recently opposed the new GI Bill (along with Senator McCain) because (incredible as this is) "it made it too easy for our soldiers to get out and go to college" (sic).

Ultimately, however, the blame lies with the electorate, with us, because we have tolerated this administration, even after it''s moral vacancy was clear for all to see. I can only thank our founders, and the five Justices who held on their behalf today.

[incog-nito]

Quatermass2: I seriously doubt that holding the moral high ground will make any difference when some of our soldiers are captured. Having said that I believe we should nonetheless stay true to our moral principles, simply because that is what America is supposed to be about. After all, we are supposed to be better than the people who mistreat, torture, behead, etc.

[incog-nito]

Quatermass2: I seriously doubt that holding the moral high ground will make any difference when some of our soldiers are captured. Having said that I believe we should nonetheless stay true to our moral principles, simply because that is what America is supposed to be about. After all, we are supposed to be better than the people who mistreat, torture, behead, etc.

[cosmotopper]

If I may add one more thing: the problems posed by today''s ruling have much more to do with requiring President Bush to explain years of incarceration of those who are guilty of nothing, than the eventual punishment of those against whom we have legitimate cause. Considering what is known already in the cases of former detainees Murat Kurnaz and Khaled al-Masri, I would caution President Bush about being overly eager to convene a war-crimes tribunal. He might yet find a defendant''s chair waiting for him & his vice-president at such a proceeding.

[KYJurisDoctor]

While I AGREE with today''s majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises ''absolute and indefinite'' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."

[incog-nito]

KYJurisDocto: This is where you''re wrong. There is NO war on terror. For one thing, no declaration of war was made. And more importantly, a war on "terror" is the stupidest concept ever conjured up by anyone, let alone by the leader of the free world. Just how do you propose that "terror" will declare a cease-fire, armistice, or surrender? How do you define victory? When there are no more terrorists ever?

The war on terror is nothing more than a lame excuse for never-ending conflict, unchecked military spending, suspension of people''s rights and constitutional laws.

[ericmichael1]

I have always held that the military, whose whole mission is to prosecute warfare, is ill-prepared for judicial and correctional missions.

The Federal Bureau of Prisons should oversee the detention of these individuals.

GITMO will eventually be emptied, one way or another. We may as well start to rethink the future of these prisoners now. The Department of Defense has overstepped its mission and abilities on this one.

The existence of this special military system only alienates U. S. law enforcement from our law enforcement partners in Europe and elsewhere and gives propaganda fodder to Islamic radicals abroad.

Eric

[Razzl]

At this point we should also become alarmed at the conduct of the conservatives on the court--Scalia has simply given up any pretense of being a jurist and is now sounding more like a right-wing hate radio disc jockey, and Roberts, who the right painted as a scholar and a jurist, is also apparently nothing but a disgruntled ideologue. We can see now why electing anyone other than McCain to the White House this November is so critical to all of us--the dying GOP has polluted the deep well of the Supreme Court and the court can''t absorb any more of these idologue twits without seriously damaging our legal system well into the coming century...

[clestes-2009]

If you are religious pray everyday that John Paul Stevens remains in good health for another 6 months. If you aren''t, then cross your fingers.

It could be that we get out of the shrub admin with a minimum of long lasting damage. The federal courts are packed with lots of shrub appointees, but not the supreme court.

All shrub''s important agendas including FISA, tax cuts, Patriot Act are time limited. By 2012 they will all be gone.

The massive debt, lack of action on climate change, destroying our reputation and destroying our military are enough to burden the next 2 generations with.

Considering the damage that might have been done, these aren''t so bad. At least fixable.

[impeach_w]

This article hits the bulls eye!

[ctboyhood]

Journal article on the subject at:

http://www.nicic.org/Library/022793

[gpfrasco]

Hello. Unfortunately, the article by Mr. Cohen does not, in the slightest, explain why the ruling by the Supreme Court is (i) in agreement with or ii) in disagreement with the Constitution. Perhaps Mr. Cohen explained this in an previous article, but this lack of explanation is extraordinarily disappointing. Courts are not supposed to substitute their own judgment for the intent and principles of the Constitution. If the Court''s ruling is in agreement with the Constitution, then it''s fine. If it is disagreement with the Constitution, then it is shameful. If the intent of the Constitution is not clear, then the decision belongs to the other branches of government, i.e., the President and the Congress.

[dmgenet]

Bush thinks he is fighting WWII all over again. Primarily the image is only used to brand his war as fighting the "good war" and that we should back him. As usual this admin was ill prepared to fight any war. The first problem was to get all of the electorate behind him. He did not. Bush never fully convinced us that this was a necessary war in Iraq. On terrorism, yes. In Iraq, no. So the war powers Bush thinks he could get have been truncated. As usual Bush and his cabal were hoisted on their own petard.

[mcvet]

If the intent of the Constitution is not clear, then the decision belongs to the other branches of government, i.e., the President and the Congress.


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Posted by gpFrasco at 05:12 PM : Jun 13, 2008
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The Constitution CLEARLY give''s defendents a right to be confronted by their accuser and to be allowed a proper defense. I don''t see how anyone can claim this ruling is NOT about that Constitution. What Bush and the Nazi''s are trying to say is that they do NOT have to follow that Constitution BECAUSE the accused are not American Citizen''s. That, in itself, turns the Constitution on it''s head. THE fonding principle for that Document was to LIMIT the powers of Government PERIOD!! Whom the Government wishes to use the power given it by the people isn''t or shouldn''t be the point here. When these people were caught Bush had two options. 1) Call them Prisoners of War, which they are and handle them as such or 2) Call them Criminals and leave them for the Justice System. He decided to create a NEW, intirely different class, calling them Enemy Combatants. Thus being about to deny them ANY justice under our system and under the Geneva Convention. In other words leaving them with NOTHING but a show trial and exicution. Now this MAY make some on the Fascist side happy but it is HARDLY American. Sieg Heil Bush

[mcvet]

Wait till Nobama gets hold of these people. There''''ll be a dinner at the White House you couldn''''t imagine. Liberal is as liberal does.


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Posted by maxify55 at 03:23 PM : Jun 13, 2008
+ report abuse

You know this how?? OH! Let me guess!! You are playing with YOUR Magic Swastika again!! Was this the SAME one you used when telling us all that Bush was telling us the TRUTH 5 years ago?? The same one you used to tell us the Taliban and Al Queda were done?? If I were you, I''d stop using that thing... And for GODS sake stop practicing FASCISM... this "Liberals" did it garbage is SO TIRED and OLD. IT''s obvious you lack the mental ability to understand the meaning of the word, let alone know who is or isn''t one. Now stand... let the fuhrer know you''re licking those boots today!! SIEG HEIL BUSH!! Good little Klan Man!!

[mcvet]

This court ruling is crazy! This country will not have to be taken by a another country, we are crumbling within! The liberals are giving the country away. Never has any administration had to endure such a barrage of fire from the supreme court as this one. People act like this is the first time a administration has every done these acts! Friends every administration has done these acts during war time! It''''''''s the only way you can win! Even Abraham Lincoln did this during the Civil War and all involved were American citizens! This ruling is self destruction! Elect a few more liberals and we want have a country!!!


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Posted by commonsence1 at 08:45 AM : Jun 13, 2008
+ report abuse

Please give me examples of ANY American President doing this... even in times of War?? YOU are just a Nazi Puppet mouthing what you''ve been told to mouth. READ the Article you MORON and stop being a Kool Aid Drinker... it''s disgusting. SIEG HEIL BUSH

[dredre2k]

Military tribunals and the suspension of Habeas Corpus for ANYONE should not be tolerated. Terrorists should be tried in our justice system not in show trials. Great article! Good to see the system of checks and balances still works to preserve the integrity of our justice system.

[gpfrasco]

MCVet has posted the following:

"The Constitution CLEARLY give''''s defendents a right to be confronted by their accuser and to be allowed a proper defense. I don''''t see how anyone can claim this ruling is NOT about that Constitution. What Bush and the Nazi''''s are trying to say is that they do NOT have to follow that Constitution BECAUSE the accused are not American Citizen''''s. That, in itself, turns the Constitution on it''''s head."

If MCVet''s assertion is true, then I of course would agree with his end position, i.e. support of the recent Supreme Court decision. I am not a Constitutional expert. However, I am not at all convinced that the Constitution confers habaeus corpus rights upon non-citizens, especially when they are apprehended in a war situation and in a foreign country. The U.S. kept hundreds of thousands of prisoners during WWII, and many were kept on U.S. soil, and they never had such rights.

If anyone can point out a passage in the Contitution which clearly gives habaeus corpus rights to non-citizens (espeically when apprehended in a war situation and not on U.S. soil), I think that would genuinely help the discussion for everyone. I am keeping an open mind. Thank you.