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Four Strikes, You're Out

Attorney Andrew Cohen analyzes legal issues for CBS News and
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.

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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.

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