The New York Times has reported that the Supreme Court has handed its third consecutive rebuff to the Bush administration’s handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention. The finding, Boumediene v. Bush, (pdf) reversed and remanded a refusal of the DC Circuit Court to issue a writ of habeas corpus to Gitmo internees.
This decision has received rave reviews. Jacob Hornberger (my top Constitution mentor, bar none!) called it "a stunning rebuke of President Bush, the Pentagon, and Congress." Jonathan Taplin said "I think it is hard to overstate how important the Supreme Court decision was." The Houston Chronicle editorialized that we shall have "No King George – U.S. Supreme Court preserves freedom by backing the Constitution’s ban on arbitrary imprisonment." The Salt Lake Tribune: "Supreme Court rightly affirms the Constitution" Jonathan Hafetz, writing in The Nation: "Supreme Court Deals Death Blow to Gitmo – Today’s ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic blow to the President’s lawless detention policies and overturned an effort by the previous Congress to eliminate the centuries-old right of habeas corpus." And so on.
But the adulation wasn’t unanimous. After all, four of the nine Court justices disagreed with it. Justice Antonin Scalia spoke for the minority: “Today, for the first time in our nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
I know this may not surprise a lot of people, but Justice[sic] Scalia was approximately ninety-nine per cent wrong. This ruling applies to the 275 prisoners at Gitmo but not to the tens of thousands of other people that the US military has detained abroad, primarily in Iraq.
What did the Supreme Court say about applicability?
"The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”
So apparently Boumediene applies directly only to Gitmo prisoners, because of the "territory" consideration. The US has a long-term lease at Guantanamo Bay, Cuba. But apparently it doesn’t apply wherever in the world that the US military has detention facilities.
The US has 700 bases in 120 countries around the world, and enjoys nefarious relationships with dozens of others (such as Syria, Saudi Arabia and Egypt). Many of these countries are not known as champions for human rights. Are any US detainees on any of these bases now empowered to petition a US court for a writ of habeas corpus, and appeal to the Supreme Court when they don’t get it? Apparently not.
US-run prisons in Iraq and Afghanistan hold tens of thousands of prisoners, and the US puppet governments in both places hold thousands more (a bit fewer in Afghanistan – 870 inmates escaped in a recent prison break).
In Iraq, some claim that the American captors have eliminated the physical torture that was once part of the regimen at Iraqi prison camps, part of a new plan to avoid creating new enemies through mistreatment. But, as the military supposedly institutes a plan to turn many of its over twenty thousand prisoners over to the Iraqi government, some fear the abuse will resume. Most of these prisoners, if not all, were the subjects of arbitrary arrest in neighborhood sweeps in the middle of the night and have done nothing wrong, except to be living in Iraq as a young male.
According to Ciara Gilmartin, writing for CounterPunch, "Detainees are held by the U.S. command in two main locations – Camp Bucca, a 100-acre prison camp and Camp Cropper, inside a massive U.S. base near the Baghdad airport. The number of Iraqis held in these facilities has steadily risen since the early days of the occupation. In 2007, the inmate count rose 70% – from 14,500 to 24,700. Camp Bucca, with about 20,000 inmates, is perhaps the world’s largest extrajudicial internment camp. The facility is organized into "compounds" of 800 detainees each, surrounded by fences and watch towers. Most detainees live in large communal tents, subject to collapse in the area’s frequent sandstorms. Water has at times been in short supply, while temperatures in the desert conditions can be scorching hot in the day and bone-chilling at night. In October 2007, the U.S. Army Corps of Engineers awarded a contract to expand Camp Bucca’s capacity from 20,000 to 30,000. While easing notorious crowding, the contract suggests Washington is preparing for even more detentions in the future.
"Camp Cropper consists of more traditional cellblock buildings. Among its roughly 4,000 inmates are hundreds of juveniles. Cropper is a site of ongoing interrogation and it holds many long-term detainees who complain that they never see the light of day. Though recently expanded, the facility suffers from overcrowding, poor medical attention and miserable conditions. U.S. forces are holding nearly all of these persons indefinitely, without an arrest warrant, without charge, and with no opportunity for those held to defend themselves in a trial. While the United States has put in place a formal review procedure that supposedly evaluates all detainees for release on a regular basis, detainees cannot attend these reviews, cannot confront evidence against them, and cannot be represented properly by an attorney. Families are only irregularly notified of the detentions, and visits are rarely possible."
It gets worse. According to Human Rights Watch, US military authorities were as of May 12, 2008 holding 513 Iraqi children as “imperative threats to security,” without due process, and have transferred an unknown number of other children to Iraqi custody.
In Afghanistan, the New York Times reports, "The American detention center, established at the Bagram military base as a temporary screening site after the invasion of Afghanistan in 2001, is now teeming with some 630 prisoners – more than twice the 275 being held at Guantánamo. The administration has spent nearly three years and more than $30 million on a plan to transfer Afghan prisoners held by the United States to a refurbished high-security detention center run by the Afghan military outside Kabul. But almost a year after the Afghan detention center opened, American officials say it can accommodate only about half the prisoners they once planned to put there. As a result, the makeshift American site at Bagram will probably continue to operate with hundreds of detainees for the foreseeable future, the officials said. Meanwhile, the treatment of some prisoners on the Bagram base has prompted a strong complaint to the Pentagon from the International Committee of the Red Cross, the only outside group allowed in the detention center." Afghanistan, if we believe the politicians, will soon replace Iraq as the principal US military target and so we can expect US military detainees to increase there.
The Pentagon operates military prisons in many places besides Cuba, Iraq and Afghanistan, including: Mannheim, Germany; Yokosuka and Sasebo, Japan; Rota, Spain; Roosevelt Roads, Puerto Rico; Keflavik, Iceland; Naples, Italy and Guam. There are brigs on over twenty US Navy warships. Do these prisons house detainees who are denied due process? Who knows.
Is it feasible to provide due process to US military detainees in places other than Cuba, in those places where the "territory" consideration doesn’t apply? The Israelis apparently have found a way. Israel provides judicial review for all its detainees, according to an ‘amicus curiae’ (friend of the court brief) (pdf) sent in by seven Israeli law professors on the Boumediene case. "Judicial review of executive and military detention, the indispensable core of habeas corpus, need not be sacrificed to protect public safety and national security, even in the face of an unremitting terrorist threat. Israel has demonstrated that security detainees and prisoners of war, including alleged unlawful combatants, can and should be afforded the opportunity for prompt, independent judicial review of the factual basis for their confinement."
So while we might celebrate the arrival of due process for the hundreds of civilians who allegedly abetted al Qaeda, we should also find a way to extend the same rights to the tens of thousands who have allegedly hindered the US occupation of their countries. How? The Congress has the Constitutional power, under Article I Section 8, "To make Rules for the Government and Regulation of the land and naval Forces" that would bring the treatment of all detainees, not just a small percentage of them, into accordance with not only the Constitution but also the Geneva Convention and the Nrnberg Principles.
When a Member of Congress stands up for the Constitution and says: "Mr. Speaker, I hereby introduce a bill to extend to our liberated but detained subjects overseas the same rights recently granted to alleged al Qaeda confederates being held at Guantanamo Bay," and that bill becomes law, only then will the Constitution be fully affirmed, and only then will I reach for the bubbly while recalling the stirring words of the Leader Of The Free World: "Our commitment to democracy is tested in countries like Cuba and Burma and North Korea and Zimbabwe – outposts of oppression in our world. The people in these nations live in captivity, and fear and silence. Yet, these regimes cannot hold back freedom forever – and, one day, from prison camps and prison cells, and from exile, the leaders of new democracies will arrive." ~ GW Bush, Nov 6, 2003
June 17, 2008
