Published December 6, 2007
The Bush administration once decided that it could label anyone an enemy in its war against terrorism and indefinitely warehouse those people at Guantanamo Bay in Cuba without legal recourse. In 2004, the U.S. Supreme Court didn't buy it. In response, the Pentagon, without Congressional approval, set up military kangaroo courts that were supposed to make it all better. The Supreme Court disagreed again in 2006, and this time the Republican Congress responded by creating its own sham tribunals. With the Court now hearing its third case about detainees, it must send the Bush administration and Congress a clear message about denying prisoners habeas corpus: Three strikes and you're out.
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With oral arguments beginning yesterday, the current case before the Supreme Court, Boumediene v. Bush, will likely be the court's definitive answer to the question of whether Guantanamo detainees have a writ of habeas corpus - the right to challenge their detention in American civilian courts. Although the court ruled in its 2004 decision, Rasul v. Bush, that federal courts could hear cases from detainees, the Bush administration, with Congress looking on, circumvented that ruling by substituting its own legal system for our time-tested civilian courts.
Of course, there is no substitute for habeas corpus. The Pentagon set up "combatant status review tribunals" and the Supreme Court ruled those unconstitutional in its 2006 decision, Hamdan v. Rumsfeld. Similarly, the military tribunals detainees go through now - which the then-Republican Congress set up in the Military Commissions Act of 2006 after Hamdan - are a far cry from anything resembling justice. Yet the now-Democratic Congress has so far proven incapable of living up to its promises of putting a stop to such shams.
These kangaroo courts have few of the principles that we define our courts by and that the Geneva Conventions necessitate. In practice, most detainees are considered guilty until they are proven innocent. When trying to prove their innocence, detainees aren't allowed to have defense attorneys at their hearings and any evidence or witnesses they want to present must be "reasonably available" to the government, whatever that means.
This imposter for a justice system results in decisions handed down according to the Bush administration's whims - which is exactly what happened to the plaintiffs in the current case. As their brief explains, in October 2001 the Bosnian police arrested them for allegedly plotting to bomb an American embassy, but the supreme court of Bosnia dismissed the charges for lack of evidence. Then, the Bosnian police rearrested them and the U.S. military sent them to Guantanamo. At the hearing, witnesses like one detainee's boss at the Red Crescent (as the Red Cross is called in the Islamic world) and the decision of the Bosnian Supreme Court weren't considered because they weren't "reasonably available."
Whether you call them detainees, enemy combatants, prisoners or anything else, denying people a chance to challenge their imprisonment is wrong. For America to continue to do this is an international embarrassment. The U.N. High Commissioner for Human Rights, 383 United Kingdom and European parliamentarians, The American Bar Association, a group of retired military officers and countless other groups who have filed amicus briefs agree.
While Congress shirked its responsibility last year to bring America closer to the forefront of human rights and continues to play into the Bush administration's politics of fear, the Supreme Court has a chance to right the wrong. But for its decision to carry weight, it must be a true, bipartisan consensus that the country can accept - not another of the polarized 5-4 decisions for which this court has become known. If Chief Justice John Roberts wants to live up to the commitment to unity and nonpartisanship that he spoke of in his Senate confirmation hearings, this is his opportunity.