In, what may be the most important Supreme Court case on presidential power EVER (think Marbury vs. Madison, the Nixon case where he was forced to turn over the tapes, Truman and the steel mills,etc. This is big stuff!), the majority ruled that the president has no right to put Guantanamo detainees on trial before military commissions. That’s right. No more locking up everyone who shows up in Afghanistan with a beard and throwing away the key. No stringing them up by their thumbs until they talk or, alternatively manage to hang themselves.
Military commissions have been used during wartime when time and resources were scarce. This wartime need, however, stated the court majority, does not justify failure to guarantee defendants basic rights such as the right to attend their trials nor does it give the prosecution the ability to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion – all characteristics of the Bush-driven military commissions. I’m no legal scholar, but isn’t that why the Geneva Conventions were written in the first place?
The New York Times’ Linda Greenhouse reported:
“The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantánamo detainees almost speechless with surprise and delight, using words like ‘fantastic,’ ‘amazing’ and ‘remarkable.’ Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, ‘It doesn't get any better.’”
I’ll go ahead and throw Linda Greenhouse in the American hero pile for the following paragraph:
“In the courtroom on Thursday, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer in World War II.”
Ha! Take that Justice Roberts. The whole thing is very satisfying. Perhaps we live in a Republic after all. Perhaps a branch of our government actually is living up to their oath to uphold the constitution!
Last week I caught a bit of David Brooks on the Newshour with Jim Lehrer. I hate that guy. He is so smug. But he shows up in liberal circles because he’s so mild mannered and uninteresting. He was basically saying that the Bush administration knew they were acting maybe not so much in accordance with the Constitution. But that they were just biding their time until someone held them accountable. You know, no big deal. No harm, no foul, right?
And who would that be – the ones holding this administration accountable? Who has had the courage to hold this administration accountable for anything? Certainly not Congress, not the media, not Bush’s own conscience.
Which leads me to my next group of heroes. This was a surprising one for me, not knowing much about the military or military justice besides multiple viewings of “A Few Good Men.” But if you care to read last week’s New Yorker profile of the dark Sith Lord Addington who serves the evil emperor we know as Dick Cheney, the true heroes in this case turn out to be the military lawyers or JAGS (Judge Advocates General).
“Rear Admiral Donald Guter, who was the Navy’s chief JAG until June, 2002, said that he and the other JAGs, who were experts in the laws of war, tried unsuccessfully to amend parts of the military-commission plan when they learned of it, days before the order was formally signed by the President. ‘But we were marginalized,’ he said. ‘We were warning them that we had this long tradition of military justice, and we didn’t want to tarnish it. The treatment of detainees was a huge issue. They didn’t want to hear it.’
Marine Major Dan Mori, the uniformed lawyer who has been assigned to defend David Hicks, one of the ten terror suspects in Guantánamo who have been charged, said of the commissions, ‘It was a political stunt. The Administration clearly didn’t know anything about military law or the laws of war….The fundamental problem is that the rules were constructed by people with a vested interest in conviction.’…He (Mori) added, ‘I hope that nobody confuses military justice with these ‘military commissions.’ This is a political process, set up by the civilian leadership. It’s inept, incompetent, and improper.’
Under attack from defense lawyers like Mori, the military commissions have been tied up in the courts almost since the order was issued. …President Bush has blamed the legal challenges for the delays in prosecuting Guantánamo detainees. But many lawyers, even some inside the Administration, believe that the challenges were inevitable, considering the dubious constitutionality of the commissions.
Guter, the Navy JAG, said that, before long, he and other military experts began to wonder whether the reason they weren’t getting much useful intelligence from Guantánamo was that, as he puts it, ‘it wasn’t there.’ Guter, who was in the Pentagon on September 11th, said, ‘I don’t have a sympathetic bone in my body for the terrorists. But I just wanted to make sure we were getting the right people—the real terrorists. And I wanted to make sure we were doing it in a way consistent with our values.’”
Well, thank God we have these Tom Cruise/Demi Moore types who are courageous enough to take on an incompetent, power hungry executive branch. And who actually seem to have an interest in prosecuting genuine terrorists. The victory in the Hamdan case is a direct result of their insistence on justice and fairness.
Of course, the decision may not matter so much if both Congress and the President choose to ignore it. Bush’s latest cunning trick has been to sign legislation and then attach a signing statement that states that he doesn’t have to comply with any of the law he just passed if he doesn’t want to. Congress so far hasn’t seemed too concerned.
So, if Congress and the President are going to just chip away at the Constitution, the next group of heroes needs to be us. The upcoming 2006 elections are vital. We must send representatives who will check this insane power grab. I know many of us, myself included, have fixed our gaze on our own back yard. And there is much good we can do here in Atlanta and throughout the state. But however we can – by sending money, encouraging letters, persistent phone calls, etc. – we are the ones who must demand that our government serve the Republic for which it stands.