P
Polybus
Guest
Detained at the whim of the president (Deborah Pearlstein IHT)
Guantánamo
NEW YORK The Bush administration has taken several important steps in recent days to resolve the
legal status of some of the hundreds of people that the United States has detained without access to
lawyers for the better part of two years. . Last weekend, the administration indicated that it would
begin repatriating some of the 660 people detained without any judicial review at the U.S. naval
base at Guantánamo Bay, Cuba. A few days later, the Pentagon announced that it would begin making
arrangements to allow Yasser Esam Hamdi, a U.S. citizen, access to a lawyer after more than 20
months of incommunicado military detention. . These steps are welcome. But they should be understood
as part of a broader strategy. The announcement on Guantánamo comes just weeks after the Supreme
Court decided to review a lower court holding that the federal courts had no jurisdiction to
evaluate the legality of the Guantánamo detentions. And the decision to allow Hamdi access to a
lawyer was announced on the day final briefs were due to the Supreme Court, which is now deciding
whether to take the case. It is difficult to see the timing as coincidental. For the past two years,
the Bush administration - far more so than previous "wartime" executives - has been very effective
at keeping the courts out of the business of checking executive power. . In the two years since the
Sept. 11 attacks, the administration has established a set of extra-legal structures designed to
bypass the federal judiciary. It has maintained that those detained by the United States outside
U.S. borders - at Guantánamo and elsewhere - are beyond the jurisdictional reach of the U.S. courts
altogether. Individuals subject to military commission proceedings - which two years after their
announced creation have yet to begin - are to have their fate decided by military personnel who
report only to the president. . In the "enemy combatant" cases involving U.S. citizens that have
made their way into lower courts, the administration has balked at observing a federal court order
requiring that it give its detainee-citizens access to counsel, and has consistently demanded of the
courts something less than independent judicial review. . This refusal to be bound by established
rules - to pursue ad hoc justice at best - is what makes the recent steps of small comfort. And
while the military released 20 Guantánamo prisoners last week, those released were simultaneously
replaced with the same number of new prisoners. It is unclear who the new arrivals are, where they
were held before arriving at Guantánamo, and what will be their fate now that they are there.
Likewise, it remains unclear how the administration determined which prisoners should be released,
which must stay, and which - if any - will eventually be brought before military commissions for
actual determinations of their status as prisoners of war, or their guilt or innocence of any
particular offense. . What is more striking is that the Pentagon, in announcing that it would be
making arrangements for Hamdi to have access to a lawyer "over the next few days," insisted that
such access was only being granted "as a matter of discretion and military policy," not to comply
with any requirement of domestic or international law. Indeed, the Pentagon maintains that its
decision for Hamdi should not in any way "be treated as a precedent" to be used in any other such
"combatant" case. . In any event, the decision to grant Hamdi access to counsel after nearly two
years did not commit the administration to providing any more than that - for example, international
law protections for the treatment of prisoners of war, or constitutional requirements that he be
afforded notice of any charges against him and an opportunity to be heard by an independent court. .
As made clear in the cases that the administration has cited in support of its sweeping claims of
authority - including the use of military tribunals and the internment of Japanese-Americans during
World War II - the Supreme Court has not always acted to enforce rights in favor of the individual
against the executive asserting special "wartime" power. But the Supreme Court's involvement in
those cases conveyed a critical message that even in times of greatest strain, executive power
remained subject to the rule of law. The court's published opinions clarified the nature of the
executive's claims of authority, and provided a basis against which to judge the executive's
subsequent conduct. . In vigorous and public dissenting opinions, minority justices in those cases
gave expression to the strong opposing arguments on the resolution of the legal questions presented.
Perhaps most important, the Supreme Court's decisions provided Congress, legal scholars and the
American public a means for understanding and, in the relative calm of postwar decision-making, for
re-evaluating the political wisdom of the executive's conduct. . In 1971, Congress established that
"no citizen" shall be "detained by the United States except pursuant to an Act of Congress." And in
1988, Congress awarded reparations to the remaining survivors and descendants of Japanese-American
citizens interned by the military during World War II. . Despite the Bush administration's best
efforts of late to convey the appearance of action, the Supreme Court - poised to hear the
Guantánamo case, and now deciding whether to hear the case of Hamdi - should not be misled by
atmospherics. At stake in the cases now at the court's doorstep is one of America's most basic
ideals as a nation - that the rule of law is a matter of right, not a matter of grace. . The writer
directs the U.S. Law and Security Program for the Lawyers Committee for Human Rights, and is editor
of "Assessing the New Normal," a book on liberty and security in the United States since the Sept.
11 attacks.
Guantánamo
NEW YORK The Bush administration has taken several important steps in recent days to resolve the
legal status of some of the hundreds of people that the United States has detained without access to
lawyers for the better part of two years. . Last weekend, the administration indicated that it would
begin repatriating some of the 660 people detained without any judicial review at the U.S. naval
base at Guantánamo Bay, Cuba. A few days later, the Pentagon announced that it would begin making
arrangements to allow Yasser Esam Hamdi, a U.S. citizen, access to a lawyer after more than 20
months of incommunicado military detention. . These steps are welcome. But they should be understood
as part of a broader strategy. The announcement on Guantánamo comes just weeks after the Supreme
Court decided to review a lower court holding that the federal courts had no jurisdiction to
evaluate the legality of the Guantánamo detentions. And the decision to allow Hamdi access to a
lawyer was announced on the day final briefs were due to the Supreme Court, which is now deciding
whether to take the case. It is difficult to see the timing as coincidental. For the past two years,
the Bush administration - far more so than previous "wartime" executives - has been very effective
at keeping the courts out of the business of checking executive power. . In the two years since the
Sept. 11 attacks, the administration has established a set of extra-legal structures designed to
bypass the federal judiciary. It has maintained that those detained by the United States outside
U.S. borders - at Guantánamo and elsewhere - are beyond the jurisdictional reach of the U.S. courts
altogether. Individuals subject to military commission proceedings - which two years after their
announced creation have yet to begin - are to have their fate decided by military personnel who
report only to the president. . In the "enemy combatant" cases involving U.S. citizens that have
made their way into lower courts, the administration has balked at observing a federal court order
requiring that it give its detainee-citizens access to counsel, and has consistently demanded of the
courts something less than independent judicial review. . This refusal to be bound by established
rules - to pursue ad hoc justice at best - is what makes the recent steps of small comfort. And
while the military released 20 Guantánamo prisoners last week, those released were simultaneously
replaced with the same number of new prisoners. It is unclear who the new arrivals are, where they
were held before arriving at Guantánamo, and what will be their fate now that they are there.
Likewise, it remains unclear how the administration determined which prisoners should be released,
which must stay, and which - if any - will eventually be brought before military commissions for
actual determinations of their status as prisoners of war, or their guilt or innocence of any
particular offense. . What is more striking is that the Pentagon, in announcing that it would be
making arrangements for Hamdi to have access to a lawyer "over the next few days," insisted that
such access was only being granted "as a matter of discretion and military policy," not to comply
with any requirement of domestic or international law. Indeed, the Pentagon maintains that its
decision for Hamdi should not in any way "be treated as a precedent" to be used in any other such
"combatant" case. . In any event, the decision to grant Hamdi access to counsel after nearly two
years did not commit the administration to providing any more than that - for example, international
law protections for the treatment of prisoners of war, or constitutional requirements that he be
afforded notice of any charges against him and an opportunity to be heard by an independent court. .
As made clear in the cases that the administration has cited in support of its sweeping claims of
authority - including the use of military tribunals and the internment of Japanese-Americans during
World War II - the Supreme Court has not always acted to enforce rights in favor of the individual
against the executive asserting special "wartime" power. But the Supreme Court's involvement in
those cases conveyed a critical message that even in times of greatest strain, executive power
remained subject to the rule of law. The court's published opinions clarified the nature of the
executive's claims of authority, and provided a basis against which to judge the executive's
subsequent conduct. . In vigorous and public dissenting opinions, minority justices in those cases
gave expression to the strong opposing arguments on the resolution of the legal questions presented.
Perhaps most important, the Supreme Court's decisions provided Congress, legal scholars and the
American public a means for understanding and, in the relative calm of postwar decision-making, for
re-evaluating the political wisdom of the executive's conduct. . In 1971, Congress established that
"no citizen" shall be "detained by the United States except pursuant to an Act of Congress." And in
1988, Congress awarded reparations to the remaining survivors and descendants of Japanese-American
citizens interned by the military during World War II. . Despite the Bush administration's best
efforts of late to convey the appearance of action, the Supreme Court - poised to hear the
Guantánamo case, and now deciding whether to hear the case of Hamdi - should not be misled by
atmospherics. At stake in the cases now at the court's doorstep is one of America's most basic
ideals as a nation - that the rule of law is a matter of right, not a matter of grace. . The writer
directs the U.S. Law and Security Program for the Lawyers Committee for Human Rights, and is editor
of "Assessing the New Normal," a book on liberty and security in the United States since the Sept.
11 attacks.