Friday, April 27, 2007

Habeas That Corpus

Approximately 66 months ago and not quite a month after September 11, 2001, the Bush administration launched its retaliatory strike on the Taliban regime in Afghanistan and Osama bin Laden’s al-Qaeda.

Simultaneously, it launched another strike, this one aimed at the array of civil and political rights guaranteed in the Constitution to citizens and others who are in the United States.

After getting a number of new powers and peeling back a number of constitutional guarantees, the administration seemed somewhat shocked when the federal courts, including the Supreme Court, struck down some provisions enacted into law and administrative decisions that violated human rights such as habeas corpus. And when the electorate issued its opinion last November, the looming change in the control of Congress must have sent the Justice Department into overdrive to work around both the legal and the electoral rebuffs.

What is puzzling about all the machinations and redefinitions and procedural about-faces of the administration is who the White House regards as “the enemy.” There is, of course, Osama bin Laden and al-Qaeda. But the enemy also seems to include those, and in particular those in the Congress, who oppose the hot wars in Iraq and in Afghanistan and the “war against terror.” And the enemy also includes those being held in Guantanamo Bay, Cuba, some approaching five years in detention.

Since the White House cannot throw everyone in jail who voted for the opposition candidates last November, and since citizens and legal residents still can criticize the conduct of the wars and other policies, the only classes of people who can be “made to pay” are those fighting day in and day out in Iraq and Afghanistan or those in prison in Cuba. These latter are the most vulnerable to injustice.

And the injustice soon surfaced in the renewed attack on what is the oldest human right in the Western world: habeas corpus. The military officers running the so-called “trials” at Guantanamo Bay, Cuba under the Military Commissions Act of 2006, were caught flatfooted by the guilty plea from the “Australian Al-Qaeda” David Hicks, whose plea was an obviously part of a deal between Australian prime minister, John Howard, and George Bush that showed just how frivolous the entire Guantanamo process is. The next unlawful combatant to be tried would have to be a quick, sure prosecution. But their choice may again have backfired.

The second “enemy combatant” to be charged is Omar Khadr. Khadr, now 20, was only fifteen when the alleged crimes happened. And what were his crimes, or at least what does the government claim they are? There are four, two of which are conspiracy and providing material aid to the enemy. But the other two would never be charged as war crimes: murder and attempted murder. Murder is precisely why a country goes to war, and the understanding among countries, governments, and international organizations is that killing an enemy soldier is permitted on a battlefield as long as the enemy is prepared, preparing to, or is in the immediate act of trying to kill you.

So why in a setting for war is Khadr charged with what are nominally criminal justice offenses? And why is this pattern set to be repeated with the other 8 of the 386 enemy combatants in Guantanamo? Because the government is so unsure of its case that it mixes criminal justice offenses with forms of war crimes that are highly questionable.

The other prong of the attack on habeas corpus is the administration’s efforts to curtail the right of detainees at Guantanamo to competent legal representation. Considering that the detainees have effectively been stripped of the right to confront their accusers (Oh! I forgot that this, formally, is the Attorney General) and to call witnesses and submit evidence in their defense, being able to speak with a lawyer as often as needed would be even more important than when the other rights are in force. But the government wants to limit visits by defense lawyers and their current clients to three and for new clients to one for the entire period up to the start of the “trial.”

In the petition to the U.S. Court of Appeals for the District of Columbia, the Justice Department alleged that the presence of the civilian lawyers constituted a security threat to Guantanamo because the lawyers carried information about the detainee status back to the press and could provide the detainees with verbal accounts of what was happening in the world at large. And although most of the lawyers have security clearances, the Justice Department wants to be able to summarily preclude lawyers from seeing the “evidence” presented to the Combat Status Review Tribunals that classify detainees as dangerous or of intelligence value or as “illegal enemy combatants.”

One sentence seems to summarize the Justice Departments position: “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country.”

Well, if the military base is secure, as the brief claims, and if the base is on an island, if the internal structure of the prison – let’s call it what it is – consists of at least five separate compounds for housing detainees, including at least two large solitary confinement facilities, how can the government claim that visits between lawyers and their clients poses a security threat?

Based on the so-called Hicks “trial” in which all charges other than “conspiracy” had been dropped before the proceeding began; the “mix and match” nature of the charges lodged against Omar Khadr and pending against some of the remaining eight who have been charged; the most logical conclusion as to why the Justice Department is pushing for limits on lawyer-client meetings is – again – the flimsy nature of the “evidence” on which many in Guantanamo are being held.

“Out of sight, out of mind” could be the Justice Department’s motto in these matters.
It could be, that is, except that should the Attorney General put something out of mind, he may never recall where he put his mind.

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