Friday, June 13, 2008

Guantanamo June 2008 -- The Court Rules Part I

In another landmark – with emphasis on “land” – decision July 10th, the U.S. Supreme Court affirmed yet again the primacy of the rule of law (the Constitution) over the rule by law (the unitary presidency abetted by a self-eviscerated Congress).

Perhaps it is a reflection of the deep divisions running through the body politic that have their genesis in the Bush administration’s self-declared “Global War on Terror” (GWOT), but the two dissenting opinions in the 5-4 decision on Boumediene et al. vs. Bush and Al Odah vs. United States seemed to a non-lawyer to be particularly harsh in their rejection of the majority opinion written by the “swing” jurist, Justice Anthony Kennedy.

The overriding issue before the court concerned the ancient (pre- Magna Carta) English right of habeas corpus ad subjiciendum (“you may have the body subject to examination”). This was not the first such case associated specifically with the GWOT to challenge the government’s handling of accused al-Qaeda and Taliban loyalists captured by U.S. troops fighting abroad – more like the fifth time around. In their previous decisions, the Court majority tended to focus on procedural remedies within the judiciary and even to suggest remedies that the political branches of government could enact. This time, however, Justice Kennedy chose to “get down in the weeds” and let the logic of the cases point the way to the remedy for the plaintiffs, if appropriate, or affirm the contention of the Bush Justice Department that the president’s power during wartime overrode judicial power.

Justice Kennedy broke the issue into four parts. The first point that required clarification was whether or not the U.S. naval base at Guantanamo Bay, Cuba was foreign territory – where the right of habeas corpus would not apply to any foreigner captured abroad and designated as an “unlawful enemy combatant.”

In the early 19th century, the United States tried to purchase Cuba from its colonial European master Spain, but to no avail. At the end of the century, the Spanish-American War settled the matter when Spain lost the last significant parts of her once-vast empire. Cuba became the sole responsibility of the United States when the Spanish governor-general left on January 1st, 1899. Not knowing what else to do, U.S. troops organized themselves into an occupation force with U.S. officers effectively acting as the real power behind a figurehead Cuban governor. While the poor state of public health was a major concern or many, other U.S. officials worried that Cuba might not be able to ward off foreign invasion or internal subversion.

To preclude an unfriendly government just 90 miles from the U. S. mainland, Washington decided to “help” the newly independent nation draft its constitution. Incorporated in that basic document was the “Platt Amendment.” This allowed the U.S. to intervene in Cuba to help the government repel foreign invasion and maintain internal security and order. It also provided for the indefinite lease to the United States of 45 square miles of Cuban territory to the U.S. for the purpose of “coaling or naval stations only.” The lease provided exclusive use by the U.S. for an annual payment to Cuba of just over $4,000 U.S. dollars annually. What was so extraordinary about this provision of Cuba’s 1902 Constitution is that it is exactly the same language as appears in the 1901 military appropriations bill funding United States armed forces around the world.

Jump another century to December 2001-January 2002. Guantanamo remains under U.S. control. It had last been used in the 1990s when Haitians fled their country in the aftermath of the generals’ coup. Now it had been converted into an open-air prison for those whom then-Secretary of Defense Donald Rumsfeld termed “the worst of the worst.” These and hundreds more “unlawful enemy combatants” needed to be incarcerated so they could not return to the battle zones. But they also had to be interrogated – sometimes including “techniques” that others would regard as abusive or as torture. The Bush administration thought that such violations could be covered up since the Pentagon completely controlled the access to the base.

A key factor in the decision of the Court revolves around this particular point. The Bush White House from the very beginning was intent on incarcerating the “worst of the worst” somewhere that would preclude all recourse to judicial relief from indefinite detention. Two possibilities presented themselves: the system of “black” or secret prisons run by the CIA in collusion with comparable “friendly” intelligence services around the world, or Guantanamo Bay.

One can only assume that the CIA was adamant that its secret prison system should be restricted to Rumsfeld’s class of enemies to reduce the chances that the system would be discovered and have to close – with embarrassing publicity about human rights and other violations of international agreements related to the Geneva Conventions.

The CIA “won” that debate, but in so doing confirmed the logic of the history of Guantanamo: de jure it is Cuban but de facto it is under the exclusive control of the United States – and as such the right to habeas corpus exists for anyone imprisoned there.


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