Fury [a cat] said to a mouse, That he met in the house, "Let us both go to law: I will prosecute you. - Come, I'll take no denial; We must have a trial: For really this morning I've nothing to do." Said the mouse to the cur, "Such a trial, dear Sir, With no jury or judge, would be wasting our breath." "I'll be judge, I'll be jury," Said cunning old Fury: "I'll try the whole cause, and condemn you to death."
-- Alice in Wonderland
The Senate, surely to be followed by the House, has passed an amendment put forth by Sen. Graham (who is on record opposing torture and unlimited executive discretion) that would slash the rights of detainees in Guantanamo and elsewhere to challenge their confinement, including their treatment there.
The Supreme Court has determined the detainees have a statutory right of habeas corpus -- their constitutional right to do so (protecting them from such court stripping) is a question pending. Citizens clearly have a constitutional right though Congress can suspend it "when in Cases of Rebellion or Invasion the public safety may require it." The clause does not differentiate between citizens and other "persons" in our government's hands (we cannot enslave Mexican illegals, right?), but there is some precedent suggesting non-citizens in this situation do not have a constitutional right to challenge their detention. The question will be dealt with in the courts -- eventually -- unless this court stripping move throws a wrench into the works.
But, they are our enemies, right? Well, maybe Justice Kennedy in his concurring opinion in Rasul v. Bush said it best:
First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. ... The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. ... [referencing a past case involving claimants whose "enemy combatant" status was already determined] Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.
In other words, no -- many of these people are innocent. Many detainees already have been released. And, they are not really the same as other detainees that in the past were not given habeas rights. But, they are making trivial claims! For instance (the blog has several posts discussing the amendment ... check them out):
a Afghan juvenile with a history of mental illness. During the war in Afghanistan, he was ordered to stop (in English); he does not speak English, kept walking, and was shot in the top of his right thigh bone. He was operated on, but was not told that his bone had been broken, or that a bolt had been implanted in it. At Bagram, he was forced to walk every day for three months; "He cried and screamed from pain until he would collapse unconscious." (p. 9) He was then taken to Guantanamo; on his arrival, he could not walk, having been strapped very tightly in the plane. He was ordered to sit cross-legged with his head touching the floor, and screamed and passed out. He was sent to isolation.
It's a good thing "competent tribunals" (not that Bush and company wanted even that) determines people like him are detained properly, huh? Well ...
Prof. Cole* cites a philosopher who reminds us that "The alien was to be protected not because he was a member of one's family, clan, or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity," a command with biblical roots (he was Jewish -- but, then, we all were aliens right? we live in a nation of immigrants). This seems to some as too much ... a demand that everyone, U.S. citizen or not, be given a panoply of rights. But, the right against mistreatment respecting those we detain, many of whom should not even be detained at all, is quite a narrow application of the principle.
I'm not sure why most Senate Republicans and a sad handful of Democrats (mostly the usual suspects and one lame duck) cannot understand the point. It's nice they voted against torture and all -- but the right is an empty one when we have to trust the cat to judge the mouse all by his lonesome. Hopefully, enough will see the problem when the matter is up again later in the week.
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* His book Enemy Aliens is recommended.