Marie Cocco - Washington Post (June 16, 2008)

Impatient Justice

Posted on Jun 16, 2008

By Marie Cocco

The forceful language of Justice Anthony M. Kennedy’s decision in the case granting detainees at the Guantanamo Bay prison camp the right to contest their confinement in federal court is the voice of a Supreme Court majority that is fed up.

The writ of habeas corpus—the ancient premise that the executive must not have the sole and unchallenged say on whether and for how long someone should be in prison—is so fundamental to the Constitution that it was written into the document before there was a Bill of Rights. It must not, Kennedy wrote, “be subject to manipulation by those whose power it is designed to restrain.”

Manipulation was the very motive underlying the placement of prisoners at Guantanamo.

The idea cooked up by the Bush administration was that since the Navy base in Cuba is not on U.S. soil, those brought to its confines—from Afghanistan and other locations around the world—would have no rights under U.S. law. The administration has argued, as well, that the prisoners have no rights under international law. It has refused to give the detainees the most basic screening called for under the Geneva Conventions. The screenings, used extensively during the Persian Gulf War waged by the current president’s father, are meant to separate innocent bystanders caught up in a war zone from dangerous combatants.

For six years, we have been told that the detainees are the “worst of the worst” terrorists. Yet no independent observer has been able to verify whether this is the case. Only a handful of detainees actually have been charged with complicity in terrorist acts, and the prosecutions of their cases may fail because of abuse—or torture—or any one of an assortment of legal problems that bedevil the military proceedings set up for them.

Four times, beginning with cases it decided in 2004, the Supreme Court has told President Bush that he cannot continue on this path. Yet the president has persisted along roughly the same course: “Delay, delay, delay,” in the words of Michael Ratner, president of the Center for Constitutional Rights and one of the lead lawyers for the detainees.

Twice Bush got Congress to change the laws regarding detainees so that they are denied legitimate hearings. The high court has again said this is not enough, that the Constitution must prevail. “The laws and the Constitution are designed to survive, to remain in force, in extraordinary times,” Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Now again, the White House and its allies in Congress have signaled they intend to limit the edict that the detainees be given a federal court hearing into the reasons for their incarceration. The administration floats the idea of yet another legislative end run around the high court—indeed, around the Constitution itself.

But Bush always has had a simple and legal way out of this quagmire. Dangerous detainees can have their day in U.S. courts—just as the perpetrators of the 1993 World Trade Center attack were successfully tried in a case that led to other convictions for conspiracy to blow up airliners flying across the Pacific. “Had they put those people into federal court immediately, and done what the FBI says is the way you interrogate people, they would have had some trials and success by now,” Ratner says.

Those who may be prisoners of war but who cannot be charged with specific terrorist acts can be held under the Geneva Conventions or tried under international law as war criminals, if that is what they are.

What this nation must no longer endure is a president who continues to use fear to cajole Congress into concocting yet another excuse for his failure—after nearly seven years—to bring to justice even a single individual responsible for the heinous attacks of Sept. 11, 2001.

Bush has said he wants to close Guantanamo. But he shows no urgency about the task nor even an inclination to respect the most recent Supreme Court ruling that the prison camp has no legal reason for its existence. If Bush continues his slow march toward doing nothing, then Congress should relieve his successor—and the country—of Guantanamo’s burden. It must set a timetable for the camp’s closure and, ultimately, cut off the money that keeps this embarrassment alive.