Boumediene — Sadness and Celebration

It's been a riveting month at Guantánamo. First was the sad spectacle of the “arraignment” of alleged 9/11 conspirators — in a courtroom expressly designed to suppress their statements about brutal torture in CIA custody, and in a system expressly fashioned to permit their execution on the basis of evidence extracted through that torture. The embarrassing proceedings were rushed forward in a last-ditch Bush administration effort to turn Guantánamo to its political advantage, but, as usual, it was the administration that endured ridicule for the very public collapse of its “full and fair” military commission system.

And then, on Thursday, the hammer truly fell with the Supreme Court’s final rebuke to the legal and moral disaster of the Guantánamo detention regime. We shouldn’t need a Supreme Court decision to remind us that executive detention without judicial review violates our most fundamental constitutional values — but we did, and the Court delivered, and we should be proud of the Court and of our system and of all the lawyers who worked for six years to make yesterday’s landmark decision possible.

We have had moments like this in the last four years, only to see defeat snatched from the jaws of victory. This was the third Supreme Court repudiation of Guantánamo “justice,” but after each of the first two victories — Rasul in 2004, and Hamdan in 2006 — the Bush administration and a compliant Republican Congress effectively reversed the Court’s decisions with ill-advised (and, we can now say, unconstitutional) legislation — only to be reversed again by the Court. Could it happen again? There’s a sense, I think, that this constitutional whack-a-mole may be over, and that the administration may have permanently overplayed its hand.

So why is my own celebration muted? I can’t stop thinking about a scene I witnessed in Guantánamo this past April during military commission proceedings against Salim Ahmed Hamdan, whose challenge to the legality of President Bush’s first military commission system resulted in a resounding Supreme Court defeat for the Bush Administration. The military judge saluted Hamdan, telling him that he should be proud to have taken on the government and won. But Hamdan pointed out that his victory had been hollow — that his reward was to face trial once again in unfair and illegal proceeding.

Hamdan the case is already being studied by law students, but Hamdan the man is sitting alone, as you read this, in a windowless cell. He and the other men still detained are closer than ever to having their detention reviewed by an impartial decision maker. But these cases could have been in court many years ago had the administration not fought so tirelessly to evade the rule of law.

Earlier this week I had another painful reminder of the consequences of the administration’s abandonment of the rule of law. I was in Germany visiting my client, Khaled El-Masri, perhaps the best-known victim of the CIA’s so-called extraordinary rendition program. El-Masri, an entirely innocent man, was kidnapped by the CIA, chained to the floor of a plane, injected with drugs, transported to a secret prison in Afghanistan, interrogated under torture, and only released months after the CIA realized it had abducted the wrong man. Like the vast majority of Guantánamo detainees, he was never charged with a crime. Like the Guantánamo detainees, he was transported to a place where, in the administration’s view, no law applied. We may never know how many of the Guantánamo detainees were innocent, like El-Masri. But we know without doubt that when the protections of our Constitution and international law are stripped away, such tragic mistakes go uncorrected. There’s reason to hope that the Boumediene decision will prevent the needless suffering of the next Khaled El-Masri. And that’s certainly worth celebrating.

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Good news. Injustice serves no security need whatsoever. We all suffer when the innocent are used as political pawns. Those who do plot are free when others are imprisoned and maltreated in their place.

Margaret Fuller...


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My family was terrified to reclaim there American Fullerton Family Settlement due to being Psychologically damaged.Also to reclaim there Russian Title and Homes do to same reason.I need a Team of Attorneys to assist me in World Court for a Victim of War Crime.

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"..prevent the needless suffering of the next Khaled El-Masri. And that’s certainly worth celebrating."

While you were advocating for the above-named detainees (enemy combatants) standing up for them on your website and fighting for them and their rights and safety, etc. daily, I have had U.S. military family defending America in harms way in the Middle East and facing these "enemy combatants".
At this point, I don''t see how this ruling makes our American soldiers safer in battle, legally or otherwise. And I don't see how this ruling doesn't undermine the military and morale.
They are now in a very dangerous and difficult position where they are in a "catch 22" situation in combat with our enemy. Do they now read them their Miranda rights? Or do they kill them and risk facing another false "Haditha" trial debacle?
Prisoners in wartime should be treated right and we have treaties for that. If there's major problems, then fix it within the military realm of jurisdiction. But don't give our enemies equal legal status in American courts. We're already overloaded there. This is unconscionable. Like it or not, (and I don't) we are in a war. I agree with Justice Scalia that this puts Americans at greater risk.

Finally, the "Haditha" Marines have been almost completely exonerated at last. Should not Americans be the FIRST concern of an AMERICAN Civil Liberties Union? What about the Marines and other soldiers and their "needless suffering" and their public defense? Where was your "front page", John Adams, daily campaign on your website, ad nauseum, for OUR American Marines?
Unfortunately, what I have noticed is that moral support, fervent equal advocacy for our soldiers and the "celebrating" of their freedom has been sorely conspicuous by its absence. My opinion.

Sam Knight

The victims (El-Masri, et. al.) are not the only victims. Loyal American
citizens are also victimized by Bush's administration. Well-intentioned civil
servants doing their jobs, sent out to do the president's bidding, are not being
afforded the immunities of their office. Whether diplomatic immunity or status
of forces agreement, Americans are denied protection when the US government
denies the event ever happened and refuses to address the matter, again
inappropriately citing state secrets. An Italian magistrate wants to make an
example of America to show it cannot operate on their soil with impunity. OK,
they have a right to expect that when USA carries out operations on Italian soil
that they be involved, consulted, or even advised. Berlesconi says he didn’t
know anything about it. Other Italians say they either didn't know about it or
didn't approve it. So now those Americans whose names are out in the public
domain become victims of their agency's lack of acknowledgment/int
erest and therefore lack of protection. Like Ms Plame who was outed for
political purposes just for doing her undercover job, these loyal Americans are
outed to save political face for the administration. Only worse, these loyal
American victims are charged and tried in a foreign court, and the US government
doesn’t lift a finger to defend them for doing what the president asked them to
do. Hold the right people accountable; don’t let senior administration
officials off the hook, allowing them to let a few well-intentioned, wrongly
directed mid-level civil servants suffer the brunt of foreign justice.
Americans are being left to hang out to dry, unprotected, victims of the same
system victimizing the victims the ACLU defends. Should the ACLU be any less
concerned about the welfare of these victimized civil servants than it is with
the plight of those foreign citizens wronged by this administration’s
ill-conceived policies?

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