Detained at the whim of the president (Deborah Pearlstein IHT)

Guantánamo

NEW YORK The Bush administration has taken several important steps in
recent days to resolve the legal status of some of the hundreds of
people that the United States has detained without access to lawyers
for the better part of two years.
..
Last weekend, the administration indicated that it would begin
repatriating some of the 660 people detained without any judicial
review at the U.S. naval base at Guantánamo Bay, Cuba. A few days
later, the Pentagon announced that it would begin making arrangements
to allow Yasser Esam Hamdi, a U.S. citizen, access to a lawyer after
more than 20 months of incommunicado military detention.
..
These steps are welcome. But they should be understood as part of a
broader strategy. The announcement on Guantánamo comes just weeks
after the Supreme Court decided to review a lower court holding that
the federal courts had no jurisdiction to evaluate the legality of the
Guantánamo detentions. And the decision to allow Hamdi access to a
lawyer was announced on the day final briefs were due to the Supreme
Court, which is now deciding whether to take the case. It is difficult
to see the timing as coincidental. For the past two years, the Bush
administration - far more so than previous "wartime" executives - has
been very effective at keeping the courts out of the business of
checking executive power.
..
In the two years since the Sept. 11 attacks, the administration has
established a set of extra-legal structures designed to bypass the
federal judiciary. It has maintained that those detained by the United
States outside U.S. borders - at Guantánamo and elsewhere - are beyond
the jurisdictional reach of the U.S. courts altogether. Individuals
subject to military commission proceedings - which two years after
their announced creation have yet to begin - are to have their fate
decided by military personnel who report only to the president.
..
In the "enemy combatant" cases involving U.S. citizens that have made
their way into lower courts, the administration has balked at
observing a federal court order requiring that it give its
detainee-citizens access to counsel, and has consistently demanded of
the courts something less than independent judicial review.
..
This refusal to be bound by established rules - to pursue ad hoc
justice at best - is what makes the recent steps of small comfort. And
while the military released 20 Guantánamo prisoners last week, those
released were simultaneously replaced with the same number of new
prisoners. It is unclear who the new arrivals are, where they were
held before arriving at Guantánamo, and what will be their fate now
that they are there. Likewise, it remains unclear how the
administration determined which prisoners should be released, which
must stay, and which - if any - will eventually be brought before
military commissions for actual determinations of their status as
prisoners of war, or their guilt or innocence of any particular
offense.
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What is more striking is that the Pentagon, in announcing that it
would be making arrangements for Hamdi to have access to a lawyer
"over the next few days," insisted that such access was only being
granted "as a matter of discretion and military policy," not to comply
with any requirement of domestic or international law. Indeed, the
Pentagon maintains that its decision for Hamdi should not in any way
"be treated as a precedent" to be used in any other such "combatant"
case.
..
In any event, the decision to grant Hamdi access to counsel after
nearly two years did not commit the administration to providing any
more than that - for example, international law protections for the
treatment of prisoners of war, or constitutional requirements that he
be afforded notice of any charges against him and an opportunity to be
heard by an independent court.
..
As made clear in the cases that the administration has cited in
support of its sweeping claims of authority - including the use of
military tribunals and the internment of Japanese-Americans during
World War II - the Supreme Court has not always acted to enforce
rights in favor of the individual against the executive asserting
special "wartime" power. But the Supreme Court's involvement in those
cases conveyed a critical message that even in times of greatest
strain, executive power remained subject to the rule of law. The
court's published opinions clarified the nature of the executive's
claims of authority, and provided a basis against which to judge the
executive's subsequent conduct.
..
In vigorous and public dissenting opinions, minority justices in those
cases gave expression to the strong opposing arguments on the
resolution of the legal questions presented. Perhaps most important,
the Supreme Court's decisions provided Congress, legal scholars and
the American public a means for understanding and, in the relative
calm of postwar decision-making, for re-evaluating the political
wisdom of the executive's conduct.
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In 1971, Congress established that "no citizen" shall be "detained by
the United States except pursuant to an Act of Congress." And in 1988,
Congress awarded reparations to the remaining survivors and
descendants of Japanese-American citizens interned by the military
during World War II.
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Despite the Bush administration's best efforts of late to convey the
appearance of action, the Supreme Court - poised to hear the
Guantánamo case, and now deciding whether to hear the case of Hamdi -
should not be misled by atmospherics. At stake in the cases now at the
court's doorstep is one of America's most basic ideals as a nation -
that the rule of law is a matter of right, not a matter of grace.
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The writer directs the U.S. Law and Security Program for the Lawyers
Committee for Human Rights, and is editor of "Assessing the New
Normal," a book on liberty and security in the United States since the
Sept. 11 attacks.