The Talking Dog

February 18, 2009, Habeas... shmabeas

In what should have been a surprise to exactly no one, a three judge panel of the Neocon All-Star Team United States Court of Appeals for the District of Columbia Circuit ruled that anything George W. Bush did is a.o.k. with us for the rest of our natural life-tenures ethnic Uighur Chinese national detainees of Guantanamo Bay cannot be released into the United States, reversing a decision by District Judge Ricardo Urbina. Judge Urbina fashioned that remedy (of admitting the detainees to the custody of stateside human rights groups and the Uighur community) because the Chinese nationals would face probable persecution, torture and/or death if returned to China (which has vowed to try them as terrorists). An earlier group of five Uighur detainees was shipped to former Chinese ally Albania... for which Albania paid a steep diplomatic price from the Chinese.

The nominal basis of today's decision is that the federal courts simply lack the authority to fashion a remedy, even in the sui generis circumstances of the Guantanamo Bay detentions, because notwithstanding the intrinsic power of the courts to implement their rulings implementing the habeas corpus remedy, well, "immigration" is solely in the hands of the legislative and executive branches, and more to the point, they just don't want to. In effect, the Neocon All-Star Team D.C. Circuit, that is to say, a court lower ranking than the U.S. Supreme Court, is taking it upon itself to overturn the United States Supreme Court's decisions in Rasul, Hamdan, and Boumediene, which held that the detainees do in fact have the legal, Constitutionally guaranteed right to seek relief in habeas corpus proceedings in federal court (and the federal All Writs Act among other statutes and legal authorities give the courts the ability to fashion remedies to bring about the ordered relief).

In other words, the lower court has decided that the United States Supreme Court has directed the lower courts to conduct an academic exercise: a paper remedy, devoid of any substantive relief (other than what the executive branch might, as a matter of its sole discretion and grace, deem appropriate.)

In my interview with former Guantanamo detainee Moazzam Begg, he referred to the detainees' habeas remedy as follows:

The illusion of habeas corpus was just something to hold on to. To quote, I believe it was Justice Kennedy, “Habeas corpus is a promise to the ear to be broken to the hope... a teasing illusion, like a munificent bequest in a pauper’s will.”

I remember this, that’s how the idea floats– habeas corpus means you get your day in court... But in reality, no one at Guantanamo in reality will ever get to court... this is a game, a charade, an illusion...

U.S. justice at Guantanamo is an oxymoron. The Supreme Court decides that there is a right to be heard– for detainees to present their case in court. And the government doesn’t afford that right. Anywhere else, the government would be in contempt of court. And yet, the court ruling is simply ignored, or sidestepped by the government.

And there is also the inconceivably long time it is all taking. Why is it taking so long? It became understood by detainees that this was all part of the sentence– another means of keeping us locked up... On paper we’re offering you the right to present your cases to court... but in reality, it is nothing but a munificent bequest in a pauper’s will.

The Obama Administration should have seen this coming: the same three judge panel that stayed the operation of Judge Urbina's order in the first place by emergency stay was extremely likely to find that they weren't wrong on the case in chief, and indeed... this was the case. Simply by withdrawing the [mean-spirited, last-minute] appeal, the Obama Administration could have shown the world that the United States was doing its part to solve the mess created by the Bush Administration by admitting prisoners that our own military said posed no threat to the United States, never engaged in hostilities, and should never have been detained in the first place, and shown that we respect the rule of law because it could have done so under cover of court order.

Now, of course, the usual suspects (who would call President Obama "a tax and spend liberal" who is "soft on terror" even if he displayed OBL in chains in the Oval Office as he handed him over to the Attorney General for trial after having first single-handedly captured him on live television) will dramatically and unnecessarily raise the political price for admitting anyone else at all, if we can't even admit men who our own military says aren't enemy combatants. Another missed opportunity... and all the more troubling as the Obama Administration holds all the cards itself, and doesn't need Republican votes on this one.

Not a particularly good day in the annals of American jurisprudence, I'm afraid. This has been... "Habeas... shmabeas".



first I want to say that I like your page. :-)

Now to this topic:
I think it is not so easy to disband Guantanamo Bay.
How does Obama do it? I think it would be very diffucult.


Posted by Billigflüge at February 19, 2009 9:48 AM