Due Process Prevails — But Too Close for Comfort

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The precipice down which we stare — feet clinging to constitutional democracy, eyes staring at the final step into fascism — became ever-so-slightly less beckoning yesterday. The Supreme Court decided, by a 5-4 vote, that

Foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have constitutional rights to challenge their detention there in United States courts…

In essence, swing-vote Associate Justice Anthony Kennedy decided that. Thank God. Kennedy’s words should be etched in marble over the tombstone of neoconservatism:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times.

The ruling, Boumediene v. Bush, rejected the Bush administration argument that the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 provided adequate protections for defendants. It’s public knowledge, of course, what “adequate protections” mean to this gang:

When asked if he thought the men at Guantánamo could receive a fair trial, [former chief prosecutor for Guantánamo’s military commissions Col. Morris] Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes…

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.'”

The proceedings to date have been as cockamamie as they’ve been politically motivated. Khalid Sheikh Mohammed may want to be a martyr, but that doesn’t justify gaming a system to create them in advance, with a trial being a mere formality on the way to the gallows.

Also, so what if Khalid Sheikh Mohammed really is a bad man, which he probably is? Lakhdar Boumediene and his compatriots most probably are not. And they’ve been at Gitmo since 2002 — despite the fact that

…the Supreme Court of Bosnia and Herzegovina ordered them released three months [after their arrest there in 2001] for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

Gitmo — the garbage dump of due process. And four of our Supreme Court Justices — Roberts, Alito, Scalia, and Thomas — think that’s dandy. Whew! That was close.

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One response to “Due Process Prevails — But Too Close for Comfort

  1. earthlingblues

    Excellent post. I particularly like your remark about Kennedy’s words. 🙂

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