Making nice

The Bush administration has recently appeared to be backing off some on its egregious approach to civil liberties in the "war on terror." There's talk of releasing 100 inmates from Guantanamo, deals have been made about Australian and British prisoners (including promises that charges will actually be brought soon, if convicted they will not face the death penalty, and will be able to serve their sentences in their home countries), an immigration program that singled out Arab and Muslim men has been "suspended," they're even letting Yasser Esam Hamdi see a lawyer.

Okay, so why?

In Hamdi's case, it's likely a move to strengthen the White House's position before Hamdi's appeal to the Supreme Court is heard. One of his claims is that despite being a citizen, he's been unconstitutionally denied his rights such as access to counsel, and it's likely the administration is trying to undermine that claim, hoping the Court will rule it moot. It's also possible the Bushites are concerned that even this Court might look askance at their having openly defied the order of a District Court judge last August to provide information justifying a national security argument for holding Hamdi. (The notoriously conservative 4th Circuit Court of Appeals overruled the District Court, arguing in effect that in "wartime" courts must allow Presidents to do pretty much what they damn please - thus Hamdi's appeal to the Supreme Court.)

Another factor is that the Court has also agreed to review the legality of the detentions at Guantanamo. Even if they feel their case is stronger there (since it doesn't involve citizens) and their chances in any event better (since the courts have been fawningly deferential on the matter), the administration's mouthpieces probably advised some image-burnishing would be a good idea.

Overall, politics undoubtedly play a big part. First of all, Australia and the UK were our biggest boosters in Gulf War II: The Quagmire and the different treatment of their citizens should be considered in that light. Then there's always the elections - and I do mean always, as not a single decision is made in the White House without considering first the effect on Bush's re-election - and a possible concern that the extreme positions staked out to date might not play so well another year down the line, especially if there are a few court losses between now and then.

A big potential such loss is a real possibility, as a federal appeals court in New York showed great skepticism during a hearing on November 17 about the government's claim that it can hold Jose Padilla, a US citizen arrested on US soil, as an "enemy combatant" without right to charge or counsel.

One member of the three-judge panel called placing Jose Padilla in military custody a "sea change in the constitutional life of the country." U.S. District Judge Barrington Parker Jr. said the result could lead to changes that "have been unprecedented in civilized society." ...

Parker said he believed that the power to declare a citizen an enemy combatant rested with Congress, not with the president.

Judge Rosemary Pooler agreed, recalling the image of the World Trade Center on fire after the Sept. 11 terrorist attacks.

"If the battlefield is the United States, I think Congress has to say that, and I don't think they have yet," Pooler said.

"As terrible as 9-11 was, it didn't repeal the Constitution."

Or maybe, just maybe, these had something to do with the seeming change of heart:

The American Bar Association (ABA) last year expressed concern over the jailing of American citizens as "enemy combatants".

And in August this year, the ABA urged Congress and the Executive to ensure that all defendants in any military commission trials have the opportunity to receive "zealous and effective civilian defense counsel".

In September, the British Attorney-General Lord Goldsmith called on the Bush administration not to deny terror suspects at Guantanamo Bay a fair trial.

Or maybe this did:

[I]n October, a former US appeals court judge, John Gibbons, told BBC News Online that justice was being "totally denied" to the detainees in Guantanamo.

"They don't have access to lawyers; they have had no hearings; they are just in limbo. That's as clear an example of justice denied as you can find," he said.

Or maybe this from November 13:

If a cell in Guantanamo Bay, the American prison holding two Australians captured in the war on terrorism, had a broken toilet, was full of vermin, rats and cockroaches, and bread was the only food, would a detainee not be justified in law to try to escape?

This was the question Justice Michael Kirby threw at the Federal Government's barrister, the Solicitor-General David Bennett QC, in a ground-breaking case heard in the High Court yesterday, testing for the first time Australia's mandatory immigration detention scheme.

Or this from November 26:

One of Britain's most senior judges has condemned the US over the detention of terror suspects at Guantanamo Bay.

Lord Steyn said conditions at Camp Delta were of "utter lawlessness", in a speech seen by Channel 4 News.

The Law Lord said the US was guilty of a "monstrous failure of justice" and challenged UK ministers to condemn the decision to hold any prisoners there.

He said detainees were "beyond the rule of law, beyond the protection of any courts and at the mercy of victors". ...

"The procedural rules do not prohibit the use of force to coerce the prisoners to confess," he said.

Lord Steyn quoted officials as saying: "It's not quite torture but as close as you can get."

He said the quality of justice did not comply with international standards for fair trials.

"It may be appropriate to pose a question - ought our government to make plain publicly and unambiguously our condemnation of the utter lawlessness at Guantanamo Bay?"

Lord Steyn said that the blanket order issued by President Bush had deprived the detainees of "any rights whatsoever".

"As a lawyer brought up to admire the ideals of American democracy and justice I would have to say that I regard this as a monstrous failure of justice."

It is rare for British judges to speak on contentious political issues and almost unheard of for them to attack a foreign government, BBC diplomatic correspondent Barnaby Mason said.

Or perhaps even this from December 3:

The Guardian quotes a source close to the military legal establishment as saying that a team of lawyers assigned to the detainees has been dismissed after complaining about the way the planned military tribunals have been designed.

The rules include allowing government representatives to monitor conversations between the lawyers and their clients.

A group of lawyers told Vanity Fair magazine that such rules made a fair trial for the detainees impossible. They are planning a lawsuit against the government, arguing that they were given unlawful orders, the magazine reports.

It could be argued that at one time the American legal system was well-justified in presenting itself as a model to the world, but post-9/11 it's becoming a symbol of repression and "monstrous failure[s] of justice." Perhaps the level of condemnation from human rights groups, legal observers, and even other nations was finally reaching a point where even the Bush junta couldn't ignore it.

At least I want to believe that.