Supreme folly

Faced with the possibility of finally having to deal with a "watershed challenge" to George Bush's criminal usurpation of the Constitution (and Congress's craven capitulation in the same), the Supreme Court ran into its bedroom and locked the door. Reuters has the report:

A closely divided Supreme Court said on Monday it would not decide whether Guantanamo prisoners have the right to challenge their confinement before U.S. federal judges, avoiding a test of President George W. Bush's powers in the war on terrorism.

Over the strongly worded dissent of three justices, the high court said it would not rule on the constitutionality of part of an anti-terrorism law that Bush pushed through Congress last year. The law takes away the right of the foreign terrorist suspects at the U.S. prison in Cuba to have a judicial review of their detention.

That is, the law, the heinous Military Commissions Act, had stripped them of habeas corpus rights. (You remember habeas corpus, that's the right that Alberto Gone-zales insisted actually doesn't exist.)

The Court had twice ruled - in 2004 and again in 2006 - that prisoners at Guantánamo had the right to file suit related to their imprisonment in US courts. But in February, a lower court largely ignored those decisions, upholding the MCA in ruling that petitions that had been filed by two groups of prisoners challenging their imprisonment must be dismissed. The prisoners appealed; it was that appeal the Supreme Court refused to hear. The support of four justices is required to accept an appeal and only three - Stephen Breyer, David Souter, and Ruth Bader Ginsburg - voted to do so.

However, two more of the justices said the Court

could consider the issue later, if the congressionally approved proceedings involve unreasonable delays or some other injury for the prisoners.

The two, John Paul Stevens and Anthony Kennedy, issued a statement saying rejection of the appeals at this time "does not constitute any opinion on the merits" of the dispute.

So what the Court said, in effect, was "Uhhhhh - check back later, okay?" And then the bedroom door slammed shut.

Reuters said the Court appeared to accept the Shrub team's argument that the "process" should be given a chance. Under that "process," there is no right to sue in court but prisoners can get a limited review by an appeals court of the decision of a military tribunal as to whether or not they are an "enemy combatant." But rather than "accepting" anything, it seems more a matter of the Court hoping something: hoping that prisoners will be moved through the system fast enough that the justices can avoid having to rule on the issue at all.

Except, of course, speed should not be the only issue or even the primary one. Fairness and justice would seem to be natural candidates for higher ranking, and it's in precisely those areas that the "system" fails, as the New York Times makes clear.

In the last few weeks, the two most famous prisoners at the Guantánamo Bay naval base[, David Hicks and Khalid Shaikh Mohammed,] responded to proceedings against them by admitting their guilt.

That might appear to be a vindication of the Bush administration’s strategy of creating a built-from-the-ground-up military justice system limited to people said to be terrorists.

But because of the unusual circumstances of the two admissions, it is not clear yet that either one is truly representative of the system the administration has established, legal experts said. ...

Guilty pleas are common in ordinary criminal cases, too, of course. But in a garden-variety criminal prosecution, the parties bargain, in the famous phrase, in the shadow of the law.

In the usual case, defendants make a rational calculation based on the strength of the evidence against them, the state of the law and, most important, outcomes in earlier cases. If defendants think a plea will result in a shorter sentence than the likely one at trial, discounted by the possibility of acquittal, they plead guilty.

None of that holds at Guantánamo. The incentives and calculations are quite different there.

Mr. Hicks, for instance, was bargaining in the shadow of many things - the conditions at the base, international diplomacy, homesickness and the possibility of indefinite detention without charge. But he was not, for the most part, bargaining in the shadow of the law.

The law under which he was to be tried is untested. The relevant regulations are mostly unwritten. The military judge hearing the case disqualified two defense attorneys, one of them for refusing to agree to abide by the regulations that do not yet exist.

And that's if you even get as far as Hicks did: Before such a trial, you'd go before a military tribunal to determine your status. At that proceeding, which is held in secret before a group of military officers whose names are also secret, you have no legal representation, no practical ability to challenge (or, often, even see) evidence against you, and not even a guarantee of a complete transcript. (The transcript of Mohammed's hearing was redacted after he began suggesting he'd been tortured.)

And there is no requirement that you ever have such a hearing. If you do and are found to be an "enemy combatant," there's no requirement that charges be filed. And even if you're not found to be an "enemy combatant," there is no requirement that you be released.

There are about 385 detainees at the U.S. naval base in Cuba. The first prisoners arrived more than five years ago....

And most of them have never been charged with anything. This is the "system" the Supreme Court wants to give more time. What a farce.