Tuesday, November 15, 2005

They Still Don't Get It

And neither does the Washington Post.

It's bad enough that the US Senate (including several DINOs) voted to suspend Habeus Corpus for detainees held in American custody, but it's even worse when a major US newspaper seems to think that it can be justifiable in some circumstances. Today's Washington Post seems to be saying just that, although the editorial purports to be chastising the Administration and Congress.

Last week the Senate voted, 49 to 42, in favor of Mr.[Lindsay] Graham's proposal to strip the federal courts of jurisdiction to hear challenges by inmates at Guantanamo Bay, Cuba, to their confinement or to the administration's plans to try some of them in a kind of military court. Senators announced a bipartisan compromise last night in the form of a plan that would allow limited appeals rights when military commissions convict someone or when they are designated enemy combatants. Assuming it is adopted tomorrow, that would be a significant improvement over the original language, although important problems would remain. As senators continue to work toward a final version, they should think hard about what they are doing and how their action will be perceived in the world.

Mr. Graham's underlying point isn't crazy; he's saying that foreigners held abroad should not enjoy the right of habeas corpus -- that is, the right to challenge their detention in a U.S. court. The problem is that his response comes after four years of Congress's abdication of its duty to set rules for handling detainees. If the removal of habeas rights followed the establishment and testing of a fair system of hearings and appeals, he could make a persuasive argument. As the first response of a Congress rousing itself from a four-year stupor, it is outlandish.

Blame for the current mess begins with President Bush, who insisted from the beginning of the war that he had all the legal authority he needed and could make up his own rules. The administration took forever to formulate rules; when it did, those rules came without congressional backing and, not surprisingly, sparked legal challenges.

Four years later and thousands of miles from Afghanistan, not a single suspect has been tried. Only nine are facing charges. The commissions suffer from basic problems of fairness and of being a system built on the fly. They have, in all significant respects, failed.

Preventing the justices from considering the commissions' legality will do nothing to address these problems; it will only sweep them under the rug. Congress needs to be making policy concerning Guantanamo, not shielding weak administration policy from judicial scrutiny.
[Emphasis added]

What the Washington Post, Congress, and most especially the Administration seem to overlook is that wherever prisoners are held, whether on US soil or abroad in secret prisons, they are entitled to basic human rights, including access to the Red Cross and knowing what they are being charged with. If US law doesn't apply because prisoners are held outside the confines of the US, then some other law does. If the US is unwilling to extend the right to Habeus Corpus or any other legal rights peculiar to US law, then perhaps international law should apply. Is the US willing to abide by the treaties it is signatory to?

The problem isn't merely that President Bush made up the rules as he went along, although that certainly is part of it. The problem is also that for some reason the Washington Post, Congress, and the Administration believe that because these prisoners are from the Great War on Terror, they are not entitled to any rights. Such an attitude smacks of the old Soviet system of "justice" and (dare I say it?) the Third Reich's approach to those it imprisoned for being 'the other.'

The Washington Post doesn't even have it half-right.


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