Saturday, July 21, 2007

Blind Review

After the 109th Congress stripped habeas corpus rights from Guantanamo Bay detainees, it left only one avenue of review for them: an appeal to the federal court of appeals on the issue of the validity of tribunal decisions on enemy combatant status. Yesterday, an important ruling came down from the Washington, DC Circuit Court of Appeals on the matter. From today's Washington Post:

A federal appeals court charged with reviewing the enemy combatant status of detainees at the U.S. detention facility in Guantanamo Bay, Cuba, ruled yesterday that the government must provide the court and defense lawyers with classified evidence gathered against the detainees. The ruling indicates that the court wants to conduct full reviews of the Bush administration's decisions about the suspected terrorists.

Judges on the U.S. Court of Appeals for the District of Columbia Circuit wrote that the court "must have access to all the information available" to the military's Combatant Status Review Tribunals to determine whether the tribunals were fair to Guantanamo detainees and whether the individuals should in fact be considered enemy combatants. Government lawyers had argued that the court should review only what was in the official record of the tribunals, not all the evidence they had gathered to support the hearings.

The court was ruling on motions filed in two cases arising out of the Detainee Treatment Act, which was passed in late 2005 and gives detainees the right to appeal tribunal decisions to the court of appeals -- currently their only legal option for challenging their detention.

Chief Justice Douglas H. Ginsburg wrote that the court and the detainees' lawyers must see all the evidence because the Detainee Treatment Act requires the court to determine the validity of the tribunal decisions, and doing so without all available information would be inappropriate.

It's bad enough that evidence used by the government was withheld from the defendants and their attorneys, but that the government tried to withhold that evidence from the Court of Appeals is stunning. What? "Just trust us" is now a legally sufficient argument?

Due process is not something that can be limited. We either have it, all of it, or we don't have it all. This government's constant whittling away of centuries old rights has to be stopped, and this is as good a starting point as any.

Unfortunately, in this case, the process is not complete. The government can still appeal this decision to the Supreme Court, and, frankly, given the current makeup of the Supreme Court, I am more than a little nervous about the ultimate outcome.

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Anonymous Anonymous said...

I'm nervous, too. When news came out that the highest court in Pakistan was backing the Supreme Court Justice Musharraf had sacked, I wondered what would happen with out current court--if a justice had not been cahoots with BushBoy, what would our current Supremes do?

I also marveled at the courage of the lawyers in Pakistan who had protested strongly and demonstrated on the streets to support the sacked justice. And I wondered how many attorneys in this nation would have the courage to protest and demonstrate against a dictatorial actions taken by BushCo....

Where is the outrage over BushBoy's recent wide-ranging executive order permitting the Secty of the Treasury to declare someone liable to asset seizure simply based on his judgement (and more likely Bush or Cheney's) that that person or organization was supporting insurgents or somehow undermining the government of Iraq. Wow. Dennis Kucinich and Ron Paul better bet their assets into numbered accounts heaven know where. And then the rest of the Democratic field, because it could be construed that to criticize our being in Iraq ipso facto undermines the current government there. And all of us who donate to any political figure or organization which doesn't support Dear Leader Squared.... Or simply write about our thinking....

I can't believe I am living through this!

I an nervous and I fear for this nation's democratically elected representative republic.

4:23 PM  
Anonymous Nora said...

All right, I, too, fear for the outcome of this issue with the current Supreme Court, but I would remind everybody that the Gitmo issues have already come up to the Supreme Court twice (not, granted, with Roberts and Alito, but with Renquist and with Scalia and the rest of the neanderthals), and on BOTH occasions the Supreme Court has slapped the Bush Administration down. All right, Thomas in the first case basically rolled over and showed his belly ("yes, the President can hold anyone as long as he wants, with no procedures for review at all, as long as he says the person is an enemy combatant and I'm okay with that" is the basic tenor of his dissent, a document that should bar him forever from civilized society -- but I digress), but even Scalia didn't agree with Bush's ridiculous assertions. Even Scalia. Even Kennedy.

And while precedent means very little to Alito and Roberts, I believe that a precedent from a year ago, and one from three years ago, would be VERY hard to justify overturning.

Call me crazily optimistic, but I'm holding out hope that they will once again slap down these unconstitutional, dictatorial, abuses of power.

6:35 AM  

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