I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, May 06, 2006

Avoiding judicial review

Over at Obsidian Wings, Hilzoy reports, via Reuters:

The United States said on Friday it had flown five Chinese Muslim men who had been held at the Guantanamo Bay prison to resettle in Albania, declining to send them back to China because they might face persecution.

The State Department said Albania accepted the five ethnic Uighurs -- including two whose quest for freedom went all the way to the U.S. Supreme Court -- for resettlement as refugees.

Two of the Guantanamo detainees were determined long ago not to be enemy combatants, but the U.S. Government continued to hold them anyway, on the ground that they could not be returned to our good friend, China, because they would be tortured and killed there, but no other country would take them. As a result, the administration simply kept them in Guantanamo and fought their judicial efforts to be freed, even though they were guilty of nothing.

As pointed out by Hilzoy (who, incidentally, commented upon, and substantially improved, the manuscript to my book, and who has been following this case from the beginning):

Arguments in the Uighurs' appeal were scheduled to be heard on Monday morning. (I was going to go to DC to hear them.) I wish I could think it was just a coincidence that after over a year of searching, the administration found a country willing to take the Uighurs today. But I can't. This administration has built up quite a track record of freeing people (or, in Jose Padilla's case, bringing unrelated charges) just in time to render their appeals moot, thereby preventing the courts from finding their conduct illegal or unconstitutional.

I discussed this truly reprehensible tactic in my book at length. The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures -- from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants -- but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.

The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in the cases of Yaser Hamdi and Jose Padilla -- two American citizens whom the administration abducted (in Padilla's case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming -- based solely on George Bush's secret decree -- that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.

But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush's decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla's case, the administration -- one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla's 3 1/2 year lawless incarceration -- suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla's claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.

And now, they have done the same thing in the case of the Uighur detainees. As Hilzoy said:

Now, right before the Uighurs' case comes before the DC Circuit Court, the government has found a way to moot this appeal as well. If the Bush administration's lawyers and policy makers had the courage of their convictions, they would not be afraid to make their case in court, on the merits.

Of all the abuses and excesses engaged in by the administration, the one that I am endlessly amazed can prompt defenses -- even from the most zomibified Bush followers -- is the administration's claim to have the power to incarcerate - indefinitely - U.S. citizens without any charges. Even the administration knows that much of their conduct is indefensible, which is why they abandon their efforts when they are forced to defend the legality of their behavior.


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