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Stop trusting Bush about "enemy combatants"

Let's quickly tick off some recent instances where our trust in George W. Bush may have been misplaced. We trusted Bush to take homeland security seriously, and he gave us Michael Brown. We trusted Bush when he told us that Iraq was an imminent threat because of its WMDs, but there were no WMDs. Bush is now asking us to trust him about Harriet Miers, and for good reason, many of us aren't. Why, then, should we continue to trust him about Guantanamo?

Former Solicitor General Seth Waxman gave a lecture at the law school this week. He discussed the role of the judicial branch in the "Global War on Terrorism" (which he helpfully informed us is often abbreviated "GWOT") and suggested that the country might be better off if the courts changed their approach. Along the way, he read a chilling transcript from a hearing for a prisoner in Guantanamo that should make us all question the deference we've been willing to give to George W. Bush.

Waxman's argument was that the courts need to be more provocative in the face of an executive branch that has consistently staked out a "maximalist" view of its authority to direct the war on terror, and a Congress which has "fallen deafeningly silent" on the issue since it passed the Authorization for the Use of Military Force (AUMF) right after September 11.

The Bush administration has consistently maintained that it alone has the authority to decide what will be done with detained enemy combatants, even when these are U.S. citizens detained on U.S. soil. Neither the judicial nor the legislative branch, according to the Bush administration, has much of a role to play. We've seen the administration again and again take the position that enemy combatants have no right to any relief or substantive review of their treatment by the courts. But Bush has also threatened to veto the military appropriations bill passed last week in the Senate in part because it includes the McCain amendment, a modest response by Congress to the shame of Abu Ghraib to make rules for the treatment of detainees. Bush would keep Congress on the sidelines despite the Constitution's Art.I, Sec. 8, cl. 11 (giving Congress the power to "declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water") and Art. I, Sec. 8, cl. 14 (Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces").

The administration is telling us to trust the President about the constitutionality of his actions both with regard to detainees and to the other branches of government. We might be prepared to do this if it was for a limited time, or if we were clearly in a war, or if he hadn't betrayed our trust in Iraq. But none of these things are true: the "war on terrorism" is endless; it's hard to believe we're in a real war when Bush himself asks for no domestic sacrifice and continues to play politics as usual; and Bush clearly mislead us, if he didn't outright lie, about the threat from Iraq. Toss in the evidence from Abu Ghraib and Guantanamo that detainees are being mistreated (to what national security end?) and the case for trusting Bush to wage this "GWOT" all by his lonesome is virtually nonexistent.

Waxman suggested that we might have been better off had the Supreme Court signed on to Justice Scalia's opinion in Hamdi v. Rumsfeld. There, Scalia wrote that unless Congress suspended the writ of habeas corpus, the only thing the government could do with an American citizen captured abroad and held in the U.S. was to charge him with a crime or release him. This, Waxman suggested, would have provoked the Congress to take its Constitutional obligations seriously, and to start making rules for the "War on Terrorism."

To demonstrate the kind of due process that the Bush administration thinks is acceptable for Guantanamo detainees, Waxman read a portion of a transcript from a military hearing that was cited at length in the publicly-available version of Judge Green's opinion in In re Guantanamo Detainee Cases, 355 F.Supp. 2d 443, 470 (D.D.C. 2005):


"The inherent lack of fairness of the CSRT's [Combatant Status Review Tribunal] consideration of classified information not disclosed to the detainees is perhaps most vividly illustrated in the following unclassified colloquy, which, though taken from a case not presently before this Judge, exemplifies the practical and severe disadvantages faced by all Guantanamo prisoners. In reading a list of allegations forming the basis for the detention of Mustafa Ait Idr, a petitioner in Boumediene v. Bush, 04-CV-1166 (RJL), the Recorder of the CSRT asserted, "While living in Bosnia, the Detainee associated with a known Al Qaida operative." In response, the following exchange occurred:

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I'm sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary. . . .

Detainee: ... The only thing I can tell you is I did not plan or even think of [attacking the Embassy]. Did you find any explosives with me? Any weapons? Did you find me in front of the embassy? Did you find me in contact with the Americans? Did I threaten anyone? I am prepared now to tell you, if you have anything or any evidence, even if it is just very little, that proves I went to the embassy and looked like that [Detainee made a gesture with his head and neck as if he were looking into a building or a window] at the embassy, then I am ready to be punished. I can just tell you that I did not plan anything. Point by point, when we get to the point that I am associated with Al Qaida, but we already did that one.

Recorder: It was [the] statement that preceded the first point.

Detainee: If it is the same point, but I do not want to repeat myself. These accusations, my answer to all of them is I did not do these things. But I do not have anything to prove this. The only thing is the citizenship. I can tell you where I was and I had the papers to prove so. But to tell me I planned to bomb, I can only tell you that I did not plan.

Tribunal President: Mustafa, does that conclude your statement?

Detainee: That is it, but I was hoping you had evidence that you can give me. If I was in your place--and I apologize in advance for these words--but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.
[Everyone in the Tribunal room laughs.]

Tribunal President: We had to laugh, but it is okay.

Detainee: Why? Because these are accusations that I can't even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don't have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I'll just tell you that I did not. I don't have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

The laughter reflected in the transcript is understandable, and this exchange might have been truly humorous had the consequences of the detainee's "enemy combatant" status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate [footnotes omitted]."

One can only guess whether the redacted portions of the opinion contain anything more shameful and embarrassing.


Good post Carey. I couldn't agree more.

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