The Rumsfeld-Bush Legal Black Hole

Powers Formerly Reserved Only for Kings

"[After the American Revolution], there was to be no king. . . . Allegiance would go, not to a man with a crown, but to the law. . . . It was to be a 'government of laws and not men.' " —Law in America, Lawrence M. Friedman


"Pick your favorite constitutional amendment or right: its survival during the war on terror cannot be assumed if the legitimacy of these indefinite detentions is sustained." —Thomas H. Moreland, chair of the Federal Courts Committee of the Association of the Bar of the City of New York, February 6, 2004


The headline on a February 13 BBC News World Edition dispatch, "Guantánamo Inmates Get New Rights," concerned an announcement by Defense Secretary Donald Rumsfeld that the hundreds of alleged Al Qaeda and Taliban terrorists imprisoned on an American military base at Guantánamo Bay, Cuba, would from now on get an annual review by a three-person panel to decide whether or not they should be released.

This was a classic misleading headline on a story that left out all the significant details except one: "Mr. Rumsfeld added that the U.S. was planning to hold many of the detainees for 'as long as necessary.'"

The February 13 front-page New York Times story was much more revealing of Bush's parallel legal system. The story began, "Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely." (Emphasis added.)

Furthermore, the decisions of this new three-person panel Rumsfeld will choose to determine the fates of these prisoners will ultimately get a final review—but only by Donald Rumsfeld, acting for King George. As Michael Ratner, president of the New York-based Center for Constitutional Rights—a key litigator in the battle to rescue the Constitution from Bush's warriors—told the Times: "The idea that you could theoretically keep someone locked up forever under these circumstances is reprehensible. . . . It's nothing to do with law as any person should understand it, at least since the Magna Carta. How do you know without a trial that these people are even dangerous? It all depends on the military's word."

Well, some of these prisoners may get what passes for a trial before a military commission. But what kind of trial? That is the subject of a brief to the Supreme Court by five of the military lawyers assigned by the Defense Department to defend prisoners brought before these tribunals in the case of Fawzi Al Odah et al. v. United States.

This is the first time in American history that military lawyers have imperiled their careers by making public statements such as this one, from Marine Corps Major Michael Mori, who told a Washington press conference in January: "The military commissions will not provide a full and fair trial. . . . The commission process has been created and controlled by those with a vested interest only in convictions." (Emphasis added.)

But even if these rigged commissions, also called tribunals, were to give specific sentences to prisoners, there would be no guarantee that they would be released after serving their time. Deep in the New York Times February 13 story is this chilling admission by a "senior defense official [who] said that it was possible that an individual could be convicted by a tribunal and serve a five-year sentence and then not be released if he were judged to remain a danger." (Emphasis added.)

The authority to unilaterally keep a defendant locked up—conceivably for the rest of his or her life—used to be reserved solely for kings, who could ignore any part of the realm's legal system. This monarchical power—as I've indicated in reporting on the indefinite imprisonment, without charges, of American citizens Yaser Hamdi and Jose Padilla—has been expanded by George W. Bush to include defendants at Guantánamo.

The Supreme Court of the United States will decide, during the current term, whether the prisoners at Guantánamo have any recourse to our civilian courts to challenge the Bush-Rumsfeld power to keep them in a legal black hole. This hole is now so bottomless that even if some were to be convicted by an American military tribunal, they might never be released—no matter what their sentences were.

Keep in mind that the rules Rumsfeld and Bush have set for these military tribunals include the denial of any appeals by the defendants to American civilian courts! This door of last resort has been closed even though—contrary to the statements by the president and his solicitor general, Theodore Olson—these proceedings are taking place on territory that, according to the U.S.'s lease with Cuba, is wholly under American jurisdiction.

The Association of the Bar of the City of New York, one of this nation's most influential bar associations, issued an exceptionally valuable 153-page report on February 6, "The Indefinite Detention of 'Enemy Combatants': Balancing Due Process and National Security in the Context of the War on Terror."

Much of the report concerns the indefinite imprisonment of American citizens Yaser Hamdi and Jose Padilla. But the conclusion of the report is also crucially relevant to the prisoners at Guantánamo Bay. If we can strip non-American citizens of all meaningful due process rights, this precedent will also be used by other countries who imprison American "enemy combatants." And the administration's professed concern with spreading the seeds of constitutional democracy to other nations will be farcical. The Association of the Bar of the City of New York's report concludes:

"It should take far more than the monstrous brutality of a handful of terrorists to drive us to abandon our core constitutional values. We can effectively combat terrorism in the United States without jettisoning the core due process principles that form the essence of the rule of law underlying our system of government.

"Insistence on the rule of law will not undermine our national security. Abandoning the rule of law will threaten our national identity." (Emphasis added.)

I have seen nothing of this bar association report in the media. I hope the justices of the Supreme Court will read—and remember—it. "Law," said Thomas Jefferson, "is often but the tyrant's will, and always so when it violates the right of the individual."

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