Coyote Blog

For the last couple of years, much of the debate about detention at Gitmo has focused  on silly arguments about torture.  Flushing a Koran -- Torture!  Showing a picture of a naked girl -- Torture!  The comfy chair  -- Torture!  As I wrote in this post,

Here is my fervent hope:  If I ever find myself imprisoned by hostile
forces, I pray that they will torture me by sitting me in a chair and
having me watch them flush books down the toilet.

If I bought into the theory of Rovian infallibility, I might argue that this was all a clever trick to distract the country with the left hand while the right was really doing the damage.  Whether planned or not, the media certainly fixated on the left hand, while the right was doing this:

In a series of probing and sometimes testy exchanges with a government
lawyer, two of three judges on a federal appeals court panel here
indicated Thursday that they might not be prepared to accept the Bush
administration's claim that it has the unilateral power to detain
people it calls enemy combatants....

"What would prevent you from plucking up anyone and saying, "˜You are
an enemy combatant?' " Judge Roger L. Gregory of the United States
Court of Appeals for the Fourth Circuit asked the administration's
lawyer, David B. Salmons.

Mr. Salmons said the executive branch
was entitled to make that judgment in wartime without interference from
the courts. "A citizen, no less than an alien, can be an enemy
combatant," he added.

The real threat to freedom and the American way here was always the Bush administration's incredible theory that it had a right to name anyone a combatant and then detain them forever, without any sort of independent review or appeal.  Particularly in a "war" with no defined enemy.  It's incredible to me that the Congress and courts have let this slide as long as they have, and good to see some scrutiny may finally be applied.  Hat tip: Reason.  More here, here, here.  Looking back through my archives, I seem to have made this same point months ago:

One of the problems I have making common cause with many of the
civil rights critics of the Bush administration is that they tend to
hurt legitimate civil rights by exaggerating their claims into the
ridiculous. 

A good example is detentions at Gitmo.  I believe strongly that the
Bush administration's invented concept of unlimited-length detentions
without trial or judicial review is obscene and needed to be halted.
But critics of Bush quickly shifted the focus to "torture" at Gitmo, a
charge that in light of the facts appears ridiculous
to most rational people, including me.  As a result, the
administration's desire to hold people indefinitely without due process
has been aided by Bush's critics, who have shifted the focus to a
subject that is much more easily defended on the facts.

The Supreme Court refused to review the Padilla case:

The Supreme Court on Monday refused to hear the appeal of Jose
Padilla, a U.S. citizen held in a military jail for more than three
years as an "enemy combatant." The Court, however, declined to dismiss
the case as moot, as the Bush Administration had urged. Only three
Justices voted to hear the case, according to the order and
accompanying opinions. The case was Padilla v. Hanft (05-533).

The decision was a victory for the Bush Administration in one
significant sense: by not finding the case to be moot, the Court leaves
intact a sweeping Fourth Circuit Court decision upholding the
president's wartime power to seize an American inside the U.S. and
detain him or her as a terrorist enemy, without charges and -- for an
extended period -- without a lawyer. The Court, of course, took no
position on whether that was the right result, since it denied review.
The Second Circuit Court, at an earlier stage of Padilla's own case,
had ruled just the opposite of the Fourth Circuit, denying the
president's power to seize him in the U.S. and hold him. That ruling,
though, no longer stands as a precedent, since the Supreme Court
earlier shifted Padilla's case from the Second to the Fourth Circuit.

I don't even pretend to understand all the procedural stuff, but I find it amazing that the effective suspension of habeas corpus, particularly when the "war" and "enemy" that is used as its justification is so amorphous and open-ended, isn't something the Supreme Court would like to sink its teeth into.

Apparently, the Justices were reluctant to address the case since it has now been made "hypothetical" by the transfer of status of Padilla from enemy combatant held incommunicado indefinitely to a more mainstream justice track.  However, this transfer occurred, as the appeals court pointed out angrily, in a transparent effort by the Bush administration to avoid judicial review of indefinite detentions.  Which raises the possibility that the administration could hold hundreds of people in such detention, systematically changing the status of any individual whose case comes for review, thereby avoiding review of the program in total.  As Ruth Bader Ginsburg wrote, "Nothing prevents the Executive from returning to the road it earlier constructed and defended."

One wonders by this logic if the segregationist south could have indefinitely postponed Supreme Court review via Brown vs. Board of Education just by letting individuals like Linda Brown individually into white schools whenever their cases got to the Supreme Court.

And still I ask, as I did here, where the hell is Congress?  I am sorry the Supreme Court failed to review this but the Constitution created this group called the legislative branch that is supposed to have the power to change the law.  If law is unclear here, they could make it clear.