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The Daily Journal: Wednesday, February 21, 2007

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Abolishing Prisoners’ Rights
Shame of the Courts

The disgrace lives on, eith the courts' and Congress' blessing

“It had become a tradition during the last few years that dictators acted and democracies protested, a division of labor which seemed to please everybody.” When Arthur Koestler wrote that line (in “Dialogues With Death”) he had in mind dictatorships and democracies in separate countries. The division of labor that now pleases everybody is contained within the United States. We have a dictatorship for a presidency and a democracy, at least in form, going through the motions of protesting and pretending to oppose what it vaguely remembers it should, like the dictatorship’s suspension of basic rights—trial by jury comes to mind—but managing nothing more effective than the appearance of an opposition. On Tuesday, a federal appeals court endorsed some of the Bush junta’s most abject practices regarding prisoners held at the Guantanamo Bay concentration camp: the denial of those prisoners’ right to challenge their imprisonment in court. That’s the right to habeas corpus, one of the most fundamental rights of individuals in civilized societies. Last year Congress passed the Military Commission Act of 2006 abolishing the right, thus placing the United States on par, in that regard—and this is no exaggeration—with the legal systems of the Soviet Union and its satellites last century, or with that of abjectly unjust nations in Africa today.

The federal appeals court (D.C. circuit) came down to this cop-out of an argument: habeas corpus doesn’t extent to individuals held outside the United States. Nor does the right of appeal to federal courts on the mainland. But to judge Guantanamo Bay not part of the United States is one of those craven sophisms that slams untenable reasoning to a preconceived conclusion. The appeals court’s ruling also directly contradicts the Supreme Court’s in Rasul vs. Bush in 2004: “Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus.” So what part of the right did the appeals court not understand?

Scalia and Thomas dissented from that judgment; Kennedy and O’Connor concurred with the 6-3 majority, which leaves open the possibility that despite the replacement of Sandra Day O’Connor with Samuel Alito, a reactionary, a 5-4 majority might still hold in the prisoners’ favor. Chief Justice Roberts is on the reactionaries’ side on this one, having already established his credentials as a Bush administration vassal while on the same appeals court. Meanwhile, the ruling essentially endorses the Bush junta’s worst practices. If fundamental rights don’t apply to prisoners held off shore, then the American gulag in Iraq, Afghanistan and elsewhere, and its “extraordinary rendition” program—exporting prisoners to the jails of Jordan, Saudi Arabia, North Africa, where they may be tortured—are also legal, and prisoners in those hell holes are out of luck. The dissenting judge in this latest case points out another aberration: Suspension of the writ of habeas corpus “has been an exceedingly rare event in the history of the United States. On only four occasions has Congress seen fit to suspend the writ. These examples follow a clear pattern: Each suspension has made specific reference to a state of ‘Rebellion’ or ‘Invasion’ and each suspension was limited to the duration of that necessity.”

Where is the rebellion? Where is invasion? For that matter, the war on terror itself, that founding reasoning for all those judicial and congressional perversions of American principles, is itself a bankrupt concept, more smoke than substance. Some of these aberrations could have been excused in 2002, when the embers were still warm at Ground Zero and Congress and the nation were under a mild state of shock. But nothing, nothing has argued for sustaining either the state of emergency that unofficially descended on the country then nor the way the Bush junta has given that state of emergency its sense of permanence. It’s all been expediency and cowardice, down to Congress’ own: the best, final outcome isn’t a working of the law regarding the Guantanamo detainees. It’s shutting down Guantanamo altogether.

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