As seems to be the case for the summer, I have forgotten to blog again. Doh! So, in true Katrina form, I shall make up for this in grandiose spirit that I originally intended for this blog: to rant about the law. If you are not interested in this, stop reading this entry.
As many of you may know, this past year I worked as a research assistant for Prof. Annas. Prof. Annas is a law and public health prof. at BU, and, as such, is interested in the intersection of public health and the law. This interest takes many forms, from bioethics to human rights. As Prof. Annas’s research assistant, I, by default, have eventually become interested in this intersection of specialties, since I spend a good deal of time researching different topics for my boss. One of these topics of particular interest in the current situation in Guantanamo Bay, and the detainees there.
There are approx. 600 people detained at the military base at Guantanamo Bay (known to most military personnel as “Gitmo”, a phrase I have taken to using.) Most of these people have been there for over a year, many for 2 or more years. Some of these people are children under the age for 16. These detainees were brought to Gitmo as the result of our “War on Terrorism.” We (the United States and our most excellent Commander and Chief, the all knowing Dubya) have given them the title of “enemy combatants,” a phrase that did not exist before our current “war.” As such, the term does not exist in such international treaties and agreements, such as the Geneva Convention. Based on this new terminology, we have determined that these people do not qualify for the rights that are required of other groups that are defined in these agreements. Instead, we have essentially denied them all of their rights, including the right to contact family, a right to counsel, and, apparently, a right to have a clue as to why they are being detained.
In lieu of this denial of rights, the families and friends of these “enemy combatants” have filed for a writ of habeas corpus, to gain some jurisdictional standing in the United States, so as to have access to counsel and actually be charged with some sort of crime. Understand that most of these “enemy combatants” have no idea that these proceedings are going on, as they have not been given a right to counsel. The cases, Rasul, Shafiq, et al. v. Bush, George, et al. / Al Odah, Fawzi, et al. v. U.S., worked their way to the Supreme Court of the United States, where they were combined, and were ruled upon on June 28, 2004. The detainees won, in a 6-3 vote. Granted, when I say won, I mean that the Supreme Court merely granted the writ of habeas corpus, and allowed them to go back to the district court to try again to gain the access to counsel, to be charged and tried for actual crimes and maybe eventually either be convicted or released from Gitmo.
The opinions, as per normal of late, were interesting to read. I say interesting since the majority’s opinion was a fascinating combination of pseudo-double talk, and relatively good legal logic, while the dissent was very persuasive, but in the end utterly frustrating. Joyously, in my world at least, the opinions were written by some of my favorite Justices (yes, I have favorites….go ahead and laugh…). For the majority, we have my favorite: Justice Stevens. For the concurring, Justice Kennedy. And for the dissent, as per normal, Justice Scalia.
Rather then bore you with the details of the opinions (which you can read here) I will share the final paragraph of each. Note the distinctly differing language of each.
Majority (Stevens):
Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrong doing. Answering that question in the affirmative, we re-verse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims.
Concurring (Kennedy):
In light of the status of Guantanamo Bay and the in-definite pretrial detention of the detainees, I would hold that federal court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager. For these reasons, I concur in the judgment of the Court.
Dissent (Scalia):
The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent.
In the end, as per normal, I enjoyed reading Scalia’s opinion the most, as he is a ridiculously brilliant man, as well as a persuasive writer. In the end, however, I agree with the majority. Give the people some functional rights. Or at least charge them with something. The “War on Terrorism,” much like the “war on drugs” will never end. There will likely never be a day that we will be able to stand up and say, “Today, we have won the war on terrorism.” Because, honestly, we will continue, as a nation, to piss off someone. And that being said, to say we should not be forcing the military, or the government, to charge these people in a “war” of their “crimes” is insane. We could make them sit there forever, at that rate. And I’d like to think, as a country, that we are morally better then the people we are condemning.
