The Adminstration this week unveiled its latest attempt to avoid all legal oversight of its activities at the military prison at Guantanamo Bay, Cuba. The Justice Department declared that it was seeking to have all suits brought by Guantanamo detainees dismissed from the federal courts. The federal courts should reject the Justice Department’s action and remind the Administration that it is not beyond the bounds of law.
Those detained at Guantanamo were swept up in broad raids in Afghanistan and Pakistan. There are some very bad guys there. But there are also some guys imprisoned by mistake. There are even some who remain imprisoned although the military has conclusively cleared them as non-combatants. The federal court challenges the Administration seeks to dismiss have been an effective way of separating those who should be imprisoned from those who should not. These suits, it should be noted, do not demand release of the prisoners. Instead, they ask the Administration to charge the detainees with offenses rather than imprison them indefinitely without ever explaining why. Over half of the current detainees have challenged their imprisonment in this way, though if the Adminsitration gets its wish, each of these cases will be thrown out.
Attempts to avoid legal review at Guantanamo began at the very inception of the facility, when, in 2002, Guantanamo Bay was transformed from a naval base to a sprawling military prison for individuals captured in the war on terror. The idea was that because Guantanamo was not American soil, the Administration need not obey American detention laws for those detained there. The Supreme Court rejected this conclusion, declaring that Guantanamo inmates could use the federal courts to challenge their indefinite detentions without charge.
Having lost the initial fight at the Supreme Court, the Administration renewed its attempts to shake off pesky legal oversight with its action this week. In seeking to have the cases dismissed, the Justice Department is relying on a vague provision in a military bill passed late last year that allegedly eliminates federal court jurisdiction over Guantanamo cases. It is far from clear, however, that is what Congress intended.
Senator Carl Levin, a co-sponsor of the provision, claims that the provision was meant to limit only future Guantanamo challenges without affecting cases currently pending. Levin said he rebuffed at least three administration attempts to make the law retroactive while the legislation was being written. “The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress,” Levin asserted.
The Administration’s action is simply the latest in a consistent stream of attempts to enlarge executive power and avoid oversight of executive actions – at Guantanamo and elsewhere. Whether it be domestic wiretapping or the Geneva conventions, this Administration has consistently considered itself above the law. Earlier this week, the President declared as he signed the recently-passed ban on torture by American intelligence personnel that he would interpret those restrictions in the context of his broader constitutional powers as commander in chief. In other words, President Bush will enforce the ban so long as he wants to. If the President can simply declare what a law means, then what is the point of writing and debating the law in the first place?
The Administration’s brazen attitude toward review of its activities reminds me of another famous, though fictional, Guantanamo character. In the film “A Few Good Men,” Jack Nicholson plays the above-the-law colonel in command of the Guantanamo naval base. When pressed for a description of his involvement in a hazing incident that led to a soldier’s accidental death, Nicholson feels no need to explain himself. Pressed by a pesky Navy lawyer, Tom Cruise, for the truth, Nicholson famously belts, “You can’t handle the truth!” So it is with this Administration. The Bush Administration feels no need to explain the prolonged detention without charge of hundreds of individuals at Guantanamo Bay. That, my friends, is something we truly can’t handle.
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