Thursday, June 12, 2008

My Take on Boumediene

Ok. While I should be going home to clean my apartment, the temptation is just too great to write this now.

As I mentioned before, the opinion is over 130 pages. I'm not about to hash through it bit by bit, but I will address Scalia's dissent, already being fully embraced by the Right.

From the beginning, our beloved "Nino" distorts the entire concept of the case. Several times throughout his venomous dissent, he refers to the "war" against "radical Islamists" and various attacks the U.S. has suffered at the hands of Muslims: the Khobar Towers attack in Dharan, the embassy attacks at Dar es Salaam and Nairobi, the USS Cole and...the Marine barracks in Lebanon? (For my younger readers, that was an attack near the beginning of the Reagan administration.) Er, one of these things is not like the others...

Conflated responsibility for attacks aside, the fact is that the "War on Terror" is a war on an abstraction--it is a policy catch-phrase that, outside of an actual battlefield, serves only as rhetoric and a rationalization for the growth of the security state and reckless foreign policy. Not dissimilarly, it is no more a "war" than the war on illicit commodities, also known as the "War on Drugs." Certainly, there are tangible and substantial costs of blood and treasure for the victims and perpetrators of both of these "wars"--but neither is a war in any real sense.

9/11 wasn't an act of war--it was a heinous crime. 20 men, mostly Saudis, stole airplanes and murdered over 3,000 people. The Right has been all-too-quick to assign war powers to a president and Congress when, in fact, most of the acts they site are of a criminal nature. A "war on terror" would have to include a war on the Timothy McVeighs of the world, whom--by virtue of citizenship--are afforded constitutional protections and given trials. But this case doesn't even involve proper trials; it concerns whether or not foreign citizens--not to be confused with POWs--may challenge their incarceration in federal courts. Boumediene is one of several men who were imprisoned in Bosnia, by Bosnian authorities, held without charge, and then released for lack of evidence. After their release, they were picked up by Bosnian officials and transferred into U.S. custody--six years ago.

These men were not captured on the battlefield. These men were not, as far as anyone can tell, caught in the middle of some dastardly plot against the United States. Indeed, there is no evidence that, even if they are criminals, they had any intention of doing harm to the United States whatsoever. How they (legally speaking) came into the custody of the U.S. Military is quite a mystery to me. And, due to the legal black hole they found themselves in, as neither U.S. citizens or proper POWs (protected by the Geneva Conventions), they had no sufficient legal recourse to challenge their detentions.

Those whom have not followed this case closely may not be aware that Boumediene v. Bush had actually been denied certiorari before it was granted. (background here.) The testimony of a high-ranking military lawyer, Lt. Col. Stephen Abraham, has been speculated to have changed the mind of Justice Anthony Kennedy to grant cert, as he testified that the CSRTs were, for all intents and purposes, worthless--thus nullifying the substantive and procedural due process the CSRTs were designed to provide. (I'll find the link later. kind of in a hurry at the moment.) Abraham link here.

The Right is howling as if this is the end to military justice as we know it. In reality, the Boumediene decision safeguards the rights of people whom have been held (and in several cases, tortured) for years without any sort of legal justification as to why...and thus rebukes the attempts of the government to overstep its prerogative yet again. I'm all for being tough on terrorists, but not at the expense of a cornerstone of personal liberty by an over-reaching collusive alliance of the Legislative and Executive branches of the federal government.

Way to go, SCOTUS.



1 comment:

Sam said...

In reality, the Boumediene decision safeguards the rights of people whom have been held (and in several cases, tortured) for years without any sort of legal justification as to why...

The United States does not torture.