THE GITMO ORAL ARGUMENTS AND THE TAO OF LEGAL PROCEDURE

By Jon Dodson

Last week our Supreme Court watcher previewed the current appeals stage in the case of the Guantanamo detainees ("The Gitmo Appeals, Round IV"). Here is Jon's update.

On Wednesday, the Supreme Court heard oral arguments in Boumediene v. Bush. I was disappointed to see Charles Gibson reporting that the issue was whether the Guantanamo Bay detainees have constitutional standing to bring habeas corpus proceedings. It was ridiculous to me because, as I have argued, that ship has sailed. The Court already held, on a vote of 6-3, that the Guantanamo detainees can bring habeas corpus proceedings before the Supreme Court.

But, I thought, it's only Charles Gibson. I wouldn't expect ABC or any other mainstream news outlets to give accurate, honest reports about even the least politically charged subject, let alone one so unfortunately controversial as--gasp-- our constitutional rights to a fair trial, legal representation, a neutral judiciary, and LIBERTY. (And as much as we Americans have kicked that word around, how often is liberty so fundamentally at stake as here?) But then I read the transcripts of the oral arguments. And I realized, for once, our media didn't drop the ball, but (as is increasingly common) it appears that our Supreme Court will.

Let me repeat: The Court already decided that Guantanamo detainees have the right to habeas corpus. This was supposed to be the appeal where we finally got to the meat of the issue. Where we finally considered what, specifically, habeas corpus requires in this context. What precise kind of legal representation should be afforded to those to whom the executive branch has unilaterally (as always) given the nebulous new status "enemy combatants." That was the threshold procedural question necessary to consider the substance of what our Constitution guarantees. And it was decided. Six to three. The detainees have standing. The Supreme Court has jurisdiction. The case was Rasul v. Bush, 542 U.S. 466 (2004).

So when the Court took the unprecedented move of changing its mind and granting cert, one would assume they weren't merely intending to rehash that already-resolved issue. True, the Court has changed since 2004, but not in a way that would alter the outcome on this issue. As Jeffrey Toobin reminded us in his recent book, The Nine, Justice Kennedy (who's now the swing vote on this issue) is an ardent internationalist, and is increasingly uncomfortable with America's tarnished image and its minority viewpoints on human rights issues about which there used to be international consensus. Prior to the arguments, there was no indication that he had wavered. And aside from his unusual silence, he gave no such indication at oral arguments. Now, I don't think they will reverse Rasul, but it appears from oral arguments they aren't willing to take the next step.

So why? Why didn't they delve into the important stuff--those sexy, lofty rights of the criminally accused? Why harp on the tired procedural issue? As if the right-wing justices could narrow standing and thus reverse a brand-new precedent, all the while clinging to the mantle of judicial conservatism and regretting that they were procedurally barred from doing the right thing!

Well, the writing's on the wall. There seems to be an unwritten rule that, whatever happens, the Guantanamo detainees are staying put until the real powers-that-be decide otherwise. That's why the Department of Defense waited until nine days after the Hamdi decision (which authorized the detention of enemy combatants), to widely broaden the definition of enemy combatant to include tons of people whose situations the Court hadn't considered. It's why the executive wants the appeals to be heard one detainee at a time. It's why, when the procedural bar was our constitutional separation of powers, Congress immediately capitulated.

Yes, we can all wax philosophical about what our Constitution stands for, about what due process means, about the importance of liberty, so long as nothing ever really changes. We can feed our superegos in this country with lofty ideals, while we leave the rest of the world to deal with our collective id and its consequences. We can ponder what it means to live in a free country, while we send a few unlucky persons to Cuba, where, alas, the Constitution maybe doesn't apply. Because according to "judicial conservatives" we should think twice before granting constitutional jurisdiction, because we must construe the Constitution strictly, and it wasn't the Founders' intent, they wanted only white men to have rights, and the Founders were a Christian people, and who is the Supreme Court to disobey the Lord, and what would happen if we go down that road, and scary brown people are climbing over the walls, and the terrorists are bombing our children, and the scary brown people have more rights and weapons than us, and Congress is packed with Muslims, and then how much will our rights be worth? And in that way, the supposedly apolitical and aloof judicial conservatives obfuscate their distasteful, political agendas.

What next? The Court will probably reverse and remand to the D.C. Circuit in yet another passing of the buck. Meanwhile the detainees will sit in Guantanamo. Their families will wait longer. Their kids will grow older; their wives will grow greyer. We'll write and rail about their rights in blogs and conferences and editorials and roundtables. The wingnuts will rail about a post-9/11 world, about how terrorism is just too scary for our antiquated ideals. And maybe next time the Court will do something. And the detainees are where they are. Probably they'll live to see another hearing.