Guantánamo: Shame of the US
Not only did the US torture prisoners to death in Guantánamo—and then protected the torturers and murderers, who will not be called to account: they did it in the past, you see, and President Obama believes that no one should be punished for past misdeeds except those whom he decides to punish, like Bradley Manning, for example: releasing documents that embarrass the US by showing what the US does is intolerable, and Manning must be punished at all costs—just like the persecution (and prosecution) of Thomas Drake, who revealed NSA waste in the Trailblazer program. OTOH, the massive breakdown of law in the warrantless wiretapping: that’s fine. Victims were just American citizens, not powerful bureaucrats. And all the publicized torture of suspects: why, that’s fine, too. President Obama has a Magic 8 Ball that indicates to him which persons to pursue for punishment and which get off scot-free. Obama gets to decide. In the US we no longer have the rule of law, but the rule of whim.
Now Guantánamo is transgressing new boundaries: Suspects do not have the right to confidential consultation with their attorney.
This country is throwing its values overboard wholesale.
Kal Raustiala writes in the LA Times:
Of all the hangovers from the George W. Bush years, the thorniest may be what to do about the U.S. military prison camp at Guantánamo Bay, Cuba. There are still 171 detainees at Guantánamo and little consensus on what to do with them. Last spring, President Obama announced the resumption of military trials for some of those charged with participating in the 9/11 attacks. These trials, known as military commissions, have been stalled for years by legal challenges. Recently, the official in charge of the Guantánamo prison, Rear Adm. David Woods, issued a draft order that compounds these challenges. The order requires all correspondence between the accused and their appointed military lawyers to be reviewed by federal officials.
The proposed order is a mistake, one that threatens to jeopardize the progress made in reversing Guantánamo’s tainted legacy as a legal black hole. It likely violates the 6th Amendment’s guarantee of the right to counsel, which has long been understood to permit lawyers to communicate confidentially with their clients.
The order is not just bad law. It is also bad policy that could tarnish the most high-profile military trials held by our nation since World War II.
What legal rights the Guantánamo detainees possess is hotly contested. The Bush administration long argued that Guantánamo was Cuban, not American, territory and therefore the detainees had no constitutional rights. That view was repudiated by the U.S. Supreme Court in 2008 in Boumediene vs. Bush. In deciding that at least some constitutional rights extended to those held at Guantánamo, the court recognized the highly unusual nature of the base.
Guantánamo has been under American control since U.S. troops prevailed in the Spanish-American War of 1898. Cuba has no effective control over the base, which is governed by a lease that cannot be changed without U.S. consent and that accords the U.S. “complete jurisdiction and control.” This history led the Supreme Court to declare that whatever the legal formalities, it is an “obvious and uncontested fact” that the United States is the de facto sovereign there.
In short, Guantánamo Bay is technically Cuba. But as a practical matter, it is just as much a part of the United States as Tampa Bay.
Boumediene did not involve the 6th Amendment. And the Supreme Court has never expressly declared that the 6th Amendment applies to foreigners tried abroad. In the closest case on point — involving Nazi saboteurs captured during World War II on the beaches of Long Island and Florida and tried in the U.S. — the court held that they lacked a 6th Amendment right to trial by jury because the laws of war did not require one for unlawful combatants. But the 1942 decision pointedly said nothing about the other aspects of the amendment, including the right to counsel.
In light of these precedents, it is not at all implausible that the right to counsel extends to those at Guantánamo. The Supreme Court made it clear in Boumediene that it was deeply troubled by the idea that the federal government could evade constitutional restraints simply by moving prisons offshore. That reasoning applies no less readily to offshore trials.
Woods’ order does not simply raise legal concerns, however. By violating the sanctity of attorney-client privilege, it jeopardizes the perception of American military commissions as fair and just, a perception that is crucial if these trials are to succeed.
To see why, consider the . . .
