US Supreme Court: Gitmo Prisoners Have Habeus Corpus Rights

This is a major victory for the prisoners and yet another slap in the face from the court to the Bush administration.

WASHINGTON -- The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
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Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
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It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.

The ruling could resurrect many detainee lawsuits that federal judges put on hold pending the outcome of the high court case. The decision sent judges, law clerks and court administrators scrambling to read Kennedy's 70-page opinion and figure out how to proceed. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases.

And here's Scalia's version of judicial "wisdom":

Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."

Shorter Scalia: FEAR blah blah blah FEAR blah blah blah.

And the article also reminds us of how the Republicans have subverted the constitution every chance they got:

The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress, then controlled by Republicans, changed the law to try to close the courthouse doors to the detainees.

They won't get away with that this time around.

The disposition of Omar Khadr's trial will likely be affected by this decision as well and the fact that we've now learned that notes about his detention were destroyed and that the judge handling his case was most likely dismissed because he ruled against US government lawyers should be more than enough for our Conservative government to stop stonewalling on bringing him home. It should be but since they don't even care that he was a child soldier when he was picked up - the first to be charged with war crimes - I'm sure we'll just keep getting the same "let the legal process play out" talking point in response to these developments. Like it was ever a legitimate legal process to begin with.
 

Omar Khadr Turns 21 in Gitmo

On Wednesday, the only Canadian citizen being held indefinitely in Gitmo and who was originally seized as a child soldier in Afghanistan, Omar Khadr, turned 21. Despite new protestations from Liberal leader Stephane Dion, the federal Conservatives continue to take a wait and see approach (which is nothing short of political pandering to the Bush administration's whims) when it comes to attempting to secure Khadr's release any time soon.

Unfortunately, Khadr was dealt yet another blow when the US congress failed to restore habeus corpus rights:

A Republican filibuster in the Senate yesterday [Wednesday] shot down a bipartisan effort to restore the right of terrorism suspects to contest in federal courts their detention and treatment, underscoring the Democratic-led Congress's difficulty with terrorism issues.

The 56 to 43 vote fell short of the 60 needed to cut off debate and move to a final vote on the amendment to the Senate's annual defense policy bill. But the measure did garner the support of six Republicans, a small victory for its supporters. A similar proposal drew 48 "yea" votes last September.

The Supreme Court had previously ruled that such detainees did have the right to appeal their detention in federal court, but the court invited Congress to weigh in on the issue. At the urging of the Bush administration, the Republican-controlled Congress last year voted to sharply limit detainee access to the courts. Since then, the high court has agreed to hear in its upcoming term another legal challenge concerning the habeas corpus rights of detainees at Guantanamo.

The authors of last year's bill said that advocates of such rights would open the federal courts to endless lawsuits from the nation's worst enemies. "To start that process would be an absolute disaster for this country," said Sen. Lindsey O. Graham (R-S.C.), an Air Force Reserve lawyer who was instrumental in crafting the provision in question in last year's bill.

What Graham and his Republican colleagues don't appear to understand is that the denial of basic legal rights to detainees has already created a "disaster" for their country via the loss of America's integrity and credibility. And Omar Khadr certainly is not one of America's "worst enemies".

And, as senator Patrick Leahy (D-VT) said after Wednesday's GOP filibuster:

The Senate's action "calls into question the United States' historic role of defender of human rights in the world," Leahy said. "It accomplishes what opponents could never accomplish on the battlefield, whittling away our own liberties."

So, as Omar Khadr sits and waits, this country's inaction is absolutely shameful:

"Canada is alone among Western nations in not having secured the release from Guantanamo of one of its nationals. Prime Minister Harper must finally ensure Mr. Khadr receives the same consular support that any other Canadian -- detainee or not -- would receive," Dion said in a statement released after he met with Khadr's lawyers.

Khadr's U.S. defence counsel, Lt.-Cmdr. William Kuebler, said the Canadian government has never asked for his client's release.

But he said Dion's comments indicate there is a growing movement to ensure Khadr's legal rights are protected.

"I'm hopeful, based on what we've seen recently from the Canadian Bar Association, which came out and called upon the prime minister to command Omar's repatriation last month, and the very courageous decision by Mr. Stephane Dion and his colleagues today, to call on the government to see that Omar is released from Guantanamo," he told CTV Newsnet.

"I think we're starting to turn a corner in Canada, similar to what happened in Australia and the U.K., when those countries finally got fed up by the treatment of their citizens by this process."

Why has it taken our government this long?

Meanwhile, as I noted here in August, this is what Omar Khadr has been reduced to:

Mr. Edney said that when he saw Mr. Khadr recently, his client was so mentally debilitated that he wanted nothing more than crayons and some paper to colour on. Contrary to federal government assurances that Mr. Khadr is doing just fine, Mr. Edney said, his client is actually "ill and going blind. He needs all sorts of help."

That is Bush/GOP-style "justice" - enabled by my country's government.

Everyone involved in perpetuating Omar Khadr's suffering is culpable.

Saying "happy birthday" just sounds trite. I can only hope that Omar experienced at least some moments of joy on his day - if that's even possible for him anymore.

Related:

U.S. prison stunting Khadr’s development, lawyer charges

Video: Avi Lewis' interview of Micahel Ratner of the Center for Constitutional Rights regarding Khadr's fate.
 

Bush Bans Torture? Not exactly

While George Bush issued an executive order on Friday "prohibiting cruel and inhuman treatment, including humiliation or denigration of religious beliefs, in the detention and interrogation of terrorism suspects" while still keeping acceptable interrogation methods secret, the Center for Constitutional Rights brought us this news:

On July 20, 2007, the Court of Appeals for the D.C. Circuit issued a ruling in two Detainee Treatment Act (DTA) petitions that, while ostensibly giving attorneys access to all government information for the DTA hearings, would also withhold key evidence that would likely point to torture of detainees. The ruling also includes a new protective order that would drastically curtail the ability of all attorneys to work with clients at Guantánamo and erodes attorney-client privilege.

The Court of Appeals acknowledged that the government’s failure to comply with its own Combat Status Review Tribunal (CSRT) procedures reinforces concerns about the adequacy of the CSRT process as a substitute for habeas corpus. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from attorneys.

The new protective order, issued as part of the ruling in Parhat v. Gates and Bismullah v. Gates, would:
• Allow the U.S. government to withhold “certain highly sensitive information” from attorneys, with certain classified information only offered on a “need to know” basis;
• Allow legal mail between attorneys and detainees to be inspected;
• Let the government redact from inspected mail any information that doesn’t specifically refer to events leading to the detainee’s capture and the conduct of the CSRT’s, including information relating to fears of repatriation to torture; and
• Allow only two attorney visits with detainees to obtain representation authorization (but would not require a detainee to sign a document giving authorization as the government had wished). This can be difficult when dealing with people who have been traumatized and have significant reasons not to trust the people they meet with.

So, of what use is an executive order against torture when a victim can't even get access to evidence of such treatment?

Further, there is no word yet on whether Bush's new order affects the section of the Military Commissions Act of 2006 that gives American government perpetrators of torture immunity from prosecution and since Bush conveniently opted out of the International Criminal Court in 2003, it's extremely unlikely that any CIA agent will ever be prosecuted for the war crime of torture.

Just more smoke and mirrors from Bush's legal advisors.

Related: The US isn't the only country that's trying to rework the ban on torture. See European Court of Human Rights: Ban on torture is absolute and universal.
 

Omar Khadr Finally Allowed to Phone Home From Gitmo

After being detained in Gitmo for 5 years, since the age of 15, Omar Khadr was finally allowed to phone his Canadian family for the first time.

"When we heard his voice, I was almost collapsing, and then he said 'Don't cry, hold on,' " Maha Elsamnah, the Khadr family matriarch, said in an interview yesterday.

She said that in the 50-minute phone conversation that was arranged by both governments on Tuesday morning her son told her he plans to boycott U.S. justice and quickly return to Canada.

That won't be happening any time soon, as we all know - thanks to the Canadian government which has dragged its feet and has refused to put pressure on the Bush administration to have Khadr sent back to Canada, unlike other countries' governments which have had Gitmo detainees returned.

The lawyer [Dennis Edney] said Canada's Department of Foreign Affairs arranged the telephone call with the Pentagon, which laid down conditions. The lawyer said he was not allowed to be present during the phone call, nor were members of the news media, and the U.S. military taped the call.

Why wasn't his lawyer able to monitor the call? What was the Penatgon afraid of?

Earlier this week, the US Supreme Court refused to grant a quick review of the US government's case against Khadr because there are other challenges to the law that detainees have no habeus corpus rights.

The court has twice ruled that foreigners imprisoned at the U.S. naval base in Cuba can pursue their cases in American courts, rejecting White House arguments that legal protections do not apply to foreigners outside U.S. territory, and that the Guantanamo prison is beyond the reach of U.S. civilian courts.

The latest Supreme Court appeal follows a federal Appeals Court ruling last month that limited detainees' legal rights.

The 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit upheld a key provision of the Military Commissions Act, which U.S. President George W. Bush pushed through Congress last year to set up a Defence Department system to prosecute terrorism suspects.

Detainees are now required to prove to three-officer military panels that they don't pose a terror threat.

Just how, exactly, are they supposed to prove that?

That's the legal hell the Bush administration and his Republican-led congress has wrought. Arlen Specter (R-PA) who expressed misgivings about the Military Commissions Act but voted for it anyway has proposed a bill titled the "Habeas Corpus Restoration Act of 2007" but that's just one small step in dealing with hideous supression of detainee rights in the MCA (which Bush, of course, made more strict via the use of one of his infamous, dictatorial signing statements).

Regardless, justice for Omar Khadr under this legal regime won't be justice at all. Canada's government would do well to call for Mr Khadr to be returned home, but this Conservative-led bunch of Bush sychophants can't be expected to do anything that might ruffle any feathers.