Bush's Black Eye

In the wake of the Sept 11 tragedy and the ensuing “war on terror,” President Bush arrogated to himself sweeping powers to round up citizens his government deemed “enemy combatants,” who were barred access both to lawyers and to courts.

Hundreds of alien residents the justice department deemed “suspicious,” often without a shred of evidence, were similarly arrested and kept incommunicado for months, and then just as covertly deported, once again without access to lawyers or family.

And then there are the 650 detainees (even the number is presumably secret) from the Afghanistan conflict who have now been held for two years in Guantanamo Bay, the vast majority of whom probably just happened to be in the wrong place at the wrong time.

President Bush dismissed criticism of the most horrific violation of civil liberties in U.S. history since the concentration camps for Japanese Americans in World II, asserting that he would not allow the “enemies use the forums of liberty to destroy liberty itself.”
Now, at long last, the U.S. Supreme Court has stepped in with a stinging rebuke of these egregious constitutional violations, concluding that a “state of war is not a blank check for the president.”

The court held that Yaser Esam Hamdi, “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.”

The Bush administration had calculatingly kept hundreds of foreign captives in horrific conditions in Guantanamo Bay, Cuba, on the legal fiction that U.S. courts did not have jurisdiction there. But the court saw through the Bush administration’s ploy, ruling that the U.S. base in Guantanamo Bay was “territory over which the United States exercises exclusive jurisdiction and control.”

The detainees there too now will have the opportunity to challenge their confinement. Justice Stevens wrote in a dissenting opinion that harkened images of Abu Ghraib, executive detention is not “justified by the naked interest in using unlawful procedures to extract information.” Added Justice O’Connor, “History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others.”

The New York Times recently related the harrowing experience of a Nepalese Purna Raj Bajracharya, who was arrested after innocently taking video shots of New York streets, one of which turned out to house a FBI building.

For his touristy impulse, Bajracharya ended up spending three months in solitary confinement inside a 6 ft by 9 ft cell kept lit 24 hours a day, even after the arresting FBI agent concluded that he was innocent. But even that FBI agent James P Wynne found himself powerless to secure his release from a black hole of a legal system and ultimately Wynne turned to the Legal Aid Society for help to secure Bajracharya’s release. Bajracharya was deported without a trial in January 2002.

His is not even the worst of such cases. One day, perhaps, a truth commission will be established to document the full extent of the governmental abuse of innocent people under Bush’s bogus war on terror, whose principal aim is to milk the 9/11 tragedy for all its political value for his reelection.

But already the Supreme Court has admonished: “It is equally vital that our calculus not give short shrift to the values that this country holds dear … It is during our most challenging and uncertain moments that our commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad…. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the nation worthwhile.”