Stuart Taylor on Boumediene v Bush:
Over at the National Journal, Stuart Taylor has a very interesting column on Boumediene v. Bush. You really should read the whole thing, but here's an excerpt:
Hat tip: Anderson.
Boumediene, who denies supporting terrorism, has never even been accused of taking up arms against U.S. forces. So how do we know he is an enemy combatant? The basic Bush answer is, "Because we say so."The interesting question is whether the Administration's strategies will trigger a judicial backlash, leading the Court to constitutionalize rights in response to Addington, et. al. I think the chances of that are pretty significant. On the other hand, I would guess the Court will limit its reasoning in Boumediene to the Guantanamo detainees. The Administration may be figuring that the Guantanamo detainees aren't really important in the long run, so it's okay to risk a significant loss in this case so long as the Court's decision doesn't directly impact other detainees around the world.
The government has provided no evidence to the public, to any court, or to Boumediene that he has ever supported terrorism in any way. It has not allowed his volunteer lawyers to see the classified evidence against him, to call witnesses in his defense, or to appear at the cursory military hearing in which a three-officer, judge-free "combatant status review tribunal" -- which was free to consider evidence obtained by torture -- found him to be an enemy combatant. And the administration claims that it can hold Boumediene for as long as it wants no matter what the outcome of the cursory review of the tribunal decision by a federal Appeals Court in Washington provided for by a 2006 law.
In short, the process is so stacked against detainees as to be Kafkaesque and so unreliable and secretive as to be a global scandal. It has helped to make martyrs of even those Guantanamo detainees who appear to be terrorist mass murderers.
How did Bush go so wrong on this? Because he and his top advisers were drunk with power and contemptuous of world opinion. Bush's attorneys took the most indefensibly sweeping interpretations of presidential war powers they could conjure; did their best to exclude Congress, the courts, and lawyers from decisions on how to handle detainees; and thus bypassed the checks and balances necessary to avoid grievous mistakes.
Hat tip: Anderson.