Whether 600 foreigners, who have been languishing at the Guantanamo Bay Naval Base in Cuba for over two years, will ever get any due process, was argued, in Washington, DC, before the Supreme Court on April 20, 2004. They were captured, mainly in Afghanistan, and were allegedly associated with the Taliban. The issue before the country’s top tribunal boils down to one simple, but profound, question: “Do U.S. Courts have jurisdiction to hear the prisoners’ complaints?”
The Bush-Cheney Gang insists the courts don’t, because the Naval Base is foreign territory. John Gibbons, the detainees’ lawyer, says that’s nonsense. He rightly pointed out that you can’t mail a letter from the Naval Base using a stamp with Fidel Castro’s mug on it. Since 1903, the U.S. government has been leasing the grounds on which the Naval Base sits from the Cubans. The base, however, operates independently from the Cuban regime, which has technical sovereignty over it.
Unfortunately, these Naval Base detainees are in a lawless limbo, that even the immortal Dante could not have envisioned in his classic, “The Divine Comedy.” According to Donald Rumsfeld, the Pentagon Czar, the detainees are all “enemy combatants,” not POWs, and that under American law, they have no rights at all. Keep in mind, that Rumsfeld has been caught deliberately misleading the U.S. Congress, and the American people, too, with respect to those bogus reasons that were given for the immoral, unjust and illegal U.S.-led invasion and occupation of Iraq.
I strongly disagree with Secretary Rumsfeld on this matter of basic human decency and international law. I believe that these men are POWs under the Geneva Convention and that it’s wrong to treat them in such an uncivilized manner. I suspect, however, that a mostly conservative Supreme Court, dominated by Chief Justice William H. Rehnquist, will be looking hard to find a procedural avenue to defer to the wishes of the Bush administration. Whichever way the court’s decision goes, it will be a very close one, probably by a 5 to 4, or 6 to 3 majority.
Now, that brings me to the Jose Padilla and Yaser Esam Hamdi consolidated case that will come before the High Court on April 28th. Unlike the Naval Base detainees, however, both of these men are American citizens and that is an extremely important distinction. They also have been labeled as “enemy combatants” – Padilla for allegedly plotting to make a “dirty bomb” for El Qaeda, and – Hamdi for supposedly fighting for the Taliban in Afghanistan. The Pentagon (read Rumsfeld) is also their jailer. And, the duo have been denied most of their constitutional rights.
Nevertheless, there is a 1971 federal law on the books that supports these prisoners’ rights. That law says that an American citizen can’t be held by the federal government, absent a specific law that permits it to take such restrictive action. President George Bush can’t cite any such statutory authority in his favor. So, what is the President’s position? He is making the sweeping claim that there is a “War Against Terrorism” going on, and that, in the name of national security, he alone, like some tin pot dictator, can act as their sheriff, judge and jury. This, in my opinion, is a serious violation of the Separation of Powers Doctrine of the U.S. Constitution. Bush is continuing to recklessly follow the path to impeachment of one of his Oval Office predecessors, Richard M. Nixon.
Moving on to the possible implications for our civil liberties of this landmark case: If Bush gets away with running roughshod over the fundamental rights of these two guys: Padilla and Hamdi, then why can’t he do the same thing to any other citizen that shows up in the secret files of John Ashcroft, Tom Ridge, or worse, that slippery Neocon, Elliott Abrams, over at the National Security Council?
For example, the Justice Department is presently prosecuting a case out in Boise, Idaho, under the controversial provisions of the USA Patriot Act. The defendant, a Saudi student, Sami Omar Al-Hussayen, 34, is accused, among other things, of using his computer to help Islamic militants in the Middle East. He has already spent 14 months in jail, and if convicted, could face a sentence of up to 25 years in a prison (“AP,” 04/14/04). Meanwhile, President Bush is pushing the Congress for the USA Patriot Act to be made permanent. He brags that it has made “America safer” (“Baltimore Sun,” 04/20/04). One of the toughest critics of the draconian Patriot Act , Professor David Cole of the Georgetown School of Law, sharply disagrees. In his latest book, “Enemy Aliens,” Professor Cole underscores that, historically, the insidious pattern of government responses to national security “is to first target foreign nationals and then later to expand those tactics to Americans” (“First Foreigners, Then Americans,” Kim Zetter, “Wired News,” 04/20/04).
And, all of the above takes me to my final point. The important decision in the Padilla and Hamdi case is expected in July. If the Supreme Court gives the Bush-Cheney Gang a green light, then say good bye to our Republic. The police state, and the national nightmare of endless Pentagon detentions and endless presidential power, will be here!