Lynn Cheney and William Kristol are anti-American.

Walter Dellinger, a partner with O’Melveney & Myers, and former head of the Office of Legal Counsel, writes today (in relation to my passionate rejection of Lynn Cheney’s attack on lawyers who represented Guantanamo Detainees):

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

. . .

That [the lawyers] in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Thank god for our founding fathers — John Adams, honorable lawyer.

Whose values do the lawyers for Guantanamo detainees share? John Adams’, for one:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

So when Lynn Cheney’s group, keepamericasafe.com, suggests that there’s something un-American about the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer reports,

Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. “There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist,” Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent.”

This is, in short, ugly, anti-American propaganda:

Friday night music break

Jimmy Cliff: Sitting in Guantanamo Limbo

The beginning of the end of a legal nightmare?

Sanity is beginning to take hold once again in our country’s legal institutions.  Judge Richard J. Leon is no wild eyed liberal.  He was appointed as a judge by George W. Bush in 2002.  Back in the ’80s he served as counsel to the Republicans in the congressional investigation of the Iran-Contra affair, and he was Special Counsel to the U.S. House Banking Committee for its “Whitewater” investigation.  In January 2005 he dismissed the habeus corpus petitions of 5 Algerian detainees in the U.S. military prison at Guantanamo Bay.

Yesterday, however, Judge Leon ordered (pdf) the release of the same 5 detainees after evaluating and rejecting government evidence that they were dangerous enemy combatants.  According to the Washington Post, “The Algerians were detained for years on allegations that they had been plotting to blow up the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation.”  Judge Leon explained in his order that to allow the detention to continue based on “so thin a reed” (emphasis in original) of evidence as that presented by the government “would be inconsistent with this Court’s obligation.”  He also explained, “Unfortunately, due to the classified nature of the Government’s evidence, I cannot be more specific about the deficiencies of the Government’s case at this time.”

Judge Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government’s evidence against him was sufficient to label him an enemy combatant.

Last month another federal judge ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay.  The government conceded that those men are not threats to the United States.

But the Bush administration will not give up the fight it began years ago when it set up the prison at Guantanamo.  The Chinese Muslim prisoners have not been released pending the government’s appeal, which is based on the argument that regardless of the threat posed by the prisoners the courts do not have the power to order the executive branch to release a detainee into the United States.  And the Justice Department, in response to yesterday’s decision by Judge Leon, praised the decision to keep ben Sayah in custody while stating, “We are of course disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

As Jurist reports, “In a related development Wednesday, a military judge at Guantanamo Bay rejected evidence against detainee Mohammed Jawad [JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded in October, also because it had allegedly been obtained through torture.”

Perhaps this is the beginning of the end of a long national nightmare.  The Bush Administration set up the prison at Guantanamo after 9/11 on the theory that, since Guantanamo is not technically U.S. territory, the executive branch could do anything there to anyone without any legitimate review by any institution independent of the executive.  It could take people from China or Algeria, and even U.S. citizens, stick them in Guantanamo, torture them, and throw away the key, and there would be nothing anyone could do about it.

But let’s not be naive.  Four Supreme Court justices in Boumediene v. Bush (pdf) argued that the Guantanamo detainees were not entitled to the right to a habeus corpus hearing requiring the government to establish grounds for their detentions.  Justice Scalia in his dissenting opinion in Boumediene, joined by Justices Thomas and Alito, wrote that allowing the type of hearing that Judge Leon held “will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”  Picking up on this vitriolic rhetoric from three of our highest jurists, conservative commentators wrote things like the following:

On June 12, the Supreme Court in Boumediene v. Bush gave the roughly 270 prisoners held at our prison camp in Guantanamo Bay, Cuba, the same constitutional rights as you and I. These foreign terrorists all plotted, planned, fought against and even killed American soldiers, who, now thanks to an oligarchy of five justices, can go before a U.S. federal judges in civilian court to challenge their years-long detention. (emphasis added)

Judge Leon made clear what the truth is: in the United States of America you cannot throw people into a cage and throw away the key without some legitimate basis for doing so.  The mere fact the military, the CIA, or (as in the case of the Algerians freed by Judge Leon) Bosnian authorities detained people and sent them to Guantanamo does not establish that they have plotted, planned, fought against, or killed U.S. soldiers.  We have to do away with Guantanamo, and we have to do away with torture.  We have fought and won wars far more threatening and damaging without abandoning our constitutional principles and the principles of the Geneva Convention.  January 20, 2009 cannot come soon enough.

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Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment legal media center.  Just to give two examples of particular concern to me:

As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes concerning its Google Library Project.  Jurist now reports the settlement is final:

With respect to another profound concern of mine, military torture, Jurist reports that a federal judge has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:

A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to Afghan officials following his capture in 2002 was obtained using torture and is therefore inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col. Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible. Reuters has more.

Jawad, who was transferred into US custody after the confession to the Afghanistan government, was designated an “enemy combatant” in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in the attack, which injured two US soldiers and an Afghan translator. The case against him faces growing problems. Last month, former military commissions chief prosecutor Army Lt. Col. Darrel Vandeveld resigned [JURIST report], citing “ethical qualms” with the military commissions’ defense counsel discovery procedures. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called “frequent-flier program,” in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], is set to face military commission on January 5, 2009.

Looking at Guantanamo

I mentioned in my post last Thursday that Margaret Boden, a cognitive scientist in Great Britain, has described three principal ways law is creative. The first she calls “Combinational Creativity,” which she describes as “putting familiar ideas together in unfamiliar ways.”

Putting familiar ideas together in unfamiliar ways is perhaps the type of creativity law students come to know best. As first year law students quickly learn, law is not a set of abstract rules imposed on reality. Rather, legal “rules” tend to be conditional – they are developed case by case as justifications for the results the courts deem just in those cases. But any time a new case arises that presents a new set of facts not foreseen by the courts that made the earlier decisions, the “rules” articulated in earlier cases may no longer seem just and appropriate.

The U.S. Supreme Court was faced with the need to put familiar ideas to work in a way previously unanticipated in its recent decision in Boumediene v. Bush. The Court in Boumediene decided that prisoners held at the U.S. base in Guantanamo are entitled to invoke the constitutional writ of habeus corpus to challenge their detention as “enemy combatants.” In plain English, once a person’s liberty has been taken away, he is entitled to challenge his imprisonment by requiring the government to prove before a court that it has a legitimate basis for holding him. As the New York Times has explained, the Bush administration has taken the position that it needs very little to justify holding prisoners indefinitely as “enemy combatants”:

The government sets a frighteningly low standard for itself, saying it needs only “some evidence” that a citizen has “associated” with a terrorist organization “bent on hostile acts” to hold him indefinitely.

One reason the Bush administration established its “detention center” in Guantanamo was plainly so it could argue that prisoners held there were outside U.S. territory and therefore beyond the geographic reach of U.S. courts. Thus, the administration’s thinking went, even if the only evidence against a prisoner was the word of some Afghani who had captured him that he was a member of the Taliban or Al-Qaeda, the prisoner would not be able to challenge that evidence or even present contrary evidence of his own in any court. As the Supreme Court explained in Boumediene, the administration’s argument was based on the unique status of Guantanamo, over which the U.S. holds complete control under a perpetual “lease” from Cuba:

Guantanamo Bay is not formally part of the United States. And under the terms of the [1903] lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” . . .

The United States has maintained complete and uninterrupted control of the bay for over 100 years. . . . And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

The Court also recognized that prior law did not establish how a territory with such a status should be treated. Thus, it concluded that the historical examples of hybrid territories both sides presented to the Court failed to answer to the question before the Court. Interestingly, the Court compared the absence of convincing historical precedent to the situation it faced in 1954 in Brown v. Board of Education:

[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment , discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”) . . . .

So what did the Court do? It decided that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” that is “absolute” and “indefinite.” The U.S. as a a matter of fact exercises all the control over Guantanamo it would if it legally owned it rather than held it under a perpetual lease. In addition, it is impossible to consider Guantanamo Cuba’s territory in connection with the U.S. detention center, even though technically Cuba is the territory’s “sovereign,” because Cuban law does not apply on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station.”

In short, if U.S. law does not apply to the prisoners held at Guantanamo, no law does. That is exactly what the Bush administration had wanted, and it is exactly what the Supreme Court rejected in Boumediene.