Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Pandora's Box
October 09, 2008 11:40 AM
For years now, the Supreme Court has been issuing a series of lofty opinions sternly reprimanding the Bush Administration for its handling of terror suspects in the wake of 9/11. These decisions, in response to sweeping assertions of executive power, carved out greater constitutional rights for America's sworn enemies than ever before in the nation's history.
The rhetoric in these rulings was sometimes stirring, and the new principles they established were hailed by many in the press and academia as enlightened, almost noble. And for years, the decisions were virtually cost-free pronouncements from the marble palace. The cases hadn't reached the point where judges were actually deciding what to do with detainees.
But now, the rubber hits the road. The rhetoric is reality. District court judges have to apply these rulings and take them seriously. And so this is where it leads: A federal judge has ordered the government to release 17 former terror suspects now at Guantanamo into the United States.
The men, a group of Chinese Muslims known as 'Uighurs,' had weapons training from the Taliban in camps in Afghanistan. They were picked up in Afghanistan and Pakistan after Sept. 11th, and have been at Guantanamo ever since. They are no longer considered 'enemy combatants,' because China, not the United States, was their enemy. But, as one government official put it, they aren't considered Boy Scouts, either.
The order directing their release, by Judge Ricardo Urbina, marks the first time a judge has ordered detainees at Guantanamo freed. He directed the government to fly them to Andrews Air Force Base by Friday, and he imposed no conditions on their release. They could be at Target in Arlington, Va., by mid-afternoon, shopping for some new clothes for their new lives in the Washington, D.C. area.
You might think that's astounding, but it's the logical and very tangible consequence of all those Supreme Court rulings—most recently the one in June that gave terror suspects being held at Guantanamo the right to challenge their detention in federal courts. In other words, the Supreme Court decreed that judges are going to have a role in the War on Terror, and they can now second-guess military and political decisions about who is a terror suspect and who can be freed.
Lawyers for the 17 men made very good use of those decisions—their legal filings are replete with the lofty judicial proclamations, most of them courtesy of Justice Anthony Kennedy. Here's a particularly useful one for the detainees, from Boumediene v. Bush, decided in June and written by Kennedy: "The costs of delay can no longer be borne by those who are held in custody."
Judge Urbina, listening, went along: Release them now. If government officials can’t find another country who will take them off our hands, as is the case for these 17 men, bring them to the United States. Release them here.
The government rushed back to Court and asked an appeals court to block Urbina's order, and late last night, a three-judge panel agreed. It gave the government more time to formally challenge Urbina's order, setting the stage for what could well be the defining legal battle in the War on Terror.
Until now, we've had fulsome rhetoric from the Supreme Court, but much ambiguousness on what these rulings actually would mean. All of that is up for grabs. As these decisions move down the judicial pyramid, the ripple effects are clear.
This case could well be a reality check for the Supreme Court. It undoubtedly is headed there. And once it’s before the Justices, it will force Anthony Kennedy to come face to face with his words and decide if that’s really, really what he meant.
October 9, 2008 | Permalink | User Comments (29)
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why can't it be a window to build our relationship better with China
is their a better common ground than the war against terror?
Why not send them to China if they are Chinese?
Posted by: dl | Oct 9, 2008 11:49:28 AM
They won't send them back to China because they will be tortured (like I care). I think the Supreme Court needs to take a stand for the citizens instead of trying to be so "lofty". Releasing these non citizen terrorists into our country is absolutely the most ridiculous thing I have heard...well that and 700 billion bail out.
Posted by: samhiguchi | Oct 9, 2008 11:58:52 AM
C'mon John it's a little extreme to compare the Uighurs to the Tibetans. Uighurs are a militant Islamist extremist group, who as you may remember are the one who threatened the Olympics. Huge difference.
Posted by: samhiguchi | Oct 9, 2008 12:02:35 PM
If Bush wasn't such an idiot and power hungry and used a little more common sense the Supreme Court wouldn't have to make these ruling. It's Bush who didn't think ahead. He has screwed up more than the war.
Posted by: The Unshrub | Oct 9, 2008 12:07:12 PM
samhiguchi,
Only a few defend America with service in the armed forces, but it is the responsibility of every American to defend the freedoms we enjoy and the Constitution this is the legal foundation of every right you enjoy as an American citizen.
BTW the comparison with the Tibetians was only with regard to whether the Uigers faced threat of bodily harm IN CHINA.
Not enough Americans take the time to study the Constitution, but one of its most powerful devices to protect our democracy and our freedoms is the so called 'great writ', the writ of Habeas Corpus.
It is not difficult to understand. It simply says that the government MUST either charge you will a crime (and grant you a speedy trial) or let you go. The only exception allowed in the Constitution is that the CONGRESS has the power to suspend this right, but only in times of rebellion or invasion.
No one, even the right wing nut jobs, claims that the Congress has taken this action.
Posted by: John | Oct 9, 2008 12:10:57 PM
"This case could well be a reality check for the Supreme Court"
Why not a reality check for the Bush administration? You made the point that the cases were moving through the courts warning the Administration of the difficulties of their position. Now that it has come about you say it is a reality check for the court?
No we just do not obey the law in this country do we. Rule of Law? I always thought it was the rule of law that was great about this country. It was the rule of law that protected my rights, freedoms, and ability to function in a free society.
Truly frighting that we cannot or will not uphold our own law.
Posted by: Thinking | Oct 9, 2008 12:11:42 PM
Send them to China. Good fun will ensue and we'll never see them again.
Posted by: bubba | Oct 9, 2008 12:13:32 PM
John-Only a few defend America with service in the armed forces, but it is the responsibility of every American to defend the freedoms we enjoy and the Constitution this is the legal foundation of every right you enjoy as an American citizen.
American citizen, says it all, they aren't American citizens and don't deserve to be treated as such. Send them back to China which is their homeland...or maybe they can just move next door to you.
Posted by: samhiguchi | Oct 9, 2008 12:16:58 PM
"They won't send them back to China because they will be tortured (like I care)."
You are not required to care. It is the law that people cannot be forcibly sent to a country where they are in imminent danger of being tortured.
Unless, that is, you subscribe to the (other) Bush doctrine that neither the laws nor the Constitutional requirements can limit His power.
Now, if you can convince the court that the Uigers are NOT in imminent danger of torture, you could force them to go to China.
Personally, I don't like the government of China. My sympathies are with those slaughtered in Tienanman square and others asking for basic democratic freedoms, so I wouldn't want them sent back to let the government there to do as they will.
Posted by: John | Oct 9, 2008 12:17:07 PM
are these not terrorists that may have been captured by other countries and handed to us?
I think terrorist right now need to see that we will put them below China in the pecking order.
Posted by: dl | Oct 9, 2008 12:23:00 PM
samhiguchi,
The constitution has some rights, such as the right to vote, which are reserved for citizens.
Others, like the writ of Habeus corpus state that NO ONE may be imprisoned without trial.
We are not monsters. What you are suggesting, that people should be able to be imprisoned WITHOUT TRIAL is inconsistent with our view of ourselves as a good people, a city on a shining hill if you will.
I have faith that good will prevail. We just have to make sure we are on the side of good.
Posted by: John | Oct 9, 2008 12:23:39 PM
Oh you bleeding hearts will be the destruction of all of us.
Posted by: samhiguchi | Oct 9, 2008 12:24:28 PM
dl,
The question before the court. The question that the Republican dominated Supreme Court has already addressed, actually, is what to do with people who are NOT enemy combatants and not terrorists.
The Bush administration is free to argue that the Uighurs do in fact pose a danger to the United States. They have already done so. But the court found that there was not even credible heresay to support this allegation. Hence the court's order.
Posted by: John | Oct 9, 2008 12:28:21 PM
It is poetic justice for the Bush Administration for failing to observe the law and Constitution in the first place. Bush went around the world collecting possible terrorists, but never considered what might happen if he couldn't prove his case. Bush wanted these people in U.S. territory, now he has them.
Posted by: Tim | Oct 9, 2008 12:30:18 PM
Who opened the Pandora's Box? George Bush.
Had Bush not pushed the envelope of executive power, brushing aside the system of checks and balances, the Supreme Court would not have had the occasion to consider these issues.
It sounds like you are not a fan of co-equal branches of government.
Do you think it is overreaching for the Supreme Court to determine which acts of the executive branch are constitutional? Remember Marbury v. Madison?
Posted by: JT | Oct 9, 2008 12:31:51 PM
'bleeding hearts'
Remembering the countries that did not defend the basic rights like the right to not be imprisoned without trial.
Posted by: John | Oct 9, 2008 12:33:18 PM
and may I add I am against torture and a staunch liberal... but in a case such as this one... if we have reassurances from China ...whether they will not be tortured (as they have said they will reassure) then we should be handing them over.
Posted by: dl | Oct 9, 2008 12:48:27 PM
Any Cheney family members from Latham & Watkins been over for dinner recently, Ms. Greenburg?
Posted by: neo | Oct 9, 2008 12:52:59 PM
Yeah, that genius Supreme Court making rulings about the Constitution blah blah blah. These are the same geniuses that ruled on cases based on what public opinion on the subject said, or taking into account international law, or what other countries think of the case.
You libs going on about "knowing the Constitution" apparently don't know what you think you know. If you did, you would know that the Supreme Court has limits on what it is supposed to rule on, AND how it is supposed to rule. Its job is to rule on constitutionality; that means whether or not something conforms to OUR CONSTITUTION, not whether current public opinion likes it or the UN likes it or that in Europe they have different laws. Same with detainees on the battlefield. They have no jurisdiction, yet they just decide they do.
Posted by: csc5502 | Oct 9, 2008 1:01:44 PM
"...it will force Anthony Kennedy to come face to face with his words and decide if that’s really, really what he meant." Yipes, Jan!! Do you 'really, really mean' to question such a bedrock of the American legal system as habeus corpus?!?
Posted by: tiredgirlie | Oct 9, 2008 1:07:52 PM
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