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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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PLEASE! Let's cut to the chase. No one likes the results. The results are just another blatant example of how Bush and his merry band of Republicans have screwed up this country in almost 8 short years. The same lies to get Bush (the puppet of the neo-conservative radical right) and Cheney (the neo-conservative radical henchman who is Bush's handler) elected so they can bring middle class Americans to their knees thru their daily control of our government continue now in the guise of the Palin(handler)/McCain(puppet) campaign. It's time to throw these radical bums out of office and prosecute them for all their crimes. It's time for the change and leadership Obama/Biden will provide.
Posted by: Jake Chandler | Oct 9, 2008 1:34:22 PM
"Oh you bleeding hearts will be the destruction of all of us."
Why don't YOU hop off to a fundamentalist country where these pesky irritant things like HUMAN RIGHTS and CONSTITUTIONAL RIGHTS wont get in your way? Leave the free world for the rest of us who think those things mean something.
Posted by: SM | Oct 9, 2008 1:37:45 PM
I have to agree with others posting here that the Bush Administration is the party responsible for what you're calling a Pandaora's Box. The Court has merely pointed us back to our Constitution.
Posted by: tiredgirlie | Oct 9, 2008 5:32:10 PM
Interesting (and troubling) situation ...
THESE ARE BAD MEN AND WE DO NOT WANT THEM FREE IN THE UNITED STATES. These guys are Chinese terrorists, and should be sent back to China. End of story. No one can intelligently deny that we had the right to pick them up, when we found them in Taliban training camps. The problem is that we can't give them back to China, we can't send them back to Afghanistan, and no one else will have them. What does that say?
Given the alternative of releasing them in the US or holding them at Gitmo, the latter is the reasonable solution. However, as our esteemed hostess noted, the logical consequence of the current laws and rulings is that they must be released in the US. That should tell all concerned (on both sides) how ridiculous the current legal situation is.
The best solution is to overrule the law/rule/order that does not allow them released to China. Hopefully the Supremes do just that.
Note to the BDS sufferers .. this problem is *NOT* because of Bush administration policies, it is because the administration cannot legally release these guys where they belong. That legal restriction is the result of the bleeding heart Democrats.
Posted by: tomjedrz | Oct 9, 2008 5:34:29 PM
Ms. Greenburg,
Excellent reporting, once again. You are the only mainstream legal reporter who actually reports, as opposed to those who simply write what amounts to an amicus brief for whichever side they endorse.
Posted by: MC | Oct 9, 2008 8:52:02 PM
These terrorists are the threat for both America and China. The dream of these Chinese Muslim terrorists is not the independence from China. The dream of these terrorists is to resurrect a Islamic empire including Iraq, Iran, Western part of China, Southern part of Russia, Northern part of Parkistan. The dream of these terrorists is a United Terrorist States of Islamics. Now, who are blocking their ways to build up the United Terrorist States of Islamics? Who is their major target? It is AMERICA, AMERICA, AMERICA!
Posted by: li | Oct 10, 2008 12:58:32 AM
AMK was an embarrassment in Boumediene. Release back to China? But that would be rendition and might violate CAT, and the antiwar goons would cry like they did over Maher Arar. Damned if you do, damned if you don't. Blaming Bush aside, do thoughtful -- and I use 'thoughtful' advisedly -- liberals actually have a solution beyond rhetoric? My guess is they don't.
Posted by: learn to spell habeas | Oct 10, 2008 10:22:03 AM
Not to mention this is just the tip of the pandora's box iceberg. Habeas jurisdiction will apparently now follow the flag according to some amorphous "practical" test of de facto sovereignty. AMK rejects "formalism" and precedent in Eisentrager in order to insert judges into an area formerly the province of the political branches. I wonder how he sleeps at night knowing that his posturing in Boumediene would cripple the military and the federal courts should the U.S. fight a prolonged, large scale war in the future. No wonder Nino and the Chief were livid. Bending like a reed in the wind is no substitute for juridical ability, Justice Kennedy.
Posted by: learn to spell habeas | Oct 10, 2008 11:02:58 AM
When the US Supreme Court decision first came out I wrote my state Senators and Representatives. Apparently this is a partisian conflict between the Democrats and Republicians in office (typical political games). The Democrats want to rub the IRAQ war in the Republicans face, to do this the "lawyers" (brought to you by Ammensty International and paid for by Soros plus others who are Socialist Democrats) go to the liberal judges and get the rulings they want. This creates unrest in the public and the blame game continues. All at the publics expense. The media refuses to point out this circle of deceit for fear they will loose the support of their viewers. But the media has never been one to think of long term consequences either. A little research by you on the "WEB" will reveal the same result.
Posted by: Carrie | Oct 14, 2008 10:23:37 AM
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