Guantanamo Detainees Lose Appeal


Just last week, a Reaganite judge dismissed the case for corruption against Scott Custer and Mike Battles on very dubious but Bush Administration-approved grounds. Today, the DC Court of Appeals rejected a petition by lawyers representing the Gitmo detainees to “challenge their imprisonment”, a ruling that basically gives Bush the power to continue with his de facto suspension of habeus corpus rights.

In its 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld one of the central components of the Military Commissions Act, the law enacted last year by a then-Republican-controlled Congress that stripped Guantanamo detainees of their right to such habeas corpus petitions. Lawyers have filed the petitions on behalf of virtually all of the nearly 400 detainees still at Guantanamo, challenging President Bush’s right to hold them indefinitely without charges. Yesterday’s ruling effectively dismisses the cases.

The lawyers are going to appeal to the SCOTUS, and Dem Senators Patrick Leahy (along with Repub Arlen Specter) and Chris Dodd are already moving to overturn the suspension (Dodd introduced his bill last week), but until all that happens, the Gitmo defendants remain in a legal limbo where they have no rights of any kind except those granted by the military courts – which don’t seem inclined to grant very many.

The two appellate judges who upheld the administration’s position are – no surprise here – conservative Republicans. Another non-surprise: their lockstep parroting of Bush Administration arguments.

Judge A. Raymond Randolph wrote in the majority opinion that to overrule the new law, which Bush signed in October, would “defy the will of Congress.” He and Judge David B. Sentelle also found that historical interpretations of habeas corpus do not apply to foreign nationals not on U.S. soil, determining that the U.S. military prison at Guantanamo Bay is a leased property that falls under Cuban sovereignty.”

Federal courts have no jurisdiction in these cases,” Randolph wrote in the combined cases of Al Odah v. USA and Boumediene v. Bush. “Our only recourse is to vacate the district courts’ decisions and dismiss the cases for lack of jurisdiction.”

Hardly. As dissenting judge and Clinton appointee Judith Rogers pointed out, there are –

– two central questions of constitutional law that could form the basis of arguments before the Supreme Court, if it chooses to hear the case. She wrote that the writ of habeas corpus can apply to foreign nationals outside the United States and that Congress has not properly suspended habeas corpus, something it has done only four times, including during the Civil War.

Rogers wrote that Congress may suspend that right “when in cases of rebellion or invasion the public safety may require it” but that Congress has not invoked that power now, adding that its actions “exceed the powers of Congress.”

No shit, Sherlock. The Pub Congress routinely exceeded its powers, especially in the area of trying to limit the power of the judiciary to interpret laws it made. It violated the separation of powers doctrine so often that one began to wonder whether there would even be a judicial branch when they got done.

Randolph and Santelle both have shining far-right credentials. Randolph was appointed by Saint Ronnie, and two years ago he was the one who threw out the Judicial Watch lawsuit to make Cheney release information about the meetings of his secret energy “task force” and the business contacts “between task force members and industry executives”, saying:

“We hold that plaintiffs have failed to establish any duty, let alone a clear and indisputable duty, owed to them by the federal government” under the law in question, the Federal Advisory Committee Act….

He also dismissed the case against Microsoft’s bundling of its Explorer browser that European courts later successfully prosecuted.

Santelle, a Poppy Bush appointee, is a member of the far-right and often authoritarian Federalist Society. He was once featured as a speaker at an FS meeting (appropriately held at Spanky’s Restaurant) on the same bill with Ann Coulter and wingnut Alan Keyes. Historically, he rarely writes majority opinions, his role seeming to be that of the “me, too” confirmer of Randolph’s rulings.

Both these judges are on record as being against the power of their own branch, ruling in case after case that the judiciary has no business questioning much less overturning Congressional or presidential actions or decisions. Like the fox-in-charge-of-the-henhouse industry appointments we’ve grown used to during the Bush Monarchy in what are supposed to be oversight and watchdog agencies, Judges Randolph and Santelle were appointed to deny the “activism” (read: “judicial disagreement with Republican laws in conflict with the Constitution”) every chance they got, and they have done just that.

I have lauded the Congressional Democrats before for their sterling fight against Bush’s continuous attempts to place extremist right-wing judges on Federal benches across the country, and this is a good example of the reason. They kept dozens of such anti-Constitutional “judges” from taking their seats and making hundreds of borderline-unConstituional decisions just like this one. That there are as many of these wastoids as there are is a crying shame and will be a constant irritant for years to come, but if it hadn’t been for the Dems showing the only real courage and persistence they’ve displayed in the Time of Bush, there would be a LOT more.

Kudos to them.

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