A Blow Against Tyranny

By Dan Froomkin
Special to washingtonpost.com
Friday, June 13, 2008; 12:41 PM

In yesterday's landmark Supreme Court decision that President Bush cannot deny prisoners at Guantanamo Bay the right to challenge their detentions in federal court, there's a key passage about protecting people from despotism.

The passage comes as Justice Anthony M. Kennedy is relating the history and origins of the great writ of habeas corpus. Kennedy quotes from Alexander Hamilton's Federalist No. 84, which in turn quotes English jurist William Blackstone: "[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: 'To bereave a man of life. . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.'"

And here, from a press availability with Italian Prime Minister Silvio Berlusconi yesterday, is Bush's response to the ruling: "[W]e'll abide by the Court's decision. That doesn't mean I have to agree with it. It's a deeply divided Court, and I strongly agree with those who dissented, and their dissent was based upon their serious concerns about U.S. national security.

"Congress and the administration worked very carefully on a piece of legislation that set the appropriate procedures in place as to how to deal with the detainees.

"And we'll study this opinion, and we'll do so with this in mind, to determine whether or not additional legislation might be appropriate, so that we can safely say, or truly say to the American people: We're doing everything we can to protect you."

See yesterday's column for some immediate reaction to the ruling. And let's start our survey of media reaction today with the opinion writers.

Opinion Watch

The Washington Post editorial board writes: "The Supreme Court ruling yesterday that those held at Guantanamo Bay have a constitutional right to challenge their detentions in federal court is a welcome victory for due process and the rule of law. It completes a signal and totally avoidable failure by President Bush, who will leave office with the nation's regime for holding al-Qaeda combatants in shambles."

The New York Times editorial board writes: "For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label 'unlawful enemy combatants' and throw into never-ending detention.

"Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge. . . .

"It was a very good day for people who value freedom and abhor Mr. Bush's attempts to turn Guantánamo Bay into a constitutional-rights-free zone."

The Philadelphia Inquirer editorial board writes: "The Supreme Court yesterday took back the moral high ground in America's fight against terrorism, even as President Bush quickly signaled that he'd gladly surrender it again."

Newsday's editorial board writes: "Forcing the government to prove it acted within the law when locking someone up is a key legal protection that separates the United States from the world's hell holes. That check on tyranny has been missing in action at Guantanamo."

The San Francisco Chronicle editorial board writes: "This 5-to-4 ruling cuts to the essence of American values and the rule of law: Habeas corpus, the centuries-old legal principle that an individual has a right to go to court to challenge the legality of his or her detention. This is one of the basic standards that separates free and totalitarian nations.

"The Bush administration shredded this and other civil liberties under the guise of protecting Americans after the terrorist attacks of Sept. 11, 2001. Time and again - most recently Thursday - the White House presented a false choice between pursuit of terrorism and respect for rights of the accused."

The Los Angeles Times editorial board writes: "Bush can rail against the Supreme Court or he can honor the spirit as well as the letter of this ruling and work with Congress to reform a system that has delayed justice for detainees and dishonored America in the eyes of the world. And he should do what both of the men aspiring to succeed him have promised to do -- close Guantanamo."

The Boston Globe editorial board writes: "For the third time, the Supreme Court yesterday stood up for the rights of terrorism suspects imprisoned at Guantanamo, some for more than six years. Congress and the Bush administration should stop seeking extra-constitutional ways to justify the inmates' indefinite imprisonment and instead bring them to the mainland United States for courts-martial or federal criminal court proceedings."

The USA Today editorial board writes: "In baseball, the rule is three strikes and you're out. On Thursday, the Supreme Court called that third strike against the Bush administration and Congress over the system they devised for holding enemy combatants at Guantanamo Bay, Cuba. . . .

"Now it's time for the White House and Congress to accept that call and move on, rather than continue trying to craft new ways to get around the umpire -- and the Constitution."

Eugene Robinson writes in his Washington Post opinion column that "it's amazing that any president of the United States would need to have such a basic concept spelled out for him. . . .

"The Supreme Court has now made clear that while justice and honor may be mere inconveniences for Bush, they remain essential components of our national identity.

"'The nation will live to regret what the court has done today,' Justice Antonin Scalia wrote in a dissent, warning that the ruling 'will almost certainly cause more Americans to be killed.'

"Everyone hopes he's wrong, of course. But if the only thing that mattered were security, why would we bother to have an independent judiciary? Why would there be any constitutional or legal guarantees of due process for anyone?"

David Kaye writes in a Los Angeles Times op-ed that "Scalia's overheated rhetoric harms a critical national decision that must be made about what to do next with the detainees. Be afraid! he says. And know whom to blame when the next terrorist attack comes! It's exactly this kind of demagoguery, designed to limit debate, that got us where we are today, with the Congress adopting a detainee law based on fear rather than effective policy and American principles."

In dissent, the Wall Street Journal editorial board writes that five "unelected Justices have declared their war-making supremacy over both Congress and the White House. . . .

"We can say with confident horror that more Americans are likely to die as a result. . . .

"Justice Kennedy's opinion is full of self-applause about his defense of the 'great Writ,' and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil -- perhaps one enabled by a terrorist released under the Kennedy rules -- the public demand for security will trample the Constitutional delicacies of Boumediene."

And the New York Daily News editorial board writes: "The U.S. Supreme Court was profoundly - dangerously - wrong in granting prisoners held at Guantanamo Bay the right to challenge their detentions in America's civil courts. . . .

"It is a monumental example of judicial overreaching, issued with utter disregard for the perilous consequences of elevating extreme - emphasis on 'extreme' - legal niceties over national security.

"Justice Antonin Scalia showed great foresight in concluding his dissent with a dire prediction: 'The nation will live to regret what the court has done today.'"

The Coverage

Jess Bravin writes in the Wall Street Journal: "The 5-4 decision is the third time in four years that the Supreme Court has rejected the White House's treatment of prisoners it deems enemy combatants. Taken together, they amount to a repudiation of President Bush's view that the 9/11 attacks imbued him with sweeping authority to set aside civil liberties, as President Lincoln did during the Civil War and President Roosevelt did during World War II. . . .

"The decision increases the likelihood that the next president will move to shutter the detention center by relocating prisoners to other facilities. By eliminating the legal advantages the administration sought from Guantanamo, the court removed a major argument for maintaining the prison. Its operation has drawn criticism abroad and has undercut U.S. efforts to build counterterrorist alliances, diplomats say.

"Even before the terrorist attacks, the administration, led by Vice President Dick Cheney, aimed to expand the scope of presidential power, based on the idea that Congress and the courts had impinged on its prerogatives. Even as court rulings became increasingly pointed, the vice president and his aides beat back efforts to moderate detention policies, officials familiar with the discussions said. . . .

"Thursday's ruling is a blow to the departing president's legacy. In December 2001, administration lawyers championed Guantanamo as the location for an extralegal detention camp, asserting in now-public memorandums their belief that no judge would have jurisdiction to review the treatment of prisoners there. At the time, one official told The Wall Street Journal that the base amounted to the legal equivalent of 'outer space.'"

Linda Greenhouse writes in the New York Times: "The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration's behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants. . . .

"Months or years of continued litigation may lie ahead, unless the Bush administration, or the administration that follows it, reverses course and closes the prison at Guantánamo Bay, which now holds 270 detainees. . . .

"In a concurring opinion on Thursday, Justice Souter said the ruling was 'no bolt out of the blue,' but rather should have been anticipated by anyone who read the court's decision in Rasul v. Bush in 2004. That decision, part of the initial round of Supreme Court review of the administration's Guantánamo policies, held that because the long-term lease with Cuba gave the United States unilateral control over the property, the base came within the statutory jurisdiction of the federal courts to hear habeas corpus petitions.

"Congress responded the next year, in the Detainee Treatment Act, by amending the statute to remove jurisdiction, and it did so again in the Military Commissions Act to make clear that it wanted the removal to apply to cases already in the pipeline."

Farah Stockman writes in the Boston Globe: "Many legal specialists said the language of yesterday's ruling left Bush with few options and had a finality that two previous Supreme Court decisions on the issue lacked.

"High court rulings in 2004 and 2006 that affirmed a detainee's right to a fair hearing cited federal statutes that the Republican-majority Congress then amended. But yesterday's decision in favor of Lakhdar Boumediene of Bosnia and Fawzi al-Odah of Kuwait cited the Constitution itself, establishing for the first time that noncitizens held at Guantanamo Bay have fundamental rights, even though they are not being held on US soil."

What's Next?

William Glaberson writes in the New York Times: "The Guantánamo Bay detention center will not close today or any day soon.

"But the Supreme Court's decision Thursday stripped away the legal premise for the remote prison camp. . . .

"'To the extent that Guantánamo exists to hold detainees beyond the reach of U.S. courts, this blows a hole in its reason for being,' said Matthew Waxman, a former detainee affairs official at the Defense Department. . . .

"Mr. Bush on Thursday appeared to hold open the possibility of a new legislative effort to alter the decision's result. But for the moment, the administration seemed tangled in a dilemma of its own making."

Michael Abramowitz writes in The Washington Post: "The ruling throws into disarray the administration's detention strategy, almost certainly leaving to Bush's successor and the next Congress the dilemma of what to do with the Guantanamo Bay detainees. . . .

"[A]dministration officials are uncertain about their next steps, and their surrogates were bitterly blaming the Supreme Court for seizing policy that they say the White House and Congress should set."

Josh White and Del Quentin Wilber write in The Washington Post: "The decision could force the U.S. government to show why individual detainees must be held, something U.S. officials have fought for years. As many as 130 detainees have been deemed dangerous but are unlikely to ever face criminal charges, according to prosecutors, and now government officials could have to argue for indefinite detention even if the evidence is flimsy or nonexistent.

"'We're going to see a high number of people the government is going to have to release,' said Michael Ratner, president of the Center for Constitutional Rights, which has represented Guantanamo Bay detainees since 2002."

On ABC, Martha Raddatz reported: "This is a real mess for the Bush administration. They expected, they say, a reversal -- but certainly not the scope of this. . . .

"It really removes the veil of secrecy -- and it could be very embarrassing for the administration."

David Barron blogs for Slate: "Notice the president focuses on deciding whether there needs to be a legislative response to ensure 'we are doing everything we can to protect you' rather than to correct the procedural deficiencies in the current legislation that led the court to conclude that it failed to provide the habeas right the Constitution guarantees in the absence of a valid suspension. In other words, it does not sound like the legislation he has in mind would be what we ordinarily think of as a legislative 'fix.'"

Mark Sherman writes for the Associated Press: "Attorney General Michael Mukasey said Friday the deeply divided high court ruling would not affect the Guantanamo trials against enemy combatants and President Bush said he might seek a new law to keep the alleged terrorists in a U.S. prison. . . .

"Some detainee lawyers said [habeas] hearings could take place within a few months. But James Cohen, a Fordham University law professor who has two clients at Guantanamo, predicted Bush would continue seeking ways to resist the ruling. 'Nothing is going to happen between June 12 and Jan. 20,' when the next president takes office, Cohen said. . . .

"Charles Swift, the former Navy lawyer who used to represent Hamdan, said he believes the court removed any legal basis for keeping the Guantanamo facility open and that the military tribunals are 'doomed.'

"Guantanamo generally and the tribunals were conceived on the idea that 'constitutional protections wouldn't apply,' Swift said. 'The court said the Constitution applies. They're in big trouble.'"

Flashback to October 2006

Glenn Greenwald blogs for Salon: "The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate ( 65-34) with the support of every single Senate Republican (except [Lincoln] Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- 'sets back basic rights by some 900 years' and was 'patently unconstitutional on its face' -- and Specter then proceeded to vote for it."

As I wrote in my October 17, 2006 column, Bush, as he signed the bill into law, seemed to think history would be kind to him.

"Over the past few months the debate over this bill has been heated, and the questions raised can seem complex," he said at the signing ceremony. "Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?"

Dead End In Iraq

Bush has been trying to dismiss talk about how negotiations to establish a long-term security agreement with Iraq are flailing. "I deal with Prime Minister Maliki," Bush said. "He appreciates our presence there."

But Shafiki Mattar reports for the Associated Press: "Iraq's prime minister said Friday that talks with the U.S. on a long-term security agreement between the two nations have reached a dead end, saying the U.S. proposals 'violate Iraqi sovereignty.'

"Nouri al-Maliki said the talks slumped because each side refused the other's demands. The initial framework agreed upon was to have been an accord 'between two completely sovereign states, al-Maliki said. The U.S. demands 'violate Iraqi sovereignty. At the end, we reached a dead end,' he said.

"The prime minister, who spoke to reporters during a visit to neighboring Jordan, said of the American demands that 'this is not acceptable.' . . .

"Failure to strike the security deal soon would leave the future of the American military presence in Iraq to the next administration. Al-Maliki's stance increased doubts the deal could be struck before the upcoming U.S. presidential election.

"Iraqi opposition to the deal has mainly focused on concerns that the agreement would cement American military, political and economic domination of Iraq."

Economy Watch

Jeffrey M. Jones reports for Gallup: "In the midst of record high gas prices, just 17% of Americans say President Bush is doing enough to solve the country's energy problems, a significant decline from already low figures in 2006. . . .

"Additionally, nearly half of Americans, 49%, say the Bush administration deserves a great deal of blame for the country's energy problems, up from 38% in 2006 and just 20% in May 2001, when rolling blackouts in California focused national attention on the issue."

Cheney and the Comedians

Julie Mason blogs for the Houston Chronicle: "Vice President Dick Cheney sat for the weirdest radio interview ever today, with the 'Chaz and AJ in the Morning' show on WPLR in New Haven."

Chaz and AJ are a comedy duo. So, it turned out, were Cheney and fellow guest Sen. Joseph Lieberman. Here's the transcript. Here's a video report from NBC30, which also includes footage of Chaz and Al yukking it up with their next guest, Supreme Court Justice Antonin Scalia.

The radio duo tried to find humor in some likely and some unlikely places. There was talk about hunting, of course -- but also talk about the morning of Sept. 11, 2001.

Cheney: "I had a conversation with the President, who was in Florida. He called me from Florida and we talked briefly about it. And shortly thereafter, my Secret Service agent, who was right outside the door, came in and grabbed me and said, sir, we have to leave immediately. And he grabbed me by the back of the belt and put a hand on my shoulder."

Q. "Like he was going to throw you out the door. (Laughter.)"

Cheney: "There wasn't any question that I was going with him."

Q. "You said, only my wife grabs me like this. (Laughter.)"

Cheney describes descending to the White House bunker.

Q. "You guys have T.V. down there?"

Cheney: "Yes."

Q. "Pool table, ping-pong, foosball?"

Q. "Game Boy? (Laughter.)"

The hosts raised the uncomfortable fact that Osama bin Laden is still at large.

Cheney: "I think eventually we'll get him. And as Joe said, the most dangerous job in the world these days is being number three in al Qaida because they keep getting taken out. (Laughter.)"

Q. "Number three's the tough one."

Q. "The benefit's got to be tough."

And a bit later:

Q. "Looking back at the last seven years in office, do you have any regrets, besides not getting bin Laden?"

Cheney: "Well, besides not getting bin Laden, no, not really."

Mark Silva blogs for Tribune about one revelation of sorts: "We knew that Vice President Dick Cheney had left Yale under less than honorable terms - 'by mutual agreement,' as he put it today -- but maybe we had forgotten, until today, that he also was kicked out of Kindergarten."

Cheney Takes It Back

H. Josef Hebert writes for the Associated Press: "Vice President Dick Cheney's office acknowledged on Thursday that he was mistaken when he asserted that China, at Cuba's behest, is drilling for oil in waters 60 miles from the Florida coast."

Bush at the Vatican

Deb Riechmann writes for the Associated Press: "Pope Benedict XVI gave President Bush a rare peek on Friday of the Vatican Gardens, a spot where popes pray privately and only special guests are allowed to stroll.

"'Your eminence, you're looking good,' Bush told the pope as the two shared a warm greeting."

Malcolm Moore writes in the Telegraph: "Several Italian newspapers cited Vatican sources suggesting that Mr Bush may be prepared to convert."

Bush in Paris

Angelique Chrisafis writes for the Guardian: "As George Bush lands in Paris this afternoon, he might be relieved that he's not doing a goodbye tour with his old nemesis Jacques Chirac. Instead the US president will be welcomed by his new friend 'Sarko the American'. . . .

"Washington is styling the Paris visit as a celebration of the reconciliation between France and America after the fallout over Iraq and the stubbornness of the 'cheese-eating surrender monkeys'. . . .

"The French press and the public are largely treating Bush's visit as an annoying irrelevance by a hugely unpopular 'yesterday's man'. A recent poll showed 84% of French people would vote for Barack Obama in the US presidential election and that France more than any other nation believe American policy will 'change for the better' when a new president is elected in November. 'George who?' asked an editorial in La Dépêche du Midi, saying France can't even be bothered to hate Bush any more."

Deb Riechmann reports for the Associated Press: "President Bush said Friday that Europe and United States must hold firm in Afghanistan and never let it be a base for terrorists again.

"In a speech billed by the White House as the centerpiece of his European trip, Bush urged allies to stand by Afghanistan, where the ongoing conflict and redevelopment effort is often overshadowed by the war in Iraq."

Twilight Watch

Over at NiemanWatchdog.org, where I'm deputy editor, I've been examining all the ways that Bush and his loyalists could entrench their people and policies in such a way that a Democratic president would find it hard to reverse course. In the last installment of my series, I wonder how far they might be willing to go to prevent a Democrat from getting elected in the first place.

Late Night Humor

Jon Stewart launches a new segment: "George Walker Bush; Still President."

In this episode: "With Barack Obama and John McCain hogging the front pages in the United States, still President Bush decided to get out of town and take a quick trip to Europe, making him one of the only Americans who can still afford a trip to Europe."

Stewarts also notes how Bush is complaining about being misunderstood. "You guys got it all wrong. He doesn't like war. He likes blowing things up," Stewart says.

Stewart also uses video clips to note the remarkable similarity between Bush's rhetoric about Iraq before the war, and his rhetoric about Iran now. "Here we go again," Stewart says.

John Oliver explains to Stewart that Bush gave the media too much credit. "He didn't realize that by using warlike terms and single-mindedly starting warlike wars, we would leap to the false assumption that that was his intention."

Cartoon Watch

John Sherffius, Ed Stein, Ben Sargent, Nate Beeler, Rex Babin and Ted Rall on Bush and the Constitution; Ann Telnaes on Bush's lack of regrets; Mark Fiore on Barney's tell-all; and Kal on Bush on the world stage.

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