Gitmo Attorney: Mess to Last "For Years to Come"

The following piece was produced by HuffPost's OffTheBus.

Yesterday the Supreme Court heard arguments in what may be the most important constitutional case of the decade: whether the men detained at Guantanamo have a right to a fair trial before a real court. I spoke with Erwin Chemerinsky about the case. A professor of law at Duke, and Dean of the new UC Irvine law school, Chemerinsky represents one of the Gitmo detainees whose case is before the court, Salem Gherebi.

At issue is the Military Commissions Act, passed by Congress in 2006. Chemerinsky called it "one of the worst laws in all of American history with regard to civil liberties." The provision before the court yesterday says that no non-citizen held as an enemy combatant shall have any access to federal courts, including by writ of habeas corpus. They can go through a military proceeding--if one is convened by the government - and then they can get reviewed by the Court of Appeals for the District of Columbia circuit.

The key issue, Chemerinsky said, "is there's nothing in the Military Commissions Act that requires that a military proceeding be convened. The government can hold all of these people for the rest of their lives without ever bringing them before a military tribunal. Then they have no ability ever to go before a federal court." And no matter how long they are held, they can't come to federal court with a writ of habeas corpus.

The Constitution says the right of habeas corpus shall not be suspended, "except in cases of rebellion or invasion." "I don't think there's a rebellion or an invasion," Chemerinsky said, "and I don't think it matters whether a person is a citizen or noncitizen. The government can't keep a person locked up forever without due process."

John Yoo, former deputy assistant attorney general for George W. Bush, now professor of law at UC Berkeley, defends the Military Commissions Act. On NPR recently he argued that granting terrorists the right to a regular trial in a regular court would hamper the war on terror and give aid and comfort to the enemy.

"He's assuming they ARE terrorists," Chemerinsky replied. "The whole point is that we don't know. My client has been in Guantanamo for more than five years, and I still have no idea why he's there. Maybe he's a dangerous person, or maybe he's there because the US paid a warlord who picked him out because they wanted to get the bounty. The only way we can know of somebody is a terrorist or a criminal is to have due process of law."

Yoo argues that we should trust the military when they say that only the most important and threatening of our enemies have been detained at Guantanamo.

Chemerinsky replied, "Here I say let's trust the Constitution. The Constitution expresses a great distrust of executive power. The Constitution is clear that nobody should be able to be held just on the say-so of the executive, without due process."

Court-watchers agree that the vote will be 5-4, with Justice Anthony M. Kennedy holding the swing vote. If Kennedy votes for the plaintiffs, what happens then? Do they actually get a real trial in a real court with real lawyers?

"Not for years to come," Chemerinsky replied. "Then what will happen is that we'll go back to federal district court, where they can present their habeas petitions. Then the issue is going to be what does due process and international law require for these detainees. And my guess is that's going to be fought over for a long time, then appealed to the DC Circuit, then it will go to the Supreme Court.

"The sad reality is that, even if my client wins today at the Supreme Court, what my client wins is the prospect of going to court for years to come. The problem is that if my client loses today, he loses his lawyer and he can be held forever without ever getting his day in court."

John McCain recently commented, "it's not about who they are, it's about who we are."

Chemerinsky agreed: "That about sums it up," he said.

Comments

[MrCoffeeCup]

Can we just get the facts Jack? I believe it's 83% of all released detainees have returned to combat. They have been killed fighting our troops. Is this because they were detained or because they were terroritst in the first place?
You know it's good to be noble and want rule of law in nearly all cases but all of these bleeding hearts that condemn Uncle Sam for these so call abusese have yet to dodge a bullet, visit Iraq, seen the damage done to our troops by wounds, IED's, snipers, and terrorists killing children, women old innocent grandparents while trying to hurt us.
I feel these bleeding hearts against Guantanamo detention, should first express the same zeal towards our troops and their families. After seeing the price paid there, then justifiably go and defend these detainees!

You guys are totally misplacing your fervor! GWB did not fly plane into the Twin Towers; terrorists did! Muslim terrorists destroyed Afghanistan by turing it into a ISLAMIC HELL after we helped them fight off the Soviets.
The Mullahs of Iran and Iraq do not want a secular nation of "Laws" They want a nation of Islamic Rules and despotism. These detainee's are part of the Islamic Movement of Sharia ("rules") against freedom of speech, freedom of assembly(Unless you're outraged at the Jews or Christians), against anyone wanting to worship in any other form other than ISLAM.
What are you fighting for? ISLAM? Sharia Law? Anti-Christian behavior? Anti-Semitic propaganda? What do you wish to defend? None of your defendants believe as you do? Does the detainees have a "Fool" for an attorney?

[splashy]

This is just pitiful. What kind of people are running things that they would do this to people? They must be sadists. That's the only thing that makes sense.

[rodnox]

YOO's FIRST MISTAKE IS TRUSTING THE MILITARY----THEY ARE THE BIGGEST GROUP OF BLIND RESPECT LEMMINGS KNOWN TO MAN.THEY WILL BLINDINGLY AND OBIEDENTLY DO WHAT A "SUPERIOR" TELLS THEM TO DO----WITHOUT THINKING--WHILE THIS MAKES A GOOD SOLDIER IT ERASES THE SLATE OF MORAL RIGHT AND ACCOUNTABILITY.THIS ADMINISTRATION IS FULL OF THIS MENTALITY---I THINK THATS WHY THERE ARE SO FEW WHISTLEBLOWERS.........

[wrabbitt]

Since when do non americans have all american rights? Do you think american prisoners are treated fairly and every need taken care of??? these are prisoners of war. What did the Lawyer run out of Ambulances to chase? Trying to make a name for his self at our expense? The Gitmo detainees have more services than most americans. They are war criminals,not visiting royalty! GET OVER IT!

[janmB]

Why would anyone even need a LAW on the books to know its wrong to hold people in prison without a hearing in short order.
We cannot start picking and chosing who deserves to be held indefinately and who doesn't without a trial.
There are no checks and balances in that kind of system and no justice.

[Kirby]

Have any of them cried, "Give me liberty or give me death?" This law has, in effct, already given them death. We have copied the Israelis with their siege mentality in this regard by locking them up and throwing away the key. Israel has prisoners who have never yet been to court and have been sitting in jails for years. The neo-cons who learned their lessons well are largely responsible for conning the Congress into this position of passing this legislation.

[gardenbookie]

Yes, Lilly, I'm afraid I must (for the most part) agree with Bob, with one little change. Guantanmo is not our biggest shame. Our biggest shame is not even the administration in power. It's us. We've allowed this administration to continue. Shame on us.

[Bob Egan]

If you read the garbage that Congress has passed in the last 5 years, you might be surprised to find that we no longer have any rights!

We can be held in an undisclosed place indefinitely, tortured and not even brought before a judge as long as this (so called) war on terrorism lasts!
Careful examination of history will show you that 'Terrorism' has always existed and always will.
If you think that you still have the right to 'free speech', think again. Demonstrators are not allowed at any of Dubya's or Darth Vaders appearances!!

[gevan]

Should we care whether the Bush/Cheney crew and their RICOpublicans are declared "enemy combatants" on January 21, 2009 and shipped to an undisclosed location. Could it be that they would suddenly find some forgotten Constitutional rights for themselves that they now deny to others? If the next President declares VICTORY in the WAR on TERROR then all the prison gates would be thrown open. Problem solved.

[Spookcatcher]

Which candidate is going to shut down Guantanamo Prison. Destroy it completely. Cede it back to Cuba. restore relations with Cuba.
Restore Habeous Corpus for all people. Guaantee a charge and prosecution with representation, or arelease with monetary repairations to all prisoners around the world that we have been abusing. Which Candidates are going to also address the general justice department problems with prisons, and fairness in prosecutions in America in general?

[Lilly06]

As I've said a million times, Guantonamo is the biggest shame to America. It violates all human rights and it leaves any American and non-American around the world vulnerable to indefinate incarceration.

Whatt if these prisoners are being held for just saying anti-Bush slander in their countries? What if they are held for being in the wrong place at the wrong time?

No president should EVER be given the executive power to imprison indefinately. It equates to facism.

[ceasenake]

...he said as he licked his chops and rubbed his hands like Mr. Burns on "the Simsons".

[jdm58]

If the shoe was on the other foot, and one of our citizens was held in a foreign jail without due process, we would be outraged! Even when they HAVE done something wrong (remember "Midnight Express"?) we demand it. Why not now?

[rbspickles]

Unfortunately, the headline statement is appropriate for anything this misadministration has done.

[forpeace]

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"Guantanamo Legal Mess To Last 'For Years To Come'"

How about USA Mess?
How long that will Last?

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