The Found

The Supreme Court's finding that even detainees in Guantanamo have the right to challenge their detention under the protections afforded by habeas corpus, show that even the Supreme Court has its limits. As the NYTimes reported, in Justices, 5-4, Back Detainee Appeals for Guantanamo:

Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”

Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Jack Balkin of Balkinization describes the scope of the constitutional revolution proposed by the Bush Administration, in This is what a failed revolution looks like:

Following the 9/11 attacks, George W. Bush and his supporters proposed a significant chance in constitutional norms, centered around increased presidential power to fight the war on terror. This vision included (1) a doctrine of preemptive war, (2) new surveillance techniques, including domestic surveillance, (3) a new system of preventive detention, including detention of american citizens without access to courts, (4) the creation of legal black holes like Guantanamo Bay and CIA black sites, (5) use of torture and torture-lite to obtain information, (6) enhanced secrecy and classification policies, and (7) a version of unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief. The last idea was also articulated in (8) the expansion of the use of constitutional signing statements, in which the President would state that he would disregard certain features of laws passed by Congress without telling the public any details about the scope or extent of his non-enforcement.

Our treatment of detainees in Gitmo and elsewhere is reminiscent of "The Disappeared," the dissidents who were abducted by the military junta in Argentina. As there, the campaign by the junta to combat terrorism ended up being worse than the original left wing terrorism it was intended to eliminate.

To give voice to the necessity for protections such as habeas, McClatchy is running a series on the abuses engendered by a system allowed to operate without controls or oversight, as has occurred in Gitmo. As reported in America's prison for terrorists often held the wrong men:

An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.

McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases, the two main way stations in Afghanistan en route to Guantanamo.

Details of abuse and torture of detainees at Guantanamo Bay, Abu Ghraib prison in Iraq, Bagram, north of Kabul, and elsewhere reveal the pervasive nature of an out of control system, with little or no repercussions. U.S. abuse of detainees was routine at Afghanistan bases. Not surprisingly, rather than preventing terrorism by holding the detainees, we created an environment that created a new breed of terrorists. As detailed in Wrongly jailed detainees found militancy at Guantanamo:

A McClatchy investigation found that instead of confining terrorists, Guantanamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam — thus inspiring a deep hatred of the United States in them — and then housing them in cells next to radical Islamists.

The radicals were quick to exploit the flaws in the U.S. detention system.

Soldiers, guards or interrogators at the U.S. bases at Bagram or Kandahar in Afghanistan had abused many of the detainees, and they arrived at Guantanamo enraged at America.

The Taliban and al Qaida leaders in the cells around them were ready to preach their firebrand interpretation of Islam and the need to wage jihad, Islamic holy war, against the West. Guantanamo became a school for jihad, complete with a council of elders who issued fatwas, binding religious instructions, to the other detainees.

The fact that our efforts to prevent terrorism has backfired by creating new terrorists due to our mistreatment and mishandling of the detainees is akin to the Administration's destruction of our core constitutional principles as a country having been perverted and destroyed under the auspices of protecting our democracy.

In both cases, it just doesn't work.