s handling of the
detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have
a constitutional right to go to federal court to challenge their
continued detention. The finding,
Boumediene v. Bush, (pdf) reversed and remanded a refusal of the DC
Circuit Court to issue a writ of habeas corpus to Gitmo
internees.

This decision has received rave reviews. Jacob Hornberger (my top
Constitution mentor, bar none!) called it "a stunning rebuke of
President Bush, the Pentagon, and Congress." Jonathan Taplin said
"I think it is hard to overstate how important the Supreme Court
decision was." The Houston Chronicle editorialized that we
shall have "No King George – U.S. Supreme Court preserves freedom by
backing the Constitution's ban on arbitrary imprisonment." The
Salt Lake Tribune: "Supreme Court rightly affirms the
Constitution" Jonathan Hafetz, writing in The Nation:
"Supreme Court Deals Death Blow to Gitmo – Today's ruling by the
Supreme Court in Boumediene v. Bush delivered a dramatic blow to the
President's lawless detention policies and overturned an effort by the
previous Congress to eliminate the centuries-old right of habeas
corpus." And so on.

But the adulation wasn't unanimous. After all, four of the nine Court
justices disagreed with it. Justice Antonin Scalia spoke for the
minority: "Today, for the first time in our nation's history, the court
confers a constitutional right to habeas corpus on alien enemies detained
abroad by our military forces in the course of an ongoing war."

I know this may not surprise a lot of people, but Justice[sic] Scalia was
approximately ninety-nine per cent wrong. This ruling applies to the 275
prisoners at Gitmo but not to the tens of thousands of other people that
the US military has detained abroad, primarily in Iraq.

What did the Supreme Court say about applicability?

"The Constitution grants Congress and the President the power to
acquire, dispose of, and govern territory, not the power to decide when
and where its terms apply. To hold that the political branches may switch
the Constitution on or off at will would lead to a regime in which they,
not this Court, say "what the law is."

So apparently Boumediene applies directly only to Gitmo prisoners,
because of the "territory" consideration. The US has a
long-term lease at Guantanamo Bay, Cuba. But apparently it doesn't apply
wherever in the world that the US military has detention facilities.


The US has 700 bases in 120 countries around the world, and enjoys
nefarious relationships with dozens of others (such as Syria, Saudi
Arabia and Egypt). Many of these countries are not known as champions for
human rights. Are any US detainees on any of these bases now empowered to
petition a US court for a writ of habeas corpus, and appeal to the
Supreme Court when they don't get it? Apparently not.

US-run prisons in Iraq and Afghanistan hold tens of thousands of
prisoners, and the US puppet governments in both places hold thousands
more (a bit fewer in Afghanistan – 870 inmates escaped in a recent prison
break).

In Iraq, some claim that the American captors have eliminated the
physical torture that was once part of the regimen at Iraqi prison camps,
part of a new plan to avoid creating new enemies through mistreatment.
But, as the military supposedly institutes a plan to turn many of its
over twenty thousand prisoners over to the Iraqi government, some fear
the abuse will resume. Most of these prisoners, if not all, were the
subjects of arbitrary arrest in neighborhood sweeps in the middle of the
night and have done nothing wrong, except to be living in Iraq as a young
male.

According to Ciara Gilmartin, writing for
CounterPunch, "Detainees are held by the U.S. command in two
main locations – Camp Bucca, a 100-acre prison camp and Camp Cropper,
inside a massive U.S. base near the Baghdad airport. The number of Iraqis
held in these facilities has steadily risen since the early days of the
occupation. In 2007, the inmate count rose 70% – from 14,500 to 24,700.
Camp Bucca, with about 20,000 inmates, is perhaps the world's largest
extrajudicial internment camp. The facility is organized into
"compounds" of 800 detainees each, surrounded by fences and
watch towers. Most detainees live in large communal tents, subject to
collapse in the area's frequent sandstorms. Water has at times been in
short supply, while temperatures in the desert conditions can be
scorching hot in the day and bone-chilling at night. In October 2007, the
U.S. Army Corps of Engineers awarded a contract to expand Camp Bucca's
capacity from 20,000 to 30,000. While easing notorious crowding, the
contract suggests Washington is preparing for even more detentions in the
future.

"Camp Cropper consists of more traditional cellblock buildings.
Among its roughly 4,000 inmates are hundreds of juveniles. Cropper is a
site of ongoing interrogation and it holds many long-term detainees who
complain that they never see the light of day. Though recently expanded,
the facility suffers from overcrowding, poor medical attention and
miserable conditions. U.S. forces are holding nearly all of these persons
indefinitely, without an arrest warrant, without charge, and with no
opportunity for those held to defend themselves in a trial. While the
United States has put in place a formal review procedure that supposedly
evaluates all detainees for release on a regular basis, detainees cannot
attend these reviews, cannot confront evidence against them, and cannot
be represented properly by an attorney. Families are only irregularly
notified of the detentions, and visits are rarely
possible."

It gets worse. According to
Human
Rights Watch, US military authorities were as of May 12, 2008 holding
513 Iraqi children as "imperative threats to security," without due
process, and have transferred an unknown number of other children to
Iraqi custody.

In Afghanistan, the
New York Times reports, "The American detention center,
established at the Bagram military base as a temporary screening site
after the invasion of Afghanistan in 2001, is now teeming with some 630
prisoners – more than twice the 275 being held at Guantánamo. The
administration has spent nearly three years and more than $30 million on
a plan to transfer Afghan prisoners held by the United States to a
refurbished high-security detention center run by the Afghan military
outside Kabul. But almost a year after the Afghan detention center
opened, American officials say it can accommodate only about half the
prisoners they once planned to put there. As a result, the makeshift
American site at Bagram will probably continue to operate with hundreds
of detainees for the foreseeable future, the officials said. Meanwhile,
the treatment of some prisoners on the Bagram base has prompted a strong
complaint to the Pentagon from the International Committee of the Red
Cross, the only outside group allowed in the detention center."
Afghanistan, if we believe the politicians, will soon replace Iraq as the
principal US military target and so we can expect US military detainees
to increase there.

The Pentagon operates
military prisons in many places besides Cuba, Iraq and Afghanistan,
including: Mannheim, Germany; Yokosuka and Sasebo, Japan; Rota, Spain;
Roosevelt Roads, Puerto Rico; Keflavik, Iceland; Naples, Italy and Guam.
There are brigs on over twenty US Navy warships. Do these prisons house
detainees who are denied due process? Who knows.

Is it feasible to provide due process to US military detainees in places
other than Cuba, in those places where the "territory"
consideration doesn't apply? The Israelis apparently have found a way.
Israel provides judicial review for all its detainees, according to an
'amicus curiae'
( friend of the court brief) (pdf) sent in by seven Israeli law
professors on the Boumediene case. "Judicial review of executive and
military detention, the indispensable core of habeas corpus, need not be
sacrificed to protect public safety and national security, even in the
face of an unremitting terrorist threat. Israel has demonstrated that
security detainees and prisoners of war, including alleged unlawful
combatants, can and should be afforded the opportunity for prompt,
independent judicial review of the factual basis for their
confinement."

So while we might celebrate the arrival of due process for the hundreds
of civilians who allegedly abetted al Qaeda, we should also find a way to
extend the same rights to the tens of thousands who have allegedly
hindered the US occupation of their countries. How? The Congress has the
Constitutional power, under Article I Section 8, "To make Rules
for the Government and Regulation of the land and naval Forces" that
would bring the treatment of all detainees, not just a small percentage
of them, into accordance with not only the Constitution but also the
Geneva Convention and the
Nürnberg Principles.

When a Member of Congress stands up for the Constitution and says:
"Mr. Speaker, I hereby introduce a bill to extend to our liberated
but detained subjects overseas the same rights recently granted to
alleged al Qaeda confederates being held at Guantanamo Bay," and
that bill becomes law, only then will the Constitution be fully affirmed,
and only then will I reach for the bubbly while recalling the stirring
words of the
Leader Of The Free World: "Our commitment to democracy is tested
in countries like Cuba and Burma and North Korea and Zimbabwe – outposts
of oppression in our world. The people in these nations live in
captivity, and fear and silence. Yet, these regimes cannot hold back
freedom forever – and, one day, from prison camps and prison cells, and
from exile, the leaders of new democracies will arrive." ~ GW Bush,
Nov 6, 2003

https://www.lewrockwell.com/orig9/bacon5.html