"Money is a good soldier, sir, and will on." -- William Shakespeare.
OLEAN -- American voters care only about their wallets and winning wars. They don't care about water pollution, wildlife preservation and air that makes you wheeze.
At least that's the contention of several readers who took the time to e-mail me in respectful criticism of last week's column, which contended President George W. Bush will be in much more trouble -- come the presidential election next November -- over environmental issues than his fumbles in Iraq.
Maybe they're right. Maybe the economy and national security are the only things to which White House political advisers should be paying attention.
Maybe, as Shakespeare implied with the line above in "The Merry Wives of Windsor," more money and a recovering economy can march onward for Bush at the polls.
Maybe voters don't give a holy hoot about the environment or the feared dissipation of our privacy and civil liberties.
But something happened last week that assures voters they will at least keep hearing about the last topic as the presidential campaign presses forward. It also assures a titanic and historic clash between the judiciary and the White House.
The United States Supreme Court, surprising most legal "experts," agreed to decide whether 660 suspected terrorists from 42 countries being held in no-end-in-sight detention at a U.S. naval base at Guantanamo Bay on the eastern end of Cuba can gain access to civilian courts.
The legal question may seem remote, complicated and murky -- and you may be thinking, "Let the bastards rot in the Caribbean sun." But there's more to it than that. The detainees have yet to be charged with a crime -- either under military law or American civilian law.
The U.S. legal system is famously constructed on the rights of the accused to be informed of the accusations against them, and to receive a reasonably speedy trial. Most of the Guantanamo detainees have been there close to two years, many having been swept up in the aftermath of Sept. 11 and our anti-Taliban attack on Afghanistan.
You may recall the early television footage of bearded men in orange jumpsuits on their knees, hands manacled behind backs, motionless below rolls of barbed wire atop heavy mesh fences in tropical sun.
The Pentagon and the White House say they are "enemy combatants" in the war on terrorism. Indeed, the Bush administration has argued vehemently that American courts -- including the highest in the land -- don't even have legal standing to review even questions of jurisdiction in the case.
The Supreme Court is saying, "Oh yes, we do."
The New York Times calls this "a moment long in coming: the imperial presidency meets the imperial judiciary."
Not all of the men held at Guantanamo are Middle Easterners.
The challenging petitions were brought by relatives of 16 men held there -- two of them Britons, two of them Australians, and a dozen Kuwaitis.
Six of these detainees are under 18 years old -- three of those under 15, at least one of them 13.
This is controversial even within the military. Maj. Gen. Geoffrey Miller, commander at the Guantanamo detention camp, in August recommended the three youngest be sent back to their homes because he believed they were "kidnapped into terrorism" and have no information to provide. They are still at Guantanamo.
These are not your normal criminals, says the Bush administration. They are mostly linked to al-Qaeda and Osama bin Laden, is the claim.
If the Supreme Court decides the Pentagon and White House are right -- that the federal courts in truth do not hold jurisdiction -- the Bush administration's treatment of the enemy detainees will be bound only by the Geneva Convention, the International Covenant on Civil and Political Rights, and a few other Human Rights treaties requiring humane conditions and fair trials should they be prosecuted. Translation: The Guantanamo detainees might be getting Korans, prayer mats, visits from the Red Cross and three square meals a day for the rest of their lives.
The Pentagon has hinted it may be getting ready to try six of the men before military tribunals -- nothing about the rest.
So why does this portend entanglement with the presidential election? Six reasons:
One -- The Supreme Court will probably decide the review question in January, February or March, during the time frame when most of the important Democratic Party presidential primaries are decided. It is likely there will be more than occasional anti-Bush reference to the Guantanamo situation by frenzied Democratic candidates.
Two -- This is not your everyday Supreme Court case. It will likely turn out to be what is termed a "transcendent" case, one that not only holds significance for decades, but as legal author and former federal prosecutor Edward Lazarus writes, "illuminates the character of the Court and of the country." It will answer questions about presidential power. Reporters and other media types love that sort of story. Big Judges Wrestle With Big Tuna. Expect heavy coverage.
Three -- There are other questions here. The Bush White House, in essence, is claiming for itself the unilateral authority to warehouse foreign nationals, even citizens of allied nations, for secret reasons, and without recourse or legal accountability. Imagine our righteous firestorm of protest if American citizens were on the short end of that stick.
Four -- This review by the Justices may decide an ancillary legal question. Is Guantanamo Bay actually United States territory? The military obviously brought the detainees there because it considers the answer to be no. But we have camped on that end of Cuba since a lease agreement signed in 1903 for a paltry $2,000 a year. The lease was renewed in 1934 under language that can end it only by mutual agreement or withdrawal by the American military. This means defense reporters will be writing about this, too.
Five -- There is precedent language in a previous Supreme Court case: Johnson v. Eisentrager. As World War II ended, an American military tribunal in China convicted a bunch of Germans who'd been helping the Japanese of war crimes. The Supremes ruled on that one for the government, but there were differences. The Germans had already received due process. The people at Guantanamo haven't even been called before a tribunal. The Germans never denied they were enemy combatants. The detainees in Cuba do. And there was a declared war on. Congress has authorized use of force in this terrorism fight, but has yet to officially declare war.
Six -- Amicus curiae. Friend of the court briefs. They poured in from all over -- former prisoners of war, Japanese-Americans who remember their detentions in WW II, retired military officers -- all urging the Supreme Court to review the detainee petitions. Most of them note the Guantanamo detainment is at best an embarrassing military policy disaster. Here we are, unabashedly seeking to export democracy -- impose it, even -- when we thumb our nose at the rule of law back home.
In that case, the famously eloquent Justice Hugo Black sided with the minority. The Constitution, he wrote, has led humans everywhere to hope and believe that wherever our laws control people -- American citizens or not -- they "would have an equal chance before the bar of criminal justice. Conquest by the United States, unlike conquest by many other nations, does not mean tyranny."
If the Supreme Court rules against the Pentagon and Bush White House, look for them to treat that statement by Justice Black as blather. They will simply move all the Guantanamo detainees to prisons back in conquered territory in the Middle East, or to expanded brigs in aircraft carriers.
One last thing: The 16 detained petitioners don't know there may be a light at the end of the tunnel, or that they may have a role in changing American jurisprudence. They haven't been told of last week's Supreme Court announcement. Nor will they be, say military officials.
| Niagara Falls Reporter | www.niagarafallsreporter.com | November 18 2003 |