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Today's Stories December 14, 2007 JoAnn Wypijewski The Dirty Cad: What Giuliani's Sex Life Tells Us About Him John Ross Iraqi Refugees Return Jacob Hornberger Terror Suspects Belong in Federal Court   December 13, 2007 Paul Craig Roberts Shrinking the Dollar from the Inside-Out Mike Whitney Dershowitz for the Defense--of Waterboarding Ron Jacobs Blank Check DemocratsL the Great War Funding Conspiracy Norman Solomon The USA's Human Rights Daze Peter Morici The Dragon and the Toothless Dog: China Doesn't Flinch Sandy Mayes Blocking the Strykers: 13 Days of War Resistance at Port Olympia Franklin Lamb The UN in Lebanon: Whose Mission Is It Fulfilling? Jacob Hornberger Don't Reform the CIA, Abolish It Nadim Rouhana An Interloper in My Own Land Dave Zirin On Pigskin and Petrol Website of the Day Rachel's Needs (and Deserves) Your Support! December 12, 2007 Allan Nairn US Intelligence is Tapping Indonesian Phones Alan Farago How Sprawl Eats Its Young Ray McGovern Torture, Lies and Videotape Winslow T. Wheeler The Phony Pentagon Budget Cuts Evan Jones The Raid on Great Western: Why an Australian Bank Might Spell Doom for the US Farm Belt James Petras An Open Letter to Sarkozy on the Exchange of Political Prisonsers Joel Hirschorn The Horserace Fiction: Clinton, Obama and the Democratic Machine Joshua Frank Why Ron Paul Deserves Our Attention Sherry Wolf Why the Left Should Reject Ron Paul Dan Bacher Survey of a Fish Graveyard Website of the Day Men Eating Bugs   December 11, 2007 Patrick Cockburn What's Really Happened During the Surge? Diana Johnstone The Next Kosovo War Paul Craig Roberts It's Waco All Over Again: Preventive Detention and the Constitution David Macaray Impasse in Hollywood Ralph Nader Gail Collins Versus the Underdogs Andy Worthington Guantánamo Britons to be Released: a Mixed Result Martha Rosenberg No Holiday for High Risk Sex Workers Steve Champion / Anthony Ross Words for Our Brother, Tookie Williams Kim Nicolini Tangled Up in Dylan Michael Dickinson Say Goodbye to Purgatory: Pope Rat Gets Indulgent Website of the Day A Charming (and Worthy) Pitch December 10, 2007 Uri Avnery How They Stole the Bomb From Us Debbie Nathan The Perils of Journalism and Child Porn JoAnn Wypijewski Is There a Left Here Left? If So, What Can It Do? Steve Kelly Cheap Chips, Counterfeit Wilderness Donna J. Volatile Welcome to the Revolution   December 8 / 9, 2007 Alexander Cockburn The Coup Against Bush and Cheney Brenda Norrell Seize the Land, Chain the Peace Activists Saul Landau The Ruins of Empire R. F. Blader A Rape in Every Drink? Ray McGovern Spinning Iran's Centrifuges Allan Nairn Imposed Hunger in Gaza, the Army in Indonesia Linn Washington, Jr Spotlight on Death Row Paul Craig Roberts When Will Bush Come Clean?   December 7, 2007 Sean Penn Piano Wire Puppeteers Arthur Versluis Mining Water in the Desert M. G. Piety Racism and the American Psyche: Some Thoughts on Race and Intelligence Pam Martens Banksters Gone Wild Alan Farago Will the Free Market Kill Suburbia? Sprawl and the Credit Crisis Allan Nairn It Takes (Out) a Village Col. Dan Smith Bush, Iran and the Politics of Doomsday Alice Slater The Iran Opening Robert Weissman The Story of Stuff Website of the Day Something About Mitt   December 5, 2007 Mike Whitney Why the CFR Hates Putin Sharon Smith The Anti-War Enablers: Tom Hayden and the Dead End Democrats James Petras Venezuela in the Aftermath Ron Jacobs The Iran Charade Dave Zirin Kicking a Dead Man: the Sliming of Sean Taylor John V. Whitbeck Two States or One? Time to Choose Peter Zinn Covered in New Orleans Niranjan Ramakrishnan Impeach Pelosi Instead Alan Farago The Credit Bomb Detonates in Florida Heather Gray US Meddling in Australian Politics Website of the Day A Donner Summit Night Before Xmas   December 4, 2007 Alexander Cockburn Jackboot State Stubs Its Toe in Ann Arbor Andy Worthington Guantánamo and the Supreme Court Paul Craig Roberts The Lies at the End of the American Dream Ray McGovern No-Nuke Iran Winslow T. Wheeler Admiral Mullen and the Defense Budget: When White Elephants are Too Small Allan Nairn The Regime Still Stands in Burma, Where "the People Just Want Food" Russell Mokhiber The USA v. Al Arian Nikolas Kozloff As Chávez Falters: Raising the Stakes for the South American Left John V. Walsh Peace Movement Paralyzed Ghada Ageel Will Peace Cost Me My Home? Stephen Soldz The Facts be Damned!: Psychologists' President Defends Psychologist Involvement in Interrogations Website of the Day Hands Off the People of Iran     December 3, 2007 Tariq Ali Venezuela After the Referendum Bill Quigley New Orleans: Bulldozers for the Poor, Tax Credits for Developers Eric Walberg The Bible and Middle East History Uri Avnery After Annapolis Marjorie Cohn Operation Iraqi Freedom Exposed Dave Lindorff Vengeance Isn't Sweet Stephen Fleischman Homeless in Paradise Martha Rosenberg Perp Walks for the Mink Clad on Chicago's Mag Mile Website of the Day So Just Lead!   December 1 / 2, 2007 Alexander Cockburn Emblems of the Bush Age: Adrift in a Sea of Booze Jeffrey St. Clair The Bear Minimum: the Grizzly and the Future of the Rocky Mountain West Mike Whitney "Iraq Doesn't Exist Anymore": an Interview with Nir Rosen Shemon Salam A Visit From the FBI Roger Burbach The Battle in Bolivia Benjamin Dangl New Politics in Old Bolivia Brian M. Downing The Quiet on the Middle Eastern Front: How Much Credit Goes to the Surge? Greg Moses Night of the Living Redneck: a Texas Horror Story Sonja Karkar The "Never-Never" Peace Conference Saul Landau Ethics and Evil in South Boston Margaret Kimberley Black America Left Behind John Ross What are the Prospects for a New Mexican Revolution? Reza Fiyouzat Exit on the Left: When Che's Children Visited Iran Judith Scherr Berkeley Turns Right for the Holidays Lance Olsen Of Forests and Finance: Logging for the Wealthy Christopher Brauchli Mr. Bush and the Despots Robert Fantina Iraq as U.S. Colony Dan Bacher Fish Triage on Prospect Island Michael Donnelly Remembering How to be Human: John Trudell and the Music of Urgency Website of the Weekend Appalachian Voices   November 30, 2007 Peter Stone Brown The Re-Packaging of Bob Dylan Wajahat Ali The Volatile Mistress: an Interview with Javed Jabbar, Pakistan's Former Minister of Information Allan Nairn Cold-Blooded Celebrity: Thomas L. Friedman and the Bali Bombers Alan Farago The Sorrows of Suburbia: Politics, Sprawl and the Housing Crash John Ross The Death of Latin America's First Revolution Corporate Crime Reporter America's Corporate Crime Capitals Lucia Alvarez Diego Gonzalez Argentina's Political Future James Rothenberg The Iraqi Miracle Website of the Day Bio-Bling?   November 29, 2007 R. F. Blader The Most Dangerous Kind of Bribe Ismael Hossein-Zadeh Distorting Fascism to Demonize Iran Stephen Soldz War on the Couch: Fear, Aggression and Empire Sheldon Richman Iraq 3.0 George Wuerthner Forest Fires, Lies and Chainsaws Felice Pace Did All Things Considered Self-Censor on Annapolis? Col. Dan Smith The Meaning of Annapolis Harvey Wasserman Terror Target Nukes Nikolas Kozloff Primetime Hate Debate: Lou Dobbs, Immigration and Campaign '08 Paul Krassner Huffington Post Bloggers Go On Strike! Dave Lindorff News Not Fit to Print: US Coup Planned for Venezuela? CP News Service The One State Declaration Website of the Day A Native View of Yellowstone Bison Slaughter November 28, 2007 James Petras CIA Destabilization Memo Surfaces on Venezuela Jeff Halper Annapolis: When the Roadmap is a One Way Street Pam Martens Crashing Citigroup Peter Morici Economy in Crisis: Avoiding a Recession Mohammed Khatib Separate and Unequal in Palestine Helen Redmond The Horror and the Hope: Health Care in America William S. Lind In the Fox's Lair: Quiet Before a New Iraq Storm? Ben Tripp We, the People: a Trope for All Seasons Liaquat Ali Khan Pakistan: First, Restore the Constitution and Reinstate the Judges Jeff Berg Holbrooke Says Bush Won't Attack Iran Website of the Day The Lies of Joe Klein   November 27, 2007 Joe DeRaymond On the Road to the Torture School Paul Craig Roberts Meet the Only Two Candidates Worse Than Bush and Cheney: Hillary and Rudy Marjorie Cohn Remembering Victor Rabinowitz Mike Whitney A Dollar the Size of a Postage Stamp Ron Jacobs The Myths of Military Progress Col. Dan Smith The Pentagon's "People System" Still Doesn't Work Ralph Nader Family Learning Karim Makdisi Annapolis and the Unholy Alliance: the View from Beirut Christopher Ketcham Memo to Hollywood Writers: Strike Until You Drop Ronan Bennett Martin Amis Does a Coulter Website of the Day Celebrating the Uncensored Media   November 26, 2007 Kathleen and Bill Christison Heading for Annapolis Paul Craig Roberts The End of All That David Macaray Enter Mediator Sameer Dossani Pakistan's Wounded Dictator Roger Burbach The Final Battle in Bolivia Mark Scaramella Guns and Greed in the Emerald Empire Brian McKinlay Howard's End Rick Kuhn The Fall of a Racist Union Buster Binoy Kampmark Ruddslide and Dull Alec Monica Benderman What Do You Know of War? Brenda Norrell Return to Alcatraz Website of the Day Ghostworld by DJ Spooky   November 24 / 25, 2007 Alexander Cockburn The Ordeal of Catherine Wilkerson, MD Robert Fisk Darkness Falls on the Middle East Saul Landau Norman Mailer will Not R.I.P. Jeffrey St. Clair Justice Stephen Breyer, Cancer Bonds and the Origins of Neoliberal Environmentalism Rannie Amiri Beirut's Black Friday Christopher Brauchli Iraq Embassy as Gilded Palace Daniel Gross The Gap and Black Friday Mike Whitney "A Generalized Meltdown of Financial Institutions" Marjorie Cohn Iran and the 2008 Elections David Rosen Senior Sex: the Real Sexual Life of Aging Americans David Michael Green If Conservatism is the Ideology of Freedom .... Kenneth Rexroth When Euripides Played the Hindu Kush: Greeks and Buddhists in Afghanistan Muhammad Iqbal Trans. Shahid Alam Ghazal Website of the Day Aerial Footage of Delta Fish Kill November 23, 2007 Gary Leupp Killing the Buddha in Pakistan's Swat Valley Laura Carlsen Coming to Terms with Diversity in Bolivia: an Interview with Alvaro Garcia, Bolivia's VP David Macaray Keeping Labor Unions Out Andy Worthington Former Guantánamo Detainee Seeks Asylum in Sweden Clifton Ross Trashing Chavez: Keith Olberman's Toxic Rant Seth Sandronsky Battling Sodexho Dan Bacher Death in the Delta: Thousands of Fish Stranded by Bureau of Reclamation William A. Cook The Myth of Middle East Peace Website of the Day Waiting for the Guards: Stress Techniques as Torture, a Short Film   November 22, 2007 Alan Farago Who Lost America's Everglades? Greg Moses A Thanksgiving Basting Dave Lindorff Impeachment is Back on the Table Mike Ely Native Blood: the Myth pf Thanksgiving Omar Azfar Gore for President of Pakistan?   November 21, 2007 Vijay Prashad Our Dictator, Their Democracy Martha Rosenberg Undercover at a Turkey Slaughtering Plant Manuel Garcia, Jr. Epiphany on the Glacier John Ross The Last Days of Mexican Corn Brian McKenna Cancer Terrorists Unmasked Stephen Soldz Isolation Torture Routine at Guatánamo Monica Benderman Needing Peace Ben Terrall Slavery in the Fields: The Real Price of Sugar Website of the Day Mercy for Animals   November 20, 2007 Oren Ben-Dor Why Israel Has No "Right to Exist" as a Jewish State Wajahat Ali An Interview with Norman Finkelstein Alan Farago The Dark Arts and the Bush Dynasty Marjorie Cohn Musharraf Plays Bush for a Fool Ralph Nader Green is Gold? Andy Worthington Guantánamo Whistleblower Launches a New Attack on Rigged Tribunals Sara Olson When Going AWOL is the Only Escape Dave Lindorff Likelihood of Iran Attack Gains Credence Paul Krassner The First Amendment, a Dialogue Website of the Day Joanne Mariner on Torture November 19, 2007 Winslow T. Wheeler Why Congress Won't Reform China Hand The U.S. Game Plan in Pakistan Allan Nairn Sitting Around Talking, in Indonesia Uri Avnery How to Get Out? David Macaray The Chalice that Poisoned the Labor Movements Dave Lindorff Democrats in Future Shock: They Could Lose It All in 2008! Bill Quigley Twenty Thousand Protest at Ft. Benning; Eleven Face Federal Criminal Trials Ron Jacobs Sitting on the Group W Bench: War, Thanksgiving and Arlo Guthrie Sunsara Taylor Legalized Rights for Fertilized Eggs? Binoy Kampmark Why Steve Irwin--You're Dead! Heather Gray Another Look at W.E.B. DuBois Website of the Day The Meat Market     November 17 / 18, 2007 P. Sainath Neoliberalism's Price Tag: 150,000 Farm Suicides in India David Rosen The Scarlet Hypocrites: Republicans, Christians and the Politics of Adultery Mike Whitney Pentagon Cover Up: 15,000 or More US Deaths in Iraq War? George Wuerthner Saving the Big Wild Brenda Norrell The Case of Jim Main, Jr: In Montana, Indians are Guilty Until Proven Innocent George Ciccariello-Maher Of Submarines and Loose Screws Karim Makdisi Lebanon is Hanging by a Thread Marie Trigona Wal-Mart in Argentina Valerio Volpi The Catholic Church, Incorporated Fred Gardner The Straight-Ahead Runner Robert Fantina The White House Press Office Mike Ferner Thank God for the Senate Republicans! Missy Comley Beattie The Radical Majority Kenneth Couesbouc Circles of Power Patrick O'Hayer A Portrait of Mailer and a Young Poet Poets' Basement Davies, Buknatski and Ford   November 16, 2007 Cockburn / St. Clair The Vices of Hillary Clinton: Secrecy, Intransigence and War Dave Zirin The Indictment of Barry Bonds: Busted by a Broken System Gary D. Barnett A Day in the Life of an Unwilling Federal Agent Alan Farago Sprawl, Mortgage Fraud and Political Corruption Dave Lindorff Two Brothers and Two Scandals Russell Mokhiber Pelosi and Me: "What Should be Done with Those Protesters?" Robert Ovetz Cargo Ships in Paradise: Shipping Lanes Threaten the Yosemite of the Sea Brenda Norrell "Today We Experienced America:" Arresting Indigenous People on the Border David Swanson Wolf Blitzer Loses Democratic Debate Peter Letheby Outside the Box on the Great Plains Website of the Day Why Activism Fails   November 15, 2007 Cockburn / St. Clair Hillary Clinton in Arkansas Adolfo Gilly The Spirit of Revolt Peter Bohmer 10 Days That Shook Olympia Andy Worthington The Trials of Omar Khadr: Gitmo's Child Soldier Gray / Derks Obama's Pitch to South Carolina's Black Churches Affronts Gay Groups Liaquat Ali Khan Liberating Pakistan Dave Lindorff Where's the Party? Christopher Brauchli Tipping Point: the Politics of Gossip Anthony Papa Racism as Law: Crack Cocaine Sentences Martha Rosenberg Merck's Big Write Off Ben Terrall Thank You, Ehren Watada Website of the Day On the Colorado: Drought, Climate Change and Water Supplies November 14, 2007 Cockburn / St. Clair The Making of Hillary Clinton James Petras Venezuela Between Ballots and Bullets Al Giordano Campaign 08: Don't Trust Anyone Over 50 Paul Craig Roberts The Lobby Andy Worthington Innocents and Foot Soldiers Stephen Lendman Torturing Palestinian Detainees Fatima Bhutto Aunt Benazir's False Promises: the Dismantling of Pakistani Democracy Martin Smith Norman Mailer and the "Good War" Jeff Leys Slip Sliding Away: House Votes on War Funding Website of the Day Why the Writers are Striking November 13, 2007 Alexander Cockburn Hillary's Big Problem and How Bill Can Fix It Jeffrey St. Clair Mailer and Us: the Writer as Fighter Robert Bryce The Pakistan Fuel Connection David Macaray The Teamsters and the Hollywood Strike Mike Whitney Bulletins from the Titanic Ralph Nader Pakistani Lawyers vs. American Lawyers Nikolas Kozloff Chavez Blasts the Spanish King Jordan Flaherty Education Versus Incarceration in Tallulah, Louisiana B. R. Gowani Dear Mrs. Bhutto Website of the Day Monty Python: "Fuck You, Very Much FCC"   November 12, 2007 Vicente Navarro Why Hillary's Health Care Plan Really Failed Ben Brown Letter from Ho Chi Minh City: a Tribute to My Vietnam Vet Father Omar K. A Pakistani Lawyer's Testimony: Life Under the Brutal Emergency Sadia Abbas The Roots of Pakistan's Political Crisis: Corrupt Elites and a Kleptocratic Military Farzana Versey Mailer's Miasma Richard W. Behan The Political Crimes of Complicity Paul Krassner Asshole of the Year: Congratulations Tim Russert! Cindy Sheehan Faith and War Peter Stone Brown The Return of Levon Helm Dave Lindorff Dennis, You are Not Alone Website of the Day Police Attack in Olympia   November 10 / 11, 2007 Alain Gresh Uncle Sam's New Backyard: How to Turn a Region into a Graveyard Mike Whitney For Whom the Closing Bell Tolls: the Last Dead Bull on Wall Street Ron Jacobs A View from the Pakistani Left: an Interview with Farooq Tariq Jeffrey St. Clair The First Dambuster: a Coyote Story Alan Farago Tangled Up in Blue: a Brief History of Florida Environmentalism Binoy Kampmark When Language Drowns: Torture in America Robert Fantina Legitimizing Torture Fred Gardner Psychological Torture in the Name of Family Values Ayesha Ijaz Khan The General in His Labyrinth Nicola Nasser NATO's Southward Drift Philip Rizk The Blame Game in Gaza Michael Dickinson Condom Nation: the Pope vs. Terry Higgins Joel S. Hirschhorn The Grand Delusion: a Conspiracy of Two Parties Paul Krassner Flunking Out of the Electoral College Wadner Pierre / Joe Emersberger The Ongoing War on Journalists in Haiti           Subscribe Online

December 14, 2007 What Happened? Guantánamo and the Supreme Court By ANDY WORTHINGTON Last Wednesday's Supreme Court showdown over Guantánamo was billed as "probably the most important habeas corpus case in modern history," according to Law.com, and "the most important civil liberties case of the past 50 years," according to the Center for Constitutional Rights (CCR). This was no understatement. At stake was the validity of the administration's novel contention, first formulated in November 2001, that it can seize foreigners anywhere in the world, designate them as "enemy combatants" -- rather than as criminals or prisoners of war -- and hold them indefinitely, without charge or trial. The very fact that the Supreme Court was discussing the detainees' rights at all was, in itself, astonishing. Three and a half years ago, in June 2004, the Court ruled in Rasul v. Bush that Guantánamo -- chosen as a base for the prison because it was presumed to be beyond the reach of the US courts -- was "in every practical respect a United States territory," and that the detainees had the right to challenge the basis of their detention, under the terms of the 800-year old "Great Writ" of habeas corpus, which prohibits the suspension of prisoners' rights to challenge the basis of their detention except in "cases of rebellion or invasion." In spite of this ruling, the detainees were not granted impartial hearings in a US court. Instead, they were subjected to military reviews at Guantánamo -- the Combatant Status Review Tribunals (CSRTs) -- which were a lamentable replacement for a valid judicial challenge. Although the detainees were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation, and were subjected to secret evidence that they were unable to see or challenge. In June this year, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often "generic" evidence, and designed to rubber-stamp the detainees' prior designation as "enemy combatants." Filed as an affidavit in Al Odah v. United States, one of the cases considered by the Supreme Court last week, Lt. Col. Abraham's testimony was regarded, by legal experts, as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the detainees in April, to reverse its decision (an event so rare that it last happened 60 years ago) and to agree to hear the cases. To complicate matters, the Supreme Court's decision in June 2004 has been undermined twice by Congress in the intervening years. In the fall of 2005, the flawed Detainee Treatment Act (DTA) was passed, which, in brief, limited any review of the detainees' cases to the DC Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the administration's allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid. In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by Military Commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the even more flawed Military Commissions Act (MCA) was passed by a barely sentient Congress. Instantly reviled by concerned lawyers and human rights activists, the MCA reinstated the Military Commissions and also comprehensively stripped the detainees of their habeas corpus rights, stating, explicitly, "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." In a further attempt to stifle dissent, the MCA defined an "enemy combatant" as someone who has either engaged in or supported hostilities against the US, or "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the secretary of defense." With the justices of the Supreme Court not due to deliver their verdict until spring 2008 at the earliest, working out what happened last week has involved experts -- and those less qualified -- analyzing their comments during the two-hour hearing, and extrapolating from legal precedents to draw tentative conclusions about which way the judicial axe will fall. A recording of the oral argument is available here, but for those who have neither the time nor the ability to understand references to a bewildering array of ancient precedents, I shall attempt to summarize the main points. One of the clearest analyses was made by Wells Dixon of CCR, who explained in a column for Jurist that the main claims made on behalf of the detainees -- delivered by former Solicitor General Seth Waxman -- are that they have a constitutional right to habeas corpus because they have "all have been confined for six years without meaningful notice of the grounds for their detention or opportunity to challenge those grounds," because the DTA, and its interpretation by the District Court, allows them "no prospect of that opportunity," and because "all of the prisoners claim they are innocent of any wrongdoing." In Wells Dixon's opinion, a majority of the nine justices "appeared to agree with Seth Waxman that the threshold question of whether the prisoners in Guantánamo have a constitutional right to habeas" had already been decided in June 2004, a judgment which, if confirmed, will have the knock-on effect of indicating that the habeas-stripping provisions of the MCA -- which were supposedly justified through an interpretation of Rasul as a statutory issue, rather than a constitutional one -- were in fact unconstitutional. Dixon explained that, following questions from Chief Justice John Roberts and Justice Antonin Scalia, the government's representative, current Solicitor General Paul Clement, claimed that the detainees had no rights under the DTA and the MCA because they were non-citizens held outside the sovereignty of the United States, but that most of the justices "seemed to reject that argument." Justice David Souter, for example, remarked that the Court was "past that point" and that the government was attempting to reargue Rasul, and Justice Ruth Bader Ginsburg "noted that the lease agreement granting the United States exclusive jurisdiction and control over Guantánamo was not something that Congress had changed by enacting the DTA and MCA." Specific mention was made of an extraordinary section of the MCA, which sneakily purported to reverse Rasul by excluding Guantánamo from the definition of territory constituting the United States. With the detainees' constitutional right to habeas corpus apparently established through these exchanges, Waxman declared that the principal question facing the Court was whether the DTA's "limited review" of the CSRTs provides "a constitutionally adequate substitute for habeas." Waxman argued that it did not, insisting that the CSRTs were "structurally flawed and incapable of being cured through DTA review." He cited, as an example, the case of Murat Kurnaz, a German resident who was released from Guantánamo in August 2006, but whose detention had been justified because of a claim that he was affiliated with Selçuk Bilgin, an alleged suicide bomber. When Kurnaz was finally allowed access to lawyers, his legal team was able to establish, in just 24 hours, that the "suicide bomber" was actually alive and well and living in Germany, and had, moreover, never been involved with terrorism. This exculpatory evidence was not included in his CSRT, however, and Waxman pointed out that the limited review allowed by the DTA explicitly prevented its disclosure. Waxman could have added that Murat Kurnaz was not the only detainee whose innocence was established by lawyers working outside the narrow parameters of the CSRTs and the DTA review process. To cite just one example, an allegation that the Moroccan chef Ahmed Errachidi (released in April 2007) attended an al-Qaeda training camp in August 2001 was only dismissed when his lawyers investigated his story independently, and were able to confirm that, as Errachidi had maintained all along, he was working as a cook in a hotel in London's Bond Street when he was supposed to have been wielding a Kalashnikov in Afghanistan. According to Wells Dixon, several of the justices were as skeptical of the DTA's "limited review" of the CSRTs as Seth Waxman. Justice John Paul Stevens "questioned the neutrality of CSRT participants and the prisoners' lack of counsel during the hearings," and Justice David Souter "questioned whether meaningful DTA review is possible because the CSRT panels were not neutral and had denied prisoners the remedy of release." Citing an issue raised by Lt. Col. Abraham in his affidavit -- and demonstrating quite how significant Abraham's testimony was -- Souter referred to the case of Ali, one of 22 Uyghurs at Guantánamo (Muslims from the persecuted Chinese outpost of Xinjiang province), who was subjected to a second CSRT after his first cleared him of being an "enemy combatant." He might have added, as I reported here, and as Lt. Col. Abraham made clear, that the same thing happened to Abdul Hamid al-Ghizzawi, a Libyan shopkeeper, and that lawyers for the Uyghurs have pointed out that repeat CSRTs were conducted in the cases of two more of their clients. What happened next was reported by NPR's Nina Totenberg. Focusing on the detainees' claims that they are innocent, Justice Stephen Breyer asked where, in the current appeals process, a detainee could make this claim. "I'm not sure that he can make that argument," Clement replied. "If he cannot make that argument," Breyer continued, "then how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people [the remaining detainees] would like to make?" Clement then said that prisoners of war had never had the right to challenge their detention through a habeas corpus petition in the US courts, prompting Justice Souter to respond, "The problem with your prisoner-of-war point is, the United States is not treating them as prisoners of war. That argument, on the government's part, is entirely circular." From here, the justices moved on to discuss, as Wells Dixon described it, "whether DTA review, if found to be a constitutionally inadequate substitute for habeas, could be cured of any defect by the DC Circuit." The issue was raised by Justice Anthony Kennedy, whose vote, as Dixon noted, "will likely be critical to the prisoners' challenge." He added that, at this point, the government appeared "almost to abandon its argument" that the detainees "have no constitutional right to habeas," asking the justices to remand the cases to the DC Circuit Court, and to "allow that court to supply any constitutionally required guidance to the CSRTs." As the prospect of more long years of legal maneuvering loomed, Justice Breyer cut short a potentially meandering discussion by pointing out, "Habeas is supposed to be speedy, and yet people have serious arguments that they're being held for six years without even having those arguments heard. Is there anything, in your opinion, that this court could say by way of remedy that could get the DC Circuit or the others to decide this and the CSRT claims ­ there are 305 people ­ [and] to do this quickly in a matter of months rather than six more years?" The Supreme Court, Clement replied, could instruct the lower court to expedite the appeals process, but Justices Kennedy and Souter observed that, according to the statute passed by Congress, they had no jurisdiction in these cases. "How can we say that?" Justice Souter asked. "Your position is that we have no jurisdiction here. If you win, we never get to these issues." While observers concluded from the hearing that the justices appeared to be split 4-4, with Justices Clarence Thomas and Samuel Alito joining Chief Justice Roberts and Justice Scalia on the government's side, and Justice Kennedy holding the tie-breaking vote, it seems to me that Kennedy's opinion about the sidelining of the Supreme Court with regard to its lack of jurisdiction could swing the decision in the detainees' favor, although whether the administration would respond honorably remains to be seen. A hint of what may be to come occurred during the hearing after Justice Alito asked, "If the court holds that the DTA is not an adequate substitute for habeas, what will happen? Will these petitioners then have access to all of the procedures that normally apply in habeas proceeding under [Section] 2242 [of the Judicial Code]? The same right to discovery, subpoena, witnesses, access to classified information, presence in court?" In response, Paul Clements stated, "The government will certainly take the position that they are not entitled to those things. Presumably, the petitioners will be arguing that they are entitled to those things. And there will be difficult questions that will need to be worked out." Noticeably, however, the warning bells triggered by this comment are nowhere near as disturbing as the implications of a comment made by Justice Breyer, the maverick who gave the go-ahead for the MCA by pointing out, during the Hamdan judgment, that "Nothing prevents the President from returning to Congress to seek the authority he believes necessary" to reinstate the Military Commissions. Seemingly offering the government another escape route from the self-made hole into which it has dug itself over the last six years, Breyer mentioned on three separate occasions that it might be possible for Congress to enact a law that would provide a rock-solid basis for holding the detainees indefinitely without trial, under "some special statute involving preventive detention and danger, which has not yet been enacted." While Justice Breyer's comments seem, pragmatically, to be directed at those detainees -- perhaps the 80 proposed for Military Commissions, perhaps more -- whom the administration will he hoping to keep "out of the loop" should the Supreme Court rule in their favor, the very idea that "preventive detention" could be enshrined in law to replace the dictatorial lawlessness of the last six years is enough to send a shiver down the spine of anyone who realizes what its introduction would actually mean: destroying 800 years of law in a manner that is even more chilling than the denial of habeas corpus, by attempting to justify the imprisonment of people not for what they have done, but for what they may do in the future. It doesn't even bear thinking about. Andy Worthington is a British historian, and the author of 'The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison' (to be published by Pluto Press in October 2007). Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk Your Ad Here

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