Justice Delayed is Murder, and a War Crime


The dramatic Supreme Court decision last month declaring the Bush administration’s Guantanamo military tribunals scheme to be lawless and unconstitutional, is a landmark ruling that strikes a powerful blow for liberty. Hamdan v. Rumsfeld represents our democracy at its best, with a judicial branch taking its constitutional role seriously and boldly examining what our chief executive’s actions. There could be not have been a happier day for a constitutional and human rights lawyer like myself.

But my joy in finally getting this decision was tempered by the knowledge that it came a few days late. Just two weeks earlier, three of the Guantanamo detainees that we were representing at the Center for Constitutional Rights committed suicide, despairing that they would ever be released from their horrific and illegal confinement. Making that tragic incident all the more horrible and personally wrenching for me, since one of the victims was my own client–is knowing that he had actually been scheduled to be released three days hence. Because of the wall of secrecy and inaccessibility the government has illegally erected around the detainees, even with the information recently released via a Freedom of Information Act lawsuit we could not identify him and get word to him about his impending release in time.

As the lead habeas attorney for 300 of the Guantanamo detainees for CCR, the organization that brought the original challenge to the unlawful detention of hundreds of men in Guantánamo Bay, I am intimately aware of the wretched conditions under which they have been living, and of the unconstitutional lengths to which this administration has gone to keep them beyond court jurisdiction. In our original case, Rasul v. Bush, the High Court, upholding a tradition of more than 800 years’ standing, said every person gets to challenge the King’s decision to place him or her in the dungeon, and the King must provide a legally cognizable reason. When that first ruling came down on June 28, 2004, I assumed our system of checks and balances was working well.

But I was wrong.

Lawyers for the detainees still had to endure two years of Administration refusal to comply with the court’s decision, with the Justice Department attorneys insisting people might have the right to go to court but once there they have no protections to be enforced. Now we know this obscene delaying tactic for what it has been from the start: a blatant trampling on the Constitution by the President.

But this struggle wasn’t simply an arcane legal argument between lawyers. The two long years it took for us to get back to the Supreme Court took their toll on the Guantánamo prisoners. There have been many suicide attempts, and finally three lives were lost in their quest for justice from a country that once was a beacon of liberty. The Supreme Court’s forceful decision in June cannot bring back the lives of those men, at least one of whom–my client– was known to be innocent of any crime. Nor can it give back the years–five in many cases–that have been stolen from the Guantanamo detainees, some of who were children when they were snatched from their countries by American forces, and most of whom even military officials admit are not guilty of anything.

The Bush Administration has thumbed its nose at the Constitution for too long at Guantanamo, and at other secret detention facilities around the globe. This issue of denying basic justice to wartime captives is not simply a matter of misinterpreting the law–it is a willful affront to the rule of law here in America, and to international law. It is also a stain on the honor of this nation.

The blood of three detainees who, despairing of receiving justice, killed themselves, is on the hands of this administration. It is wonderful that President Bush’s abuse of power in this case has been slapped down by the Supreme Court, but more is called for. This abuse of power and willful violation of the rule of law and of the Geneva Conventions call for his impeachment.

Barbara Olshansky is an attorney with the Center for Constitutional Right and the lead habeas counsel for 300 of the detainees at Guantanamo Bay. She is co-author, with Dave Lindorff, of “The Case for Impeachment” (St. Martin’s Press, May 2006).

Barbara and Dave will be discussing the book at Robin’s Books, 108 s. 13th Street, Philadelphia at 7 pm on Wednesday, Aug 2. The event is being taped for broadcast by C-Span’s Books-TV program.



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Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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