Remember when the Protect America Act was allowed to lapse and President Bush predicted imminent terrorist attacks if Verizon couldn't build illegal wiretap aqueducts? Once again, there's huffing about the inevitable violence that will ensue when Gitmo detainees get habeas rights. Nino, for instance predicts, "devastating" and "disastrous consequences," and gave us an instant classic: "It will almost certainly cause more Americans to be killed."
So what's up with the gift given along with the whipping? The 9-0 ruling in another combined detainee case holds that Omar and Munaf -- American-Jordanian and American-Iraqi dual citizens -- can challenge their detention by the American military, but cannot challenge their transfer to another country, in this case Iraq.
Shouldn't we have expected Roberts to argue against granting the men habeas at all, since the terrorist threat posed by them is so grave? No, they're citizens. So they have to be denied the right to petition their government for wholly other reasons, viz.:
"Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution."
Again, there's a nested issue. The Court has essentially legitimized extraordinary rendition, opened up a defense of the CIA's secret prisons, and taken the first step in denying challenges to repatriation to countries that practice torture.
Allowing a detainee to challenge his capture is moot once he's been transferred. The message the court has sent, by saying that a habeas hearing for a transferree cannot result in review of his transfer, is "export these guys quicker!"
No-challenge transfers can work in reverse as well. Imagine Muhammad Rahim challenges his detention at Guantanamo on two grounds: one, he wants a habeas hearing in federal court; two, the CIA tortured him in Afghanistan in order to get the confession that sent him to the tribunals at Gitmo.
According to yesterday's decisions, Rahim would win the former point, but lose the latter, as surely the CIA's transfer is essentially a military transfer to a third country. If the transfer is legal, whatever happens at the other end is irrelevant. Disappeared.
If military transfers are unimpeachable, current detainees cannot ask not to be repatriated, even if they face torture at home. So quick folks, get Abdul Rahman back to Tunisia before the D. C. Circuit holds a habeas hearing!
Finally, the no-challenge military transfers closely parallel INS procedures for deporting illegal immigrants. Like something out of Bagram or Bucharest. Dark Steer awaits the day when this decision is cited to permit INS to drug deportees before shipment...what happens in Bagram stays in Bagram...
"Pre-flight cocktails" for everyone!
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