Exercises in the paranoid style, or, zim-zimma, who got the keys to Boumediene?

K: Indeed, what happens to detainees upon release? Will they sue in civil courts for wrongful imprisonment? Will the people who brought them to Guantanamo be prosecuted for kidnapping, like the Italians are prosecuting the CIA? Will they, as the Pentagon keeps saying, return to the battlefield?

Your point and mine, clearly, is that five detainees returning to jihad is less worrisome than the five thousand middle-class Egyptians radicalized the way Qutb was back in the day. (I did actually remember that NYT Mag piece from 2003...) The Supremes have just agreed to hear three cases involving executive branch responsibility for deprivations of civil rights carried out abroad, probably in order to shut 'em down. So the fear that former secretaries will have to pay for private school in Canada, or new rims on a bunch of Afghan Hummers is unmerited. And the 9-0 Munaf-Omar ruling makes clear that whatever the consequences of deporting a detainee, it ain't challengable.

Summary castration be damned: What Happens in Yemen Stays in Yemen. Ultimately, no one cares what these dudes do after their day in court.

The real question is, What will these dudes do in court? The administration hasn't been arguing to block the release of detainees; certainly not while they've been steadily draining Gitmo. They've been arguing to keep detainees from having access to their own lawyers, from seeing the evidence against them, or from having their testimony preserved in toto.

Torture is the weenie. This is why David Hicks, the Australian Talib, is subject to a gag order. This is why Andy Card, Karl Rove, Harriet Miers et alia refuse to obey subpoenas, risking jail rather than dent the armor of executive privilege. The administration is scared shitless of Carl Levin! They fear no mujahideen; they fear memoirs! Depositions!

This is not Syriana, it's Michael Clayton. (Check me later on Tilda Swinton intentionally modelling her character on Condoleezza Rice.) Detainees will demonstrate in court that a program of coercive interrogation originated at Guantanamo shortly after Rumsfeld signed off on it in 2002. Pre-Abu Ghraib, pre-"bad apples."

A program of torture spanning three continents and half a decade was conceived, promulgated and concealed by the executive branch. And the people subject to it now get their day in court? The goddam plane has crashed into the side of the mountain...

My concern is that this will bump us into a higher-echelon paranoia. Just as Al-Qaeda will feed on the shadow-government narrative, the Hammerhead Right will cite the Boumediene decision as evidence of the Enemy Within. At least, until these dudes testify...
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Roberts insane, Part 2: Court feeds fresh meat to these vulgar brutes...

Part 1

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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Chief Justice Roberts is a hammerhead shark, insane with bloodlust...

Yesterday's 5-4 ruling restoring habeas to detainees is half a loaf. Here's the full text.

Kennedy writes the majority like he's being chased by rabid wolverines, tossing raw deer meat off to the side of the trail, knowing all he has to do is slow the toothy bastards down...

For instance, the predatory John Roberts in dissent:

"The political branches crafted these procedures [CSRTs and military commissions] amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation."

Here, as elsewhere, my lizard-brain recoils in dread and confusion. Roberts is arguing that the procedures Congress established, which this Court strikes down for the third time, should have been pursued unimpeded. Detainees should have gotten out of their stress positions, walked to the Gitmo FedEx and filed their own petitions for review by the D.C. Circuit Court?

It is as if Roberts were dissenting with the Court in upholding the Fair Housing Act, by saying poor black folks redlined out of white neighborhoods should have worked harder in pursuing the remedies already available to them. "Why not go to another realtor, or pursue higher education. The fact that no petitioners live in my neighborhood is proof that they aren't trying hard enough."

The Court was forced to consider Boumediene and Al-Odah precisely because the petitioners cannot sanction the legitimacy of the proceedings. If the petitioners reverse their position in order to "avail themselves of the law's operation," conservatives on the Court would be able argue that following the avenues provided in the law demonstrated the sufficiency of the DTA in preserving habeas corpus. Petitioners' argument is that the US has de facto sovereignty over Gitmo, thus Constitutional protections apply. If petitioners avail themselves of the Roberts path, they provide de facto legitimation. Then it would be: "If the D.C. Circuit and the military commissions were good enough back then, why sue for extra rights?" Roberts is essentially whining that no lawyer fell into the legal trap built into the government's motion to dismiss.

And let's just ignore Scalia's convenient shift from strict constructionism to living word. Or his prophesies of doom. Kennedy had the first angle of complaint wrapped up when he quoted The Federalist:

"Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:

'[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone ... are well worthy of recital: "To bereave a man of life ... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the bulwark of the British Constitution." ' " [citations omitted; emphasis mine]

In Part 2: what liberals on the court are willing to do to citizens; deranged freaks; medieval information-gathering...
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