Category Archives: Guantanamo

One Fewer Good Man.

Why do we have to lose straight-arrow Lt. Col. Colby Vokey, but keep the odious Col. Boylan?

Nice article in the Daily Business Review on assistant federal public defender Paul Rashkind, who is representing two persons being held at Guantanamo Bay.

Grad Student Madness: Can There be Collective Shame? takes issue, inter alia, with a post of mine from 2003, Guantanamo: Our Collective Shame.

The author rejects the very idea of collective shame, saying shame is individual,

It seems to me that the nature of shame is that it is not just individual; it's individualizing. Shame removes us from our fellow men and makes us painfully aware of our isolation in the world. It is, in this sense, experienced in much the same way as the ancients experienced fate. It is ours to carry, if we choose to accept it. It's also what makes us moral beings,

The author then goes on to reject collective guilt (also personal) and to question collective responsibility:

A group of people can accept collective responsibility for a crime or transgression, even if guilt can only be accepted on an individual basis. But what does collective responsibility mean when the whole nation accepts it? Nearly as little as collective pride, one would guess. For instance- if all of Germany accepts responsibility for the Holocaust, what distinguishes Eichmann from a butcher in Hamburg who really was unaware? And what distinguishes any of us in this era from a torturing guard at Abe Ghraib? Or from al-Quaida, given that we have all failed to prevent al-Quaida's actions? Is it evident how meaningless this can become?

…

I assume that these collective shaming exercises are intended to inspire us to action, and yet shame is a horrible motivator.

…

And so, I think that something like collective shame cannot exist, nor collective guilt; but perhaps something like collective responsibility is possible. Yet, given that collective responsibility tends to flatten out individual responsibility to a benign gray area, I think the most honest way to respond to transgressions is to assign individual responsibilities, and in turn to accept individual responsibility.

I plead guilty to the charge that a purpose of talking about collective shaming is to “to inspire us to action.” Most of the rest I disagree with.

I think the author misses three aspects of the collective guilt/shame/responsibility idea. (They are closely linked: responsibility leads to guilt and shame.)

#1 When the bad act is by your agent, you share in the responsibility for it. In a democracy, your government is your agent. It acts in your name. You therefore have presumptive responsibility for what it does.

#2 One way to shift that burden is to oppose what is done in your name. Indeed there may be a (moral) duty to do so in extreme cases. To fail to oppose serious known (or knowable) evil is — and this is the key step in the argument — to shoulder a significant and meaningful degree of personal responsibility for it. whether one wants it or not.

#3 Failure to shoulder the burden to oppose should lead to guilt and shame. Whether those are “collective” or “individually applying to everyone” seems to me to be, in the grand scheme of things, a quibble. If some people prefer the second formulation, I'm not about to argue.

#4 Nothing about the above requires one to close one's eyes to the reality that there are shades of gray, and also black and white. Direct actors are more responsible than passive ones. Eichmann was worse than a Good German who didn't want to know. The argument neither excuses the Good German, nor suggests, much less requires, that there is an equivalence between the ordinary and the extraordinary. (I leave that for (mis?)readers of Hannah Arendt.)

That is why those among us who know or should know about Guantanamo and about the government's other torture stations must oppose it, or in failing to do so take on a degree of responsibility for it. For each person that is an individual matter; the collective aspect is that the choice faces each of us, as individuals, not that it faces all of us as components of a mass.

I'm running out of energy to keep on posting about the judicial horrors perpetrated by this administration. Fortunately, there are others made of sterner stuff.

Have a look at Crooks and Liars, Justice, Guantanamo Style. Sickening stuff.

This is a big deal.

The US Supreme Court has reversed its previous denial of rehearing in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), two of the leading-edge Guantanamo detainee cases. Some details at SCOTUSblog.

The move required five votes, strongly suggesting that Justice Kennedy may have moved off the fence.

Previously, both he and Justice Stevens had voted against hearing the cases at all, meaning that only three Justices had voted in favor, an insufficient number for the cases to be heard.

But now there are five potential votes to save habeas corpus and uphold the rule of law against executive attempts to detain indefinitely, make up inadequate kangaroo-court-like procedures (and even torture, although that's not directly at issue in these cases).

The course of justice grinds on slowly… Here's a quick timeline from the Center for Constitutional Rights:

Al Odah v. United States, filed jointly by CCR, co-counsel Shearman & Sterling LLP, and a number of other law firms in 2004, consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court's Rasul decision.

The Boumediene appeal, filed by Wilmer Cutler Pickering Hale and Dorr LLP in 2004 and heard with a case brought by Clifford Chance LLP, is on behalf of six Bosnian-Algerian humanitarian workers seized by the U.S. military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them.

Case Timeline

Both the Al Odah and Boumediene habeas corpus petitions were filed in July 2004, shortly after the historic Rasul v. Bush Supreme Court decision that affirmed the detainees' right to challenge their detention.

In January 2005, District Judge Joyce Hens Green held in Al Odah that detainees possess “the fundamental right to due process of law under the Fifth Amendment” and that certain detainees are protected by the Geneva Conventions. U.S. District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were consolidated and appealed to the D.C. Circuit Court of Appeals.

On February 20, 2007, two years after the cases were first appealed, a divided panel of three judges of the D.C. Circuit Court of Appeals ruled 2-1 in the consolidated case that the Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court. Because the court also found the MCA eliminated any statutory right of access to the courts under habeas corpus, it dismissed their cases.

On March 5, 2007, CCR attorneys, along with co-counsel, petitioned the U.S. Supreme Court to review the Court of Appeals decision that dismissed Al Odah and Boumediene and to hear the cases on an expedited schedule. Attorneys submitted an accelerated briefing schedule to ensure that the cases will be heard before the Supreme Court goes on summer recess; otherwise, the question of whether Guantanamo detainees still have the right to challenge their detention through habeas corpus might go unanswered until 2008.

On April 2, 2007, the Supreme Court announced that it would not be hearing the cases of the Guantánamo detainees for the time being. The Court denied the Center for Constitutional Rights (CCR) and co-counsel's motion to hear the case with three justices dissenting and two issuing a statement that the detainees should exhaust the process set up by the Detainee Treatment Act (DTA).

Today's reversal overturns that April decision. What has changed since then? The main thing is that it has become increasingly obvious that the procedures being used in the Guantanamo trials are a farce. That comes mostly from the press — what we've seen from the DC Circuit is rather a refusal to address that issue. Which may be why the Supreme Court is finally reacting.

Or is the court just getting a little ahead of Mr. Dooley's predictions?

UPDATE: SCOUTS Blog has the following useful links:

We have posted all of the filings in these cases.

The original petition in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.

The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General's reply, filed June 19, is here.