McCarthy explains why the Bush administration was unable to try the Guantanamo prisoners

Over the last two days, I’ve suggested that the Bush administration is partly to blame for Obama-Holder’s monstrous decision to bring to the U.S. for trial as an ordinary criminal defendant Khalid Sheikh Mohammed, the man who organized the greatest single act of violence ever inflicted on the continental United States. It seemed to me that the failure of Bush and his attorneys general to try and execute KSM as an enemy combatant left the situation in an apparently unending limbo and virtually invited the Democrats to resolve it in their own way.

Former federal prosecutor Andrew McCarthy replies, showing how the U.S. Supreme Court paralyzed the administration in its efforts to hold military commissions for the Guantanamo prisoners.

Andrew McCarthy writes:

Larry, I agree that the administration did not move fast enough to get some military commissions done early on—say 2002-03—and it did not have good, coherent rules about which captives would go in which system (e.g., Moussaoui sent to civilian system while Padilla was designated an enemy combatant—probably should have been the reverse).

But that said, I think your criticism here is overstated because it does not take into account the litigation in the civilian courts.

In 2003, the lower courts began holding that the detainees had the right to challenge in civilian court both their detention and the military proceedings against them. In 2004, the Supreme Court held (in Rasul v. Bush) that they had a STATUTORY right to file habeas corpus claims (i.e., to challenge both their detention and the military proceedings) in civilian court.

Congress reacted by passing the Detainee Treatment Act of 2005, which attempted to allow the military commissions to go forward and to divest the civilian courts of jurisdiction to interfere.

In Hamdan v. Rumsfeld (2006), the Supreme Court outrageously (a) ignored the DTA’s divestment of jurisdiction (“reasoning” that it did not apply to habeas petitions filed before the act was passed, even though those petitions were obviously THE REASON for the act’s being passed), and (b) invalidated the military commissions on the spurious grounds that Congress had not approved them and that they somehow violated the Uniform Code of Military Justice. (This was nonsense and, if you’re interested, I can send you a few things I wrote explaining why.)

In 2006, Congress reacted to Hamdan by passing the Military Commissions Act of 2006, approving the commissions and again attempting to allow them to go forward.

Immediately, the detainees began challenging the MCA in the lower federal courts, making the claim left unresolved by the 2004 Rasul case—i.e., that they had a CONSTITUTIONAL right to habeas corpus review in civilian courts. (Remember, Rasul had held only that the right of review was in the habeas statute; when rights are statutory, Congress can change them—as it did in the DTA and MCA. When rights are constitutional in nature, they are whatever the Supreme Court says they are, and Congress cannot reduce them—or at least, so goes the Court’s theory of constitutional law.

In 2008, the Supreme Court rendered its most outrageous decision, Boumediene v. Bush, holding that the detainees had a constitutional right to challenge their detention in civilian federal courts.

The detainees immediately began arguing in the lower courts that the logic of Boumediene should apply not only to mere detention but to war-crimes trials by military commission. So far, the lower courts have held that Boumediene does not bar the military commissions, but the Supreme Court has not ruled on this question.

Based on these lower court rulings, the military finally held a couple of commission trials (the first was for Hamdan, bin Laden’s driver and confidant). Commissions for about two dozen combatants were underway when Obama had them halted in Jan 2009.

The bottom line is that Bush aggressively defended the commissions system and tried to push the cases forward, but was stopped from doing so by the courts—at the urging of left-wing lawyers who volunteered their services to the enemy. The commission system was invalidated in 2006. Almost all the commissions (except for two combatants who pled guilty) were held up in civilian court litigation at that point, and the Hamdan ruling meant having to wait months for Congress to pass the MCA and start all over again. Then, the cases were immediately suspended in new litigation challenging the MCA—litigation that was further complicated by Boumediene and that is still not resolved.

I had also (before receiving the above reply) sent this note to Mr. McCarthy:

Mukasey [Bush’s last attornedy general] is not happy with the decision to try KSM in U.S. But what was Mukasey doing to resolve the status of the Gitmo prisoners during his two years as AG?

It looks as though the Bush people left the situation unresolved, and now Obama is resolving it.

He replies:

As you’ll see from my last note, Mukasey was dealing with the fall-out of Hamdan and then litigating the constitutional challenges to both military detention and military commissions through the time Boumediene was decided. Then, he PLEADED with Congress to enact some legislation to deal with the 240 detention cases the Boumediene Court had dumped on the lower courts with no guidance on how to proceed. By then, Democrats had taken over Congress—and since they like it when courts give terrorists more rights, they ignored Mukasey’s pleas. Meantime, the commissions couldn’t go forward until the DC Circuit Court of Appeals decided, in summer or fall 2008 (I don’t recall the exact date), that Boumediene did not bar the commissions. As soon as that happened, as I said in my last note, they geared up the commissions and actually got two of them tried.

You also have to remember that defendants have lots of rights in military commissions. Just because the courts say they can go forward, that doesn’t mean you can just start holding the trials. They get discovery, they get to make motions, they get to have pretrial hearings on a zillion different issues. It’s true that KSM and his co-defendants said, last December, that they wanted to plead guilty and be executed, and I think we should have tried to take those pleas. But it was not without complications—the combatants were purporting to defend themselves, they never formally tried to enter a plea (I think they sent a letter to the judge), their stand-by counsel objected to the court’s entertaining the letter and vigorously argued that the military judge should hold the matter in abeyance for a few weeks, since Obama had been elected and seemed likely to pull the plug on the whole commission process. The military judges were sympathetic to that argument. Nothing could have been done about that by Mukasey—who did not have responsibility for MILITARY legal proceedings, that’s the SECDEF’s turf.

I reply:

Thank you very much for this. This clarifies things greatly. While I was aware of these different cases, I didn’t have a coherent view of how it all fit together, of the degree to which the government was stymied in its efforts to do anything.

However, while I was unfair to the Bush administration in my earlier postings, I don’t think I was entirely unfair. Bush needed to get out front and explain clearly to the public what was at stake, what he wanted to do vis a vis the prisoners, and how the courts were preventing him from doing that. But he didn’t. Bush didn’t lead. Also, the image one had of his first two attorneys general John Ashcroft and Alberto Gonzales (I was less aware of Mukasey) was of their having a vaguely guilty demeanor in their appearances before Congress. Gonzales in particular seemed passive and inarticulate, all of which strengthened the liberals in their view that the Bushites were up to no good.

If the court decisions were having this devastating effect, Bush himself or his AG’s should have been much more pro-active in laying out the situation to the public. Also, when it came to prisoners that would need to be incarcerated essentially for life, I don’t think the administration was ever clear about this. Everything seemed vague and uncertain. They did not convey the impression that they were being forthcoming. And this exacerbated the public hostility to Guantanamo.

This failure to inform and to lead is consistent with Bush throughout. For example, following the the Florida election stand-off, he left unchallenged the paranoid beliefs held by millions of Americans—ridiculous beliefs he could largely have dispersed with a speech to the country—that he had done all kinds of vicious things and stolen the election. The fury created by those false beliefs, which he did nothing to counteract, left him looking guilty and had an ongoing harmful effect on his administration and the country.

And that’s the problem with Republicans. They act as though their job in life is to seem like the guilty white man and so justify the liberal conviction of an all-pervading white guilt.

- end of initial entry -

Rick U. writes:

I was happy to see that Andy McCarthy responded to your earlier query/ criticism on this matter as I was going to make the same points far less eloquently.

If you’re interested, Scalia’s dissent in the Boumediene v. Bush case is quite a good read and presents a more conservative judgment/outcome.

All the more reason to do all we can to influence the nomination of judges that actually follow the Constitution especially after Friday the 13th

Thanks for the great site and comments …

Michael Jose writes:

You wrote:

However, while I was unfair to the Bush administration in my earlier postings, I don’t think I was entirely unfair. Bush needed to get out front and explain clearly to the public what was at stake, what he wanted to do vis a vis the prisoners, and how the courts were preventing him from doing that.

I would add that, most importantly, he needed to give assurance that there were ample safeguards in place to protect the rights of prisoners who were wrongfully accused. The impression that most people had was that anyone who was captured was simply imprisoned without any procedure whatsoever to determine their identity, and with no way to challenge their imprisonment. That picture was not entirely accurate, but very few people who supported the administration did anything to deny it. They either justified such a policy (or at least justified the Bush administration policy without distinguishing it from “lock ‘em all up and let God sort ‘em out”) or, if they did say that such a policy was not what Bush was pursuing, implied that he should have pursued such a policy.

In fact, I would argue that fear that the administration would detain people arbitrarily and indefinitely was the main impetus for all of the court decisions negating the military tribunals.

There was an episode of the TV show Crossing Jordan (it was a crime procedural centering around the coroner’s office) a few years ago where one of the characters was detained by homeland security because he had been genotyping a dangerous virus (it turns out that he was working with some health workers in Africa to develop a vaccine or something for a disease that was running rampant). He and his friends basically had no way to challenge his detention, and if it were not for the good will of the agent who was holding him and his willingness to believe that the work was health-related and not bioweapon-related, he could have been held forever.

This might not be a realistic scenario, but this is what people were afraid of. This one particular scenario was the one that Bush needed to dispel. I would argue that if Bush had explained this one issue clearly and had demonstrated that there were reasonable safeguards in place, this alone would have avoided a lot of the problems. I also think that without dealing with this issue, no amount of emphasis on the evil exceptionalness of the terrorists or on the danger of a public trial would have helped, because people would say “how do I know that the government would not come after me this way?”

Andrew McCarthy replies to LA:

Thanks, Larry. I can’t quarrel with your reply. I’ve often complained that the Bush administration should have done a better job of explaining its positions to the public—in the absence of a president who exploits the bully pulpit, the other side writes the history, and that’s obviously what’s happening here.

Terry Morris writes:

Very interesting. Thanks for posting.

I always knew that the left, through the courts, were tying Bush’s hands on this, but what I find so humorous about an otherwise very serious situation is that the leftists were constantly acting as if Bush were some kind of half-cocked redneck cowboy who knew no law or authority except his own. Which he made up as he went along. Maybe there is a bit of truth to that, but he dang sure weren’t no Andy Jackson.

Paul Nachman writes:

If you continue the conversation with McCarthy, you might serve up a question along these lines:

The Founders (as far as I know) thought that protecting the Constitution was up to all three branches. Accordingly, if I were president, I would simply ignore the Court’s rulings that were in defiance of the limits Congress set on judicial review in these cases, explaining that the Court had it wrong, and go ahead with the military commissions. Comment?

LA replies:

I’ll send this along to Mr. McCarthy, but I don’t know that he will like the idea, as it is, in today’s context, quasi revolutionary.

I would support it. Let’s look at it this way. The Court in the last 100 years has acquired vastly more power than the Founders and subsequent generations of Americans thought it should have. What’s the remedy for that? For the other branches to push back. There’s nothing in the Constitution itself giving the Court sole power over the meaning of the Constitution. Of the many contemptible things GW Bush did as president, one of the most contemptible was signing the McCain Feingold campaign financing law while saying that the Supreme Court would decide if it was constitutional or not. If he thought it was unconstitutional, he should have declined to sign it.

November 16

Rick U. writes:

I completely agree the Bush should have gotten out front on this issue and explained what the administration was doing, but wasn’t that a main theme of why Bush failed in his presidency from a public opinion standpoint? He simply didn’t defend himself and respond to the attacks from left on almost every issue. While, in some respects, that was a admirable position to be above the fray, it is also the reason he lost the debate on the war on terror, the Gitmo situation, filibusters of his judicial nominees, the budget deficits and so much more. I think it was Peggy Noonan who said something like he didn’t just refuse to use the microphone—he swallowed it. It was sad to see an honorable man allow the left to attack his integrity and remain silent as though it was going to stop which is beyond naive.

When are the Republicans going to learn that the best defense is a good offense when dealing with liberals and their propaganda?

Lastly, I totally agree that signing McCain-Feingold while saying essentially that he would let the courts sort it out was a horrible decision. If the Republicans think there is a compromise with the liberals by letting this and that go through under the banner of bipartisanship even though they violate the Constitution we are going to lose this country. When are they going to recognize the evil that the liberals represent?

Posted by Lawrence Auster at November 15, 2009 03:47 PM | Send

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