Friday, June 5, 2009

Double Feature: "Spies Like Us" and "The Detainees Strike Back"

Espionage Indictment

I've got to draw your attention to this NYT story that I just read about an American couple that just got indicted for being employed by Cuba to spy on the U.S. for the past 30 years. The husband worked at the State Department and would steal classified information which he would pass on to his wife who acted at the person who passed the information along to Cuban agents (her favorite place to do this was the grocery store). The best part of this story by far is the fact that they also used a short wave radio to pass encrypted messages to Cuban agents via Morse Code. After I finish this blog post I will begin writing the screenplay for the movie based on this story.


Next up we have a new development in the Kiyemba case. Petitioners (the detainees) filed their response to the respondent's (the government) motion to deny certiorari. (Remember these are the Chinese Uighurs held at Gitmo that have won their habeas challenge and now want to be released into the U.S.) I don't often spend too much time going through such responses, but I thoroughly enjoyed this one. I damn near got up out of my seat and cheered at certain points. The general tone of this brief is described by Lyle Denniston of SCOTUSblog as "sharp." I would say that is an understatement. The frustration the petitioners' attorneys are feeling at their clients' situation is palpable. At one point the brief accuses the entire judicial branch of being transformed into a "hortatory court" (I've included a link to the definition of the word "hortatory" because I had no idea what it meant).

The general point driven home in the brief is that if the Court will eviscerate the power of habeas corpus if it allows the Executive to keep detainees at Gitmo even though they won their release through success in their habeas petition. Such a decision, petitioners argue, would strip the Judiciary of a vital check it has on the Executive. It trumpets two arguments againt the government's motion that I mentioned in an earlier post. First, it argues that the detainees should be treated differently than those in previous cases dealing with aliens and habeas because the detainees were brought to where they are by the Executive. They did not get to where they are on their own volition which is the case with the aliens in the cases cited by the government in their brief in opposition. Second, Petitioners argue that they are not choosing not to go back to China, they can't go back because they will be tortured, and in fact the U.S. doesn't have the power to send them back to China for this very reason even if they wanted to go. Preach on. This argument in the government's brief is so unbelievably absurd that I can't even believe they included it. The U.S. literally can't send them back to China, but it is flipping this fact around on the detainees and making it seem like they are the ones holding up this process.

I'm a big fan of what is being said here in principle, although I do think the language it slightly inflammatory. Thanks to the Bush administration we now find ourselves in a situation where we can't live up to core constitutional values because we would gravely endanger public safety. The Kiyemba petitioners want to be released in the U.S. Does habeas corpus grant them that right? I believe it does. I believe the government's argument that habeas only grants a right to release and not to transfer. This argument is disingenuous. The Framers meant habeas to grant relief to those wrongfully imprisoned. Unfortunately for us the Framers didn't really envision this situation. Nonetheless, we are not giving these detainees, who have succeeded in their habeas challenge, the relief which they constitutionally deserve. That is what the best part of me believes. Here's what the realistic part of me knows. We aren't going to release any Gitmo prisoners into the U.S. because granting some of them that right would mean granting it to them all. Some of the detainees, like the petitioners in this case, meant the U.S. no harm before they were brought to Gitmo. I would argue that most or all of them now have some serious beef with us. Then there are those at Gitmo who are dangerous terrorists who hated the U.S. before they went to Gitmo and hate the U.S. even more now. Regardless of the category they fall into, none of them can be allowed release in the U.S. without serious risk to national security. I really hate to say that. I wish that I could say that we can give the detainees their constitutional rights regardless of the situation, but I believe that we are in a situation now where our security obligations preclude us from doing that.

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