The Global War on Habeas JB My Op-Ed on Boumediene appears in this week's U.S. News and World Report online. My starting point is John Ashcroft's abortive proposal to suspend habeas corpus shortly after 9/11. The idea was quickly scuttled by Congress; but if we connect the dots between the treatment of Yasser Hamdi, Jose Padilla, and the detainees at Guantanamo, Bagram, and the CIA black sites, we'll see that the spirit of the proposal lived on: the Bush Administration sought to get rid of habeas by other means.



The Administration also sought to get rid of other obligations, like those in the Geneva Conventions, that would have required fair processes for sorting out combatants and noncombatants, and ensuring that detainees were treated humanely. Indeed, one can't understand the fight over habeas in the courts apart from the Adminstration's decision to avoid procedural obligations of fair treatment under Geneva.



The point of getting rid of habeas and those procedures required under international law was not simply incapacitation of dangerous persons: it was to avoid accountability for what the Administration did to detainees, whether it was driving Jose Padilla literally insane or the abuse and torture at Gitmo, Bagram and the black sites.



The Administration didn't simply want to hold people: it wanted to interrogate people and it wanted to use torture and various forms of prisoner abuse as an interrogation technique. Like the obligations under Geneva, habeas hearings might get in the way of that strategy, even if habeas only reached the question of the legality of detention, and not conditions of confinement.



Over the course of four years, the Supreme Court limited and hemmed in this strategy, first with respect to citizens, and later with respect to non-citizens held at Guantanamo. That's quite surprising in some ways: Courts generally defer to the executive in time of war, especially if Congress seems to go along. It was only the radical nature of what the Administration was doing-- and the increasingly dire revelations of its mistreatment and torture of detainees-- that led courts to push back to the degree that they did.



And therein lies the irony of the past seven years: If the Bush Administration had simply decided to apply Geneva and other international conventions honestly and fairly, it is likely that the Supreme Court would never have made all of this new law under the Constitution. The Bush Administration's war against international law led to its war against habeas, and eventually to the Supreme Courts rebuff in Hamdi, Rasul, Hamdan and now Boumediene.



There's a lesson here: Act like a tyrant and people will treat you like a tyrant. Act like you care about the rule of law and courts will give you the benefit of the doubt. The Bush Administration got far less deference from the courts than usual because it acted like a tyrant. It reaped what it sowed through its arrogance and incompetence.

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