Behind the Black Robes

Yesterday was a dark day for the Guantanamo detainees and those who value the basic right of due process. A federal appeals court ruled that Guantanamo prisoners cannot challenge their indefinite detentions in U.S. courts. This decision dismisses hundreds of cases pending in federal court and leaves the detainees to face military tribunals where the legal burden is placed on the accused to prove their innocence, even though they cannot see all the evidence agaisnt them and evidence obtained through torture is allowed. This regressive ruling makes more sense, and seems sadly more inevitable, if we look behind the black robes of the two judges, David Sentelle and A. Raymond Randolph who formed the majority opinion on this case.

David Sentelle

Judge Sentelle, a protege of Jesse Helms, is a hard-line conservative judge with ties to the Federalist society. He is the judge responsible for overturning the felony convictions of Oliver North and John Poindexter during the Iran-Contra scandal and for appointing Kenneth Starr as independent counsel to investigate Bill Clinton. David Sentelle wrote the majority opinion that allowed then Attorney General John Ashcroft to keep secret the identities of nearly 1000 people who were rounded up and detained after 9/11, mostly on immigration violations, a decision that “eviscerated both the Freedom of Information Act itself and the principles of openness in government that the FOIA embodies” stated dissenting Judge Tatel. It is the same Judge Sentelle who ruled that reporters Judith Miller and Matthew Cooper would go to jail if they did not reveal their sources, who wondered during the debate on this issue whether journalists could feasibly have any legal protections in the internet era.

A. Raymond Randolph

Judge Randolph has twice before ruled in favor of Bush’s indefinite detentions at Guantanamo. Both times his rulings were overturned by the Supreme Court. In Hamdan v Rumsfeld, the opinion written by Randolph essentially gave George Bush the right to set up any tribunal he deemed necessary to fight terrorism. The type of tribunal Bush ultimately set up, and that Randolph gave the thumbs up to, does not even grant the detainee the right to be present at their own tribunal. Heresay could be introduced as evidence, the presumption of innocence was not guaranteed, and if convicted a detainee could be sentenced to death. Randolph, like Sentelle, is a hard-line conservative, siding consistently with big business, with Microsoft against anti-trust litigation,with the Tobacco industry against payouts for illegally marketing to minors, with the auto industry against state governments who wanted the EPA to regulate greenhouse gas emissions, with Cheney against the Sierra Club who wanted the government to reveal just how involved special interests (oil and nuclear) were in shaping government policy.

In December Sentelle and Randolph rejected a friend-of-the-court brief submitted by 7 formal federal judges that expressed concern about the Military Commissions Act and urged that the Guantanamo detainees be allowed to challenge their detentions. Judges Sentelle and Randolph rejected this brief simply and soley because these former judges referred to themselves by the honorific “judge” despite now being retired.

It appears that this will head to the Supreme Court for a third time. The outcome is not clear. Last time, Justice Roberts recused himself because he was involved, just prior to joining the Supreme Court, in the lower court ruling, Hamdan v Rumsfeld, where he sided with A. Raymond Randolph and the U.S. government. As we know, that ruling was overturned by the Supreme Court by a vote of 5-3. Yet, this vote dealt with statutory issues not constitutional ones. The question whether laws that unconditionally bar habeas corpus petitions are unconstitutional, and whether the president has the constitutional power to convene military tribunals have yet to be addressed by the high court. It merely ruled that the tribunals the governement did convene under the Detainee Treatment Act of 2005 did not meet the standards of the Uniform Code of Military Justice and the Geneva Conventions. Military commissions were not categorically prohibited.

The U.S. government has returned with a new piece of legislation, the Military Commissions Act of 2006, and Justice Roberts will not need to recuse himself from this case should it arrive at the Supreme Court. Thus, the judicial outcome is murky at best.

So where does that leave us? Certainly not to wait while this case winds its way towards its uncertain destiny. The two avenues we have at our disposal are complementary ones: a)legislative action to restore habeas corpus and repeal the Military Commissions Act b)grass roots organizing to keep this issue alive in the media and to put pressure on our representatives to support the Restoring the Constitution Act

Two places to start:

1)Become a citizen endorser of the Restoring the Constitution Act

2)Join Project Hamad and take action!

Keep us posted of other ways you find to keep the fight for habeas corpus alive at [email protected]

David
Project Hamad

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