I don’t really have time to do a thorough piece today, I hope somebody else does, but it shouldn’t slip beneath the radar, so this is just a heads up.
The New York Times is covering a case this morning that restricts again the influence of the Boumediene decision. That would be the second time in a little over a month that a court has sharply circumscribed Boumediene, the first being Rasul v. Myers, where the influence of Boumediene and Hamdan over rights of prisoners at Guantánamo was limited to only filing habeas petitions. At this point many of these decisions have already been turned on their heads, Hamdan and Hamdi are now used principally to justify denying Article 5 hearings to prisoners as a group, which is a violation of the 3rd Geneva Convention of 1949.
In the time period when all the world was watching the Health Care Debate and the Underwear Bomber, et alia, various courts, including the Supreme Court (via turning down an appeal in Rasul v. Myers) have validated the Yoo-Bradbury philosophy with regards to CIDT, have validated the presence on U.S. soil as important vis à vis Guantanamo, and have now severely restricted habeas corpus rights by contending that they must give way to national security if the changes in the national security infrastructure would be to great were a prisoner to get those rights. Actually, the prisoner argued that he had those rights under Geneva, and that is correct 100%. But the law schools have produced an entire generation ignorant of IHL so who’s to know? JAG lawyers don’t write blogs, generally.
Anyone hoping that the Obama administration would prosecute torture can now look at these cases, and see clearly that the Eric Holder method of determining who would and would not be prosecuted, is now completely validated, and that the indefinite detention argued by President Obama is largely validated by the judgment that security supercedes habeas corpus.
So the legal battle against encroaching torture and indefinite detention is well on its way to being completely lost. Civil rights and international human rights lawyers are wonderful people, but they can’t save a society that won’t pay attention to encroaching torture permissivity. Only attitudinal change can do that.
Now back to your regularly scheduled debate on health care and PETN underwear.