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Friday, November 21, 2008

Habeas corpus: A test for Barack Obama and Eric Holder

As many of you may have heard, Federal District Court Judge Richard J. Leon has ordered the release of five Algerian detainees held for the past seven years at Guantanamo. As the New York Times reports,

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as “a classified document from an unnamed source” for its central claim against the men, with little way to measure credibility.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” Judge Leon said. He urged the government not to appeal and said the men should be released “forthwith.”

The detainees ordered released included Lakhdar Boumediene, for whom the landmark U.S. Supreme Court decision that habeas corpus applied to the Guantanamo prisoners was named (the Court's opinion was rendered last June.) Buried in the article, however, is the following amazing passage:

But Andrew C. McCarthy, a former federal terrorism prosecutor, said the decision highlighted the difficulties of courts’ reviewing wartime decisions about who qualifies as an enemy combatant. Mr. McCarthy said those were decisions “our system of divided powers consigns to military professionals in the executive branch, not judges.”

This is really extraordinary, because it indicates that some prosecutors, and perhaps many in the Bush administration, still do not "get" the Supreme Court decision, which is precisely that prisoners can appeal their detention on habeas corpus grounds and thus that such decisions are indeed consigned to judges in the final analysis. In other words, McCarthy, and those who think like him, still believe they are above the law.

According to the Times article, the justice department has not yet decided whether or not to appeal Leon's decision. And that's where Barack Obama and his attorney general pick, Eric Holder, come in. Obama praised the Boumediene decision (while McCain violently opposed it.) Obama and Holder must communicate loud and clear to current attorney general Michael Mukasey (assuming that Mukasey recovers from whatever caused him to collapse yesterday, in which case whoever takes his place) that any appeal will be immediately cancelled once Obama takes office. We only have one president at a time, but we also only have one Constitution at a time. That Constitution dictates that the five detainees must be released immediately.

PS--I have argued in a number of recent posts that progressives should stop hyperventilating about the meaning of every alleged Obama appointment, on the grounds that who he picks is not a reliable guide to what his policies are going to be. On the other hand, it is entirely reasonable for anyone who disagrees with something that Obama actually does to be vocal about it. If, for example, Obama did not come through on his pledge to close Guantanamo, I would be outraged and you would be hearing about it here. But he said he will do it, and for now, I believe him.

Weekend updates:

The Price of Our Good Name.
That's the title of an editorial in Sunday's New York Times, laying out proposals for how to close Guantanamo that were developed by Human Rights Watch.

More on Eric Holder
. From Slate's Dahlia Lithwick, an earlier post just updated. And for those concerned about the Marc Rich pardon, here are some of the things that might come up at Holder's confirmation hearing.

Bush leaving scientific wreckage behind. The Washington Post reports that James McCarthy, the president of the American Association for the Advancement of Science (publisher of the journal Science, to which I am a regular contributor), has raised the alarm about the scientifically illiterate people the Bush administration is giving permanent jobs to before it leaves office:

In one recent example, Todd Harding -- a 30-year-old political appointee at the Energy Department -- applied for and won a post this month at the National Oceanic and Atmospheric Administration. There, he told colleagues in a Nov. 12 e-mail, he will work on "space-based science using satellites for geostationary and meteorological data." Harding earned a bachelor's degree in government from Kentucky's Centre College, where he also chaired the Kentucky Federation of College Republicans.

Hat tip to PG for the alert.

Killing the messenger. South American governments criticized by Human Rights Watch and Amnesty International have recently taken to making false accusations against human rights workers to deflect attention from their findings. Hugo Chávez of Venezuela has used this tactic frequently; in a recent statement, the two organizations take Colombian president Álvaro Uribe to task for doing the same thing. Human Rights Watch has also issued a report urging Barack Obama to respect human rights in the so-called fight against terrorism.

Who's regulating the regulators? The lede of this article in Sunday's Washington Post says it all:

When Countrywide Financial felt pressured by federal agencies charged with overseeing it, executives at the giant mortgage lender simply switched regulators in the spring of 2007.

Read the rest to get a glimpse into how the financial world got us into this mess.

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