Guantanamo Bay cases leave constitutional doctrine in tatters

Word that the U.S. Supreme Court has declined to decide the fate of a group of Chinese Muslims held without charges for eight years at Guantanamo Bay again demonstrates the collapse of the separation of powers doctrine of the U.S. Constitution. Monday's three-paragraph ruling, which vacated a federal appeals court decision and asked the trial court to reconsider releasing eight Uighurs from the military prison into the United States, according to the New York Times, illustrates just how disoriented the legal system has gotten since the 9/11 attacks and the start of the war on terror. That fundamental constitutional precepts have had to be ignored or openly violated to promulgate the government's response to the attacks is indicative of Washington's fundamental -- and potentially dangerous -- mistakes. But how little attention is being paid to reorienting the constitutional government and undoing the worst of those errors should be raising alarm bells all across the United States, and in the dozens of countries who modeled their own constitutional systems on the U.S. examples. Long the object of admiration by constitutional scholars and students across the country and the world, the concepts of separation of powers and of checks and balances -- under which the three U.S. branches of government maintain a kind of symbiotic relationship -- have been largely eviscerated by the concentration of power in the executive. That there is already a constitutional theory to explain this phenomenon -- the unitary executive doctrine -- contradicts the oft-repeated justification that the growth of executive power during the eight-year presidency of George W. Bush (2001-2008) was a reaction to the extraordinary circumstances of the war on terror. Under the separation of powers doctrine, the legislative and judicial branches are supposed to share complementary powers and protect their exclusive domains. But under the George W. Bush presidency, the executive decided what portions of what acts of Congress to follow, decided what if any rights it would afford criminal suspects, imprisoned suspects indefinitely without charge, set up a system of secret prisons, gave itself the authority to kidnap citizens of other countries and to ignore treaty obligations approved by the U.S. Senate. The judicial branch of the U.S. government has failed to defend its constitutional duties and, instead, has issued rulings that, in large part, permitted the executive to do precisely as it wished. In the Uighur ruling on Monday, the Supreme Court again avoided ruling directly on the issues and sent the case back to the trial judge in light of recent developments in the case -- among them, agreement by other countries to accept some or all of the detainees. The underlying appeals court decision that was vacated by the Supreme Court had overruled a trial judge's decision that the seemingly indefinite incarceration of the Muslims was impermissible under the U.S. Constitution.

British court orders government to reveal information on torture

The revamped U.S. government could face the biggest test of its commitment to changing the worst excesses of the Bush administration now that a British appeals court has agreed to the disclosure of secret intelligence about the alleged mistreatment of a Guantanamo Bay detainee. The Court of Appeal in London turned down the British government's request to prevent the release of information about the incarceration of Binyam Mohamed, a British resident who was arrested in Pakistan in 2002 and claimed he was mistreated while in CIA custody, according to the Reuters international news service. Mohamed, an Ethiopian national, claimed he was flown to Morocco by the CIA and tortured for 18 months, including having his penis cut, before being transferred to Guantanamo Bay in 2004, where he was further subjected to sleep deprivation and threats. Morocco has denied holding him, Reuters said. Mohamed was never formally charged and was released last year. In 2008, the British High Court ordered the release of all information held by the government in London but permitted the blacking out of seven paragraphs of information gathered by U.S. intelligence. Wednesday's order concerned the release of those paragraphs. The office of U.S. national intelligence director Dennis Blair expressed "deep regret" at the order, Reuters said. "The protection of confidential information is essential to strong, effective security and intelligence cooperation among allies," the statement said. The ruling presents "challenges," the statement said, but the United States and England "remain united in our efforts to fight against violent extremist groups." British Foreign Secretary David Miliband had argued to the court that such a disclosure could affect his country's security because such a release could make the United States less willing to share intelligence. But the court upheld a 2009 finding by two judges that "overwhelming public interest" in the information should be respected. "The treatment reported ... could be readily contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities," the judges found. Miliband also said the British appellate court would probably have refused the release of classified information from the United States had the material not be released by a U.S. court in another case in December. "Without that disclosure, it is clear that the Court of Appeal would have overturned the Divisional Court's decision to publish the material," Miliband said in a statement. In England, a human rights group said the release shows the extent to which the British government had gone to defend the U.S. government's conduct of the war on terror. "These embarrassing paragraphs reveal nothing of use to terrorists but they do show something of the UK government's complicity with the most shameful part of the War on Terror," said Shami Chakrabati, director of the group Liberty.

The worst keeps getting worse

Most likely, the latest revelations about coercive interrogation techniques used by the CIA in Afghanistan are not nearly the end of the story of U.S. excesses in the so-called War on Terror. But they certainly help explain the maniacal secrecy of U.S. authorities under the Bush administration in keeping information about the interrogation program from the public. Top government officials, notably but probably not limited to Vice President Dick Cheney and President Bush, knew the program violated the country's international treaty obligations but authorized it anyway, and kept it secret not out of concern for the United States, as they said, but to keep their own selves out of trouble. They probably expected to be honored as heroes for saving the country from danger and gave only passing thought to the fact that they were sacrificing the United States' very reason for existence. They probably still don't get it, and blame the new president, Barack Obama, for whatever is about to unfold. The fact that their policies were rejected by an overwhelming majority of voters in the last election does not even register as a repudiation -- they think the public just doesn't understand. But the people of the United States know when the government is taking away their constitutional rights, spying on them, and doing nearly unspeakable harm to others while hiding behind the flag. The new information, contained in a top-secret CIA report being made public next week, include threatening detainees with a mock execution, a handgun and an electric drill, was revealed by officials who had access to the report, according to the Washington Post newspaper. The threatened execution was used in an effort to pursuade suspected al-Qaida commander Abd al-Rahim al-Nashiri, suspected of being the mastermind of the attack on the U.S.S. Cole that killed 17 sailors in 1999, to provide information to his interrogators. Federal law prohibits threatening a prisoner with immediate death, the Post said. Al-Nashiri later was one of three detainees subjected to waterboarding, a form of simulated drowning. A CIA spokesman said the agency did not endorse such excesses and promptly investigated any reports of them. "The CIA in no way endorsed behavior -- no matter how infrequent -- that went beyond formal guidance," said Paul Gimigliano, the agency spokesman, according to the Post. "This has all been looked at; professionals in the Department of Justice decided if and when to pursue prosecution. That's how the system was supposed to work, and that's how it did work." The actual report, which was compiled in 2004, is expected to be made public next week, the newspaper said.