How did we arrive here and where are we going?

The following, offered by Marty Lederman here, recounts how the Boumediene petitioners came under American authority. [The whole dialog, focused on the Boumediene case, contained in the link above is well worth reading.]

They were not captured fighting U.S. forces in Afghanistan or, like Hamdi, surrendering a weapon there. Instead, they are Algerians who immigrated to Bosnia and Herzegovina during the 1990’s. Five of them are Bosnian citizens. On 9/11/01, each was living with his family in Bosnia. None is alleged to have waged war or committed belligerent acts against the United States or its allies. According to the Boumediene brief, they were arrested by Bosnian police in October 2001, purportedly on suspicion of plotting to attack the U.S. Embassy in Sarajevo. But the Bosnian authorities had no evidence for this charge; instead, they acted under pressure from U.S. officials, who threatened to cease diplomatic relations with Bosnia if Petitioners were not arrested. On January 17, 2002, the Supreme Court of the Federation of Bosnia and Herzegovina, acting with the concurrence of the Bosnian prosecutor, ordered Petitioners released because a three-month international investigation (with collaboration from the U.S. Embassy and Interpol) had failed to support the charges on which Petitioners had been arrested. On the same day, the Human Rights Chamber for Bosnia and Herzegovina, established under the U.S.-brokered Dayton Peace Agreement and staffed by judges from several European countries, issued an order forbidding the prisoners’ removal from Bosnia. Later that day, however, as the Boumediene Petitioners were being released from a prison in Sarajevo, Bosnian police acting at the behest of U.S. officials (and in defiance of the Human Rights Chamber’s order), re-seized them and delivered them to U.S. military personnel, who transported them to Guantanamo, where they have been held for the past six years, without contact with their families.

Yesterday's SCOTUS decision was a great victory for American justice. However, that it took 6 years and Supreme Court intervention to get to this point which point, as the above description makes clear, we should never have arrived at in the first place, demonstrates our legal, moral, and political disorientation these past 7 years. And for these men, it is just another beginning. They might languish at Guantanamo for yet another unknown number of months and years while we figure out the legal and political ramifications of yesterday's decision.

Are the Boudemiene petitioners innocent? Who knows?--that's what we want to determine and that's what the decision makes possible. Back in the day, Rumsfeld assured Americans that Guantanamo harbored only the 'worst of the worst'. That kind of presumptive guilt was subjected to skepticism by certain quarters, but I suspect many Americans felt, or wanted to feel, it to be basically true. I mean unless our government is sadistic or crazy, what else could possibly explain our imprisoning people in this way? I've had more than a few students say this very thing to me; and, I don't doubt that they believe it and that many others do so as well. But the basic fact is, more than a few of the detainees who have now been released, had nothing to do with, and knew nothing about, Al Qaida or terrorism, not even in the preposterously broad sense defined by our government. After 8 months of investigation, the reporters at McClatchy have now confirmed this (see here for print story). What explains our actions then? I don't know, but it is important to keep in mind that evil outcomes do not require evil intent or madness. Incompetence, zeal, hubris, fear, indifference: these will do just fine.

Am I to believe that Americans, even knowing these facts, would persist in their support of our terrorism policies? Am I to believe that even after watching that video containing interviews with the released detainees, Americans would not feel sympathy, perhaps even remorse? I refuse to believe that, even though I know some who feel nothing of the kind. At any rate, we all know of 1 American who knows the facts, but persists in the belief that Guantanamo was, is and will always be right. The NY Times reports that " Mr. Bush on Thursday appeared to hold open the possibility of a new legislative effort to alter the [Boumediene]decision’s result." The reporter offers no evidence for this assertion, but given Bush's known recalcitrance to all things good coupled with his unmatched conviction in the correctness of his own (disoriented) beliefs, can anyone doubt that, absent his political wounds, he would demand from our inept and spineless Congress a revision of that abomination, the Military Commissions Act?

We should be reminded, and I hope this is made an issue come November, that Obama voted against the MCA, while McCain was one of its chief architects. It's good to be right and just as good to be vindicated. I only pray, and I'm not really a praying kind of guy, that Obama lives up to his promise and, as his first priority, closes Guantanamo.