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Thursday, December 06, 2007

Neal Katyal: On the Ground at Guantanamo

Our founders would have been mystified by the idea that the Supreme Court gets in the way during wartime. In fact, anyone with even a passing knowledge of American history would reject it. In times of armed conflict, the court has upheld almost everything our presidents have done, including acts as extreme as the internment of tens of thousands of Japanese-Americans during World War II. If you are the president, it's not easy to lose a case in front of the Supreme Court during an armed conflict; you have to try hard to pull it off.

Yet, since the president announced his Guantanamo trial scheme in November 2001, and even as he has spent dozens of millions of dollars on it, his plan has not produced a single conviction at trial, and the administration has managed to lose three times in three years.

Moments after the Supreme Court sided with Hamdan in that third decision, which rejected the radical claim that the Geneva Conventions do not apply to the war on terror, I rejected the predictable conclusion that "Bush lost." Instead, I stood on the steps of Gilbert's courthouse and said America had prevailed. A fourth-grade-educated Yemeni, accused of conspiring with one of the world's most evil men, brought his case against the world's most powerful man. He took his claim all the way to the Supreme Court. And he won. In few other countries could such a thing even be possible.

President Bush had an opportunity in 2006 to use the court's decision to America's advantage, by showcasing our strength as a people: In America, we let the court announce our leaders' mistakes in boldface print. Instead, the president decided to try, once again, to cut the Supreme Court out. That's why Guantanamo is back in Washington today—while Salim Hamdan is facing a tribunal that exists to avoid the guarantees of the U.S. Constitution.

When Chief Justice Hughes laid the cornerstone of the new Supreme Court building in 1929, he proclaimed, "The republic endures, and this is the symbol of its faith." Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about. [Link]

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