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The Bush Administration originally created special-detention facilities at Guantánamo on the theory that—given the unique historical provenance of the base, which was secured under a lease at the end of the war with Spain on terms Havana no longer recognizes—no court anywhere in the world would have jurisdiction to deal with the complaints of prisoners held there. Consequently, it would be easier to subject the prisoners to torture and other cruel, inhuman, and degrading treatment the likes of which America’s prisoners in wartime had never before experienced. The Supreme Court soon put an end to this exercise, and a series of court rulings ensured that indeed there would be a form of court review and that prisoners would have access to counsel.
While Barack Obama campaigned on a promise to end torture and to humanize and then close Guantánamo, this promise has been left unfulfilled, in part because of Obama’s lack of resolve and in part because of the obstructionist games practiced by Republicans. Obama has chosen to disengage from the Guantánamo issue, and in doing so has essentially placed operations there on autopilot. And that has produced a remarkable degree of backsliding to the practices of the Bush era.
A clear-cut example recently emerged when lawyers serving as defense counsel at Guantánamo discovered that they were arbitrarily being denied access to their clients on the orders of a military commandant, despite a series of court orders dating back to 2004 that had guaranteed them access. The Obama Administration had put in place new rules under which only those prisoners who are actively challenging their detention are guaranteed the right to talk to counsel; otherwise the commandant has the right to deny access. Moreover, to have any access to clients at all, the lawyers were being pressed to sign a “Memorandum of Understanding” with the Department of Defense under which they consented to these new rules.
But the Guantánamo bar took the Obama Administration to court, and yesterday they won a resounding victory. Chief Judge Royce Lamberth’s decision (.pdf) was not only an uncompromising vindication of the posture of lawyers who have provided pro bono counsel to Gitmo inmates for years, it was also caustic in its dismissal of the arrogant and meritless arguments of the Justice Department:
On the other hand, the court was unstinting in its praise for the tireless work of the pro bono counsel who have served the Guantánamo population for years, and who flagged the Justice Department’s latest exercise in creative despotism. “The Court would like to note that pro bono counsel in these cases have worked diligently to provide detainees with competent legal counsel. It would have been difficult and costly for the Court to manage its Guantanamo docket without the help of pro bono counsel. They have acted in the highest spirit of our profession.” Lamberth went on to quote my friend Andrew Cohen at The Atlantic, who wrote that:
At its core, pro bono legal work is charity work. It is done by those with a particular expertise—lawyers, paralegals, investigators—on behalf of those who cannot afford to help themselves. It is both a gift and an ethical obligation that the legal community in America has undertaken since before the Revolution. . . . [Detainees held at Guantánamo Bay] deserve under our rule of law to be represented by attorneys. This is so because by providing these men with lawyers we say, both to the detainees and to the rest of the world, that we are better, that we are fairer, than those we fight.
Barack Obama seemed at one point to appreciate this focal lesson. On the other hand, his Justice Department is so obsessed with the vindication of arbitrary and capricious exercises of power that it seems to have concluded that upholding the laws and the Constitution—to the extent that they impose obligations on, rather than grant rights to, the government—is a secondary consideration. And that, in a nutshell, explains the public’s current lack of confidence in the Justice Department.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.
Amount traders on the Philadelphia Stock Exchange can be fined for fighting, per punch:
Philadelphian teenagers who want to lose weight also tend to drink too much soda, whereas Bostonian teenagers who drink too much soda are likelier to carry guns.
Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”