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Politics : American Presidential Politics and foreign affairs -- Ignore unavailable to you. Want to Upgrade?


To: PROLIFE who wrote (18545)4/3/2007 4:34:11 PM
From: Peter Dierks  Respond to of 71588
 
Supreme Court rejects Gitmo detainees' challenge to confinement
By
ASSOCIATED PRESS
Published April 2, 2007

--------------------------------------------------------------------------------

1:37 p.m.

The Supreme Court rejected an appeal today from Guantanamo detainees who want to challenge their five-year-long confinement in court, a victory for the Bush administration's legal strategy in its fight against terrorism.

The high court twice previously has extended legal protections to prisoners at the U.S. naval base in Cuba.

Liberal Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter voted to accept the appeals. "The questions presented are significant ones warranting our review," Justice Breyer wrote. In addition, Justice Breyer and Justice Souter said they would have heard the case on a fast track, as the detainees requested.

In a sign that the court has not had its final say on the matter, Liberal Justices Anthony Kennedy and John Paul Stevens made clear in a separate opinion that they were rejecting the appeals only on procedural grounds.

It takes four votes among the nine justices for the court to accept a case.

A federal appeals court in Washington in February upheld a key provision of a law enacted last year that strips federal courts of their ability to hear such challenges.

At issue is whether prisoners held at Guantanamo have a right to habeas corpus review, a basic tenet of the Constitution that protects people from unlawful imprisonment. Their constitutional challenge was rejected.

The administration said that because of changes in the law since 2004 there was no need for the justices to hurry. Congress has authorized military hearings to assess whether the prisoners are being detained properly as enemy combatants. Those decisions can be appealed in a limited fashion to the U.S. Court of Appeals for the D.C. Circuit, the same court that ruled in the administration's favor in February.

"There is no need for this court to assess the adequacy of the ... review before it has taken place," Solicitor General Paul Clement, the administration's top Supreme Court lawyer, wrote.

Mr. Clement also argued that the appeals court was correct in holding that aliens outside the United States have no rights under the U.S. Constitution.

Copyright © 2007 News World Communications, Inc. All rights reserved.

washtimes.com



To: PROLIFE who wrote (18545)4/7/2007 11:25:39 PM
From: Peter Dierks  Respond to of 71588
 
Indonesia's former president offers a model of Muslim tolerance.

BY BRET STEPHENS
Saturday, April 7, 2007 12:01 a.m. EDT

JAKARTA, Indonesia--Suppose for a moment that the single most influential religious leader in the Muslim world openly says "I am for Israel." Suppose he believes not only in democracy but in the liberalism of America's founding fathers. Suppose that, unlike so many self-described moderate Muslims who say one thing in English and another in their native language, his message never alters. Suppose this, and you might feel as if you've descended into Neocon Neverland.

In fact, you have arrived in Jakarta and are sitting in the small office of an almost totally blind man of 66 named Abdurrahman Wahid. A former president of Indonesia, he is the spiritual leader of the Nahdlatul Ulama (NU), an Islamic organization of some 40 million members. Indonesians know him universally as Gus Dur, a title of affection and respect for this descendant of Javanese kings. In the U.S. and Europe he is barely spoken of at all--which is both odd and unfortunate, seeing as he is easily the most important ally the West has in the ideological struggle against Islamic radicalism.

Conversation begins with some old memories. In the early 1960s, Mr. Wahid, whose paternal grandfather founded the NU in 1926 and whose father was Indonesia's first minister of religious affairs, won a scholarship to Al-Azhar University in Cairo, which for 1,000 years had been Sunni Islam's premier institution of higher learning. Mr. Wahid hated it.

"These old sheikhs only let me study Islam's traditional surras in the old way, which was rote memorization," he recalls, speaking in the excellent English he learned as a young man listening to the BBC and Voice of America. "Before long I was fed up. So I spent my time reading books from the USIS [United States Information Service], the Egyptian National Library, and at the cinema. I used to watch three, four movies a day."

As Mr. Wahid saw it, the basic problem with Al-Azhar was that the state interfered in its affairs and demanded intellectual conformity--a lesson he carries with him to the present day. In 1966 he left Cairo for Baghdad University, where he encountered much the same thing: "The teaching [suffered from] conventionalism. You were not allowed to go your own way."

Here Mr. Wahid digresses into Islamic history. "In the second century of Islam, the Imam al-Shafi'i began remodeling the religion," he says. "He put into place the mechanism of understanding everything through law [Shariah]. Now people can't talk about that anymore. We cannot attack al-Shafi'i."

The point is crucial to Mr. Wahid's understanding of Islam as being something broader, deeper and better than the tradition-bound view of life imposed by traditional schools of Islamic law (all the more striking because Mr. Wahid is himself a leading theologian of the Shafi'i school). It is equally crucial to Mr. Wahid's politics, not to mention his relaxed approach to social issues.

"The globalization of ethics is always frightening to people, particularly Islamic radicals," he says in reference to a question about the so-called pornoaksi legislation. For the past three years Indonesian politics have been roiled by an Islamist attempt to label anything they deem sexually arousing to be a form of "porno-action." Mr. Wahid sees this as an assault on pancasila, Indonesia's secularist state philosophy from the time of its founding. He also sees it as an assault on common sense. "Young people like to kiss each other," he says, throwing his hands in the air. "Why not? Just because old people don't do it doesn't mean it's wrong."

Mr. Wahid is equally relaxed about some of the controversies that have recently erupted between Muslims and the West. Pope Benedict's Regensburg speech from last September was "a good speech, though as usual he pointed to the wrong times and the wrong cases." As for the furor over the Danish cartoons of the Prophet Mohammad, he asks "why should we be angry?" And he dismisses Sheikh Yusuf Qaradawi, the al-Jazeera preacher who helped incite the cartoon riots, as an "angry, conventional" thinker.

What really concerns Mr. Wahid is what he sees as the increasingly degraded state of the Muslim mind. That problem is becoming especially acute at Indonesian universities and in the pesantren--the religious boarding schools that graduate hundreds of thousands of students every year. "We are experiencing the shallowing of religion," he says, bemoaning the fact that the boarding schools persist in teaching "conventional"--that word again--Islam.

But Mr. Wahid's critique is not just of formal Islamic education. He also attacks the West's philosophy of positivism, which, he says, "relies too much on the idea of conquering knowledge and mastering scientific principles alone." This purely empirical and essentially soulless view of things, broadly adopted by Indonesia's secular state universities, gives its students a bleak choice: "Either they follow the process or they are outside the process."

As a result, Western-style education in Indonesia has come to represent not just secularism but the negation of religion, to which too many students have responded by embracing fundamentalism. At the University of Indonesia, for example, an estimated three in four students are members or sympathizers of the "Prosperous Justice Party," or PKS, an ultra-radical Islamic party.

This raises the subject of religion and politics. "For us, an Islamic party is not a thing to follow," he says, adding that "religion and morality is tied to person, not a party." To illustrate the point, he observes that religious parties in the Muslim world have more often been the handmaids of dictatorship than democracy. "Whenever governments tried to enforce their institutions they use 'Islamic' people as potential allies." The Front for the Defense of Islam (FPI), a radical vigilante group that uses violent means to suppress "un-Islamic" behavior, was, he observes, originally a creature of the Indonesian military.

So why did Mr. Wahid, as a religious leader, make the choice to go into politics himself? He demurs at the suggestion of choice. "I am against politics, so to speak. In 1984 I tried hard to convince people that the NU should not be in politics." He was overruled by others in the organization, and eventually he founded the Party of National Awakening, or PKB. Yet the party, he insists, is "based on non-Islamic principles," a fact he illustrates by pointing to a nearby aide who is an Indonesian Protestant. "We have to go for plurality, for tolerance."

He also believes that the "only solution" to the challenge of Islamic radicalization in Indonesia is more democracy. But what about the example of Hamas, which came to power through democratic means, and of other groups like Egypt's Muslim Brotherhood that would probably do the same if given the chance? Mr. Wahid's answer is to distinguish between what he calls "full democratization" and the "hollow imitation of democracy" that he sees taking place in Indonesia as well as among Arabs in Palestine and Iraq.

"The problem is not personalities, it is institutions," he says. "For the past 250 years the Americans have had not just Jefferson's concept of the rights of the individual but also Alexander Hamilton's belief in a strong state." In order to function properly, democracy requires competent government that can effectively uphold the rule of law. It also requires a broadly understood concept of self-rule, which is missing in too much of the developing world: "Here, ordinary citizens expect the government to do everything for them."

He therefore takes a fairly dim view of Iraq's democratic prospects. "Iraqis understood that Saddam had caused them trouble," and were grateful to be rid of him, he says. "But as for the U.S. concept of democracy, they don't understand it at all." The problem, he adds, goes double in the rest of the Arab world, where, he says, the prevailing view is that being a democracy is an expression of weakness, while being a dictatorship is a sign of strength.

What's needed, in other words, is for countries like Indonesia and Iraq to find a way to combine effective government with a powerful respect for the rights of the citizen. But how one goes about doing that is itself a deeper problem, a problem of culture. "How do we follow the West without [becoming] Westerners? How do you do that? I don't know."

In fact, Mr. Wahid has begun to develop an answer through two organizations he chairs, the Wahid Institute, run by his daughter Yenny, and LibForAll, an Indonesia- and U.S.-based nonprofit run by American C. Holland Taylor, which works to discredit Islamism's ideology of hatred. "It's up to LibForAll to introduce both sides to Muslims; to show that common principles are also the principles of Islam," Mr. Wahid says. "Hundreds of thousands of Muslim youth learn in countries where there is technological modernity. We need to [nurture] the emergence of a new kind of people who think in terms of being modern but still relate to the past."

In fact, that perfectly describes Mr. Wahid, who is keenly aware of his own roots in both Islamic and Javanese traditions. Among his ancestors are the last Hindu-Buddhist king of the Javanese Majapahit dynasty, and Sunan Kalijogo, a Sufi mystic who married Islamic and local traditions and, according to lore, defeated Islamic extremism in the 16th century. Can Mr. Wahid, heir to this venerable tradition, accomplish the same feat? "Right now, the fundamentalists think they're winning," he once told a friend. "But they're going to wake up one day and realize we beat them."

Mr. Stephens writes "Global View," The Wall Street Journal's foreign affairs column.

opinionjournal.com



To: PROLIFE who wrote (18545)7/17/2007 11:58:56 AM
From: Peter Dierks  Read Replies (3) | Respond to of 71588
 
The Gitmo Distraction
Closing the detention facility wouldn't appease foes of the war on terror.

BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Sunday, July 15, 2007 12:01 a.m. EDT

Reports suggest that President Bush's top advisers are again wrestling with whether to close the detention facility in Guantanamo Bay, Cuba. There is no doubt that holding captured al Qaeda and Taliban fighters at that facility has become a significant diplomatic liability.

But the potential foreign policy benefits of moving war on terror prisoners must be weighed against the very real strategic, tactical and legal costs that this decision would entail. After looking at these, it is difficult to avoid the conclusion that maintaining the Guantanamo Bay facility is not only justifiable but necessary.

Perhaps the most important cost of closing Guantanamo would be strategic. From the start of this conflict, al Qaeda's strategy for victory has been to take maximum advantage of Western sensibilities and institutions, including public opinion and legal rules which limit what states can do in their own defense. The Bush administration sought to minimize the impact of this type of strategy by itself adopting a wartime legal paradigm, declaring a war against terror and using the full force of the United States military--rather than relying primarily on American law-enforcement resources--against al Qaeda and its allies. Detaining captured al Qaeda and Taliban operatives as enemy combatants at Guantanamo Bay was, and remains, a central aspect of that policy and there is little doubt that abandoning it will be seen by al Qaeda as a failure of American nerve and a vindication of their strategic vision.

Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis either give terrorists a legal advantage. The status quo is the best option we have.

There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the "20th" 9/11 hijacker Zacarias Moussaoui.

The first alternative, moving the detainees to a different overseas location, would incur considerable expense (the current facilities would have to be more or less replicated in another location) and would almost certainly provoke a constitutional crisis between the president and the Supreme Court. The justices have already ruled in Rasul v. Bush (2004) that Guantanamo Bay, based on its unique status as Cuban territory subject to the U.S.'s exclusive authority, is subject to federal court jurisdiction.

Although this case was wrongly decided in light of the court's other precedents, withdrawing detainees from Guantanamo now would prompt the Supreme Court to consider another expansion of federal judicial power, effectively following the detainees wherever they are moved. And, given swing Justice Anthony Kennedy's uncertain temper in war on terror cases, a five-justice majority may well find a pretext to do just that. The president would then be placed in the unenviable position of accepting judicial oversight not merely at Guantanamo Bay, but also in active, foreign theaters of war--or ignoring the court's ruling.

The second alternative, bringing the detainees into the U.S., also would be no panacea. This too would be costly, involving creation of new maximum-security prison space in an already overcrowded federal system. Relocation to the homeland would also raise the potential for escapes into the civilian population and would open vast new litigation vistas for the detainees and their American lawyers--including challenges not merely to their classification as enemy combatants, but to the ongoing conditions of their confinement as well. Although Congress could attempt to avoid this projected litigation explosion by statutorily limiting detainee rights--as it did in the 2005 Detainee Treatment Act and 2006 Military Commissions Act--there is no guarantee that these or similar provisions will withstand constitutional scrutiny once detainees are in the U.S. and subject to the U.S. Constitution.

This is especially true with regard to proposals for the creation of a type of administrative detention that would permit the most dangerous detainees to be held indefinitely--without criminal trial in either civilian or military courts. Despite the rhetoric of the administration's critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.

Thus, even assuming that congressional Democrats would accommodate the administration's request for such legislation--and they do not appear to be in an accommodating mood--the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America's streets.

This frightening possibility is real enough, because the final option--processing the detainees in the civilian court system--is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.

Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.

CIPA permits the government to protect classified information throughout the pre-trial, including the "discovery," phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant's right to have the evidence against him presented in open court--another legislative option allegedly contemplated by the administration--is neither likely to be adopted by Congress nor blessed by the courts.

Finally, in addition to these costs, the potential benefits of closing Guantanamo are illusory. The most commonly articulated reason for this step is to improve relations with our allies, especially in Europe. However, Europe's real objection is not to the detainees' location at a U.S. Naval Base in Cuba, but to their confinement as enemy combatants in the first place. By and large, Europe has never accepted that there is a "war" on terror. Moving detainees to Afghanistan or the U.S. will not change this.

To obtain any "public diplomacy" advantage from closing Guantanamo, the president must be prepared to declare an end to military operations against al Qaeda, and a return to the pre-9/11 policy mixture of law enforcement, diplomacy and surgical strikes against al Qaeda outposts that failed miserably. This is also why lesser changes at Guantanamo, such as inviting European allies to participate in both the operation and review of continued detentions, are impractical. Those allies simply do not believe there is a war in which these fighters can legally be held.

Just as nothing short of total U.S. withdrawal from Iraq would appease the administration's opponents, the critics of Guantanamo Bay will not be satisfied with anything other than abandonment of the war against al Qaeda. If, as the president says, a U.S. withdrawal from Iraq would be a key defeat in the war on terror, ending that war itself--leaving al Qaeda bruised, but very much in possession of the global battlefield--would be an even greater calamity.

Messrs. Rivkin and Casey served in the Justice Department.

opinionjournal.com