Aziz Huq [attorney for Shawqi Omar; Brennan Center For Justice]: "When does the Bush Administration love international law?
For those who have followed the Administration's seemingly implacable hostility to the International Criminal Court and the Kyoto Protocol, the answer has seemed to be "never."
But when it comes to its quest for unchecked powers in the name of national security, international law can become suddenly convenient. In a sequence of cases, the Administration has argued that if it can claim to be acting in the name of an "international authority," then it has unfettered power to detain U.S. citizens and non-citizens alike. And in the cases of two U.S. citizens swept up in the Iraq conflict, it has told federal courts to get lost: So long as there is a "United Nations" sign on the door, a court cannot look in to make sure the government is acting in conformity with the law and the Constitution.
That's why a judicial decision issued a few days ago by the federal court of appeals in Washington, D.C. is so important: It rejects the government's new grasp at essentially unchecked detention power almost wholesale.
The decision is in a case called Omar v. Harvey, and it concerns a U.S. citizen who's been detained by U.S. officials in Iraq for almost two and a half years (caveat emptor, I argued the case in the D.C. Circuit for Mohammad Munaf). The government took the position that even though it was a U.S. official who held the jailhouse key, and even though his chain of command ended in Washington, D.C., there was no judicial review even for a U.S. citizen.
Sound familiar? It should: This is a variant on a basic theme the government has been sounding now for five years: that of the legal black hole. First, it was Guantanamo that was the area of darkness. Then it was the term "enemy combatant," a label that the Administration used to stop all inquiry into its detention decisions. The argument that a U.N. label means the end of all judicial review is simply the latest in a string of government claims at unchecked detention power.
The Court of Appeals rejected this argument and rightly so. The government's argument would have not just applied to Iraq. There is no logical reason why it should not also apply to the homeland.
As Fritz Schwarz and I explain in our forthcoming book, Unchecked and Unbalanced: Presidential Power in a Time of Terror, such claims by the government to stand above the rule of law are nothing new. In the Cold War, what the intelligence agencies did was, for all practical purposes, an area of darkness. The courts didn't know and Congress didn't care. What ensued was error piled on abuse: Cointelpro, the spying on MLK, and misbegotten covert operations in Cuba and Chile.
The stakes are higher today: It is no longer a case of lone agents ignoring the Constitution. It is now executive branch policy to warp the law to the end of creating unlimited spigots for executive power. The argument for unlimited detention power with an "international" or "foreign" label is both the most recent of these, and should receive no more credit than past efforts at evading judicial oversight."