Yesterday, the Supreme Court ruled that the Bush administration’s military tribunals violated the law. On the news today, I heard someone say that the White House must now consider “Plan B.”
Ahem — we passed Plan B some time ago.
Here’s a recap of what has transpired over the past four years:
PLAN A: Issue “military tribunals” order. (The resistance may be negligible.)
On November 13, 2001, President Bush quietly and matter-of-factly issued a “military order” to establish military tribunals for prisoners in the “war on terror.” The order stated that any prisoner designated by the president to be an “enemy combatant” would be imprisoned by the military. The order boldly declared that such prisoners could be tried before tribunals and that the prisoners “shall not be privileged to seek any remedy in any court of the United States.”
When the prisoners did get legal representation, Mr. Bush’s people told the defense lawyers that the military order precluded them from challenging the legality of the tribunals in court. After all, that’s what the order said.
However, Plan A failed; legal challenges were filed anyway.
PLAN B: Make the argument to the judges. (They may buy it.)
The Bush administration argued in federal court that legal challenges to the tribunals must be dismissed immediately because the president’s order clearly said that prisoners may not “seek any remedy in any court.”
But Plan B failed; the court was not persuaded.
PLAN C: Appeal. (Keep arguing until some court buys it.)
A key aspect of the controversy reached the Supreme Court in Rasul v. Bush in 2004. Mr. Bush’s lawyers argued that U.S. courts lack jurisdiction to consider any legal challenges from prisoners held at Guantanamo Bay.
Plan C failed; the Supreme Court was not persuaded.
PLAN D: Start the tribunals anyway, and handle any legal challenges later. (Perhaps by bringing strong cases against unsympathetic figures like Hamdan, the judicial system will acquiesce.)
Hamdan’s lawyer immediately challenged the legality of the tribunal. Mr. Bush’s lawyers responded by telling the court that Hamdan’s argument was without merit. The judge was not persuaded.
PLAN E: Appeal. (Keep arguing.)
At first, Plan E appeared to work. The appellate court overturned the district court and ruled that the tribunals were legal. But Hamdan’s lawyers refused to go along, and they appealed the case to the Supreme Court.
PLAN F: Persuade the Supreme Court not to hear Hamdan’s appeal. (This will secure the lower court victory.)
But the Supreme Court was not persuaded, and granted certiorari.
PLAN G: Persuade Congress to pass a law that will prevent the Supreme Court from hearing Hamdan’s appeal. (The legislative branch could check the judiciary.)
With time growing short before the High Court would hear Hamdan’s opening arguments, Congress passed the Detainee Treatment Act, ostensibly blocking the case. But the Supreme Court responded that it would hear arguments on the new law at the same time that it would hear arguments on the merits of the military tribunal controversy.
PLAN H: Argue again that the new law means the Court has no jurisdiction to hear Hamdan’s case, then argue that Hamdan’s objections should be heard on post-conviction appeal, and then argue that the tribunals are lawful and proper. (The plan could also be called “Broken Arrow.”)
But Plan H failed. The Supreme Court was unpersuaded by all three arguments and found the tribunals unlawful.
PLAN I is presently in the works, under the codename “Plan B.”
When it arrives, scrutinize it.