Whose disarry?

In today’s front page headline, the Washington Post declares “Administration Strategy for Detention Now in Disarray.” But the Post’s story serves mainly to demonstrate the disarray and bias in the thinking of Post reporter Michael Abramowitz.

Let’s start with the fact that the strategy in “disarray” isn’t just the administration’s strategy; it is the joint strategy of the administration and the Congress. The Supreme Court had, in essence, instructed the administration to collaborate with Congress in developing a strategy for adjudicating the status of terrorist detainees. When the judiciary strikes down a joint and considered decision of the elected branches of government on an important matter, a certain amount of disarray can be expected to ensue. Whether this is the administration’s fault is another matter.

Abramowitz clearly thinks it is. He notes “that President Bush and his advisers sought to create an unprecedented parallel system to detain suspected terrorists far from the normal scrutiny of the U.S. judiciary.” This is a dishonest passage. Abramowtiz omits the fact that the suspected terrorists are aliens. Because they are aliens, it is false to say that the scrutiny of their status by the U.S. judiciary is “normal.” If the administration had granted the alien terrorist detainees the process to which the Supreme Court now has said they are entitled, that would have been “unprecedented.” In fact, it would have been unprecedented for the administration to have granted the process the Supreme Court has now struck down as insufficient. Abramowitz is trying to put one over on his readers.

In support of his “disarray” thesis, Abramowitz notes that “more than six years after the administration began flying suspected al-Qaeda and Taliban members to Cuba. . .only one detainee has received a verdict, hundreds have had no opportunity to challenge their detention, and the government is facing a flood of new litigation invited by the court.” But it was never the administration’s goal to try these individuals; its goal was to hold them. In effect, Abramowtiz demonsrates that the administration’s policy succeeded for six years.

If there is a problem here, it is not “disarray,” but rather a wholesale violation of constitutional rights. (Note, however, that this problem exists only if one agrees with Justice Kennedy and his four liberal colleagues). But Abramowitz doesn’t seem to be concerned about anyone’s rights. For a certain type of liberal, all that ever really matters is giving President Bush a black eye or convincing people that someone else has done so.

But what about that “flood of new litigation”? I admit it’s not very attractive. Presumably, though, the same flood would have resulted had the administration voluntarily done what the Supreme Court has now ordered. By not voluntarily doing this, the administration staved off the current disarray for years.

Perhaps anticipating this argument, Abramowtz enlists liberal law professor Marty Lederman, who says “the court might have upheld a statute like this five years ago” (because of all the “good will” that existed back then). This is pure speculation, of course. But if it’s true that a plan for dealing with the alleged rights of alien terrorists would be deemed constitutional in 2003 but not 2008 (notwithstanding the addition of two Justices both of whom who see no violation), then the real disarray here is with our judicial system.

But you probably knew that already.


Books to read from Power Line