The New York Times editorialized on last week’s Hazleton decision, calling the town’s anti-immigrant ordinance a “legal and moral dead end.” The editorial continues:

As long as people like [Hazleton Mayor] Barletta persist in misusing the law to serve their prejudices, they will make the immigration system an ever more incoherent muddle. They will thwart reasonable efforts to grapple with the opportunities and problems borne in with the influx of newcomers. And they will continue to dehumanize not only their victims, but themselves.

Also of note in the post-Hazleton decision round-up: The Wilkes-Barre Times Leader applauded the ruling, calling it “the proper decision.” The Chicago Tribune opined: “Illegal immigration is a national problem that requires a national solution. That’s why the patchwork approach attempted by Hazleton, Carpentersville and others is doomed to fail.” Albor Ruiz of the New York Daily News called the ordinance “draconian,” and wrote the decision was a “hopeful sign, despite the current climate of unmitigated hostility toward immigrants and their families.” Finally, from the Philadelphia Inquirer: “Congress has the responsibility of crafting immigration law. It didn’t need a court to tell it that.”

In towns across the country with laws similar to Hazleton’s, legislators are reconsidering whether it’s worth the court fight to enforce their local measures. In Escondido, Calif., the city council is now split on whether to revive the law that was tabled last year. In smaller towns surrounding Hazleton, such laws have been put on the backburner.

Two side notes: Could Hazleton Mayor Lou Barletta be using his crusade against immigrants as a springboard for great political aspirations? Pennsylvania papers The Morning Call and the Times-Tribune both point out that Barletta is pondering a run for a Congressional seat. (Since when has divisiveness and intolerance hit home with Pennsylvania voters?) And the Standard Speaker delves into the financing of the town’s legal team.

Part II: Hamdan v. Rumsfeld, the Military Commissions Act, and Boumediene v. Bush

The Hamdan case, which reached the Supreme Court in 2006, involved two critical and distinct legal issues. Salim Ahmed Hamdan, alleged to have been Osama Bin Laden’s driver, had been charged with “conspiracy” in a military commission and had filed a habeas corpus petition challenging the legality of the commission system. The threshold question was whether the Court had jurisdiction over Hamdan’s case - or any Guantanamo case, for that matter. The Bush administration argued that the Detainee Treatment Act (DTA) had stripped federal courts of jurisdiction over all habeas corpus petitions filed by Guantanamo detainees. Hamdan, in turn, argued that the DTA foreclosed only future challenges, and that, in the alternative, any such revocation by Congress of the right to file habeas petitions would itself be an unconstitutional suspension of the writ.

The second issue in the case involved the legality of the president’s Military Commission system. Hamdan contended that the president lacked the unilateral authority to create a military trial system out of step with U.S. and international law and inconsistent with the Uniform Code of Military Justice. The administration claimed that the president’s wartime authority as Commander in Chief granted him the power to establish military commissions to prosecute detainees in the “war on terror.”

The Court’s decision was a stunning repudiation of the administration’s legal theories. First, the Court held that its jurisdiction over pending cases was intact, and that the DTA applied only prospectively - leaving for another day the question whether the Constitution would permit Congress to eliminate habeas corpus rights for Guantanamo detainees. Second, the Court held that the president had exceeded his authority by concocting a military commission system that disregarded the minimum safeguards required by the Geneva Conventions, and ordered that the military trials be halted.

The decision severely undermined the edifice of nearly all of the administration’s post-9/11 legal claims, including its claim that it could eavesdrop on American citizens in contravention of the Foreign Intelligence Surveillance Act.

However, the basis of the Court’s opinions in both Rasul and Hamdan rested on the administration’s disregard of Congress - not of the Constitution. And so, following the Hamdan rebuke, the administration persuaded a compliant Republican Congress to enact the disgraceful Military Commissions Act (MCA) of 2006. The MCA, passed in the run-up to the midterm elections, purported to overrule both the Rasul and Hamdan decisions: Rasul, by expressly revoking the right of Guantanamo detainees to bring habeas corpus petitions, and Hamdan, by authorizing a military commission system nearly identical to the one struck down by the Supreme Court.

And so, after four years, the legal challenges were seemingly back to square one. The military commission trials recommenced - only to be halted, yet again, when the commissions’ presiding officers unexpectedly declared that the new procedures failed to comply with the MCA.

Of greater significance, the administration once again sought the dismissal of all Guantanamo habeas petitions then pending in the lower courts. In Boumediene v. Bush, the Court of Appeals for the D.C. Circuit, in a 2-1 decision, agreed with the administration that the MCA had stripped Guantanamo detainees of the right of habeas corpus - and ruled, for the first time, that the Constitution offered no protection to the detainees against Congress’s suspension of the writ. The same court held that the detainees should contest their detention through the Combatant Status Review Tribunal (CSRT) process - with the option for a limited circuit court review if they were dissatisfied with the results.

At first, the High Court declined to hear the detainees’ appeal in Boumediene - preferring to wait until a lower court had reviewed the CSRT process. But in June, the Court announced that it would hear the appeal after all. (Many observers believe that the Court was influenced by the affidavit of a military reserve officer who participated in the CSRT process and described it as an effective sham. This fall, the Court will finally consider whether the Guantanamo detainees have a constitutional right to challenge their detention through habeas corpus petitions.

If the Court reverses the D.C. Circuit and upholds the historic right of habeas corpus against congressional interference, the Guantanamo endgame will enter its final phase. Once habeas is restored, the government will be compelled, at long last, to provide evidence to a neutral court supporting its assertion that the detainees are, uniformly, “enemy combatants.” And if the quality of that evidence resembles the government’s submissions in the CSRT process, no judge will conceivably permit the indefinite detentions to continue.

But the administration is unlikely to allow such a public dismantling of its claims that Guantanamo houses the world’s most dangerous terrorists. If yet another Supreme Court loss seems likely, watch for renewed White House attempts at a political solution to the Guantanamo mess.

Read Part I of “Guantanamo: The Road to Closure” >>

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We’re elated about yesterday’s big victory over Hazleton’s Illegal Immigration Relief Act, but we know our work is far from over. Executive Director Anthony Romero reflects on the ruling in today’s Huffington Post:

What the hatemongers who want to roll back the American dream don’t seem to grasp is that this is a fight for our heritage. It’s a fight for those who seek to work hard and make a living as have all the waves of immigrants who came before them. And it’s a fight for simple justice regardless of accent or skin color.

While we hope this decision will make other local politicans think twice about adopting these discriminatory laws that clearly won’t stand up in court, there are still more than 100 towns across the country that have proposed or passed similar ordinances. Hazleton Mayor Lou Barletta claims he’ll take this to the Supreme Court if he has to. Mayor Barletta: we’re ready for this fight.

Guantanamo has been in the news again: Several congressional bills would restore habeas corpus to detainees or close the prison camp altogether; the Supreme Court has agreed to hear a third Guantanamo-related case, reversing its own recent decision to delay review; and the Court of Appeals for the D.C. Circuit has ordered the Defense Department to produce all relevant information, not just cherry-picked evidence, regarding the detainees who are challenging their “enemy combatant” designations.

We’re now in the sixth year of the national disgrace that may one day be remembered as the Guantanamo Era. Here, in two parts, is a review of how we’ve gotten to where we are:

Part I: From Camp X-Ray to the Detainee Treatment Act.

Our government brought the first detainees to Guantanamo in January 2002, with the express goal of avoiding the jurisdiction of U.S. courts by placing the detainees outside U.S. territory. For 2 1/2 years - until the Supreme Court’s historic 2004 decision in Rasul v. Bush - the Bush administration’s position and policy was that detainees could be held indefinitely, without access to lawyers and without being charged with any crimes, on the sole authority of the president.

The most extreme articulation of that position occurred in a federal courtroom in California. Family members had filed a habeas corpus petition seeking the release of their relatives in Guantanamo, and the administration argued that the court lacked any jurisdiction: Detainees could be held without charge or trial, without access to lawyers, and without any recognized rights under U.S. or international law. Would this be the case, the judges inquired, even if the claims were that [the government] was engaging in acts of torture or that it was summarily executing the detainees? “Yes,” replied the government lawyer. The judges were incredulous. “To our knowledge,” they wrote in their decision, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

In June 2004, the Supreme Court’s Rasul decision held that because the naval base at Guantanamo Bay was under the exclusive control of the United States, the federal habeas corpus statute extended to detainees held there. In other words, detainees could challenge their detention in U.S. courts by seeking writs of habeas corpus, the fundamental protection against arbitrary imprisonment developed under the common law, and the administration would have to provide evidence supporting its cursory and wholesale designation of the detainees as “enemy combatants.”

Nine days later, the administration scrambled to create the now notorious “Combatant Status Review Tribunals” (CSRTs) - a transparent attempt to avoid meaningful federal court review by providing the illusion of legal process at Guantanamo. The CSRTs served as a Pentagon rubber-stamp: Detainees were brought before military panels without lawyers, without access to the key government “evidence” being used against them, and without the opportunity to present evidence on their own behalf. Unsurprisingly, virtually all of the detainees were designated “enemy combatants,” though a miniscule number earned the Orwellian moniker “NLEC” - “no longer enemy combatant.”

In a separate development, the administration created and convened “Military Commissions” to bring war crimes charges against a small subset of the detainees. (The vast majority of detainees will never be charged as criminals, but are being held solely as “enemy combatants,” subject to detention until the “cessation of hostilities” in the “war on terror” - in other words, forever.) One of those detainees, Salim Ahmed Hamdan, challenged the authority of the military commission system, and his case reached the Supreme Court in 2006. (I’ll discuss that case in the next entry.)

In the meantime, hundreds of volunteer lawyers had arrived at Guantanamo to provide representation to detainees in habeas proceedings. Federal courts in the District of Columbia began to consider the detainees’ claims that they were being held without justification. In an effort to put a halt to those proceedings, the administration urged Congress to revoke the right of habeas corpus for Guantanamo detainees, and Congress complied by enacting the Detainee Treatment Act (DTA) in 2005, as an amendment to the Defense Appropriations and Defense Authorization Acts. The administration then sought the dismissal of all pending habeas corpus challenges - including Hamdan’s, which was pending before the Supreme Court.

Read Part II of “Guantanamo: The Road to Closure” >>

Yesterday we saw the beginning of what the media is calling a “showdown” between Capitol Hill and the White House. We hope it grows into a full-on rumble. The House Judiciary Committee voted to hold former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten in contempt for violating their subpoenas over the firing of Justice Department Officials.

It’s a good start. We hope Congress sticks to their guns and holds members of the Bush administration in contempt for flouting their subpoenas on NSA wiretapping.

One day before Bush administration’s deadline to turn over information about the illegal NSA wiretapping program, the date was extended. We hope that extension ends soon. Congress has a choice: get the documents in their hands or hold the President in contempt.

Congress keeps resetting their clock on subpoenas, but Americans are keeping their own count. Reset the stopwatch, and we ratchet up the Subpoena Watch. It’s been eight days since the deadline passed and the President is still dragging his feet. Congress must put an end to this President’s excuses soon and make him own up to the laws this administration has broken.

Checks and balances define us as Americans and prevent any of the branches from grabbing too much power. If one of the branches grows complacent or corrupt, trouble starts brewing and the balance collapses. It’s a civics class staple, but with Bush abusing his power and Congress waiting in the wings, it’s a lesson that demands repeating.

We’ve got our eye on Congress. We hope they follow through and hold Harriet Miers and Josh Bolten in contempt. And we’re counting the days until Congress does the same for the NSA program.

Yesterday, U.S. District Court Judge Vaughn Walker refused to stop five states from seeking information about phone company participation in the NSA’s warrantless surveillance program. He expressed doubt about the government’s argument that trying the case would jeopardize state secrets, but said he would wait to decide the case until the Ninth Circuit Court of Appeals rules on Hepting v. AT&T, the class-action lawsuit brought by the Electronic Frontier Foundation (EFF). Judge Walker had previously rejected a state secrets challenge in that case, which charges AT&T violated its customers’ privacy by cooperating with the NSA’s request for phone records, and the government appealed. The appeal hearings in Hepting is scheduled for August 15 in San Francisco. Harvey Grossman, Legal Director of the ACLU of Illinois, is co-class counsel in this case.

If you aren’t familiar with the all of these NSA spying cases, a great primer can be found in the PBS documentary Spying on the Home Front. (It also happens to feature ACLU of Nevada executive director Gary Peck, who talked about the FBI’s attempts to strong-arm Las Vegas casinos into handing over customer information.) The documentary also interviews Mark Klein, the AT&T engineer who discovered the supercomputer the telecom installed for the sole purpose of monitoring internet traffic at the behest of the NSA.

Executive Director Anthony Romero’s appearance on The Colbert Report last night was even more explosive than his first appearance. In the span of only a few short minutes, the pair duked it out over habeas corpus rights of detainees in Guantanamo, the NSA wiretapping program, separation of powers, and Attorney General Alberto Gonzales’ misleading statements to Congress:

You can learn more about Anthony’s book, In Defense of Our America, and find out where he will appear next on his book tour, at www.aclu.org/ouramerica.

Executive Director Anthony D. Romero returns to The Colbert Report tonight to promote his new book, In Defense of Our America. This is Anthony’s second appearance. You can watch him go head-to-head with Colbert the first time here:

President Bush signed a new executive order Friday afternoon that outlines his administration’s interpretation of Common Article 3 of the Geneva Conventions. As the Supreme Court held last year, when it struck down another Bush policy on detainees, Common Article 3 applies to the treatment of Taliban and al Qaeda fighters.

The new order reaffirms what Bush laid out in the Military Commissions Act: the U.S. will conform to all statutes that prohibit “cruel, inhuman, or degrading treatment or punishment.” The new, nebulous guidelines prohibit “acts intended to denigrate the religion, religious practices, or religious objects of the individual” (stomping on a detainee’s Koran might fall in there) and acts that are “beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation [like at Abu Ghraib, perhaps?]…”

The guidelines are still too vague. Does the CIA consider waterboarding cruel and inhuman? You won’t get an answer from the White House: it will neither confirm no deny that it tortures at all, much less give a straight answer as to which “interrogation techniques” are banned under this new order and which are still permitted. The AP reports that White House officials don’t consider sleep a necessity, raising the question of whether the president is approving sleep deprivation.

But as ACLU senior legislative counsel Chris Anders points out, this executive order is “only as good as the people applying it. If any of the recent past presidents, Republican or Democrat, were applying this order, we wouldn’t have any doubt that it means an end to torture and abuse by the CIA.”

But President Bush? We’re skeptical, to say the least.

Until yesterday, Robert Daniels was being held in the jail ward of a Phoenix hospital for nearly a year. He’s been a virtual captive since being diagnosed with a an extremely drug-resistant strain of tuberculosis. The ACLU sued to have him moved to a less restrictive, but still quarantined, part of the facility, where he wouldn’t be treated like criminal. During his stay in the jail ward, he was subject to strip searches, not allowed any visitors at all, and the one time he was allowed outside, he was shackled hand and foot. So, not an environment especially conducive to recovering from a deadly disease.

Yesterday Daniels was moved to the National Jewish Medical and Research Center in Colorado, the same hospital where infamous TB patient Andrew Speaker is being treated. Since their hospitalization, both Daniels and Speaker have been found to have a less deadly strain of TB than previously thought - making Daniels’ incarceration-like conditions and the Phoenix hospital’s infringement on his rights all the more egregious. This inaccurate diagnosis also highlights the point we made when the Speaker story first emerged:

“Due process rights are particularly important as modern medicine advances, and diagnoses of illnesses are increasingly made based on advanced technological tests, where the individual may have no symptoms, and the threat that disease will be spread may be unknown, ambiguous, or in dispute - or may even be the result of a laboratory error.”

Let’s hope these mistakes will inform future conduct towards the very ill in the future.