Las Vegas Review-Journal (Sunday)
Editorial Roundup
Recent editorials in newspapers in the United States and abroad:
The Washington Post on Guantanamo Bay (Feb. 16):
If the Guantánamo Bay detention facility were a person, it would be old enough to drink. Just over 21 years ago, U.S. authorities took the first detainees to the naval base in Cuba, stashing the suspects in a territory where, it was thought, they might be held without federal court oversight. This month, Majid Khan became the 746th detainee to be transferred out of the facility, to Belize, leaving 34 prisoners still locked up there, according to a New York Times count.
The transfer was a reminder of Gitmo’s persistence, despite three presidents’ efforts to close it, a vestige of a sad period in U.S. history. As its population dwindles, its continued existence is ever more irrational.
Establishing the prison was a terrible mistake that has proved impossible to undo. The Biden administration has gotten the country the closest it has ever been to shutting the facility, and the president can continue emptying the prison. But only to a point. Congress will have to take the last few steps to eliminate this enduring stain on the global reputation of the United States.
Created by the George W. Bush administration in the chaotic period after the Sept. 11, 2001, attacks, Guantánamo took in its last prisoner in 2008. By the end of his presidency, even Bush was persuaded to favor closing the facility, based on the moral and strategic damage it had done to the United States. In his memoir, Bush said the prison was “a propaganda tool for our enemies and a distraction for our allies.”
Though the global war on terrorism has receded from most Americans’ minds, experts say that even now Gitmo’s continued existence serves as a recruiting tool among those who mean the country harm. Around the globe, it shows up in popular media as a symbol of injustice. Its existence opens the United States to charges of hypocrisy on human rights, suggesting the nation’s promotion of freedom and democracy abroad is a cynical pretext for engaging in self-interested global interventionism. Also, it’s expensive, costing roughly $13 million per prisoner in 2019. That is well more than 100 times what it costs to incarcerate someone in a U.s.based supermax prison.
But once prisoners are stashed at Gitmo, it is hard to move them out, in part because of unreasonable domestic U.S. opposition to relocating them, which culminated in 2010 with Congress barring the transfer of Guantánamo detainees to U.S. soil. Because of this, presidents long ago stopped adding people to the prison, opting instead to have allied forces hold detainees or to try high-value prisoners in federal court.
Gitmo will stop functioning eventually, if only because its inmates will die off. Nine have already died there. This is essentially the closure strategy the nation is pursuing, committing the country to perhaps decades more condemnation and shame. If preserving Guantánamo made the United States safer, there might be a credible argument to keep it open anyway. But it does not. That is true even if you accept the argument that the United States must maintain a facility to house terrorism suspects indefinitely; since the Supreme Court long ago brought the prison under the jurisdiction of American law, there is scant conceivable advantage to warehousing prisoners there rather than on the U.S. mainland.
Those who remain at Guantánamo fall into three groups. Twenty of them are detainees whom a review board has determined are safe to transfer to other countries, as Khan was this month. Early on, this practice led to a substantial number returning to the battlefield in places such as Afghanistan. In recent years, the State Department has established security arrangements — such as monitoring and travel restrictions — preventing them from engaging in threatening behavior after leaving Guantánamo. The reengagement rate has plummeted. The Biden administration should move out those approved for transfer as soon as possible.
This requires sustained negotiations with countries that can be persuaded to accept former Gitmo detainees. Some go back to their countries of nationality, if U.S. authorities can make adequate security arrangements. Others, such as Khan, are sent to countries willing to take them as a humanitarian gesture — and as a favor to the United States — so long as American authorities find them homes and other essentials. The Biden administration should press forward.
Then there are 11 inmates who have been charged with or convicted of crimes, such as some of the men who perpetrated the Sept. 11 attacks. Rather than prosecuting them in federal court, the Bush administration and Congress created military commissions to try them. The commissions have failed. It has been nearly 11 years since the 9/11 defendants were arraigned, and their trial still has not begun, as the inevitable complexities of creating a brand-new, parallel legal system have taken time to work through. Rather than persisting with the commissions system, the Biden administration should seek justice in some other way.
The best alternative would be to try Guantánamo inmates in federal court. Prosecuting domestic as well as foreign terrorism suspects in federal court — including in cases against the Boston Marathon bomber, the Times Square bomber, the shoe bomber, the East Africa embassy bomber and one of the 9/11 plotters — has proved far more effective than critics had predicted. The conviction record in cases against “enemy combatants,” the class of detainee Gitmo was created to house, is near-perfect, and supermax prisons are safe places to lock them up — or, should they be sentenced to die, to execute them.
The Biden administration could also sidestep the commissions by seeking plea deals, securing admissions of guilt in return for life sentences. This would finally close the chapter on these cases. But, no matter what legal process inmates undergo, if Congress failed to lift its ban on transferring Guantánamo inmates to the United States, they would still have to serve their sentences in Gitmo.
The situation is similar with the third group of inmates in the prison, three men who have not been charged but whom the government deems too dangerous to transfer abroad. One of these men is Zayn al-abidin Muhammed Hussein, better known as Abu Zubaida, whom the U.S. government accused of being a senior al-qaida leader — and tortured — in the wake of 9/11. Congress should allow them to be moved to a facility in the United States for as long as the government may lawfully hold them.
The Supreme Court has said these “law-of-war detainees” have the right to challenge their continued detention in federal court, and some have. Their challenges could get more persuasive as the United States winds down operations it began after 9/11, such as the war in Afghanistan. But that would be the case whether they were filing their habeas corpus petitions from Guantánamo Bay or the U.S. Penitentiary in Florence, Colo.
On its own, the Biden administration could get the Guantánamo Bay prison population down to 14 by transferring overseas all those approved to be moved. This would make the facility’s continued existence only more absurd, underscoring what a waste of money and credibility it has become. At that point, Congress might be persuaded to end this national embarrassment once and for all.
The Los Angeles Times on SCOTUS and ethical standards (Feb. 21):
The U.S. Supreme Court is the pinnacle of the American judicial system, so one might assume that justices on the highest court in the land would be held to the highest possible ethical standards. In fact, they are exempt from a code of conduct that applies to other federal judges, though Chief Justice John Roberts has said that they consult that code in assessing their ethical obligations.
That’s not good enough at a time when the court is facing a crisis of public confidence, with trust falling to a 50-year low even before justices overturned Roe v. Wade in June. If the justices don’t act expeditiously on their own to establish a robust ethics code and meaningful enforcement measures, Congress will have good reason to step in.
Among other provisions, the Code of Conduct for United States Judges promulgated by the U.S. Judicial Conference says that a judge “should avoid Impropriety and the appearance of Impropriety in all activities.” But this code doesn’t formally apply to Supreme Court justices.
The justices are covered by statutes mandating financial disclosure and prohibiting them from participating in cases when their “impartiality might reasonably be questioned.” But there is no enforcement mechanism to guarantee that justices follow that requirement (other than the rarely used impeachment process). Nor are justices covered by the Judicial Conduct and Disability Act, a law that allows people to file complaints alleging that a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” such as accepting bribes or giving special treatment to friends or relatives.
Some experts in legal ethics believe that Justice Clarence Thomas should recuse himself from cases stemming from the 2020 presidential election because of the involvement of his wife, conservative activist Virginia Thomas, in efforts to overturn the results, including emailing two Arizona lawmakers urging them to choose their own slate of electors. We agree. But while a motion could be filed with the court asking Thomas to recuse from such cases, neither he nor the court would be obligated to respond to it.
In response to the Thomas controversy, several members of Congress — including California Sens. Dianne Feinstein and Alex Padilla — wrote a letter last year urging Thomas to recuse himself from cases involving the election and the Jan. 6, 2021, attack on the U.S. Capitol. They also asked that Roberts commit to creating a binding Code of Conduct for the high court that would include enforcement provisions and a requirement that justices explain their recusal decisions in writing.
So far the court hasn’t acted, despite a comment by Justice Elena Kagan in 2019 that Roberts was studying the question. The Washington Post reported this month that the justices have discussed a possible code of conduct but haven’t reached a consensus.
If the court doesn’t act on its own, Congress seems increasingly willing to fill the vacuum. The Supreme Court Ethics Act, a bill introduced this month, would require the U.S. Judicial Conference to adopt a Code of Conduct that would apply to Supreme Court justices and would require the court to appoint an Ethics Investigations Counsel which could probe public complaints about violations of the code. The bill also would obligate justices to explain why they recused from a case or denied a motion that they do so.
A more expansive bill, the Supreme Court Ethics, Recusal and Transparency Act, would have chief judges of federal appeals courts investigate complaints about possible misconduct by Supreme Court justices. Like the other bill, it would provide for a Supreme Court code of conduct (in this case adopted by the court itself) and require justices to explain their recusal decisions. But it also would ensure that requests for a justice to recuse would be reviewed by his or her colleagues.
The best outcome would be legislation combining the proposals. An ideal bill would require a code of conduct for the high court, establish the position of Ethics Investigation Counsel and empower other justices to review a colleague’s refusal to recuse.
Legislation wouldn’t be necessary, of course, if the court took the responsible action on its own to establish a code of ethics with mechanisms to enforce it.
This month, the American Bar Association approved a resolution calling on the Supreme Court to adopt an ethics code “comparable to the Code of Conduct for United States Judges.” A report accompanying the resolution said: “The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court.”
It’s understandable that Roberts and his colleagues might worry about micromanagement of the court by members of Congress. But he should be more concerned about maintaining the legitimacy of the high court. If the justices continue to dawdle, Congress will have little choice but to act.
The Guardian on relations between the U.S. and China (Feb. 17):
In the closing years of the Cold War, as relations between the Soviet Union and U.S. thawed, Ronald Reagan adopted a Russian proverb: trust, but verify. These days, with Sino-u.s. relations chilling rather than warming, there is precious little trust, and limited ability to read the other’s intentions accurately.
Relations were deteriorating long before the Chinese balloon floated into U.S. airspace and the military shot it down. Everyone knows that the U.S. spies on China and vice versa; it is also obvious, despite Beijing’s feigned outrage, that it would take swift action against a U.S. device appearing in its skies. Instead of promising that jets are ready for action, countries would do better to reconsider what trade-offs they have made in security for convenience and cost — as with the Chinese cameras used by British police.
Much more concerning than the actual events was the reaction to them. The Biden administration stayed calm; less so Congress and the media. China decided to blame the U.S., and its defense secretary refused to take a call from his counterpart, Lloyd Austin. The cancellation of the U.S. secretary of state’s trip to China was inevitable but bad news, since the hope was that it would put a floor under relations. Antony Blinken may now meet his counterpart at the Munich security conference, and President Joe Biden has said he will speak to China’s Xi Jinping to “get to the bottom” of the affair. But the trajectory is worrying.
The echoes of the past may appear unmistakable. Alongside tensions over intelligence gathering comes growing competition for allies and partners around the world. But the strife this time is between two countries that, notwithstanding their trade war, saw trade rise to almost $2 billion every day of last year.
Yet, if this much of a storm can be generated over one dirigible, recall the 2001 Hainan Island incident, when a U.S. surveillance plane and People’s Liberation Army fighter jet collided, resulting in the death of the Chinese pilot and a 10-day standoff before the American crew were released. Now imagine that in the age of social media, conspiracy theories, ampedup nationalism and a vastly more confident China. It isn’t difficult: The U.S. and others have accused Chinese military aircraft of increasingly dangerous behavior in international airspace near its territory.
The best hope is to contain rather than reverse the deterioration in relations. The political climate in the U.S. will only become more charged as the 2024 election approaches. China’s years of untrammeled economic growth are well behind it; nationalism has been a useful alternative narrative for the party. And while it has somewhat reined in its diplomatic rhetoric, it refuses to recognize that its increasingly aggressive foreign policy is the primary cause of the militarization and tilt toward the U.S. in Asia which angers it.
All of this also poses a challenge for Britain and other powers, whose interests and values are aligned with, but certainly not identical to, Washington’s. The debate about how to characterize China continues in the U.S. and the U.K. But the bigger problem than the objective differences and substantive disputes may be mutual distrust — the increasing conviction on each side (but especially Beijing’s) that the other is coming for them. China has become harder to read, and does not want to hear the U.S. But talking — and, indeed, intelligence-gathering — is essential, if only so that each may better understand the other. Distrust is all the more reason to verify.