Restore Habeas Corpus Now

[SixPackInBoxers]

This article apperaed in today's Washington Post. It is depressing reading until the end where the bi-partisan initiative to repeal this dispicable act indicates some light at the end of the tunnel;

Justices Won't Hear Detainee Rights Cases -- for Now

By Amy Goldstein
Washington Post Staff Writer
Tuesday, April 3, 2007; Page A09


A divided Supreme Court declined yesterday to consider fresh questions about the legal rights of detainees at Guantanamo Bay, rejecting an appeal by inmates there who are seeking access to federal courts to challenge their imprisonment as "enemy combatants."

The court decision was a significant victory for President Bush, who has asserted for nearly six years that the fate of hundreds of detainees, held without charges as alleged terrorists at the U.S. naval base in Cuba, should be determined by secret military tribunals. The decision leaves intact, at least for now, a measure passed at the administration's urging last year when Congress still was in Republican hands that denies Guantanamo Bay detainees the right to such habeas corpus petitions.

Justices signaled, however, that the high court eventually may hear the cases, filed by two groups of Guantanamo detainees. Three justices dissented yesterday, writing that "these questions deserve this court's immediate attention." And two members of the court, John Paul Stevens and Anthony M. Kennedy, issued a joint statement, emphasizing that the decision "does not constitute an expression of any opinion on the merits" and holding out the possibility that the cases could be considered once detainees tried all the legal steps available to them.

Court rules require the agreement of four of the nine justices to accept a case.

The decision comes after two high court rulings in the past three years that noncitizens arrested around the world in the administration's fight against terrorism and held in Cuba have a right to petition federal judges to contest their detention. Yesterday's decision marks the first time that both of the court's newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have participated in the issue. Alito voted on last year's Guantanamo Bay case, but Roberts recused himself.

The political terrain surrounding detainees' rights also has shifted. Democrats now control Congress and have exhibited interest in repealing the legislation that the court declined to review yesterday.

Administration officials lauded the court for not taking the new cases. "On first glance, we're very pleased with the decision," said White House spokeswoman Dana Perino. Justice Department spokesman Erik Ablin said the decision "will permit the process established by Congress for reviewing detentions to proceed without further delay."

Detainee advocates and several congressional Democrats criticized the court's decision. "All we are asking for is the most fundamental . . . right to go into court and say, 'Why are you holding me?' " said Michael Ratner, president of the New York-based Center for Constitutional Rights, which represents many of the detainees. "If they had a full and fair hearing, there would be hardly anyone left at Guantanamo."

About 385 detainees are imprisoned there now, and only a handful have been charged.

The new cases involve a second generation of legal issues involving Guantanamo Bay, as the administration and the GOP-led Congress sought to grapple with the high court's earlier rulings, in Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld last year.

After the first ruling, the Defense Department established special review hearings for detainees to determine whether they are properly being held as enemy combatants. The hearings allow evidence that would be inadmissible in a U.S. court and provide the detainee a military representative but not a lawyer, detainee advocates say.

The system allows detainees who want to challenge the findings of their hearing to appeal to the U.S. Court of Appeals for the D.C. Circuit, which is to base its review on standards different from those that govern habeas petitions. A second statute, the Military Commissions Act, was enacted to make clear that the system applied to all noncitizen detainees held by the government at Guantanamo Bay and other facilities not on U.S. soil.

Two sets of Guantanamo detainees challenged last year's law in the D.C. Circuit. In February, that court upheld the law, and that ruling was the basis of the appeals the Supreme Court declined to hear. The cases are Boumediene v. Bush and Al Odah v. United States.

"What the court is saying today is that Congress has spoken explicitly about the denial of the court's jurisdiction about the pending cases, and those cases should be reviewed first of all by the D.C. Circuit," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University. Kmiec noted that Kennedy and Stevens signaled that they may be willing to reconsider "after the process has run its course."

On Capitol Hill, Democrats sought to leverage the court's decision into momentum for their own efforts to grant detainees broader legal rights. "We cannot and should not outsource our legal, moral and constitutional responsibilities," said Senate Judiciary Committee Chairman Patrick J. Leahy (Vt.). He is co-sponsoring legislation that would grant the detainees habeas rights with the committee's ranking Republican, Sen. Arlen Specter (Pa.), who called on his colleagues yesterday to "act promptly" to adopt their bill.

Staff writer Elizabeth Williamson contributed to this report.

 

[Kulindahr]

To a significant degree this is a new situation we're looking at. The "enemy combatant" rules date from a time when soldiers wore the bright colors of their allegiance on a battlefield where everyone was out in the open. The American Revolution saw changes to that, with frontiersmen and local militia adopting more functional uniforms; as I recall, there were even situations where it had to be established what constituted a "uniform". But in general the pattern persisted until the twentieth century, when militaries began using uniforms meant for concealment. Now even that is breaking down, as we face military organizations which disdain uniforms altogether.
So deciding who is, and who is not, an enemy combatant, moreover who is or is not an illegal enemy combatant, is a distinctly new legal game. Both the courts and the military are groping, along with Congress, for applicable rules; by what's in the above article, they're not doing too bad a job of stumbling through it. Bush is holding out for a highly authoritarian, nearly autocratic approach; some Democrats seemingly would like to treat everyone as civilians. Both positions are absurd, but both contain an element of truth. Finding the point at which those truths balance is the task at hand.
Unfortunately for them, the detainees are the experimental subjects in this sociological laboratory.

 

[calvar]

Unfortunately for them, the detainees are the experimental subjects in this sociological laboratory.

Some of them may, indeed, deserve our sympathy. But it's worth remembering that most, if not all, would do far worse to any of us if they had the chance...

 

[texpatriot]

Some of them may, indeed, deserve our sympathy. But it's worth remembering that most, if not all, would do far worse to any of us if they had the chance...

Actually only about a dozen of them have ever been charged with anything.

There are more than 400 who've petitioned the courts for some of charge, or a release from their captivity.

Our laws, as Americans, and our willingness to extend those rights, speak to who we are as a people.

If anyone can be called "a terrorist," or an "enemy combatant" without the right to face your accuser, what does that say about a civilized society?

 

[69Strat]

Stand back from politics and look at what it has done to the country.

What it has done is ensured that the enemy combatants being detained are no longer on the battlefield endagering troops. Not just American troops, but those troops of all nations participating in the war on terror.

You might find it helpful to do some preliminary research on the laws of war and how it applies to enemy combatants, which you obviously don't quite grasp, since they are not POWs under the GC. In fact, many of them are not even nationals of the country where they are captured in, and should be viewed as terrorist- mercenaries with no specific right to habeas corpus relief in American courts.

 

[calvar]

What it has done is ensured that the enemy combatants being detained are no longer on the battlefield endagering troops. Not just American troops, but those troops of all nations participating in the war on terror.

You might find it helpful to do some preliminary research on the laws of war and how it applies to enemy combatants, which you obviously don't quite grasp, since they are not POWs under the GC. In fact, many of them are not even nationals of the country where they are captured in, and should be viewed as terrorist- mercenaries with no specific right to habeas corpus relief in American courts.

Not to mention the unpleasant fate that would likely await them if they were handed over to the governments of Afghanistan or Iraq where the large majority of them were taken in arms.

 

[69Strat]

Not to mention the unpleasant fate that would likely await them if they were handed over to the governments of Afghanistan or Iraq where the large majority of them were taken in arms.

Interesting point, if we applied the laws of these countries - or even the home country where these enemy combatants are from - it would be far worse!

 

[Nishin]

^ that's assuming they were found guilty

 

[calvar]

^ that's assuming they were found guilty

Having watched 'fair and impartial justice take her course' in Iraq recently, I'd rather take my chances in Guantanamo, if it were me...

 

[Nishin]

^ Interesting... since the great majority of detainees are from Afghanistan, Saudi Arabia or Yemen... I actually only read of one Iraqi detainee, in this list that is ...

Another interesting read says that:

1. 55% of the detainees are not determined to have committed any hostile acts against the USA or its coalition allies.

2. Only 8% of the detainees were characterized as Al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with Al Qaeda at all and 18% have no definitive affiliation with either Al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. 8% are detained because they are deemed "fighters for", 30% considered "members of", a large majority - 60% - are detained merely because they are "associated with" a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified.

4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.
This 86% of the detainees captured by Pakistan or the Northern ALliance were handed over to the United States at a time in which the United STates offered large bounties for capture of suspected enemies.

5. Finally, the population of persons deemed not to be enemy combattants - mostly Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combattants.

http://law.shu.edu/aaafinal.pdf

 

[69Strat]

^ that's assuming they were found guilty

Let's see, enemy combatants captured on the battlefield carrying a variety of military wpns, along with the caches that are siezed. Yup, sounds like they're innocent.

 

[Nishin]

^ hmm how come about 250 out of 750 have been released or transferred to the custody of their native countries?

Besides, although you quote me, I'm don't sure you actually read what I wrote... especially the last three words of the statement you quote...
Have you read the report I linked to above?

 

[Roland00]

Let's see, enemy combatants captured on the battlefield carrying a variety of military wpns, along with the caches that are siezed. Yup, sounds like they're innocent.

A lot of them weren't found on the battlefield with weapons and all that. That is the entire point.

If they were found on the battlefield with weapons, then there is little point in Not having a trial, you got your evidence that these people are a terrorist Right there. End this controversy if you got the evidence.


I am sorry for the differing font sizes, its annoying to read, but I had to use them for the point had to be made.

 

[Homoaffectional]

If nothing else, this thread is a good conversation to be had about what exactly habeus corpus is, whether or not it is still in effect, and more.


One thing I know for sure, is that regardless of what laws have been passed or haven't, this movement serves a purpose -- that we need to remain vigiliant until such time that the Bush administration is out of office to make sure no further damage is done, and then after they are gone, we must restore our freedoms to at least pre-Bush levels.

Regardless of what that particular website says, there have been not only so many legislative initiatives (many with thousands and thousands of pages that one must peruse to see what devastating blows to the constitution they contain), but also two ultra reich-wing Supreme Court justices appointed that I am sure, don't have habeus corpus in mind when they write their "opinions" (and that's all they are, believe me).

Good thread. Carry on.

 

[69Strat]

^ hmm how come about 250 out of 750 have been released or transferred to the custody of their native countries?

It's because detainees have access to their respective embassies and foreign diplomats under the Vienna Convention. Inadvertantly, you have demonstrated that the system in Quantanamo Bay is working well, since some of them have been released or transferred to their home countries.

Have you read the report I linked to above?

Yup, and it doesn't change the fact that the majority of the detainees are not entitled to habeas corpus relief.

 

[69Strat]

A lot of them weren't found on the battlefield with weapons and all that. That is the entire point.

In AFG, many of the enemy combatants were turned in or captured by groups like the Northern Alliance which identified specific targets with known ties to the AQ or Taliban. I prefer not to second quess the troops on the ground or intelligence relating to those who were turned in or captured. It's a matter for the military to determione and if evidence turns up later showing that some of the detainees should be released - or transferred to their home state - that's fine by me. But most of these detainees are cold blooded killers and terrorists that are ideally suited for Camp X-Ray, where they should sit out the war.

If they were found on the battlefield with weapons, then there is little point in Not having a trial, you got your evidence that these people are a terrorist Right there. End this controversy if you got the evidence.

I have no problem with setting up military tribunals.

 

[Nishin]

It's because detainees have access to their respective embassies and foreign diplomats under the Vienna Convention. Inadvertantly, you have demonstrated that the system in Quantanamo Bay is working well, since some of them have been released or transferred to their home countries.

No, that's actually my question... why have some been freed or returned to their countries, and other have not? On what bases??

 

[Roland00]

In AFG, many of the enemy combatants were turned in or captured by groups like the Northern Alliance which identified specific targets with known ties to the AQ or Taliban. I prefer not to second quess the troops on the ground or intelligence relating to those who were turned in or captured. It's a matter for the military to determione and if evidence turns up later showing that some of the detainees should be released - or transferred to their home state - that's fine by me. But most of these detainees are cold blooded killers and terrorists that are ideally suited for Camp X-Ray, where they should sit out the war.

I have no problem with setting up military tribunals.

Bait and Switch. First you say these people have these weapons and they were captured on the battlefield. This was proven wrong with the stat link Nishin gave you, and me pointing out if it is as you say it is then why don't you have a trial.

Since that argument has been defeated you switch and advance a new arguement. How dare I criticize the troops and our intelligence gathering. Well first even by your own admission it isn't our troops, its other people which may not have the same interest as us Americans in intellectual honesty and not imprisoning wrongful people, in fact they have an interest to be overzealous for they get paid by the head not by the fact the head they turn in is really a terrorist or not.

Second if the evidence for these people are so good, then you should have no problem with a real trial, yet these military tribunals are not trials, the burden of evidence is shifted, the government doesn't have to prove or even give decent evidence you are a terrorist, no you have to prove you aren't a terrorist. Furthermore obtaining evidence for your own defense is so severely limited it is effectively useless. These military tribunals are Kangaroo courts. They are a mockery of justice, if you believe that we should imprison innocents for its worth the risk than argue so, except you aren't you are "dressing it up" saying they got their day in court, when in reality its a whole facade the deck is stacked against them and there is no way for you to prove the truth.

If the intelligence is so good, then it should be obvious as "evidence of fact" in a court of law. Of course the intelligence isn't that good, and that is the entire point.

Some of the gitmo people are very very bad men, but a lot if not the majority (not necessary a super majority) have been mistreated and victims of circumstance.

I have no problem with military tribunals if they are truly fair.

 

[69Strat]

Bait and Switch. First you say these people have these weapons and they were captured on the battlefield. This was proven wrong with the stat link Nishin gave you, and me pointing out if it is as you say it is then why don't you have a trial.

It wasn't proven wrong, as there WERE enemy combatants captured on the battlefied with wpns, in addition to the other scenarios that have been mentioned; a no fucking brainer, btw.

How dare I criticize the troops and our intelligence gathering. Well first even by your own admission it isn't our troops, its other people which may not have the same interest as us Americans in intellectual honesty and not imprisoning wrongful people, in fact they have an interest to be overzealous for they get paid by the head not by the fact the head they turn in is really a terrorist or not.

You are in no position to second guess the decisions that were made in a war zone and often under combat conditions. That's the bottom line. I don't care what the world consensus is on the detainees, only that they are no longer a threat to the troops placed in harm's way.

These military tribunals are Kangaroo courts. They are a mockery of justice, if you believe that we should imprison innocents for its worth the risk than argue so, except you aren't you are "dressing it up" saying they got their day in court, when in reality its a whole facade the deck is stacked against them and there is no way for you to prove the truth.

Your equating the laws of war to that of civilian and criminal judiciary standards is where the real problem lies.

If the intelligence is so good, then it should be obvious as "evidence of fact" in a court of law. Of course the intelligence isn't that good, and that is the entire point.

You haven't spent any time gathering evidence in a war zone, so you don't know for sure if the intelligence was or wasn't good.

Some of the gitmo people are very very bad men, but a lot if not the majority (not necessary a super majority) have been mistreated and victims of circumstance.

It appears to be a lot more than some bad men. I do, however, agree with you regarding the mistreatment of some detainees, which is wrong.

 

[69Strat]

No, that's actually my question... why have some been freed or returned to their countries, and other have not? On what bases??

My guess would be information obtained during interrogations, investigations, threat assessment relating to detainees, diplomatic and consulate channels, political pressure, medical reasons, etc.