US Senate Fails To Reinstate Habeas Corpus

Khyber notes that yesterday a vote in the US Senate fell four votes short of what was needed to restore habeas corpus — the fundamental right of individauls to challenge government detention. Here is the record of the vote on the Cloture Motion to restore Habeas Corpus. Article 4 of the US Constitution states that habeas corpus shall not be suspended unless in cases of rebellion and invasion when the public safety may require it.

Comments

Re:Habeas Corpus not "revoked"

[Maximum Prophet]

Just to clarify, the US Constitution does use the word "Citizen" in places and in other places it uses "Person." Thus only a Citizen can run for President, but many rights extend to non-citizens.

Re:Habeas Corpus not "revoked"

[Lally Singh]

You'll note that every Democrat voted to restore it.

The MCA doesn't "clarify" anything that us citizens care about. It "clarifies" that folks in the current administration shouldn't go to jail for what they've done.
From FindLaw: http://writ.news.findlaw.com/dorf/20061011.html

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens--including permanent residents whose children are citizens--that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

Oh, and the definition of Habeas Corpus, from those left-wing nutjobs at Wikipedia:

In common law countries, habeas corpus (/hebis kps/) (Latin: [We command that] you have the body) is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

No legitimate government action should have problems with Habeas Corpus.

This is being reported incorrectly

[kithrup]

This was not a failed vote to reinstate habeas corpus; this was a failed vote to end a threatened filibuster by Republican Senators.

After years of crying that Democrats threatened filibuster, and the media reporting it as such, we have come to a time where the Republicans have turned almost every debate leading to a vote into a threatened filibuster... and the media are not reporting it as such. Instead, they swallow the GOP line that there needed to be 60 votes for it.

Stupid, lazy, cowardly reporters.

Re:Habeas Corpus not "revoked"

[Dr. Manhattan]

The rights written in the Bill of Rights apply to all humans

It's also worth pointing out that those rights aren't there to protect the guilty, they are there to protect the innocent. And there's good reason to believe that there are innocent people detained in these camps:

• The vast majority were turned in by people looking for reward money or to suck up to U.S. forces. Witch hunt, anyone?
• We know that innocent people have been detained and then killed by U.S. forces. If you're not familiar with the case of Dilawar the taxi driver, you need to read this. This guy was captured by an Iraqi warlord trying to deflect suspicion from himself for an attack on U.S. troops. Then, because they thought he screamed funny, a bunch of United States soldiers "pulped" (the words of the doctor who performed the autopsy) his legs. The other four guys were shipped to Gitmo and held for a year or so before they finally decided they posed no threat.
• The soldiers there "know" these are bad guys, and treat them that way, regardless of who they are. You ask how I know that? So, a U.S. soldier at Guantanamo is asked to impersonate an unruly detainee for a drill. Unfortunately, the soldiers sent in to subdue him aren't told it's a drill. He ends up with brain damage and seizures.

Detaining 'enemy combatants' makes sense, to an extent. But they are still entitled to a tribunal under the Geneva Convention to determine if they actually are 'enemy combatants'. Go ahead, read Convention III, Article 5 for yourself. Signatories (like the U.S.) are supposed to extend protection preemptively, until and unless a tribunal has determined that the Geneva protections don't apply.

Sure, the U.S. is better than a Soviet gulag or Saddam Hussein's torture rooms. So what? That's not much to brag about. We ought to be an example to the world of the rule of law, like when we advocated and won trial against the Nazis in WWII. The Soviets and the British were all for summary executions... how far we've fallen.

Re:Habeas Corpus not "revoked"

[dada21]

You're quoting the 14th Amendment to the Constitution -- which dictates that the individual States are also barred from usurping the inherent rights of the citizens, yes. But the Constitution itself was not written to give citizens rights, but to stop the Federal government from harming those specific rights of ANYONE it involves itself with -- foreign, domestic, citizen, alien. Have you read the Constitution, the debates before it, and the Articles of Confederation?

Re:Habeas Corpus not "revoked"

[imgod2u]

Erm, no. The Constitution has limit of legal power to the *United States Government*. This ridiculous idea that the Constitution is there to dictate to citizens is somewhat frightening. The *vast* majority of it is to outline and *limit* what the *government* can do. And yes, if the U.S. government is operating oversees, it is *still* bound by what the Constitution allows it to do.

Aside from the legal issue, may I remind everyone of the *intent* of the law vs the letter:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

What the fuck has happened that have made people forget this?

Fascists all here, I see

[Master of Transhuman]

The bottom line of course is that habeus corpus is a fundamental component of Western law. Therefore it should and does apply to everyone arrested in the US, whether citizens or not.

And more importantly, even if it didn't, it should.

That is the point that all the anti-Ay-rab fascists here don't comprehend - and never will.

I quote Wikipedia:

"The right of habeas corpus--or rather, the right to petition for the writ--has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty."

Further:

"The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under 28 U.S.C. 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

* Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
* Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
* Is in custody in violation of the Constitution or laws or treaties of the United States; or
* Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
* It is necessary to bring said persons into court to testify or for trial."

Further, as to previous suspensions in the US:

"Suspension during the Civil War and Reconstruction

On April 27, 1861, habeas corpus was suspended by President Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme Court of the United States decided that it was unconstitutional for the President to try to convict citizens before military tribunals when civil courts were functioning. The trial of civili

Re:Habeas Corpus not "revoked"

[Dr. Manhattan]

And exactly under which Army or Country do these militants fall so as to be extended Genevea Convention rights again?

Exactly how were any of them actually determined to be 'militants' again?

That's the entire damn point. That taxi driver was killed because a real militant turned him in for reward money and to curry favor with U.S. troops, and those U.S. troops assumed - just like you - that if he was in custody, he must therefore be guilty.

The whole point of citing that section of the Geneva Convention is to illustrate that people like you are flat wrong. It specifically says that you have to extend protections first, and then, if a competent tribunal determines that they don't apply, you can stop. That's to prevent things like taxi drivers getting beaten to death for no reason.

Let's assume that 99.9% of these detainees are scum of the Earth. (They're not, and if you read any of the links I pointed to, you'd know that. But just for the sake of the argument...) They are detained. They are not going to be shooting at anyone or blowing anyone up. We do have the time to examine them and make sure we actually have a 'person of interest' before we start with the clubbings, just to make sure we don't kill some poor guy who was turned in for the reward money.

Oh, wait. Unless your goal really is to just terrify the populace. In which case I take it back, how are we better than Saddam Hussein again?

US constitution, article III, section 2

[Scrameustache]

Right at the beginning...

"We the people of the United States of America"
[...] just because it doesn't SAY "citizen" or "resident" or whatever doesn't mean it covers the world's population. Wrong.

And whenever a right is not granted to a person who is not a citizen of the united states, those conditions are explicitly enumerated:

Article I: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

Article II: No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

And more importantly, article III says:
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
http://www.law.cornell.edu/constitution/constitution.articleiii.html

Re:Habeas Corpus not "revoked"

[RogerWilco]

In case you are suggesting that those detained in Gitmo are PoWs, then please read the Third Geneva Convention on how to treat those. Some quotes:

(Article 5): "Should any doubt arise as to whether persons, having committed a belligerent act..." is a prisoner of war "...such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
(Article 25): "Prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area."

I know that the current USA government argues that they are not PoWs but "unlawful combatants". They would then fall under the Fourth Geneva Convention that handles civilians. It would still give them the right to a trial.

The scary part of the MCA, as I now understand it is this:

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." 28 U.S.C. 2241(e)(1) (Section 7)

It means that the US can detain someone indefinately, as long as they decide not to determine what the status of their captive actually is. Even you or me. Being a US-citizen does not realy help, until they have decided your status.

It's very Orwellian in both being a nice kind of newspeak, and allowing "all animals are equal, but some are more equal then others".

It scares me, everytime I visit the USA, when I consider that because of some mistaken identity or mix-up, I could be detained, and held without any recourse. (I am Dutch)

Re:Habeas Corpus not "revoked"

[Jah-Wren Ryel]

My understanding is that many of the people were not 'captured on the battlefield' but in fact were turned in for a reward. How does that impact your conclusion? According to This American Life episode 331: Habeas Schmabeas only about 6 percent of those in Guantanamo were "captured on the battlefield."

That episode won a Peabody Award by the way - the same award that The Daily Show won for its election coverage. It is well worth a listen, especially for those who have faith that their government is doing the right thing in Guantanamo.

Like the story of one pair of brothers who were editors of a newspaper in Pakistan and were picked up because they published a political cartoon - one that offered a reward of about $25 for the capture of Bill Clinton after he ordered an attack on that aspirin factory in Africa. One of the brothers was released after 3 years, the other is apparently still in lockup.

Re:Habeas Corpus not "revoked"

[triffid_98]

Well, since the prisoners aren't wearing uniforms and aren't part of any regular armed forces, I believe they fall into the Unlawful Combatant category. If they'd like POW status, perhaps they should consider following the guidelines laid out below...

To qualify for prisoner of war status persons waging war must have the following characteristics to be protected by the laws of war:

1. Members of the armed forces of a Party to the conflict
2. or members of militias not under the command of the armed forces
* that of being commanded by a person responsible for his subordinates;
* that of having a fixed distinctive sign recognizable at a distance;
* that of carrying arms openly;
* that of conducting their operations in accordance with the laws and customs of war.
3. or are members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. or inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

If I recall correctly, actual prisoners of war, those captured on the battlefield, do not have the right of habeas corpus but are protected by the Geneva Conventions. Detainees are not prisoners of war and are not afforded Geneva Convention protections. Whose jurisdiction they fall under and what rights they have is somewhat tricky business.

GC loop hole

[OrangeTide]

You overlook the loop hole of the Geneva Convention. It is really only enforceable by another nation that agrees to the Geneva Convention. If you aren't a combatant of a particular nation, it's going to be rather hard for you to get support for your POW status at the international level. Basically when you fight against soldiers without being part of a sanctioned military, you run the risk of being completely fucked over.

You can argue about GC rights all you want, but it will do no good. What is necessary is federal legislation on how we plan on treating people who fall outside of the Geneva Convention. (yes, they fall outside because they have no county to speak for their rights and have them enforced).

You should be far more concerned with visiting European nations that have pushed Muslim immigrants into being second class citizens (or even non-citizens) while at the same time allowing them to enter your countries and establish isolated and sometimes radical communities within your own borders. Those nations (and the Netherlands is not one of them) that have this problem need to rectify it immediately and either ban the immigration of Muslims, or do the right thing and embrace and integrate new people into your society. Giving them a chance at real jobs, an education, and a chance for their children to grow up as full citizens. Multiculturalism is not a solution, it is just burying your head in the sand. (note - the opposite of multiculturalism which would be like enforced brain washing and removing of ethnic identity is also the wrong path)

The US has done fairly well with integrating different people together, considering on the immense scale it operates on. It's a bumpy ride, but no other country has had this much success on this scale. On the smaller scales, there are plenty of places that assimilate with far greater success. Although in small communities in the US there are excellent representations of those small scale successes as well, so we know that a trickle of immigrants coming into a community poses very little stress on that community.

ps - even though I live in the US and it's all f'd up, I am still allowed to criticize the politics and behavior of other nations. Just because I haven't fixed my country yet does not stop me from encouraging others to fix theirs.

Re:Habeas Corpus not "revoked"

[baldass_newbie]

That's because congress did not declare war, unfortunately.
Quite the contrary, it's because these are not citizens/nationals/armies of the country they were fighting in.

Re:Habeas Corpus not "revoked"

[E 99]

The Enemy Combatant designation is also a horrendous violation of rules of warfare. If we are at war, they should be treated as prisoners of war and be afforded rights as such.

It is not a violation -- it is part of the rules of warfare. There is a big difference between what is called a "legal enemy combatant" and an "illegal enemy combatant." The former has a uniform and a country, and is covered by the Geneva Convention, as there is a country we can return them to, and if we establish peace with that country, then we have nothing further to fear from the soldier. The latter is something different. The rules of warfare apply to him as well, and those rules are exactly what we've been following. They were formalized in I believe the Military Commissions Act of 2006. We do not torture. The CIA does perform interrogations in the field; and they use things like sleep deprivation and disorientation, but they are well versed in what is lawful and what is not.

Re:Habeas Corpus not "revoked"

[DigiShaman]

We are not in a declared war with any state. It's kind of hard to declare a war against an ambiguous enemy. Enemy combatants are identified by behavior, not by uniform or flag. Since they are a militia of no government (and if they were, of no government we are at war with, since we have not declared war with any government that remains) these enemy combatants caught in acts of aggression are mere criminals and are not in fact prisoners of war.

Exactly. Also, Article 4 section A-2 of the Geneva Convention basically states Al-Qaeda members are not entitled to POW status. Let's review...

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates; (Al-Qaeda functions as autonomous cell networks.)

(b) That of having a fixed distinctive sign recognizable at a distance; (Al-Qaeda members are dressed as civilians and walk among them.)

(c) That of carrying arms openly; (Al-Qaeda members prefer IED explosives and martyrdom.)

(d) That of conducting their operations in accordance with the laws and customs of war. (Al-Qaeda terrorizes humanity around the world with the goal of religious domination.)

Re:Habeas Corpus not "revoked"

[Copid]

I see this claimed all over the place by people who have some problem with Guantanamo, but I haven't seen where the evidence for this comes from. These people are given hearings to determine their status, and tribunals to determine their guilt or innocence, and without evidence, they are not found guilty. The charges against them are specific, and I read many of them online a while back. None of the charges read "some guy said he belonged to Al Qaeda." Yes, some were brought there without sufficient evidence... and were subsequently released. Doesn't that mean that the tribunals are working properly?

You might want to try the studies published by Steton Hall's law school. Specifically, here and, more generally, here. Many of the charges are very much just "some guy said he belonged to al Qaeda." Among the results of these studies: Only 5% were actually scooped up off of a battlefield. 86% were turned in by Pakistan or the Northern Alliance when we were offering rewards for tips. The bottom line is that regardless of the merits of the detainment (which appear very weak in many cases), we are being lied to by our leaders when they claim that the detainees are uniformly high value targets or that they were picked up off of a battlefield. We basically bought a bunch of them with little or no evidence beyond hearsay. I strongly recommend that anybody with an interest in these cases listen to (or read the transcript of) the This American Life program on the topic and then chase down references as they see fit. It's stunning how close we're coming to simply disappearing people on little or no evidence the way a tin pot dictatorship would. Regardless of whether it's constitutional, it looks to me like we're we're going to be answerable for some very serious mistakes.

And no, if you're stuck in an isolated prison for years with minimal contact with the outside world before the people holding you admit that they have no reason to hold you beyond fear of embarrassment, the system is not working properly. I don't know about you, but I have a limited lifespan, and I would consider years of my life disappearing into a hole more than a minor bump in the road. There's a good reason why habeas corpus is recognized as a fundamental right by modern democracies. Without it, people disappear. The only distinction I see between myself and a farmer from Afghanistan on that issue is a legal one, not an ethical one.