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

Habeas Corpus not "revoked"

[daveschroeder]

Just like the updates to the Insurrection Act of 1807 didn't enable martial law under nearly any circumstances or revoke Posse Comitatus, the Military Commissions Act of 2006 didn't revoke Habeas Corpus. To believe otherwise about either is politically charged fantasy.

Note that the linked article is an opinion piece from The Nation, self described as "the flagship of the left", so when it says things about Habeas Corpus such as, "which the Republican Congress revoked", it's not a fact, it's just what the type of article it is explicitly states: an opinion. Further, we don't have a Republican Congress anymore, so I'm not sure how that is even meaningful. I guess I'm supposed to assume that even a Democratic Congress doesn't want to "restore Habeas Corpus"? (And naturally, surprise, this is posted by kdawson.)

The fact of the matter is that Habeas Corpus was not suspended in any way, shape, or form. The Military Commissions Act does not apply to US citizens, permanent residents, or persons with a valid legal status within the United States. Only US citizens have a right to Habeas Corpus (Gonzales' ridiculous statements on the issue aside). MCA only applies to "aliens [that is, not US citizens] with no [US] immigration status who are captured and held outside the territorial jurisdiction of the United States"; that is, MCA does not apply to US citizens. Therefore, Habeas Corpus was not suspended, and to argue that it was is puzzling to me.

The argument that Habeas Corpus needs to apply to literally everyone because otherwise there is no way to "prove" that you are a US citizen to which MCA doesn't apply is something of a curious one. MCA already does not apply to US citizens apprehended on US soil. You do not need a court to affirm what is already known. If you believe the authorities will ignore the fact that someone is a US citizen and detain them anyway, then there are larger fundamental issues than whether or not someone can challenge detention; indeed, if the government really wanted to secretly detain someone without cause or ability to challenge, US citizen or not, they simply wouldn't give them any recourse at all, Habeas Corpus or no, now would they?

On this general issue, there is certainly some merit to the argument that things like terrorism should be treated as a civil or criminal matter and not a military and national security issue. However, I do not subscribe to that viewpoint. Our freedoms and rights are things that US citizens and immigrants enjoy. Else, there is no function or purpose for immigration or even borders.

Some tend to confuse US citizens and residents with everyone else on the planet, and pretend that the Constitution actually applies to everyone on Earth (which it doesn't), or that it should (which it shouldn't - perhaps in an idealized world, someday, everyone can expect and enjoy such a baseline of freedoms and rights).

And to those who will come out of the woodwork saying, "What about Jose Padilla?"

That was before MCA, which is what people say "suspended Habeas Corpus". That is, Jose Padilla did have Habeas Corpus rights and yet was still detained. That's part of reason MCA came into existence: to clarify this situation. Such detention of a US citizen apprehended on US soil, regardless of designation, has subsequently been clearly determined to be legally inappropriate, and, as such, does not fall under MCA.

On top of all of this, to those that think that administration officials are going to lie and ignore any and all laws anyway, then what difference does any wording of any law really make?

Disclaimer: portions of this post were culled or paraphrased from a couple of previous posts of mine here on the topic, but is precisely on point, so there is no need to retype.

Re:Habeas Corpus not "revoked"

[Anonymous Coward]

Where does the Constitution say "Citizen" or "Resident" when dealing with rights other than holding office or voting? Everything is phrased in term of "Government" and "Person".

Re:Habeas Corpus not "revoked"

[dada21]

I stopped reading when you said that only U.S. citizens have a right to Habeas Corpus. Sorry, but the Constitution was not written with the word "citizen" used often. The Constitution applies to the U.S. Federal government, and how it interacts with ALL people EVERYWHERE.

The rights written in the Bill of Rights apply to all humans, and are not granted by the Constitution. The Constitution just reminds the Federal government that it can not revoke these rights, or change them. Habeas Corpus is an inherent right for all humans that we must demand to keep fully removed from any government's desire to remove it or restrain it.

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.

Re:Habeas Corpus not "revoked"

[dada21]

Thanks for your clarification, I concur there. To clarify your clarification, though, ALL rights that "we" and the founding fathers considered inherent are rights afforded to all humans, regardless of citizenship and government. Government should never have the power to censor speech or opinion, nor the power to search your person or property with proof and a warrant, nor the power to restrict what arms you own or carry, nor the power to jail/enslave someone without giving a reason for it -- and allowing that person, citizen or not, the ability to defend themselves quickly and with a jury of their peers (again, not necessarily citizens).

Government doesn't give you freedom, it doesn't grant you rights, and it isn't there to protect you from other individuals. The Federal government is there for four reasons: to PROTECT the inherent rights of individuals from any government or State, to coin money in gold or silver only, to call up militias of individuals in order to defend against a real attack within the borders of any State, and to defend against piracy on the high seas.

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"

[eln]

Your quote proves his point. The quote says no state shall abridge the privileges or immunities of a citizen, but then goes on to say that states cannot deprive any person from life, liberty or property without due process. It is very clearly drawing a distinction between the term "citizen" and the term "person".

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"

[eln]

Spot on. The Constitution does not give us rights, it simply innumerates basic human rights that the government is not allowed to mess with, as well as setting up the basic rules under which the government is allowed to operate. It's primary purpose is not to limit the rights of the people, but rather to limit the power of the government.

This recent drive to define non-citizens as nothing more than cattle with whom we can do anything we please is distressing. How would we feel if we travelled to, say, France, and the government there decided to detain us for no apparent reason and deny us access to the courts or any other means of pleading our case. Would the US Government stand for that sort of behavior? If not, why is it suddenly okay for us to treat non-citizens the same way?

The Constitution is careful to use the word "citizen" when it intends to refer to only citizens, and "person" elsewhere. The idea that the word "person" in the Constitution ever refers only to "citizens" is pure fantasy.

Re:Habeas Corpus not "revoked"

[HangingChad]

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What part of "any person within its jurisdiction" isn't clear? Too bad we can't give these right wing fucktards their own country to trash instead of ruining this one.

Just because we started out united doesn't mean we have to stay that way. I want a divorce.

Re:Habeas Corpus not "revoked"

[Ajehals]

I have no idea what the legal position is and frankly US constitutional law is an internal American matter (if the US violates my rights then my government can deal with the US on my behalf), that said however, looking at your quote in isolation I would read it as follows:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States Right, it would appears that this element applies to what states can do to *citizens* clearly any non citizen doesn't get this protection.

nor shall any State deprive any person of life, liberty, or property, without due process of law This seems to apply to any person, US citizen or not.

nor deny to any person within its jurisdiction the equal protection of the laws. And again, any person so I would assume that this too seems to apply to any person, US citizen or not.

That for me makes sense, Citizens have basic rights plus additional privileges and immunities, whilst everyone else just gets a basic subset of rights.

It does not suggest that the entire statement applies only to Citizens. As I said, I cant comment on the legal situation, but in my opinion detention without charge of anyone, anywhere is unjust. If you hold someone for something charge them with something and give them the opportunity to defend themselves, that prevents injustices being committed, more importantly it also means that a decent standard is being adhered to and prevents people from having to justify the actions of a "proud, free and just" nation by comparing it to regimes run by despots and tyrants.

Re:Habeas Corpus not "revoked"

[Jhon]

Right at the beginning...

"We the people of the United States of America" So where it says "the people" generally applies to citizens.

Yes there are some ambiguities that the courts have addressed (see MATHEWS v. DIAZ, 426 U.S. 67, for example), but just because it doesn't SAY "citizen" or "resident" or whatever doesn't mean it covers the world's population.

Re:Habeas Corpus not "revoked"

[Qzukk]

The US Constitution is a sort of contract between the Federal Government and the People

The US Constitution is nothing of the sort. It outlines the explicit powers of the federal government and explicit limits on those powers, with explicit exceptions to those limits, it has been amended in certain scopes to include local governments as well.

It would be ridiculous to try to made the document apply to people outside of the US

There is only one Constitution, and that document only applies to the government, at all times, period. There is no "special" Constitution outlining the powers of the government with respect to non-citizens.

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?

Re:Habeas Corpus not "revoked"

[Qzukk]

If you actually think that the US Constitution applies to everyone in the World

I think the US Constitution applies to the US Government at all times, even when the US Government is dealing with non-Americans.

Re:Habeas Corpus not "revoked"

[dada21]

Further, your contention (in a previous post) that it, as well as the Bill of Rights applies to "all humans" is simply false.

It applies to the U.S. Federal government and the Constitutional restriction on it to understand that those rights belong to all humans. This means that the U.S. Federal government can not restrain those inherent rights from ANYONE it deals with, locally or abroad. It doesn't mean the Federal government must defend those rights outside of its borders, but it must abide by the restrictions of power against anyone it mingles with.

And why there is even a debate regarding the conveyance of the rights enjoyed by US Citizens in peacetime towards enemies and enemy combatants of the US, outside of the US, in a time of war, is simply beyond me.

Considering the last declaration of war by the U.S. Congress was World War II, we have no enemies currently. We are currently "at peace" since there is no formal declaration of war, so the U.S. government's actions in other countries must be facilitated as if we were not at war, which we aren't, since there was no formal declaration.

If we were at war, I can understand the U.S. government forming an army, a navy and and air force from the militias it calls up, and then using those military forces to win the war it has declared, within the specifications of the declaration by Congress. As there is no war right now, there is no ability of the U.S. government to not abide by the Constitutional restricts on the Federal government. Those rights are inherent rights, and the Feds have no power to restrict those rights of anyone, citizen or alien.

Re:Habeas Corpus not "revoked"

[mmeister]

For the record, those that voted for the Constitution were not "citizens" since the Constitution didn't exist when they voted for it.

While the Constitution "may" not apply to every citizen of the world -- it should at least apply to the "people" in the United States. The notion that we, as a nation, might condone holding anyone without charges ultimately makes us no better than the tyrants we overthrow. Habeas Corpus has been around for much longer than our United States and for good reason. Only tyrants feel it is their right to arrest someone for no reason, throw them in jail and provide no recourse for a check and balance of that power.

And *even if* the MCA claimed not to apply to citizens today, if the arresting officer claims you are not a citizen and you have no way to going before a judge, how are you to prove that you are?

While we are pushing "democracy" at the barrel of a gun, we fail to be a good example. Instead, we are well along the path to fascism.

Re:Habeas Corpus not "revoked"

[Elemenope]

You are distorting what he wrote. He is arguing that the US Government is bound by the Constitution to not violate Habeas Corpus rights of anyone it may interact with (and I would probably add the caveat under its territorial jurisdiction). So if the US is occupying Iraq, then it is feasible to argue that it would be illegal for the US to deny access to the Great Writ to occupied Iraqis insofar as they would have cause to apply for one from a US court. Likewise, a British national living and working on US soil would, due to being under the jurisdiction of the US laws, also have the right to petition for relief. If the US Congress or any other organ of the US Government denied access to the Writ, they would be acting ultra vires, and illegally.

What he is *not* saying is that as a result the US is required to guarantee that all people everywhere have recourse to the Writ of Habeas Corpus; that would be silly. It is not that the US Constitution requires that the US guarantee that an Iranian citizen is able to petition the Iranian government for the writ. It is only that if that same Iranian found him/herself in the position of interacting with the US government, the US may not deny him/her the right to petition for the Writ.

Now, how the Constitution is written and how it has come to be interpreted by authorities have never exactly been similar, but that's a whole other argument. As it stands in the text, his position is defensible, and you are distorting it into a caricature.

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?

Re:Habeas Corpus not "revoked"

[RingDev]

And why there is even a debate regarding the conveyance of the rights enjoyed by US Citizens in peacetime towards enemies and enemy combatants of the US, outside of the US, in a time of war, is simply beyond me. We are NOT, I repeat, NOT in a time of war. Period. End of story. Good night, sir!

We have an on-going occupation of a foreign sovereign nation. That is NOT A WAR.

The whole notion of calling anything after the first week of a US presence in Iraq a "war" is nothing more than spin, talking points, and repetitive lies. 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. If we are not at war, they should be extradited and prosecuted in a criminal court. Calling them 'Enemy Combatants' so that we can lock them up indefinitely, torture them, and transport them across international boarders to avoid oversight, is just down right evil. A loophole created specifically for the purpose of stripping a person of their rights so that the government can do what ever they like with them. Sick and twisted is what it is.

-Rick

Re:Habeas Corpus not "revoked"

[mmeister]

> With regards to "people" in the United States, there is precedent (SCOTUS) that it does not.

Very true, "people" did not apply to black slaves for quite some time.

Of course if you do not have habeas corpus (a writ requiring a person under arrest to be brought before a judge or into court, esp. to secure the person's release unless lawful grounds are shown for their detention), then Due Process is a joke.

I think our leaders have sunk us down to the level of the extremists. The fact that we would even argue about whether we are breaking the Geneva Conventions is a sad, sad, state of affairs. The fact that we call them "enemy combatants" to try and circumvent the title "prisoner of war" speaks to what depth we will go to. We use double speak to avoid the reality: We don't "torture", we use "alternative integration techniques". We don't have "prisoners of war", we have "enemy combatants". Is this what our nation has become? I guess we have done away with taking the high moral ground.

Re:Habeas Corpus not "revoked"

[Anonymous Cowpat]

Nobody said anything about using the US military to defend foreigners right, simply requiring the US military to exercise enough self control that it doesn't violate those rights itself. What's so hard to understand about that? We're not asking for US Marines to start busting people out of prison who are being held without charge by other governments, we're asking that the US military doesn't hold people without charge itself.

Re:Habeas Corpus not "revoked"

[fredrated]

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?

Also, your 'end of conflict' has no meaning here since there will never be an end to terror, it is as old as mankind and will exist until the end of days, so your 'end of conflict' release does not exist in a 'war on terror'.

Re:Habeas Corpus not "revoked"

[mmeister]

Torture according to international law: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

While some of the torture may mimic a 21 year-olds partying life, it is INTENDED to inflict severe mental pain and suffering. The dropping of "a book" misses that you're dropping what to the person is a holy book. The INTENTION is to belittle, demean and humiliate the person and/or his belief system. I believe that many Christians might find dropping "the book" (aka Bible) in the toilet to be just as demeaning and degrading to them.

We have some folks that enjoy being tied up, gagged and whipped and others that actually like being pissed/deficated on. That does not mean we should be doing that because some folks "enjoy" that sort of thing.

Re:Habeas Corpus not "revoked"

[electroniceric]

It's easy to get caught up in feeling that it's wrong to imprison *any* person indefinitely without the prospect of a trial, but we are, in fact, talking about military prisoners, and the old way of doing things was typically to execute them (especially spies, saboteurs, and those engaging in war in such a way that they were easily mistaken for civilians). I'd say this is an improvement over that policy, from a human rights standpoint.

Tell that to the tens of millions of souls who died in World War 2, a segment of history that your argument leaps right over. Humanity worked out the Geneva Conventions (especially the Third) precisely about this and the issue of torture after that massive and horrible war made clear that any other way of dealing with humanitarian concerns in wars was brutal, stupid, and ineffective. In those days and the 50+ years that followed, we were the standard bearers for dealing fairly and humanely with all people engaged in conflict, and it was precisely those standards that made us the leader of the free world. We led honorably and by example when the chances of any given American civilian dying at foreign hands were probably 10000 times what they are today. I find it hard to believe that anyone can convince him or herself that the danger from some disaffected radicals comes anywhere near the kinds of threats we faced from the Axis powers or from the Soviet nuclear arsenal. Yet amazingly, the people who claim being afraid of some angry dudes in a cave is tougher than trying to build a safer world by balancing power with diplomacy still seem to get listened to.

The torture and the suspension of habeas corpus authorized by the Bush administration directly tread on the Geneva Conventions. Even when the kangaroo courts don't conflict with the letter of the law of those treaties, they sorely damage our reputation for fairness and transparency. Talk about making us unsafe: when we make people unwilling to trust our leadership, we have to resort to military force more and more. Don't get me wrong: military force is a necessary part of building security. But it can never supplant the need to win hearts and minds. Fair, humane, and transparent standards of law are what win us hearts and minds, and the sooner we restore them, the better we do at make the world and ourselves safe.

All of this is true broadly, without even making reference to the fact that many of the people in Gitmo are demonstrably neither terrorists nor enemy combatants. That they are in the "No-Habeas Zone" at all is a testament to how foolishly our government has neglected HUMINT in favor of whizbang technological solutions like Carnivore and WarrantlessWiretappingTM (sponsored by AT&T). If we had a decent set of informants, operatives, sympathizers and soldiers that spoke languages like Pashtun and Farsi, we'd have a hell of a lot better idea of who's on what team when we move into a country. Instead, because few in our military and intelligence apparatus speak the local language, we wander around taking people at their world and getting sucked into local conflicts and politics. We got bamboozled by Iran into taking out their enemy #1 one, now we're getting drawn into power struggles between Iraqi factions, we picked up a bunch of dudes in Afghanistan that got ratted on, and we detained and shipped off for torture lots of people that we didn't know anything about.

There's nothing tough-minded about torture or undemocratic no-habeas courts. It's just old-fashioned brutality. The toughest guy on the playground isn't the bully, it's that quiet, strong dude who sticks up for the little guy - even when the little guy is a pissant.

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.

Re:Habeas Corpus not "revoked"

[blueg3]

Surely you read the page on unlawful combatants, who, while not afforded the protections of the Geneva Convention as a Prisoner of War, must be prosecuted according to domestic law, retaining all the rights of a civilian. Further, if a person is detained in military conflict and their status cannot be determined, they are to be treated as a prisoner of war until a competent tribunal can determine their status. Believe it or not, the law is not "if you're not a U.S. citizen and you're not a recognized enemy combatant, you have no rights". Or, I should say, was not.

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"

[ajs]

It would be ridiculous to try to made the document apply to people outside of the US

There is only one Constitution, and that document only applies to the government, at all times, period. There is no "special" Constitution outlining the powers of the government with respect to non-citizens. Thank you.

We so often think of the Constitution as a laundry list of favors that the Government, in its all-powerful benevolence, has decided to grant us. It's not. It's a list of the ways in which we, the people choose to limit our form of government. It doesn't grant you the freedom of speech, it prevents the government from taking it away.

The Constitution outlines the limitations of the Federal Government of the United States. It doesn't say that laws concerning non-citizens can limit speech, it just says that laws shall not limit speech. Thus, no law (concerning any person) may limit speech.

Anyone who tells you that the Constitution doesn't apply to non-citizens needs to re-read the document because while they're correct, that fact doesn't mean what they think it means.

Re:Habeas Corpus not "revoked"

[enjerth]

As you can read here, a Declaration of War and an authorization for military action are NOT the same thing.

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.

Hence, if they are criminals, they should be detained and tried where they committed said acts of aggression.

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"

[hunterx11]

America was founded on the premise that rights are inalienable and that governments must not abridge these rights. It is certain more convenient to treat rights and privileges and to disregard the rights of others; it is even in some cases perhaps even legal. Does that make is desirable? If the Constitution does not apply to non-citizens, we can simply torture them to death and rape and kill their non-citizen families, too, but I think there are plenty of extra-Constitutional arguments against these things.

Re:Habeas Corpus not "revoked"

[StikyPad]

If any army in the world invaded the US, I would expect every citizen to take up arms against them, uniformed or otherwise. Would you still say "Eh, it doesn't matter how they treat us. We're not covered under the Geneva Conventions. We really should have joined the Army, even though the Army was decimated and no longer exists in any recognizable form." War is a last resort, not something we should make any worse than it needs to be. Sure, there's a strong argument that we shouldn't let enemy combatants, lawful or otherwise, return to the battlefield while we're still engaged in combat, but there's an equally strong argument that we should treat them with basic human dignity while they're in our custody. Even if you don't believe that someone should be treated with dignity once they have wronged us (which runs counter to the principles we espouse), you have to consider the practical angle that we're creating poster children for the cause against us. When these people are released -- and short of creating actual martyrs through execution, they WILL be released someday -- they will have enormous political capital and respect among their peers, and stories, likely exaggerated, of how they were treated. What will we say then? "We didn't put their lives at risk, we just made them think their lives were at risk." "We only denied them sleep despite the volumes of evidence that sleep deprivation causes psychosis." "We let them plead their case, we just didn't let them see any of the evidence against them or face their accusers." Perfectly acceptable behavior.

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.

Disgustingly Partisan Vote

[Kelson]

Republicans voting yes: 6 out of 49 (1 non-voting)

Hagel (R-NE)
Lugar (R-IN)
Smith (R-OR)
Snowe (R-ME)
Specter (R-PA)
Sununu (R-NH)

Democrats voting no: none

Every single Democratic senator voted in favor of the amendment. 85% of Republicans voted against it.

Its just sad that legislation to confirm a constitutionally-guaranteed right which (in theory) protects people from government abuse has been reduced to partisan bickering.

Re:Disgustingly Partisan Vote

[eln]

The whole country has been reduced to partisan bickering. There is no independent thought anymore. You pick a party, and you automatically agree with whatever they believe in. Individual critical thinking does not enter into the process at any point.

Re:Disgustingly Partisan Vote

[Kelson]

The whole country has been reduced to partisan bickering. There is no independent thought anymore. You pick a party, and you automatically agree with whatever they believe in. Individual critical thinking does not enter into the process at any point.

And that's the tragedy of it. Sure, part of the point of political parties is so that politicians can pool resources and have built-in allies. But automatic support shouldn't be unconditional support. You should get more people like Specter & co. who said, "This is a good idea no matter what the party leadership says." And it shouldn't translate into unconditional opposition for the other party.

It's been reduced to the level of a football game. Politicians are more concerned with which party "wins" than with what's actually a good idea. And the general populace is just as bad. There's a disturbing number of people -- or at least disturbingly vocal people -- who make the leap from "Dubya/Hillary/whoever supports position X!" to "I must oppose X!" without stopping to think that no, if someone on my side had proposed the same thing, I would be in favor of it. (And vice versa of course.)

Re:Disgustingly Partisan Vote

[Kelson]

Not 'partisan'. Republican.

If you want to get technical, more Republicans broke with the party line than Democrats. You can interpret this one of two ways:

1. There are more independent thinkers among the Republicans than the Democrats, or:
2. This was a generally good idea, causing independent thinkers of both parties to vote "yea."

Take your pick.

Re:Disgustingly Partisan Vote

[RingDev]

1) Lieberman keeps the D after his name so that he can distance himself from the social stygma of being associated with the Republicans. But his voting track record much more strongly reflect the Republican party than the Democrat party.

2) Luckily for us, you didn't write the US Constitution. The US Constitution specifically states that all men* are created equal. (* men having the modernized meaning of people). The Constitution is a rule set for how the Government can interact with people. The Constitution does not GIVE you rights. You already HAVE rights, they are inalienable, you were born with them, along with every other person in the world. The Constitution defines what the Government can/cannot do in relation to those rights. It doesn't give you the right to free speech, it prevents the government from limiting your speech. It doesn't give you the right of habeas corpus, you already have it. It prevents the government from taking away anyone's right to habeas corpus.

The administration has been playing fast and loose with the rules, using fear, scare tactics, and marketing to twist people's view on what the constitution is, and the legitimacy of what they are doing.

The bitch about this specific law and the actions of the administration is that it IS unconstitutional. But congress doesn't have the votes to tear into it, and the supreme court is only going to hear cases where the plaintiff is someone who was detained. But if the detainees have no recourse, they have no way of filing for a hearing in front of the supreme court.

-Rick

Re:Disgustingly Partisan Vote

[mmeister]

I'm sorry -- you can say what you want, but this makes the United States no better than Saddam Hussein, Fidel Castor or anyone else.

> habeas corpus is NOT constitutionally guaranteed to non-citizens captured outside of the US as terrorist suspects

This is a catch-22. We capture someone, call them a non-citizen terrorist suspect and because there is no habeas corpus, we now can lock them up indefinitely with no charges. That's the reason habeas corpus exists. Way back when, the King would lock up people with no recourse, no charges were necessary. It's a great way to deal with "the enemy" except we've defined the enemy as some ideological entity that could be anyone. Therefore, anyone can be "the enemy".

We have sunk down to the very level of dictators and extremists we have overthrown or claim to be fighting. Sadly, this is likely the exact outcome that someone like Bin Laden was hoping for. We essentially are turning on ourselves.

We apparently learned absolutely NOTHING from the 1950s communist scare. Just dig up all the communist scare tactics and replace the word "communist" with "terrorist".

Do unto others...

[Lucas123]

as you would have them do to you". Luke 6:31

Re:Do unto others...

[michrech]

Naa, naaa.. You got it all wrong, 'ya see.. It's .. uhh.. "Do unto others.."...."uhh.."... "Do unto others before they do unto you. I can't get fooled again." "heh heh heh heh heh..."

G.W.

as you would have them do to you". Luke 6:31

Re:Way to go Democrats!

[moderatorrater]

The only democrat who voted nay was Lieberman, who's not even a democrat any more. The problem is that the democrats don't have a 3/5 majority, even with 6 republicans voting outside their party. I think the people you need to be thanking about the republicans how stuck to their party line instead of doing what they know is right.

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:This is being reported incorrectly

[mabu]

Obviously that "liberal media" we hear so much about.

Re:This is being reported incorrectly

[MrAtoz]

Mod parent up, please (I'm using up mod points to post a followup). Here's a McClatchey story (with graphic), showing how bad the GOP filibuster threats have gotten. At the current rate, they will have forced cloture motions 153 times, three times the average over the past few years. All this to keep The Decider from having to take responsibility and veto something that the majority of US citizens approve of (like habeas corpus). While the reporting on these votes (including Webb's bill mandating more at-home time for troops serving in Iraq) is totally lame and misleading, I have to blame the Democrats for failing to make any stink about this at all. They need to be constantly harping about "obstructionist Republicans", etc. etc. Or, instead of just letting them threaten a filibuster, make them actually do it -- that would give the press a great story to report, and would force all these Republicans to explain how much they like torture, long tours of duty for soldiers, etc.

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:Granting Habeas Corpus To Our Enemies?!

[Yusaku Godai]

Those who would seek to have our Constitution destroyed? You mean like Nalini Ghuman, a British musicologist who taught in the US until she was detained for no given reason, denied access to legal counsel, and excluded from any sort of due process only to have her visa and passport destroyed and be deported.

Yeah, good thing we god rid of that one. Shit, if she had had a chance to have crimes (what were they again?) reviewed by a judge, there's no telling what havoc she'd be wreaking upon our nation and our children. What a horrible, horrible person.

Yeah, destroying the Constitution in order to protect it makes so much more sense than using our existing Constitutional powers to prosecute and detain those who actually do wish to destroy it.

Re:A pox on both their houses and slashkos too

[GodfatherofSoul]

Why does it seem all the Slashdot political articles seem to pop up only when they show the Democrats in a good light (which I admit isn't so difficult to do these days)? The sponsor of this particular bill was a Republican.

In case you haven't noticed, 6 straight years of a Republican Senate, House, Presidency, The New Cheney Branch, and Supreme Court (ALL facets of our government) have resulted in unmitigated disasters both at home and abroad. That's what you get for electing people to run your government who think government is a bad thing. Don't try to blame this mess on BOTH parties now.

Of course its Constitutional!

[Baldrson]

The reason suspension of Habeas Corpus is Constitutional is that the government knows the people are going to rebel against to due to its suspension, and rebellion is a condition under which the suspension of Habeas Corpus is Constitutional. Do I get to be on the Supreme Court now?

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

Thank you Dave Schroeder

[kad77]

The submitter's Nation link was quite biased, and intentionally lied by omission and distortion of the facts.

I appreciate you bringing some logic and sanity to the rabid 'digg-like' politics section of /.

Thank you for being here.

The letter I've written to my two senators...

[deander2]

The letter I've written to my two senators:

Mr. xxxxxxx,

I was shocked and appalled today by your "no" vote to reinstate habeas corpus via Specter Amdt. No. 2022. I believe that while terrorists are a threat to America, the threat of a government able to indefinitely detain it's own citizens without charge is greater. Habeas corpus is a basic human right dating back over 700 years, and America set out on the wrong path when we abandoned it. If people we have detained are criminals, let's please convict them in the manner that has served our great nation for over 200 years. I urge you to please change your position.

Sincerely,
Derek Anderson

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:GC loop hole

[dcollins]

"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."

Blah blah blah Might Makes Right.

The U.S. signed and ratified the Fourth Geneva Conventions. (http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P) We promised to uphold those principles. If we don't, then we're a bunch of immoral liars.