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SCOTUS Grants Guantanamo Prisoners Habeas Corpus
beebee and other readers sent word that the US Supreme Court has, by a 5 to 4 majority, ruled that the Constitution applies at Guantanamo. Accused terrorists can now go to federal court to challenge their continued detention (the right to habeas corpus), meaning that civil judges will now have the power to check the government's designation of Gitmo detainees as enemy combatants. This should remedy one of the major issues Human Rights activists have with the detention center. However, Gitmo is unlikely to close any time soon. The NYTimes reporting on the SCOTUS decision goes into more detail on the vigor of the minority opinion. McClatchy reports the outrage the decision has caused on the right, with one senator calling for a Constitutional amendment "to blunt the effect of this decision."
Recommended reading that didn't make it into this story's writeup:
Glenn Greenwald, Supreme Court restores habeas corpus:
Glenn Greenwald, Conservative vs. authoritarianism:
The decision itself, with my favorite passage being:
In that passage, the Court upbraids the Bush administration, which sought this unconstitutional law and argued to uphold it, for claiming that the President has the right to "switch the Constitution on or off at will." The Court is absolutely correct about this, there is no doubt that this is what our current President has attempted. And the Court is correct that this is an attempt to circumvent the system of separation of powers that is at the heart of the "basic charter" on which the United States was founded.
The fact that this decision was a slim 5-4 majority, with this President's two appointees making up half the dissenting view, is a frightening thought.
They left off that in Scalia's dissenting opinion he said things like:
"The game of bait-and-switch that todayâ(TM)s opinion plays upon the Nationâ(TM)s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed."
"Today the Court warps our Constitution."
"The Nation will live to regret what the Court has done today."
PDF
Fnord.
Hard to believe that such a fundamental wrongdoing only gets overturned by a 5 to 4 decision though
That's the horrendously sad part of this ruling. Reminds me of an interview I saw with Scalia saying something about whether torture in questioning a subject could actually be considered "punishment" and hence exempt from the cruel and unusual standard.
I'm sorry, I don't care how engaging he is personally, his beliefs undermine the Constitution and separation of powers. All four of them threaten the very ideals that formerly made America the envy of the world.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
I guess so...eventually. Now for the guys who've been locked up for the past 6 years without charge, that might seem like a long time. Now, about those ships?.
The Bush Administration's definition of "enemy combatant" was based on Ex Parte Quirin, which dealt with the German sabeteurs who landed on Long Island, New York during World War II. The Quirin case underscores why we need courts even for enemy combatants.
You see, George John Dasch was one of the enemy sabeteurs, but he actually hated the Nazis. He took this to be a chance to defect to the US. Ernst Peter Burger, another one of the sabeteuers, was like-minded. The two of them tried very hard to turn themselves in, but were stopped by an unbelieving FBI. Dasch was only able to turn himself in when he threw $84,000 in mission funds onto the desk of a FBI agent. Under interrogation, he revealed the whole Nazi plan.
But the FBI claimed it was their great work that lead to the capture of the Germans. All the Germans were placed on trial before a military tribunal. The original verdict was a recommendation of death, even for the man who turned the group in. Burger's sentence was commutted to life, and Dasch was sentenced to 30 years in prison. It was only after W.W.II ended that the truth came out, and they were released and deported to Germany.
Without trial, the truth will never go out. As a democratic society, we have to dedicate ourselves to protect civil rights for all.
A NYC lawyer blogs. http://www.chuangblog.com/
A lot of them were not "captured on the battlefield." They were turned in by locals, in return for large rewards - and the opportunity to take over their land, etc.
Many in gitmo are known to be completely uninvolved - for example, the Uyghurs: the US government is desperately seeking somewhere that will take them in. They were just "captured" because their neighbours wanted them out of the way.
I'm not going to defend everything this administration has done, but in fact, it's the other side trying to have things both ways. Those who do not abide by the Geneva Convention are not entitled to protection under it, by its own terms. Being captured while engaged in acts of war but not wearing a uniform that marks one as a combatant means you are *not* a prisoner of war and *not* entitled to protection under the Convention, as specified in the Convention itself. Curiously, this point seems to be ignored by most media reports.
Your interpretation does not match that of US law. In the US, a contract where you give up an inalienable right is automatically null and void. If people could sign themselves into slavery, there would by people out there manipulating them into doing so. If I had enough money, I could bankrupt you and leave you with no other option but to accept slavery voluntarily. Thankfully, we don't live in a country like that.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
were appointed by Bush.
Anyone at all surprised by that?
They specifically agreed to be bound by the Uniform Code of Military Justice and to be tried in our military courts. These alleged criminal enemy combatants did not make those agreements, nor are they being considered POWs. It is therefore right that they receive the same treatment as anyone else accused of criminal acts under US jurisdiction.
That being said, what you should really be asking is why are these hand-picked individuals so easily appointed to these positions?
Those who believe the Internet is private,
find their privates are on the Internet.
The "citizens" are protected in some ways by the Constitution and "people" in other ways. The rights to speedy trial, indictment, to know your charge, to the counsel of an attorney, to face your accusers, and to subpoena witnesses in your defense are guaranteed to people, not just citizens.
Supreme Court justices are political appointments. That's one part of the Constitution that Bush is very much in favor of.
The US Constitution overrules the Geneva Conventions. There are provisions for the suspension of Habeas Corpus, but as expected the Bush administration has been unable to justify it.
If they had been uniformed members of a national army, they would be "Prisoners of war".I imagine many of them were soldiers of either the Taliban or of the military unit(s) sponsored by Al Qaeda and fighting for the Taliban in Afghanistan. That would make them members of a national army even if they weren't properly uniformed.
We treat these people in Guantanamo Bay fantastically well, out of the goodness of our hearts and respect for their basic humanity, such as it is. We are not required to do anything more. These people certainly should not have any access whatsoever to US civil or criminal courts.Don't waste our time with such tripe. We imprison them, attempted to hide them and deny access by the Red Cross, and interrogate and torture them. That rules out "fantastically well".
Would you please actually read the Geneva Convention! They do not qualify for POW status - but POW status is an extension of rights granted to all citizens in a conflict area, regardless of their status. There is no unlawful enemy combatant classification in the geneva convention - they still get basic rights, which includes (among other things) an actual court to determine that they are, in fact, not POWs, and basic legal protections (including habeas corpus) found in all western legal systems.
http://en.wikipedia.org/wiki/Unlawful_combatant
I was wondering what the supporters of the detention practice would think if Americans were captured and brought to detention facilities in a foreign country or it's territories; and at those facilities, the detainees were forced to confess through duress or even torture. They are branded "enemies" and treated as prisoners in war.
Oh, wait. They already do that--except we call it kidnapping. The difference is we know they are the evil ones, right? (Well--we don't behead them on video so that makes us less evil).
It's funny how the current administration's practices parallel the rise of the Nazis in the early 20th century. Well, not funny "ha ha" but more like funny "uh oh."
It all starts with removing freedoms. First for some but, inevitably, everyone. The Enabling Act and the Patriot Act are eerily similar.
I might know what I'm talkin' about, but then again, this is Slashdot...
Idiot.
So the point is not that the Magna Carta is legally binding precedent under US law: it's that it any rights which were guaranteed to individuals under the Magna Carta should be considered obviously settled by now.
Incidentally, I found the following further down in that article:
That particular decision contains the following passage:
So the Magna Carta is important for consideration not only because of its influence on the US Constitution, but also because it has been cited in US case law.
References:
Sheesh, people. The Constitution applies to the AMERICAN CITIZENs that make up the Executive Branch, including the Army (of which the Chief Executive is also the Commander in Chief).
Are you going to argue that you can kill a Canadian on US soil because he has no rights under US law? That's ridiculous. The laws prohibiting actions do not apply based on the victim.
What makes this case special is that POWs are covered by treaty. POWs are not held for criminal actions; they are held to prevent them from participating in the war. The treaties (chiefly the Geneva Convention) state that holding POWs until the end of hostilities is OK, as long as you treat them right.
The problem is that Bush and his SCOTUS pets want to treat the detainees as POWs in the sense of American law not applying to them, but also as "enemy combatants" so that the G.C. does not apply. The SCOTUS decision is basically saying that Bush cannot invent a new status to weasel his way out of the law. Either the detainees are POWs, and have rights under the law, or they are criminal suspects and they have a different set of rights under the law.
If Bush would just call them POWs, this whole debate would be moot. But he wants a double-standard so he can ignore the law.
Some of these people were kidnapped by warlords, and handed over for a large sum of money.
Basically, the US is paying criminals to kidnap innocents, and then they imprison and torture these poor people, without a chance to be tried or heard or to have contact with the outside world. Their families might not even know what happened to them. They just disapeared.
The US has become the monster in the night that people fear.
You can't take the sky from me...
why does the U.S. Constitution apply to foreign nationals captured and held in places that are not the U.S.?
The Constitution describes and limits the powers of the US Government in this case, not foreign nationals. If the government chooses to imprison a person, it must charge that person with a crime and prove their guilt in court. No law gives the government the power to imprison people indefinitely without cause.
but not the right to vote in U.S. elections (yet), to bear arms, or the responsibility to pay U.S. income taxes
What the hell are you talking about? The law states specific requirements for voting, carrying a concealed weapon, and paying taxes. It does not state specific requirements to be eligible for a trial.
will Al Qaeda reciprocate?
Until the imprisoned have a trial, you have no reason to believe that they are or ever have been associated with al Qaeda. I understand if you have a difficult time being objective about this. People should be angry at terrorist attacks. At the same time, you have to be able to think rationally and realize that if these people are guilty, then we should be able to demonstrate that in court first and lock them away afterward. It's a straightforward process that protects innocent people from being detained by mistake. Why would you not want to protect the innocent?
how do you fight a war under rules that were designed for domestic law enforcement?
What makes you think that the imprisoned persons at Guantanamo were captured in war? Many of them were apparently captured by the Northern Alliance in Afghanistan. We paid them for the prisoners. Doesn't that strike you as a situation with a tremendous potential for abuse? Don't you think that we should review the evidence that those prisoners were actually combatants to avoid imprisoning the ones that weren't?
No, the solution is to just treat them like crap. Bush is determined to not find out if they are really enemies.
And by a very strict literal interpretation of the constitution, the government can only suspend Habeas Corpus in cases of "rebellion or invasion"
The claims to Soviet labor camps doesn't surprise me. There was an extreme mortality rate in the gulags and the treatment of POWs was almost on par with the treatment of Jews in the Nazi concentration camps (the gulags only lacked the systematic execution).
I see the glass as full with a FoS of 2.
There is little evidence of a conspiracy, since Kennedy and O'Conner were swing voters. The 2000 ruling was based more on the minute details of law than anything else. However, justices like these are rare. The other 8 justices are split evenly along idealogical lines, which they rarely cross. Interestingly, though, two of the liberal wing justices were appointed by Republicans: Souter (appointed by Bush 41) and Stevens (appointed by Ford). It is only recently that we see Presidents appointing justices who are this ideologically rigid.
I came here for a good argument
Especially when at least 2 of the 4 dissenters (Scalia and Thomas) are supposed to be Originalists that adhere to a strict interpretation of the Constitution. Apparently that goes out the window when it comes to servicing King George.
The ruling is narrow and applies to cases where the government tries to move inmates to a US controlled prison camp off of US soil. The only reason these people were sent to Guantanamo was so the government could claim that they didn't have to grant inmates their rights: It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government.
I came here for a good argument
McCain opposes the restoration of Habeus Corpus. Get your facts straight before you regret your decisions later.
My sole argument is that, under US law, the Magna Carta cannot be used as the basis of the argument, because it is not part of the US legal system.
The United States operates under a Common Law system, so in a very real sense it is. It's non-binding in a statutory sense, but that is not the only sense that matters in our legal system.
The enemies of Democracy are
I think you should take in a few of the "innocents"
http://www.allheadlinenews.com/articles/7010883859
http://www.usatoday.com/news/world/2007-06-27-russia-gitmo_N.htm
http://abcnews.go.com/International/wireStory?id=4033420
http://www.rferl.org/featuresarticle/2006/03/fbc50158-46a9-4921-80db-195b1fe720b8.html
http://www.france24.com/en/20080508-suicide-bomber-former-guantanamo-detainee-usa-iraq-mosul-kuwaiti
http://archives.econ.utah.edu/archives/cubanews/2007w46/msg00251.htm
So once you've got Omar Bin Whackjob and a few of his friends settled into your home, why not pick up a few 100lbs of Fertalizer and leave him your credit card so he can rent a truck?
Who would you consider non-biased? The sources for this paper are available. The person who wrote it could be considered biased, but the numbers are taken straight from the detainee files. The people are, by and large, not people who were picked up by US troops on the battlefield.
If you're interested in a broader examination, I recommend the This American Life program on the topic. Transcript and audio can be found here. It has become clear to me that although the people running these things have good intentions, the result is that we're casting a wide net and sweeping up a lot of people without appropriate protections. Kangaroo courts don't count, and I think that the Supreme Court was right to come in and attempt to bring sanity to the process.
An interesting anagram of "BANACH TARSKI" is "BANACH TARSKI BANACH TARSKI"
Here.
Salient extract from the summary:
1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States 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% are 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. Eight percent are detained because they are deemed âoefighters for;â 30% considered âoemembers of;â a large majority â" 60% -- are detained merely because they are âoeassociated withâ 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.
Also from the report:
The United States promised (and apparently paid) large sums of money for the capture of persons identified as enemy combatants in Afghanistan and Pakistan. One representative flyer, distributed in Afghanistan, states:
Get wealth and power beyond your dreams....You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murders. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.
Bounty hunters or reward-seekers handed people over to American or Northern Alliance soldiers in the field, often soon after disappearing; as a result, there was little opportunity on the field to verify the story of an individual who presented the detainee in response to the bounty award.
I think the report is fairly damning.
The move to Albania meant the US government could, "avoid having to answer in court for keeping innocent men in jail," lawyer Barbara Olshansky said.
I recall hearing an interview with them, where they sounded quite desperate about been stuck in Albania, never able to get back home.
Never express yourself more clearly than you are able to think. --Niels Bohr
http://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp
I believe that the characterization of "a majority of the Guantanamo" being captured by people other than US military (not necessarily bounty hunters) originates in the Mark Denbeaux's "Report on Guantanamo detainees: A Profile of 517 Detainees" from 2006. See the Wikipedia article, which though fairly badly written does in my opinion give a fair assessment of the report and its findings.
http://en.wikipedia.org/wiki/First_Denbeaux_study (link to the actual 30 or so page study can be found there too).
I don't know what you would consider a "NON BIASED Source" nor do I much care - your typographical choices annoyed me. The Denbeaux study is well-referenced and everyone willing can read it themselves.
Computers are useless. They can only give you answers - Pablo Picasso
Water boarding is definitely torture. (More, I think, than being forced to eat your own shit, which is neither terror-inducing nor immediately threatening to your life.) No one except a handful of far-right talking heads believes otherwise. The UN considers it torture, the US Defense Intelligence Agency considers it torture, and the US has prosecuted Japanese military members who used waterboarding against US prisoners with the understanding that it was torture.
There are a lot of people who deserve suffering. Many throughout the world might hold the US Joint Chiefs of Staff as culpable for comparable losses to their loved ones - and then the people who pay for and support them. But law, national or international, isn't about the grudges of the wronged.
Source? I know a former German POW in the US. He claims to have been treated well. I also know one who survived being a POW in Russia. His stories are nightmare inducing.
I see the glass as full with a FoS of 2.
Furthermore, the constitution spells out the powers of the government - everything not listed is prohibited to the federal government - while everything not listed is assumed to be the rights of the people (or states).
And one last point, more for rah-rah than anything else - the declaration of independence does not say that only "all citizens are created equal."
When information is power, privacy is freedom.
Yes, the Supreme Court apparently did argue that privately-grown marijuana (legal in a few states) can be "regulated" by the federal government because it interferes with commercial marijuana traffic (illegal under federal law). They actually did decide in favor of illegal drug traffic and against the legal local producer.
Professional satirists wouldn't have the nerve to come up with a plot line like this.
Those who do study history are doomed to stand helplessly by while everyone else repeats it.
I bet they will be absolutely _crushed_ to hear that.
The source is irrelevant, Cheney is widely quoted as making those remarks. He has never issued a correction/retraction/denial.
You really don't have the slightest idea what you are talking about, do you?
Go and play with your toys, and leave the serious conversation to the adults...
*** Where are we going? And what's with this handbasket?
Both of my girlfriend's German Grandfathers were captured on the Eastern front and sent deep into the USSR to work and weren't repatriated to Germany until 1948. One fell and broke his leg so badly that he was of no use in the labor camp so they sent him home. The other was so good at what he did, mason?, that they sent him back to E. Germany to work there.
Some of these people were kidnapped by warlords, and handed over for a large sum of money. Such as Omar Khadr?
A fifteen year old Canadian boy whose father was a terrorist sympathizer and took him to Afghanistan. Without his father's knowledge, other men took him to where a firefight broke out. The hut was attacked from the air but Khadr survived, wounded and blinded in one eye. Kneeling and unarmed, he was then shot twice in the back.
He was stabilized then tortured before allowed to fully heal.
For those of you who like saying, "He was a terrorist, he deserved it." Take a look at this picture. Be warned. It shows what a fifteen year old Canadian kid who's just been blown up and shot looks like. Now ask yourself how good you feel that your people then tortured him.
By any reasonable standard, he was a child soldier, pushed in to things by his father. Torture is sick. Torturing a wounded child is contemptible beyond any possible standard of humanity.
My guess at the main reason they don't want him free (trial would lead to it due to "fruit of a poisoned branch" meaning all of the torture based evidence would have to be tossed)? Imagine how well that kid, along with that photo, telling how he was tortured when he should have been rehabilitated like any other child soldier, would play when he went on Oprah?
The parent left out Anthony Kennedy, who wrote the majority opinion for the "good" guys.
Maher Arar is another case. He was deported from the US to Syria where he was held and tortured for a year. Then suddenly released without charge. The people responsible for his initial detention within CSIS (Canadian counterpart to CIA) and the RCMP (counterpart to FBI) have not yet been identified nor punished for their role. Not only did they cause this to happen, but they kept leaking biased info to the media during the inquiry that cleared his name.
As a side note: the "el-" vs. "al-" is just a dialectical thing in Arabic. The proper classical Arabic is "Al-" meaning "The". El-Masri means "The Egyptian". In all of the Arabic speaking countries, it would be Al-, except for Egypt and Morocco where the local dialect reverts it to "El-".
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I felt sympathetic until I read the wikipedia entry on this kid in detail. They have him on videotape planting landmines.
If you or I or anyone in the United States went and planted landmines, and there was a videotape of the crime, we would go to jail for a very long time. Fair trial or not.
Whether Khadr was tortured or not changes nothing : he still committed the crime.
The videotape was not obtained using evidence from torture, either.
Nevertheless, I do agree he was abused. The kid probably knows nothing, and they tortured the heck out of him anyways.
One of the famous stories about German POWs:
Many were kept in camps in the American South. They would get taken out occasionally to the movie theater in groups. (I mean, come on, where were they going to go?)
Black soldiers looked on as these German POWs were treated to theaters that they were not allowed into because of Jim Crow.
Amazing.
What kind of monsters would use land mines?