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."

Comments

More good reading on the decision

[jamie]

Recommended reading that didn't make it into this story's writeup:

Glenn Greenwald, Supreme Court restores habeas corpus:

In a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision (.pdf), declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus...

Glenn Greenwald, Conservative vs. authoritarianism:

To our country's pseudo-tough-guy "conservatives," the very idea of merely requiring the Government to prove the guilt of the people it wants to imprison for life or execute is so intolerable, so offensive, that they want instead to release them all -- including detainees who are indisputably innocent -- onto a battlefield so that they can be slaughtered by our planes with no trial at all. [...]

The question I put to him again and again was one that he simply couldn't answer: how and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them?

The decision itself, with my favorite passage being:

Yet the Government's view is that the Constitution had no effect there [at Guantanamo], at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).

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.

Re:5 to 4? I'm torn.

[mazarin5]

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

Agreed

[HangingChad]

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.

Re:Agreed

[smooth wombat]

I remember that convoluted nonsense and so here, for everyone's viewing pleasure, are the words straight from the (literally) horses mouth:

Scalia's comments

Re:stupid, confusing war on terror...

[darkmeridian]

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.

Re:Ironic..

[spun]

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.

Re:Hardly an outbreak of common sense...

[sammy baby]

Hello! This is US law we're speaking of. The Magna Carta has no legal bearing on US law, save as a historical footnote. God, I can't believe I'm actually responding to this, but really now:

Magna Carta (Latin for Great Charter, literally "Great Paper"), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English charter originally issued in 1215. It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or fettered â" most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment.
Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today. Magna Carta influenced the development of the common law and many constitutional documents, such as the United States Constitution.

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:

Clause 45 says that the King should only appoint royal officers where they are suitable for the post. In the United States, the Supreme Court of California interpreted clause 45 in 1974 as establishing a requirement at common law that a defendant faced with the potential of incarceration is entitled to a trial overseen by a law-trained judge.

That particular decision contains the following passage:

The principle we announce today is not a novel one. It dates back at least to 1215 and the Magna Carta (Â 45) where it was written, "We will not make men justices, constables, sheriffs, or bailiffs, unless they are such as know the law of the realm, and are minded to observe it rightly." We conclude that, under today's advanced standards, due process demands that henceforth fn. 13 a defendant charged with an offense carrying a possible jail sentence must be provided with an attorney judge to preside over the proceedings, unless he elects to waive such right.

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.

Re:Sudden?

[Scrameustache]

True, but there is a big difference from catching a German Speaking Nazi and holding him until the war is over, and catching someone who might or might not be a terrorist and you having to figure out if they are friend or foe. The worst part is that once they realize the guy they are holding isn't an eviiiiiil terrorist, they don't release them, because they would speak of the treatment they recieved, so they keep 'em, forever, without charges.

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.

Re:Sudden?

[residieu]

No, the solution is to just treat them like crap. Bush is determined to not find out if they are really enemies.

Re:Even scarier...

[residieu]

And by a very strict literal interpretation of the constitution, the government can only suspend Habeas Corpus in cases of "rebellion or invasion"

Re:Sometimes you wonder

[shma]

This opinion creates a situation that is quite silly. Anywhere the U.S. has a military base, the right to trial and evidence applies to anyone we accuse of being 'bad'. Therefore, if a bunch of 'bad' guys attack a military base in Afganistan, we must arrest the bad guys and put them on trial. WTF! Thats right, this ruling can extend to ANYWHERE the U.S. has a military base, not just Gitmo, and the implications are completely insane. The courts now "claim" the ability to dictate how the military operates on foreign soil. Idiocy. That is complete crap coming from someone who hasn't even looked at the ruling. They clearly state that this ruling does not apply in an active theatre of war (page 41) so your Afghanistan example is 100 percent inapplicable.

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.

Re:5-4 Majority

[Hyppy]

McCain opposes the restoration of Habeus Corpus. Get your facts straight before you regret your decisions later.

Re:Hardly an outbreak of common sense...

[Chris Burke]

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.

Re:Sudden?

[Lemmy Caution]

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.

Re:Sudden?

[Lemmy Caution]

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.

Re:Sudden?

[DrLang21]

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.

Re:Even scarier...

[Jah-Wren Ryel]

Except that they do use "citizens" when they mean "citizens", why then use "people" if it also means "citizens". Mod up! Everyone should be aware of that point.

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."

Re:You want to be really scared?

[jc42]

If you want an especially perverse interpretation of the Interstate Commerce Clause, look at the bottom of that wikipedia article on Wickard v Filburn:

The Supreme Court majority that decided the 2005 case Gonzales v. Raich relied heavily on Filburn in upholding the power of the federal government to prosecute individuals who grow their own medicinal marijuana pursuant to state law. In Raich, the court held that, as with the home grown wheat at issue in Filburn, home grown marijuana is a legitimate subject of federal regulation because it competes with marijuana that moves in interstate commerce.

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.

Re:Sudden?

[nick_davison]

The worst part is that once they realize the guy they are holding isn't an eviiiiiil terrorist, they don't release them, because they would speak of the treatment they recieved, so they keep 'em, forever, without charges.

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?

Re:Sudden?

[_Sprocket_]

3) Germany did not have two (three if you count the Kurds) major ethnic groups that never really liked each other and only tolerated each other because they could agree on a mutual dislike of Saddam. Tragically this was at least partly because all of the other ethnic groups in Germany had been decimated by concentration camps, but it all the same it did make make post war integration easier. Excellent post. One niggling detail, though, is exactly who hated who. My understanding is that Saddam was the Sunni's man. He may have been a bastard, but he generally looked out for his clan and the regime was largely a source of success and wealth for the Sunni.

Re:Sudden?

[ShooterNeo]

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.

Re:Sudden?

[myth_of_sisyphus]

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.

Re:Sudden?

[Lemmy Caution]

What kind of monsters would use land mines?