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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."
Sudden outbreak of common sense?
... a sudden outbreak of common sense? Hard to believe that such a fundamental wrongdoing only gets overturned by a 5 to 4 decision though -- the drawback of politicized appointees I suppose.
I'm torn on this.
I'm glad that this went through. I think it's the right thing to do.
I'm concerned that it went through on 5-4. Then again, I feel somewhat content that we do have some varying opinions within SCOTUS. I suppose I'd rather we have conflicting opinions for the advancement of discussion than 9 Justices all working towards the same agenda.
Those who believe the Internet is private,
find their privates are on the Internet.
How long have those guys been rotting down there? 6 years?
Ok -- so we capture people on the battle field in Afghanistan and take them prisoner. Bush &co. don't want to classify them as "prisoners of war," because then they'd get Geneva Convention protection.
So, reaching back to FDR, they pull this "enemy combatant" thing out of their ass and say that now they can do whatever they want. Now, the Supreme Court is saying that "enemy combatants" are somehow criminals who are entitled to the protections of the civilian legal system.
If they were just reclassified as POWs, then they could be held until the war is over -- which, like the war on drugs, it never will be. So, they could be held forever, without any need for a trial - because you can't be tried for "murder" or "conspiring to murder Americans" if you are a soldier in time of war.
But yet, Bush &co still aren't going to want to reclassify them as POWs.
Jeebus. I seriously can't wait to get a new administration that will just settle on what the status of these prisoners is so that we don't have to hear about this crap anymore. Want to keep them forever? Call them POWs. Want to try them to make some sort of b.s. point like Nuremberg? Then they get the protection of a court system.
I'm really not seeing how they can have it both ways, but then again I'm not a lawyer -- just a human (usually an exclusive option).
The system worked?
The names of the dissenting Supreme Court Justices and those nimrods that are outraged should be posted everywhere so that more pressure can be brought to bear on these idiots that it is not ok to lock people up with no legal recourse no matter what country it is.
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're the farthest thing from it. Real patriots understand why we must defend these rights, even at the cost of our lives -- because without them, we aren't the United States of America; we're just another transient tinpot dictatorship of no value and no lasting importance.
There's a difference between citizen's rights (voting, welfare) and human rights which are universally applicable (free speech, etc). My personal belief is that not being imprisoned without just cause, and being able to challenge your imprisonment is in the latter set.
I'm at a loss as to how anyone can be upset at this decision. Its not like we're turning known terrorists out onto American streets. We're just saying that the people being detained have a right to challenge their detainment.
What bothers me is that 4 Justices of the Supreme Court of the United States voted to suspend Habeas Corpus.
If this were easy, they wouldn't need us to do it!
I came here for a good argument
The constitution isn't "granted" to non-citizens, it limits what the government can do to people. Which is a good thing, since then the government can't push the constitution aside by inventing new ways to revoke citizenships.
Sorry, you don't need to be a citizen to get constitutional rights. you just need to "be there". The constitution then grants more rights to the citenship, like to elect representative and so on.
FTFA:
Of course, in WWII, Congress had declared war. The rules may be different in times of war, but, fortunately, our legal system does not recognize laws against concepts/behaviors/tactics.
Is that a "totalitarianism in the US" post; if so, this ruling is great for returning to a rule of law. Is that a "why are soldiers forced to go far away and die" post; if so, because that's what soldiers agree can happen, and the political will of the country, rightly or wrongly, sent them to fight. Is that a "terrorists deserve no rights, scumbags" post; if so, I would point out that these are accused terrorists. There have been failures in identifying them. Just like an innocent man going to jail is bad both for that man, and also because a criminal remains on the streets, locking up phoney terrorists gives us a misleading view of the world. Plus, who knows what the standard of proof is.
Your ad here. Ask me how!
We don't know the people in Gitmo are terrorists, as no charges against them have been presented, and no evidence has been put before a judge. Go back to watching Fox.
I agree with the majority decision, but I don't agree about "more pressure brought to bear" on the dissenting justices. The reason that Supreme Court Justices are appointed for life is precisely so that (in theory) nobody can pressure them to vote one way or another.
So it takes approximately 7 years between blatently unconstitutional actions by one branch to be reviewed and overturned by another branch.
Fortunately for Congress and the President, they can pass new laws and executive orders on time scales shorter than 7 years.
In between lies the downfall of democracy.
1^2=1; (-1)^2=1; 1^2=(-1)^2; 1=-1; 1=0.
We cannot allow ourselves to become the things and people we hate. We cannot become a nation that approves of torture, approves of lawless legal system, a nation that will treat others, no matter how heinous, as they would treat us.
We cannot hope to be a beacon of light in a dark sea by covering ourselves in the same darkness. Either you do the moral thing, or the immoral thing. There is a battle in this country, between those who would have us give up our morality for naught, and those who stand against them.
It's too bad, I guess, that the actual constitution isn't written in such a way as to "grant" rights; rather, it's written as a restriction on what the US Government can do. As the Government's charter, the Constitution applies to all actions of the federal government, regardless of where they are performed or who is involved.
Of course, the parts of the Constitution that talk about voting rights extend such rights only to citizens. That is a different part of the document.
I have seen the future, and it is inconvenient.
The SCOTUS just said, "Fine, you don't want to call them POWs, so now you have to go with the rules we use for people accused of crimes. Your choice, but you must choose one."
For everyone who makes fun of trying suspected terrorists in "ordinary" criminal courts, if it's sufficient for bringing murderers with less grandiose motives to justice, it'll do for ones who think they're doing it for some great cause. Heck, it's possibly more insulting to treat them like common criminals, if that's what makes you happy.
It's a great day to be an American.
Grüß Gott aus Bayern!
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 think one of the biggest issues here is that the US military wanted to act like a law enforcement agency. In the case of POWs, you do not execute them or imprison them indefinitely, because they are not guilty of anything. However, these cases cannot be tried in the civilian system, since due process has been violated in every conceivable way with these detainees, so the charges would likely be tossed immediately. Since neither was acceptable, the US Military opted for a third way, and that is unacceptable according to SCOTUS.
A 5-4 decision means that the somewhat-sane members of the court outnumbered the completely-crazy members of the court by One Single Vote. We've got ourselves a Supreme Court that's divided on the meaning of some of the most fundamental aspects American law. This doesn't bode well for the next 30 years.
-Sean
Very well said. You MUST have a right to defend yourself. Else who is to say what you are charged with is made up.
These fundamental freedoms are MORE important, not LESS important, during times of national stress. It is those times when cowards like Bush are most prepared to sell our freedom, so hard-won over the centuries, for the promise of a little temporary security.
Guantanamo is Bush's Manzanar. In the hysteria of the time it might have seemed like the right thing to do, to a few frightened people. The judgment of history will be firmly otherwise.
I piss off bigots.
cuba dumped some of its prisoners on the usa during the mariel boatlift in the early 1980s (not all of the refugees were prisoners)
simply cede guantanamo bay back to cuba. "forget" to empty guantanamo bay out first. voila, new, "friendly" landlords
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
The public will "lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges," he added.
Now, correct me if I'm wrong, aren't Judges supposed to be insulated and protected from the political system by (1) not being held accountable for untainted, but bad, decisions (2) not be part of the election process since that would mean that they would then rule in whatever way would best protect their jobs?
How in the WORLD would a chief justice of the supreme court not understand that?
Actually, it's more than that. It isn't a restriction on an otherwise-unlimited government, it's a grant of powers to an otherwise-powerless government.
"16MB (fuck off, MiB fascists)" - The Mighty Buzzard
I'm still shaking my head in disgust over a "warring talking heads" commentary on Canada's CTV network last night on this one. On the left, a Canadian professor who'd taught at Harvard. For the right, some guy I regret not catching the name of, from the conservative Hudson Institute. If it weren't the umpteenth time I'd seen it, I'd call it a classic example of the kind of brazen lying I've come to expect of these "think tanks".
/. to decide what you'd call a guy who'd lie about the content of your constitution to encourage and support the breaking of it.
I'll skip details on the other ways the guy embarrassed himself to any thinking audience - he tried maligning the Canadian's credentials at American law until the guy mentioned teaching at Harvard, for instance.
But towards the end, he actually said that the American constitution provides an exception to "for the Executive to suspend Habeas Corpus in time of WAR or insurrection" (emphasis mine). It doesn't. And there's no way a professional at that level made that big a mistake.
The framers chose all their words carefully, and it says:
http://www.usconstitution.net/const.html
Section 9 - Limits on Congress
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
INVASION, not War. What do Invasion and Rebellion have in common? Only then do you have entire armies on American soil harming its public. Only when you'd have to give whole armies habeas corpus can you suspend it. If you have few enough enemies to manage with a court system, they all get the court system.
I guess I'm steamed because it was just the night before I learned the stat that not only did 70% of Americans at one point believe Saddam personally set up 9/11, but 80% of those supporting the Iraw war did so because of that belief. Which means that terrible damage can be done to America, not to mention hundreds of thousands of innocents, by lies such as the one I heard, espoused on TV, last night.
I leave it to the Americans on
Oh, yeah, and one other part of the lie, one in support of their endless reaching for Executive power: the exception to habeas corpus is for the CONGRESS, not the Executive. The Executive can't suspend it at ALL, not unless Congress passes a law allowing it. The Executive simply can't break the law, period. Not under the Constitution.
If you can keep it.
It's been established for a helluva long time that the Constitution does apply to foreigners on American soil. The police are still bound by due process, even if the suspect is an Englishman or from North Korea. The Gitmo trick (and the unknown number of secret prisons) was to claim that the foreign detainees were not on American soil, so any Constitutional obligation was removed. SCOTUS has dispensed with that pathetic notion and finally stated that where there's smoke there's fire; in other words, if a detention center on foreign soil is still run by the United States, the detainees should have the same right to habeus corpus as if they were within US borders. This is a victory for liberty.
The world's burning. Moped Jesus spotted on I50. Details at 11.
Well, there are 7 justices nominated by Republicans, and the other 2 were suggested by a Republican. The Court is already fully packed.
The 5-4 decision split along ideological lines, with the five justices most widely considered "more liberal" voting that a CSRT doesn't qualify as habeas. The four considered "more conservative" -- including GWB's two -- voted that secret kangaroo courts are plenty good for any o' them furriners that our president wants to hold without charges.
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
The idea of not torturing someone until they confess -- quaint, really. He wants a fair trial? Oh, how cute. Thinks we're being unjust in keeping him in jail for years without charging him with anything? Aww, poor baby.
History will judge this administration, and us for not speaking out against it. And history will not be kind.
Several highly simmilar cases have come before the supreme court and all were very difficult decisions. The two most important ones were President Lincoln indefinitely detaining without trial citizens and press who spoke in favor of the confederacy. Unlike to day, where there is no declaration of war, Lincoln thought the consitution gave him the right to suspend Habeous. But the supreme court said it only applied in zones of conflict not the rear. And even under times of duress the constitution could not be switched off. Today's supreme court said almost exactly the same thing in the summary.
Then FDR also created the concept of "enemy combatants" for handling people who were spies captured inside the US boarders. While he should have treated them as Spies under war common law, instead he wanted their trials publicly suppressed and created a special tribunal outside the jurisdictions of any state but on US soil. The supremes had to argue about it. The argument was that clearly the US legal system can try people crimes so why not let it. And it would set a bad precedent for removing habeous for people captured outside war zones.
The book "In time of War" covers this an it's a great well written read. I recommend it highly.
I thought the following quote captured one aspect of the issue:
"But the real problem is the interminable detention period, which has no reasonable judicial excuse. The dissenters are quite right that America has offered a quite generous set of procedural protections for enemy combatants. But these are mocked when a detainee is an indefinite prisoner with indefinitely incomprehensible status. The problem is not the legal process but what happens when the federal government holds that process, at its whim, in open-ended abeyance. The federal government still gets a lot of leeway, and the benefit of the doubt, from the Court, especially in wartime. But ours is so nonobviously wartime, and the Bush administration has been so lax, opaque, and seemingly quite pointless in its interminable detention of a wide range of variably important prisoners, that todayÂs ruling seems to me to confirm the wisdom of both the majority and the dissent. I suspect the ruling will, if anything, cause most of these detainees to actually be tried, which would be nice, but not released, which would not be. And that strikes me as not only nice but just."
link
A good question is where does McCain stand on obeying the Constituional restrictions faithfully. Here's two articles from Reason Magazine (libertarian bent):
Longer and Shorter
Some drink at the fountain of knowledge. Others just gargle.
IIRC, changing the Constitution requires 2/3 of the House, 2/3 of the Senate, and 3/4 of the state Legislatures. Bush isn't going to change squat.
Slow down, cowboy! It has been 4 hours since you last posted. You must wait another few hours.
How do we know that they're the government's enemies? You're assuming that because they're there they deserve to be there. Me, I'd kinda like there to be, you know, evidence... that whole pesky due-process thing. I'd rather not be wasting government money and what little good-will we have left in the world holding people when we can't even reasonably say that they are a threat.
...) sieze an American. They say that for, national security reasons, they can't reveal why they are imprisoning him, or provide any evidence that this person deserved to be imprisoned. We only have their word. Is that ok? Thats what we're doing right now, and it needs to stop.
Here's a little thought experiment. The British (or Germans, or Japanese,
What scares me more is that the ruling was 5-4 instead of unanimous.
0x09F911029D74E35BD84156C5635688C0
Considering the Constitution of the United States was written largely by the same group who had written the Declaration of Independence, I think it is a difficult argument that the claims against the King would be allowed a pass for a new George.
The Declaration of Independence states that certain rights are endowed upon men by their Creator and unalienable. Among those are Life, Liberty, and pursuit of Happiness.
The charges against King George which justified the revolution included, "He has affected to render the Military independent of and superior to the Civil Power" and "For transporting us beyond Seas to be tried for pretended offences".
The preamble to the Constitution itself lists one of the reasons for its ordination as to "establish justice".
Article III section 2 states that the judicial power of the Supreme Court and the inferior courts extends to people including "a state, or the citizens thereof, and foreign states, citizens or subjects".
The 5th Amendment provides for indictment by grand jury and due process of law. It makes an exception for those serving in the military during war or public danger, but enemy combatants whether on the field of battle lawfully or unlawfully are not serving in our military.
The 6th Amendment requires that one be informed of the charges, to be confronted by witnesses against him, to have the power to subpoena witnesses in his favor, and to have the assistance of counsel. No exception for military or maritime conditions are made in this Amendment.
Considering all of these facts, and considering that the founders who wrote and supported the one document were the writers and supporters of the other, I find it difficult to believe that anyone could seriously question the legal status of people being held as criminals indefinitely under the power of the United States.
The government specifically denied that these people were POWs. If they had been POWs, they could have been held until the end of hostilities with the countries in which they were captured. Being held as criminals, though, they have no fewer rights than American citizens under the US Constitution from what I can tell.
There's nothing I've read in the Constitution which says that non-citizens under the government's jurisdiction are to be treated differently from citizens in matters of criminal law. In fact, while the Constitution at one time allowed the historic fact of brutal slavery and racial subjugation, the Articles and the Amendments make clear distinctions in many cases between the words "citizen" and "person", and most of the protections are for the more generic "person". Now slavery is properly banned by the Constitution. Foreign parties accused of crimes should not be treated any differently than citizens, or what have we learned?
While I certainly agree with you, I do have the feeling they're just going to shuffle them into the custody of other countries without so many inconvenient rights and just drop by for info as they need it.
Kind of like how the US would spy on British citizens of interest while they did the same to the US, and then share the info. Got around the constitutionality of wiretapping citizens... Until we decided to cut out the middle man.
Even people that believe in pre-destiny look both ways before crossing the street.
were appointed by Bush.
Anyone at all surprised by that?
Comment removed based on user account deletion
It's a fairly simple equation. If at any point the administration admits that the detainees have rights then they have branded themselves war criminals.
While not perfect, and sometimes it takes decades to resolve, history shows us that the US populace does not tolerate their leaders taking this kind of liberty with the truth and ignoring the spirit of the constitution, if not the letter.
I'm fairly confident that Bush, Cheney and Rumsfeld are going to be as fondly remembered as Nixon and Kissinger. The sad part of course is that the abuse will continue until morale improves.
XML is a known as a key material required to create SMD: Software of Mass Destruction
"16MB (fuck off, MiB fascists)" - The Mighty Buzzard
Actually, you've hit the crux of the matter. The only mechanisms allowing for the US to hold anyone, weither within or without the US, are the geneva conventions, or the constitution. This administration was declaring that it did not have to follow either. This decision only hammered down that there are, and continue to be, only two legal mechanisms for US forced, weither military or civilian, can hold anyone, and that is through either the geneva conventions or the constitution, and that this administration has to decide which of them will apply.
You are right, they should not pick and choose which rules apply and don't. So, remind the president of that today, and have him either a) fully apply the geneva convention or b) fully apply the constitutional provisions for courts. If you can find me another, legal mechanism for holding them, please, inform me and the SCOTUS, as so far, none has been presented.
Karma Whoring for Fun and Profit.
The idea that this debate should be a matter of politics vs. morality scares me more than any terrorist act to-date.
There's a reason that I believe Bush is the most successful terrorist in the world.
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.
If we behave like Al Qaeda, how can we call ourselves the "good guys"?
Obviously, the procedures for soliers in the field are different from the procedures for dealing with street criminals. How did we deal with war in the past? I'm sure we didn't worry about "due process" with the Nazis, but niether did we hold them indefinitely. Shoot them, try them, or release them.
Slow down, cowboy! It has been 4 hours since you last posted. You must wait another few hours.
The Constitution doesn't give us rights. The government doesn't give us rights. We have rights, inalienable rights, that come from "the Creator", whatever that is. The creator is a mysterious, unspecified entity, but it is not the Constitution or the government.
We, the people, create a government to protect those rights. In the USA, we (our forefathers) wrote a Constitution that our representatives explicitly agreed to support and defend. That Constitution creates a government from nothing, that protects those rights.
Those rights are inalienable. Even when the government fails to protect them, we still have those rights. But unless they're protected, we might not have the freedom to exercise them. That is why we create that government, which has no other power or even existence other than as we create it under the Constitution.
Americans aren't magically different from any other people. All people have the same inalienable rights. But what Americans have that is different is an American government that protects those rights. Foreigners have their own governments. It's up to them to protect their rights with their governments. Often they do not. But though it is in America's interest to help everyone we can to protect their rights, it is not automatically America's government's obligation to do so, unless Americans so instruct it. Even when we do, America is obligated to merely help those people free themselves , so they are free to create their own governments to protect their own rights.
That is what is fundamentally wrong with the Iraq War. Wrong with any occupying American government abroad. It's what was right with the US conversion of Japan and Germany from their tyrannies after WWII: we worked for several years to free those people, who then created their own governments.
But though we're not obligated to free anyone but ourselves, though our government is not obligated to protect anyone's rights but our own, our government is never free to violate those rights. The US government has no powers to violate any rights, except temporarily, according to explicit due process, and only when necessary to protect the rights of other Americans - like when jailing criminals, even suspending their rights to vote, freely travel and associate, and even to express themselves.
Americans in foreign lands have reduced protection of our rights by our government, as a matter of practical fact, but not from any change in our rights themselves. Foreigners in foreign lands have foreign governments that factor into the US ability and obligation to protect their rights, which is minimal.
But no one under control of the US, in US territory (including soverign military territory like Guantanamo) can see their rights infringed in any way.
Sometimes that happens. Sometimes the people in the government break the law, violate the Constitution. The Constitution of course has the remedy: prosecution and jail time, even impeachment. The Constitution isn't just some theoretical philosophy, but the only instrument which creates legitimate government power. And its power does not differ in application to anyone on US soil (with the sole and irrelevant exception that a US president must have been born American).
There shouldn't have been any question that Habeas Corpus must apply to everyone in US custody. But of course the 4 dissenting "Justices" in this case also installed George Bush as president. These people are part of a blatantly, flagrantly anti-American conspiracy among themselves to destroy America and everything it stands for.
Everyone knows it. Lots of us say it. But only far too few of us have the courage and integrity to live it. And we, the Americans with a clear conscience, want to bring these evildoers to justice.
The Constitution. Dodging a bullet today that should never have been fired, that should have seen millions of Americans jumping to take the hit. The closeness of this call is just one 87 year old man away from making a total mockery of America as "the land of the free, the home of the brave."
--
make install -not war
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.
[The US Constitution] isn't a restriction on an otherwise-unlimited government, it's a grant of powers to an otherwise-powerless government.
And me without mod points. Damn.
Very well said, students in school should be forced to repeat this statement until they understand what it means.
Necessity is the mother of invention.
Laziness is the father.
I'll give this a try:
>First, why does the U.S. Constitution apply to foreign nationals captured and held in places that are not the U.S.?
It doesn't. It limits what the US Government can do, here or anywhere else, just as it always has. The location is irrelevant: all that matters is that the US Government only has powers that the Constitution specifically grants it, and holding people indefinitely without charges are not among those powers.
>Second, will Al Qaeda reciprocate?
Dunno. It's completely irrelevant. Robbers don't operate under the law: that doesn't mean that we get to shoot people who we think might be robbers.
>Also, how do you fight a war under rules that were designed for domestic law enforcement?
According to laws? If the laws need to be changed, here's an amazingly revolutionary idea: you CHANGE THEM. You don't just do whatever it is you want and wave your hands and say "well, we had to!" because that's not law, that's dictatorship.
Nostalgia's not what it used to be.
1) Earier Supremes say it's okay for Bush to deny Habeous in US criminal courts so long as an alternative is provided that is substanially simmiar to the habeous right to contest incarceration.
2) congress provides an alternative tribunal system that fulfills this requirement
3) Said new tribunal turns around and refuses to hear any Habeous claims because it decrees the prisoners have no Habeous rights. (WILD!)
4) Today's court ruling reverses that saying they do have habeous rights.
The question then is Does it go back to the Kangaroo court or to a real crimminal court for hearing of habeous claims. I think this is the point of contention.
Also here's a link to a longer slashdot post that talks about this:
Some drink at the fountain of knowledge. Others just gargle.
But the fucked up thing is that it is American soil, because it's a fucking military base. The government's trying to have it both ways here.
www.isoHunt.com
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...
It is not the job of SCOTUS to be safe and responsible. It is the job of SCOTUS to knock down unconstitutional laws.
The masses are the crack whores of religion.
Read the dissenting opinion.
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation.Bolding mine. How would anyone know if they've tried to use the courts if they haven't had access to them in the first place? And saying that Habeas Corpus isn't a "time-honored legal principal"?
Amazing, isn't it?
Quotes taken from here.
Weaselmancer
rediculous.
2/3 of congress. If 3/4 of the state legislatures vote for it, it can also be done at a constitutional convention.
Neither of those things are going to happen in this case.
It was a 5-4 decision. Both of the justices that President Bush appointed (Justices Roberts and Alito) voted with the minority and against habeas corpus.
In addition, it is likely that 3 of the 5 justices that voted with the majority will be retiring in the next 4 years, so the next President will be responsible for replacing them.
If you like this week's decision, then you should strongly consider not voting for John McCain in the next election, because he is on record as saying that Justices Roberts and Alito are the kind of candidates that he would submit as replacements.
It has nothing to do with the fact that they're foreign nationals, nor that it happens "abroad". The federal government has no powers that the constitution does not grant. They can't do anything "abroad" nor to foreign nationals without constitutional power. It's not as though they have infinite power outside our borders "just because".
The consitution says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This specifically states that unless there is rebellion or invasion, the privilege of the writ of habeas corpus shall not be suspended. There is no rebellion or invasion in progress, therefore, the federal government, both the executive and legislative branches, has no power to suspend the writ of habeas corpus, which is the power of the judicial branch to review any and all detainments, jailings, or imprisonments.
There's nothing in the consitution that states that the executive and legislative branches can operate internationally, but the judicial branches cannot review international actions. The three branches of government are co-equal. I hate this recent distaste for judges by conservatives who want to reinterpret the laws of the land to let their idiot of a president do whatever they want. The judges are doing their duty to interpret the law. The fact that they're not elected by popular vote is BY DESIGN and should not be used to try to make their *co-equal* role seem less important.
The constitution doesn't apply to a particular location. It applies to a particular federal government, regardless of the location. The consitution says, the government cannot restrict habeas corpus, it doesn't say, it cannot restrict habeas corpus on US citizens. Habeas corpus isn't a right of American Citizens defined affirmatively in the consitution, instead, the federal government is prohibited from suspending the right period, with no other conditions. Currently, the government is claiming the power to suspend the right of habeas corpus for the people at gitmo. The constitution says, NO, you cannot suspend that right. Doesn't matter who. Doesn't matter where.
As far as your argument of "will Al Qaeda reciprocate"? Do we decide our standards of behavior by the enemy's standards of behavior? For example, the enemy punishes us by attacking civilians, so why don't we attack civilians aligned with their cause or civilians whom they claim to represent and fight for? Would that be the right thing to do? It's really sad to me that people don't understand the *reason* we're the good guys is the fact that we're willing to fight based on principles, and that Americans have been willing to die for those principles for as long as this nation has existed. Fools who would give up those principles in a heartbeat for security, fools who would disgrace all those who fought and died fighting the right way, when we could have won faster by fighting the wrong way, those people don't understand what it means to be an American. If more Americans have to die to defend the constitutional principles that make us who we are, then at least they die as Americans, rather than reducing themselves to the level of the terrorists. By giving up our principles and violating our constitution, we let the terrorists win, because we let them take away who we are and we let them take away what we believe in.
I prefer to believe that we can beat these people, that we can chase them down and kill them, without violating our principles and without giving up who we are. I'm willing to accept that there is a greater risk that there might be more terrorist attacks, and that my city could be bombed, and that I could lose loved ones in this battle, if it means that we stay true to our American principles and we fight like the good, strong, and moral people that we consider ourselves to be, and I consider anyone who is unwilling to accept the additional risk involved with sticking to our principles to be a coward and to have no claim to patriotism, and have no understanding of what America is and why we're the greatest nation on Earth.
With out a doubt some of the detainees are Al Qaida. But it's also very clear from the testimonies of many who've been detained without charge for years before being released without explanation, that many are also not Al Qaida; were not involved in any military action, and should never have been sent there in the first place.
Given that the U.S. military and government are not prepared to give these people fair justice. A court of law is totally the right choice in a modern, civilized western world.
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.
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?
-Sean SCALIA: No. To the contrary. You think â" Has anybody ever referred to torture as punishment? I donâ(TM)t think so.
STAHL: Well I think if youâ(TM)re in custody, and you have a policeman whoâ(TM)s taken you into custodyâ"
SCALIA: And you say heâ(TM)s punishing you? Whatâ(TM)s he punishing you for? ⦠When heâ(TM)s hurting you in order to get information from you, you wouldnâ(TM)t say heâ(TM)s punishing you. What is he punishing you for?
You can't take the sky from me...
Tell this to the guy who was kidnapped, flown to Afghanistan, and Tortured for 5 months because he happened to have the same name as a suspected terrorist.
In 2003, Khalid El-Masri, a Kuwait-born citizen with German nationality, was detained by Macedonian agents in the Republic of Macedonia. While on vacation in Macedonia, local police, apparently acting on a tip, took him off a bus, held him for three weeks, then took him to the Skopje airport where he was turned over to the CIA.
El-Masri says he was injected with drugs, and after his flight, he woke up in an American-run prison in Afghanistan containing prisoners from Pakistan, Tanzania, Yemen and Saudi Arabia. El-Masri said that he was held five months and interrogated by Americans through an interpreter. He declared that he had been beaten and kept in solitary confinement. Participating in some of these interrogation sessions was an officer of the German foreign intelligence service (Bundesnachrichtendienst or BND) using the pseudonym "Sam", who has reportedly been identified by al-Masri as Gerhard Lehmann. Lehmann served on the UN Mehlis commission into the Rafik Hariri assassination before he was withdrawn in early February 2006, possibly to prevent the repercussions of his identification.[39]
Then, after his five months of questioning, he was simply released. "They told me that they had confused names and that they had cleared it up, but I can't imagine that," El-Masri told ABC News. "You can clear up switching names in a few minutes." Khalid el-Masri had allegedly been confused with Khalid al-Masri, wanted for contacts with the Hamburg Cell involved in the September 2001 attacks.
Khalid el-Masri was then flown out of Afghanistan and dumped on a road in Albania, from where he made his way back home in Germany. Using a method called isotope analysis, scientists at the Bavarian archive for geology in Munich subsequently analyzed several strands of his hair and verified his story. During a visit to Washington, German Interior Minister Otto Schily was told that American agents admitted to kidnapping El-Masri, and indicated that the matter had somehow got out of hand. Masri was held for five months largely because the head of the CIA's Counterterrorist Center's al Qaeda unit "believed he was someone else," one former CIA official said. "She didn't really know. She just had a hunch."
The answer is real simple. Outsource it to the Cubans.
1) They need the money.
2) They do not have habeas corpus. You can be interned forever with no trial. So it does not violate any of their laws.
3) We will not have to move the prisoners very far.
4) They have a WELL trained security force. Just ask their civilian population.
There you go. Every thing a growing dictatorship needs.
No hour on a horse is ever wasted. Winston Churchill
What, you're saying that we need to stay in Iraq so we can do the Marshall Plan thing there? We've been doing it since the beginning of the occupation, and it's pretty much been frittered away. The schools and hospitals mostly got contracted out to incompetent or corrupt people who never finished or did a sloppy job; the few that actually got built were destroyed by insurgents. Despite American attempts to beef up the infrastructure, it's actually worse than it was under Sadam, with most of the electrical grid down most of the time.
I could go on, but you get the idea.
It's amazing how many "STAY THE COURSE!" people don't know about this.
If we were at war with Britain then our troops would be uniformed, troops would be captured in combat, the Geneva conventions would be respected, and then they would be released when the war was concluded. There would be little doubt as to why they would be held, because we would know they were soldiers fighting with Britain.
Civilians that are not wearing uniforms would probably be put through their civil system, like members of the IRA were. Which is exactly what we should do.
But its a moot point because we're not at war with anyone. No formal declaration of war was made. We have no stated enemy, and thus we have no way of knowing who qualifies as a solider, or when the conflict ends. Thus we should have to prove that person is a combatant, or has committed some other crime.
It's all a bit fuzzy. Your government appears to be reserving the right to pick up and intern anybody they fancy of any nationality in any country and declare they don't have to tell us why, and don't have to let the interned people go at any time.
That's one of the thing that really worries a lot of us. We don't trust your government, so we generalise and say "we don't trust the USA or its people". That's sad and not very healthy.
Even the top people on the losing side of World War 2 got trials and lawyers. You are saying that the people in Guantanamo Bay have carried out significantly worse acts than the people who stood in the Nuremburg trials?
they just wanted to get on with their lives
But, they HAD lives to get on TO. That's not true in the middle east - the vast majority of the population lives in poverty, and in even worse, in Iraq, they don't even have basic security. Anybody can be killed at any time.
When you have large disaffected populations, you create a ripe stomping ground for nefarious personalities to indoctrinate them to their 'causes'. Why does your life suck? It's because of the evil Americans! Kill the infidels!
We're the new Jews; we just have bigger guns. (Well, the new Jews are also the new Jews, and THEY have bigger guns too, thanks in large part to us.)
paintball
Note the "good" guys:
John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer
vs. the "bad" guys:
John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
Let's hope the "good" guys maintain their majority.
I don't want terrorists to have US constitutional rights. Kill 'em all.
What I want though is to first FIGURE OUT WHO IS A TERRORIST AND WHO IS NOT.
Just because the executive branch SAYS they are a terrorist doesn't mean they are actually a terrorist. And in fact, quite a few of the Gitmo detainees seem to quite obviously NOT be terrorists, but just in the wrong place at the wrong time.
So what I want is for ACCUSED terrorists to be given a trial, and then all the ones found guilty can rot in Gitmo or be shot as appropriate.
But what I do NOT want is for our government to be able to grab random people and toss them in prison for as long as they feel like - even if they do tricky things like put the prisons in other countries. Because if its OK for our government to do it, then its OK for other governments to do it, and that would crimp my travel plans.
paintball
Patrick Doyle
I mod down every jackass who puts his moderation policy in his sig. Oh, wait a sec....
But:
But look, you've actually read the Bill of Rights, right? Can you please identify where, in the Preamble to the Bill, or in the actual text of the Sixth Amendment, it says "this only applies to citizens?"
Or there's Wikipedia...
So when I say that the Magna Carta still has a bearing on modern judicial matters, don't assume I mean you don't have to read anything else.
(Side note: IANAL.)
Just releasing these people to the governments of their countries
of origin would probably be sufficient. This would also be all you
would expect to be done with POWs ultimately.
That begs the question: Just who is speaking up for these people?
If they are foreign nationals then why aren't those foriegn nations
demanding their return? This isn't just a simple matter of us abusing
those people. They don't seem to have anywhere to go to.
A Pirate and a Puritan look the same on a balance sheet.
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-".
2bits.com, Inc: Drupal, WordPress, and LAMP performance tuning.
Yeah, the list goes on and on. There's also the fact that the Germans and the Americans has very similar cultures and customs, the fact that nearly the entire male population of Germany was dead or injured so there was almost no one left to run an insurgent campaign even had they wanted to, the fact that Germans are culturally predisposed to follow instruction from people who sound like they know what their doing...
I picked the four biggest ones off the top of my head but I came up with at least 5 or 6 more.
I think the biggest single factor was the planning and execution; despite everything, had we gone into Iraq with a level of planning equal to the Marshall Plan it might have worked. Even then I don't think we could have had a "rebuilding Europe" level of success, but we might at least have a generally stable country with an infrastructure. Now though... Like I said, likely too little, certainly too late.
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
Not sure if you meant to reply to me, but personally, I feel that most of this is BAD KARMA. State Department before 1990's WARNED Congress that Belfast, London, Beirut, etc. were COMING to the USA. Not a matter of IF, but WHEN.
As long as state powers conduct expeditionary missions, set up military bases overseas, hijack oil fields, sell arms to those having no business with them, allowing it's religious organizations to "spread the word of God" to foreign lands and then not reign them in, but instead send troops to protect megaphones offending indigenous peoples... well, what the hell CAN people expect.
9/11 didn't happen out of sheer evil, or hatred for 'merkuns out of jealousy. Those terrorists were like bees in a hive that was struck. Struck through decade after decade of imperialist or nationalist or economic strike and blow. After decades of propping up illegitimate regimes, after destabilizing local elections, after selling arms to local insurgents or revolutionaries or others only to have blowback haunt the larger powers. Then, selling out or cutting loose the very instruments, leaving them to fend for themselves, only to be killed, or their families killed, too.
No, this is all about bad karma coming home to roost. Nothing more, nothing less. And that make part of the problem ANY citizen who fails to vote, votes badly, or votes for tyrannical assholes who thing only THEIR god is THE one, and who run amok, pissing off others who create stateless, ad-hoc, hard-to-track, assymetrical fighters, and then have the nerve to call cowards people who don't have nukes, don't have bunker busters, don't have satellites, no Masters-of-the-Universe intel agencies, no vast, deep arsenals of troops and weapons...
Well, we can sum this up by saying, "It's complicated. We're talking about reckless, destructive, greedy, myopic, selfish, jealous, petty, vindictive, shameless humans jockeying for power, unwilling to compromise, unwilling to assent to a higher cause over the long run..."
(needs a valium or something...)
Previously: "Linux... Toward the Sunrise..." Now: "Linux... Toward the-- No, now, part of Every Sunrise"
The officers in the CSR Tribunals were specifically ordered to take the allegations at face value, without regard to how farfetched they were. The captives were guilty, unless they could prove themselves innocent.
And since many of the allegations they had to refute were classified, were withheld from them, it is not surprising that so many captives failed to establish that they were not enemies. The surprising thing is that any of the captives established they were not enemies.