Gitmo detainees have Constitutional rights

[Embar Angylwrath]

http://news.yahoo.com/s/ap/20080612/ap_ ... guantanamo

The SC came down in a 5-4 split. Gitmo detainees have habeus corpus rights.

Even though I usually side with Scalia on most matters, I find his statement troubling. He seems to imply that the Constitution should be applied and interpreted on what is happening in the world today, and that's a 180 from his usual Constructionist stance.

[Klast Brell]

Scalia is constructionist only when it suits his republican agenda.

[Partha]

Constructionist? BWAHAHAHHAHAHAH

Bush v. Gore, anyone?

[Ddrak]

Even though I usually side with Scalia on most matters, I find his statement troubling. He seems to imply that the Constitution should be applied and interpreted on what is happening in the world today, and that's a 180 from his usual Constructionist stance.

I thought exactly the same thing.

And Justice Antonin Scalia wrote of the ruling, "Most tragically it sets our military commanders the impossible task of proving in a civilian court ... that evidence supports the confinement of each and every prisoner."

If they don't have the evidence to support the confinement then why the hell are they being confined - especially in the particular situation at Gitmo where it's clear they are not being held as POWs.

It's a good ruling because it gives a black and white decision for the military - you either hold someone as a POW which offers no resultant trial but guarantees being set free after hostilities, or you hold someone as a civilian prisoner in which case they have the right to habeas corpus.

I think Roberts' comment about the majority being "activist judges" was just flat out disgraceful for someone in his position. They were doing nothing of the sort - they were interpreting the constitutional right to habeas corpus as it applied to military prisoners, which is EXACTLY their job. He's a sore loser is all.

Chief Justice John Roberts in dissent wrote that the American people "lost a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges."

Dd

[Embar Angylwrath]

And in Robert's statement is the notion that judges should be politically accountable. Aside from electing judges to the bench, in my view, judges should be free of political accountability. Judges should be able to interpret the law without the cloud of political appeasement tainting their rulings.

My personal preference for seating a judge is through political appointment with a term that lasts at least three times longer than the terms of the people in the political body which appointed them. My second preference is a judge elected by the people, but who can only be removed from office by death, inability to perform the functions of the office, or a 2/3 vote of the body that elected the judge to office.

I'm a staunch supporter of a neutral judiciary. The other two branches of government I expect to be partisan (and should be, for that matter), but the judiciary should be free of partisanship.

[Klast Brell]

I don't want judges to be partisan at all. Because of that I hate the idea of people running for the office of judge. It ensures that every judge ill guaranteeably be partisan because that is the very nature of elections. I would Rather see a system where justices have to pass with 100% of the vote in the senate or state equivalent. I think that would ensure that all justices are centrist, or at least only mildly partisan.
I realize that the flaw in that plan is that any one senator can hold the entire process hostage by refusing to vote yes until satisfied with some personal agenda.

[rodric]

Beware the media's ham-handed attempts to summarize the justices' findings. If you read Scalia's dissent, his arguments are based on the application of the Constitution to military prisoners living in non-American soil. He cites past rulings that show that the Court found the executive and legislature quite capable of determining how to handle the status of military prisoners without the intervention of the court.

He then goes on suggest that the majority in this case might be interested in "reviewing the confinement of prisoners held by the executive anywhere in the world."

On a practical level, Gitmo was a good-faith attempty by the Bush administration to create a legal procedure for the treatment for handling prisoners in the era of world terror. Unfortunately, like a number of other things it attempted it was poorly implemented and probably never had a chance of winning over the American people and world opinion.

I guess it's back to quietly sending irregular military prisoners to U.S. allies for questioning and imprisonment....

In any event, I think the minority makes a strong case that the Supreme Court has far exceeded the letter and intent of the Framers concerning the application of Habeas Corpus.

Rhodric

[Ddrak]

Scalia's wrong to characterize Gitmo as "non-American soil". The typical case of non-US soil means that there is a foreign jurisdiction that actually has legal claim over what happens on that soil, which is very much not the case at Gitmo (unless you think handing the prisoners to Cuba would be smart).

There was no "good faith" effort on the part of the administration at all in the establishment of the prison camp at Gitmo. You have to stop and think exactly why Gitmo which is half way around the world from where these people were taken. Why not Afghanistan or the Green Zone in Baghdad? The answer is simple - they wanted somewhere which had no other legitimate legal claim on the prisoners so the military could simply operate without any pesky civilian laws to tie them. That's not even remotely "good faith", in fact it's quite the opposite.

You should look at the similar case presented to the court on the same day of the US citizens held in Baghdad that were turned over to Iraqi authorities. The court again made the correct decision there (in my opinion) that US citizens held in Baghdad have no right to protection under US law except by diplomatic channels. The difference? The US specifically denies Cuba's right to enforce law at Gitmo, so the prisoners therefore should have rights under US law.

It's really quite simple - nowhere on earth is outside of the law. If you don't recognize the local law and hold it off by military force (ie Gitmo) then you are implicitly subject to your own laws.

Oh, the "era of world terror" is bullshit. You've bought into the fearmongering hype of you seriously think that laws in 2000 really have to be changed due to the half-assed efforts of a bunch of nutbags holed up in the Pakistani mountains. Why are you letting the terrorists win?

Dd

[Ddrak]

McCain's comment is wrong too:

link

"These are enemy combatants. These are people who are not citizens. They do not and never have been given the rights that citizens of this country have," he said.

The whole point is these people have the right to claim they are NOT enemy combatants and have the right to challenge that designation in court. If you are so sure they are combatants then why are you afraid to defend that conviction? It's not assigning them all the rights of a US citizen. The point is simply that if the CIA picks up someone from their bed in Pakistan and tosses them in some military prison then they better be damn well able to prove that they are in the right before some impartial judge.

This is even before you ask the technical question of whether the CIA has the right to grab random people from wherever they want to (which is probably best left unasked because it's more a question of international politics than anything else).

Dd

[Partha]

He then goes on suggest that the majority in this case might be interested in "reviewing the confinement of prisoners held by the executive anywhere in the world."

You're damn right they do. After all, when we signed the Geneva Convention, it became US law, the way all treaties do. If you don't review the confinement of prisoners, you're breaking the law.

[rodric]

Scalia's wrong to characterize Gitmo as "non-American soil". The typical case of non-US soil means that there is a foreign jurisdiction that actually has legal claim over what happens on that soil, which is very much not the case at Gitmo (unless you think handing the prisoners to Cuba would be smart).

There was no "good faith" effort on the part of the administration at all in the establishment of the prison camp at Gitmo. You have to stop and think exactly why Gitmo which is half way around the world from where these people were taken. Why not Afghanistan or the Green Zone in Baghdad? The answer is simple - they wanted somewhere which had no other legitimate legal claim on the prisoners so the military could simply operate without any pesky civilian laws to tie them. That's not even remotely "good faith", in fact it's quite the opposite.

You should look at the similar case presented to the court on the same day of the US citizens held in Baghdad that were turned over to Iraqi authorities. The court again made the correct decision there (in my opinion) that US citizens held in Baghdad have no right to protection under US law except by diplomatic channels. The difference? The US specifically denies Cuba's right to enforce law at Gitmo, so the prisoners therefore should have rights under US law.

It's really quite simple - nowhere on earth is outside of the law. If you don't recognize the local law and hold it off by military force (ie Gitmo) then you are implicitly subject to your own laws.

Oh, the "era of world terror" is bullshit. You've bought into the fearmongering hype of you seriously think that laws in 2000 really have to be changed due to the half-assed efforts of a bunch of nutbags holed up in the Pakistani mountains. Why are you letting the terrorists win?

Dd

First point--the geographical issue is extremely fuzzy. I grant that past cases of denying habeas corpus to foreign nationals were usually in cases where another court had jurisdiction. I won't concede however that this constitutes a reason to grant habeas corpus at Guantanamo, especially where other protections are available (see below)

2nd point---The Administration established a camp for its prisoners taken in the war against terrorism in order to interrogate them for the protection of the country, and to prevent future crimes against the U.S. The military established Combatant Status Review Tribunals (CSRTs) to determine the status of these prisoners as enemy combatants. In 2005 Congress passed the Detainee Treatment Act (DTA) to regulate the legal privileges of these prisoners.

3rd point---I agree no one is outside the law. Gitmo detainees have protection under the DTA and other related legislation. 4 members of the Court thought that the DTA provided sufficient protection for the detainees at this time.

4th point-- Global terrorism requires changes in the way we handle prisoners and military legal issues, if only because an organization not associated with a nation state can cause damage of global proportion. I think credit should be given to Congress and the Administration for attempting to establish rules for handling irregular combatants. However 5 members of the Supreme Court decided that they were unwilling to wait for the other 2 branches to handle the situation.

But the Chief Justice says it best:

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting:

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 rightsthe 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. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is notreally about the detainees at all, but about control of federal policy regarding enemy combatants.

Rhodric

[Ddrak]

I disagree on the geographical issue being "fuzzy". If there's any "fuzziness" involved then it's simply out of bad faith from the Administration in a specific attempt to avoid judicial review. They didn't want to take these prisoners to US soil because then they'd have to give rights they felt they were not prepared to give (ie habeas corpus) but they didn't want to leave them on foreign soil and be potentially subject to that nation's judicial system. Gitmo was solely used as the Executive wanted to place itself beyond the reach of the Judicial branch and to take a side-step around the checks and balances provided by the constitution. So, if you find the issue "fuzzy" then you're really saying the Executive and probably the Legislature were both making bad-faith efforts. They deserve a smackdown.

Holding people for interrogation and prevention of "future crimes" is precisely why this camp needed habeas corpus. You shouldn't be holding people because of what they might do at some point in the future - that's just flat out totalitarian. Crying about "protection" is just bullshit - if you have a good reason to have these people locked up then it will stick in the light of independent judicial review (ie habeas corpus) and you don't need CSRTs to side-step that simple balance of power. The jailor should not be the judge and the DTA got that wrong. Simple as that.

The law is regulated by the judiciary. The DTA placed Gitmo outside the view of the judiciary. 5 judges rightly decided that was bullshit. My 5 beat your 4, and freedom won over totalitarianism.

"Global terrorism" doesn't require any sort of changes. That's just fearmongering bullshit. Please explain why these criminal acts can't be prosecuted in any regular court, which has handled far more dangerous and complex issues than a simple case of someone wanting to kill people for political motivation. Congress and the Administration simply attempted to make a power grab over the Judiciary and got smacked down. They deserve ridicule, not credit. They deserve to be shown up for the fearmongering power-gorged freedom-hating anti-American totalitarians that they are and I'm glad the USSC has started down the path of sanity.

Thomas and Alito are just bad losers. Eloquent ones, for sure, but still bad losers. Wanna know why?

i) It doesn't matter how "generous" the procedures were if they were wrong. "They didn't break the constitution much" isn't a good excuse.
ii) There was no "thorough debate" or "careful investigation". Perhaps they were thinking of some other government? I remember a whole bunch of partisan politics and power-grabbing by the administration.
iii) The Court shouldn't be making statements beyond the bounds of the case. Alito bitched about judicial activism then whined about the lack of it here - he's an idiot.
iv) Of course it's about control over policy. The other 2 branches thought they could wrest control completely to themselves. They were wrong. The US system has checks and balances for a reason and the control rests among all three branches. End of story.

Dd

[Embar Angylwrath]

I also hold issue with this statement in the dissent:

and before a single petitioner has even attempted to avail himself of the law’s operation

The thing is, the way the system is designed, a petitioner would never have a chance to test the law all the way to the SC, since the system is rigged to prevent access to even the first step in that chain... challenging habeus corpus. That statement implies that any of the detainess have substantially the same legal rights as US citizens. But it is precisely the opposite argument that the administration put forward.

[rodric]

I disagree on the geographical issue being "fuzzy". If there's any "fuzziness" involved then it's simply out of bad faith from the Administration in a specific attempt to avoid judicial review. They didn't want to take these prisoners to US soil because then they'd have to give rights they felt they were not prepared to give (ie habeas corpus) but they didn't want to leave them on foreign soil and be potentially subject to that nation's judicial system. Gitmo was solely used as the Executive wanted to place itself beyond the reach of the Judicial branch and to take a side-step around the checks and balances provided by the constitution. So, if you find the issue "fuzzy" then you're really saying the Executive and probably the Legislature were both making bad-faith efforts. They deserve a smackdown.

You've explained yourself why it's fuzzy, or unclear if you prefer a word more technically correct~. As far as the intention of the executive, I agree that Gitmo was chosen as a place to confine the prisoners beyond the reach of the Judicial Branch, because the constitution does not provide for the intervention of the Supreme Court in these matters. By confining the detainees in foreign territory the Executive held them legally and laid the groundwork for giving them protections appropriate to their status via the DTA.

Holding people for interrogation and prevention of "future crimes" is precisely why this camp needed habeas corpus. You shouldn't be holding people because of what they might do at some point in the future - that's just flat out totalitarian. Crying about "protection" is just bullshit - if you have a good reason to have these people locked up then it will stick in the light of independent judicial review (ie habeas corpus) and you don't need CSRTs to side-step that simple balance of power. The jailor should not be the judge and the DTA got that wrong. Simple as that.

another quote from Chief Justice Roberts:

"...It is also fruitless. How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, asthe district court judges shaping it will have to reconcilereview of the prisoners’ detention with the undoubted need to protect the American people from the terroristthreat—precisely the challenge Congress undertook indrafting the DTA. All that today’s opinion has done isshift responsibility for those sensitive foreign policy and national security decisions from the elected branches tothe Federal Judiciary."

No one is saying we should hold people who have done nothing indefinitely for prevention of future crimes. However, I believe it is realistic to apply different standards of judicial review to non-citizens who are of a highly dangerous nature and who are classified as enemy combatants than we do for everyday criminal proceedings. The DTA attempted to balance these factors, and as Roberts points out: there's no reason to think that the courts will somehow find a better way to balance the security needs of the nation with the rights of these individuals than congress did with the DTA.

Your overall argument is attractive: the Judiciary should be involved in protecting the rights of all individuals associated with the United States. Unfortunately it is not practical. If the CIA and/or military intelligence is convinced that a terrorist with a good lawyer could convince a jury that he is innocent and go free then that terrorist will be either held secretly or placed in a foreign country. Holding suspected foreign terrorists at Gitmo while military tribunals assess their status is certainly an improvement on this. Protecting them with the DTA is even better. As noted above there is no evidence that granting these individuals habeas corpus rights will actually result in an improvement in their human rights situation.

I respect your desire to not compromise on the rights of individuals. Unfortunately compromises are necessary in the real world.

Rhodric

[Ddrak]

Yes - I did explain why it was fuzzy. It's because the Administration deliberately created it that way to avoid checks and balances. The point I was making is simply that it shouldn't have been fuzzy and wouldn't have been if the Executive didn't go out of their way to go beyond the constitution and avoid judicial review. The constitution absolutely provides for Supreme Court intervention, because the constitutionally defined arbiter of the constitution (the USSC) just said that it did. If you don't like it, I suggest you change the constitution to have it reflect the monarchy you seem to desire.

The question of habeas corpus as it applies to US law for *any* person (US Citizen or not) is clearly in the realm of the USSC.

Roberts is basically full of shit. He's actually saying the judicial branch *can* do exactly what the Executive was trying to shut them out of. What he's notably missing is that this is a good thing and not a bad thing because the review of the prisoners is conducted by a separate and impartial judge and not by a member of the Executive who has an implicit conflict of interest. Like I said before - you cannot be jailor and judge.

The point you're missing is this review isn't to decide innocence or guilt. It's simply judicial review to determine if the Executive has sufficient evidence to hold the person. Why do you need different "standards" for different claims? It makes absolutely no sense - the US is no better protected by applying different standards to citizens and non-citizens in the field of habeas corpus, or are you suggesting that a person's citizenship makes them more or less dangerous? Of course it doesn't, so the artificial distinction you are making is simply making the US less safe because it gives your enemies a rallying point.

Your theory that a "good lawyer could convince a jury" is flat out uninformed bullshit. Habaes corpus reviews are not conducted in front of a jury and judges can be found that have security clearances sufficient to hear the cases. I repeat - it's not a case of guilt or innocence, it's simply one of whether sufficient evidence exists to hold the person. Why are you so scared of an independent review of evidence? Do you believe people should perhaps be held without evidence of their guilt, because that's the *only* reason you could really have for opposing this ruling.

If you are willing to sacrifice everything a nation stands for (that all men are created equal) in the face of a tiny group of radicals who managed the occasional successful murder then your nation is a failure.

Dd

[Ddrak]

Link

"I'm sure that none of us want Khalid Sheikh Mohammed walking around our neighborhoods," White House press secretary Dana Perino said about al-Qaida's former third in command.

"We are in uncharted territory, and we have never had enemy combatants afforded constitutional rights like all of us have, so anybody who thinks that they know exactly what's going to happen if a detainee challenges his detention - his or her detention - in court, they're not being honest because we don't know what's going to happen," Perino said.

The spin and lies are insane. The whole point of this ruling is the detainees are simply challenging the very fact that they are enemy combatants. The fact is "combatants" have no more rights than they did before, just the government can be called out for declaring someone a combatant without any evidence to back it up.

The KSM comment is just idiotic.

Dd