Discussions
Global War on Terror and Habeas Corpus
Posted by clioandme • 6/22/08 • Subscribe to this Discussion [RSS] • Report This Topic
Topics: bush administration, guantanamo bay, habeas corpus, supreme court, war on terror
This issue came up two weeks ago with the Supreme Court's decision to recognize habeas corpus rights for the Guantanamo Bay prisoners. At the time I posted a simple sigh of relief that the rule of law had meaning in this country, even in time of war: markstoneman.wordpress.com/2008/06/13/the-rule-of-law-in-time-of-war/.
Conservative responses about terrorists being let loose mystified me. So did the notion that the rule of law and war are incompatible. One conservative response stood out as more interesting, that by our resident conservative pundit here, RightCommentary (aka Bryan): www.rightcommentary.com/2008/06/13/supreme-court-grants-habeas-corpus-to-de....
Today I finally got around to responding to Bryan's post: markstoneman.wordpress.com/2008/06/22/the-supreme-court-and-the-bush-admini.... I thought it might be interesting for others too.
Really, this is what blogging can be about, engaging in dialogs across blogs. Dunno what Bryan will think, but I figure adding his link to this shameless promotion won't hurt.
What do you think of the Guantanamo issue? If you can, try and get beyond the knee-jerk reactions of your own political beliefs. That's what I liked about Bryan's post. He does that to a reasonable degree. That's what I tried to do in today's post too.
User Comments
-
Thanks. I've read and commented.
-
Thanks for giving it a read and leaving your thoughts.
-
-
I wonder if the PLRA (Prisoner Litigation Reform Act) has any effect on Terror Prisoners
if it does the supreme courts decision will do very little since the PLRA already prevents thousands of domestic prisoners from using Habeas on a daily basis.-
I don't see how the act you cite relates to habeas corpus. From what I could gather in a quick look of things coming up on Google, that act is about prisoners' rights to contest the conditions under which they live. Habeas corpus relates to reasons for imprisonment in the first place.
-
PLRA has no effect. This is a red herring.
-
-
I am against Guantanamo prison illegal detaintion but terrorist should not be kept alive! Executive Decision of the bullet on the spot is the right way...Do u agree?
-
No. There has to be a legal process. Otherwise we stoop to the level of the terrorists themselves. That's one thing I appreciate about the decisions made to handle top Nazis in Nuremberg after the Second World War. No matter how imperfect the trials were, there was a process. The Allies rose above their need for retribution to establish a valuable precedent, not least because of American idealism, which can at times be a good thing, though I've criticized it in other contexts: markstoneman.wordpress.com/2008/03/05/american-idealism/.
-
Let me see if I understand this argument... don't detain - just shoot them?
There are many in the Administration (past and present) who would agree. As for me personally - I think executions are something that would be fundamentally opposed to a constitutional republic such as ours.
Also - as for the "terrorists" - I'm not convinced that having them all fry would be in our interests. One tactic of AQ is martyrdom - frying them all would play into that....
However, if we develop a system acceptable under the law, I would like to see it include capital punishment as a sanction. I do believe it is equitable and just to put some individuals to death as sanction for their crimes.
-
-
What a slap in the face this Ruling is to our own Armed Forces. Think of it. Our own troops are subject to military tribunals (much more secretive and harsh than the U.S. court system). And, now these terrorist thugs, get equal-footing-with-U.S.-citizen, Constitutional "Rights." They--actually--get a BETTER deal than our own troops? Aw, c'mon, people, this is just too much.
Why?
This has never been done in our 200 year history of warfare. There is absolutely nothing in our Constitution that even hints at U.S. Constitutional Rights for non-citizens, at all, much less for enemy combatants captured on a foreign battlefield.
I thought the Kelo decision of June, 2006--effectively doing away with property rights under emminent domain--was about the sickest decision the U.S. Supreme Court ever handed down.
This one beats it.-
I don't really get your reasoning here. How does granting habeas corpus grant better rights than our own troops have? Also, as Bryan (who does not approve of the court's decision) points out and I echo, the Bush administration had many years to work out the problem. The court waited till the eleventh hour to get involved. It did so only after the Bush administration proved itself unable to come to a reasonable solution to this unprecedented detainee issue. You can cite a 200-year-old history of warfare, but I don't think you can cite a war like this one, whose unusual nature created this complicated problem in the first place.
One thing I didn't address in the piece are the alarmist arguments of some, including Justice Scalia, that this decision will endanger national security. This isn't about releasing dangerous men. It's just about following a process that doesn't leave anyone in a legal black hole indefinitely. -
Who exactly designated them terrorists? Bush? That's a little too much power for one person to have.
-
-
I shudder thinking about how many innocent people are being detained against their will. I wish they woud get it straightened out and release them. It is a disgrace. -
Other people in the US arrested for horrible crimes, like pedophilia, murder, rape, etc., they all get their day in court ... not sure why it should be any different for people accused of being "terrorists" whatever that means. Maybe I'm not understanding this issues, but isn't that what habeas corpus means? Just that they get their day in court?-
Or rather their day before an independent judge to hear if there is any legal justification for holding them. A trial about guilt would come later.
Edited to add: of course, this kind of process might make the whole war on terror more about catching bad guys and criminals, not a war per se. That's the problem. But a war usually has some sort of clearly defined enemy and a possibility of an end in the foreseeable future. Neither case applies here, which complicates the issue. -
I see ... well, then I guess it's no different than letting some horrible serial killer stand before an independent judge to hear if there is justification for holding them. It's a black on on the US in my opinion. No country should be allowed to hold people just because they want to ... there needs to be justification, evidence.
I can't believe it's gone on for so long and I can't believe not more American's are outraged by it. Very odd to me. -
More are outraged than you might think. And I'm talking about people in the center, not just on the fringe.
-
As someone on the outside Mark, when I listen to american news, I wouldn't think people in your country are too concerned about it. At least that's the image being given to the rest of the world.
-
I'm thinking mainly of the commentary on the day the decision was made. I'm thinking of commentary relating to other decisions in earlier years too. And don't forget that American lawyers fought these cases and brought them before public opinion at times too. But yeah, it has kind of faded from the public eye.
-
Ultimately - the Supreme Court found Drowsey Monkey's logic persuasive... hence, the rejection of the CSRT as a the process for review in favor of Habeas Corpus.
-
-
Habeas corpus is Latin for "you have the body". A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody or held over for trial. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
For five years without being charged or tried these human beings have been held at Guantanamo. This is not in any way shape or form a "just" way to behave in any democracy. It gives one pause to wonder about the precedent set and who will be imprisoned indefinitely, without being charged or standing trial, next?
en.wikipedia.org/wiki/Habeas_corpus -
There is a good explanation about enemy combatants (lawful and Unlawful) on the Council of Foreign Affairs web page. Although it is a little dated, it does explain some issues and laws about the detainees.
www.cfr.org/publication.html?id=5312
As for the court's decision, it was wrong. Why in the hell would we want to give any Constitutional rights to a non-US citizen determined to destroy our very existence?
I think it just makes it easier to determine who is captured and who is shot on the battle field.-
Thanks for the link. It is very dated, but might be of use to some.
The answer to your objection has to do with means. We adopt certain means and we become no better than our enemies. We're better than that, or can be if we so choose. And we're not so weak that we can't afford such a posture. We're strong, and part of our strength derives from from the rule of law.
At the core of this issue, though, is identifying what kind of conflict we're in and working that out in all its implications, something the Bush administration has been loath to do.
Edited to add: One thing many people don't seem to get is the incredible hit this country has taken in terms of its "soft power" around the world. That's a real cost that might be made good to some extent by Bush's leaving office, but only to some extent. Regarding soft power, see, for example, www.foreignaffairs.org/20040501facomment83303/joseph-s-nye-jr/the-decline-o... -
mark, Although we have had some problems, I think we as a military and a nation have bent over back-wards to provide these detainees with as much as possible and have treated them without a doubt better than any of our people have ever been treated. So in that sense, I think we are a lot better than our enemies now.
The majority of these folks were captured on battlefields trying to kill us or our allies. Many who have been release went right back to trying to kill us and a number succeeded in becoming suicide bombers. Still the "big story" always seems to be how bad America has treated them. I think giving them habeas corpus is only going to open the door to even greater problems in the future.
As for the "Soft-Power", I agree. It has taken a serious hit. Although I do think it will return fairly quick, regardless of who is elected President. -
If the Bush administration has been good in dealing with detainees in a humane manner, it has done a poor job of communicating that fact. Might make for an interesting study some decades from now. Another complaint I have long held relates to the Bush administration's poor record on communicating the purpose of the war to the American public.
-
Mark:
I've been to GTMO. They are treated humanely - and it's not a real issue anynmore because the issue of "humane treatment" is not in them getting "3 squares a day" - but rather the whole "try or release" mentality. To the Administration's critics - the fact they are detained, at GTMO, in the alleged "legal black whole" is the real problem... not the conditions under which they are detailed.
-
-
You can use Habeas Corpus for a number of things
read the entire text of the Habeas Corpus statute and does some research on case law and you will see Habeas Corpus is used for many things.
The PLRA effects ALL lawsuits and legal action brought by prisoners..... Prisoners must satisfy a dozen or more requirements before they can contest anything or use any statute to bring any action into Federal Court.
For instance..... If a guard cracks your head open with a flashlight instead of immediatly suing the prison you have to formally go through the established local remedies of the prison system first which can take a year or more.... before you can even file in court..... And do you think a prison warden is going to outright admit his guards are beating on an inmate? No. So they make your local remedies take aslong as possible.-
Listen - they're not Prisoners. The PLRA doesn't apply. Period.
-
Not so much different from millions of non-prisoners who have to exhaust administrative remedies in other contexts before resorting to court. Some examples include employment discrimination claimants and social security applicants. The primary thing these groups have in common is not any kind of personal status such as "prisoners" or "minorities" that might lead to a political assessment of the motives like the one you set forth here, but the fact that federal courts have original jurisdiction. Federal courts have, for the most part, thus far escaped the overwhelming backlog that afflicts many state judicial systems, and there is a concerted and consistent effort to preserve that through various means, including an effort to channel claims through adminstrative processes where feasible.
-
-
I admit, the whole thing of terrorists with rights is visceral with me. But...I have to keep reminding myself of my own core beliefs. (Damn it.) It drives me crazy to hear "conservative" pundits argue that these people do not deserve the same "Rights" as American citizens. This, when these same folks say either that these Rights are God given, or are inherent in the human condition. And therefore not a grant from government.
Makes me want to shake them and ask, "For crying out loud, which is it? A gift from government or a natural part of each individual human?" If you can deny the same Rights you hold as sacred from someone not of your "tribe" then you are agreeing that the tribe is the source of those rights.
And therefore, they are not rights at all. They are only privileges revocable by whoever hold power at any given time.-
Interesting comment, Don.
-
Well Mark, I got to get lucky once in a while
-
-
Why don't they just deport them back to their countries? I think they have one Canadian in custody.
-
Omar Kadhr.
And as for "deportation" - that's not exactly the right process. In any event, Mr. Kadhr has been charged under the Military Commissions Act because his ungrateful self decided to kill an American service medical corpsman while he was working on him by throwing a grenade at him.
That's why Mr. Kadhr remains in detention (that and the fact he's clearly an enemy combatant). -
so why don't they charge him .... does the US usually incarcerate people from other countries or do they deport them once they've been found guilty of a crime? Oh that's right...he hasn't been found guilty yet.
-
Kadhr is charged. He's facing trial under the MCA.
-
-
Mark:
Thanks for the blog post and the shameless plug.-
Not at all. I enjoyed yours and had meant to get back to the issue earlier.
-
-
My take on this is that the Bush administration were faced with a problem as to what to do with captured enemy combatants. The detention centre at Guantanamo was thought up as a stop gap solution in an attempt to keep the detainee's in limbo and out with the jurisdiction of US Law. Patently the Bush administration received bad legal advice.
It was only a matter of time before the Supreme Court caught up with this issue. Like Mark I am relieved that the Law has finally come to bear on Guantanamo Bay.
In answer to Bryan I would point out that Guantanamo Bay handed a propaganda coop to the terrorists and has done more harm to the fight against terrorism than good. At the end of the day you can complain all you like but Democracy is founded on law, and the law is the law. -
check out the page www.belowthedial.com for conspiracy stuff-
That's just silly. Kinda like the duck in a helmet though.
-
-
Mark - thanks for bringing this out in view, and starting this discussion. I'm not only in favor retaining habeas corpus - without it, we are no longer a democracy or even a civilized country - I am for closing down Guantanamo. I wrote a blog post on this topic a few days back:
www.jan4geo-glow.blogspot.com/2008/06/sign-up-to-tear-it-down.html
The legal, moral, and democratic arguments supporting my position are well-discussed by others more knowledgeable and articulate than me. Two sources I recommend are DemocracyNow.org and Amnesty International. I have links to both in the box headed "Get Informed..." on the side bar of my blog.
As for being afraid of terrorists lurking in the bushes - and therefore we have to curtail rights in order to be safe - that's one of the oldest tricks in the books for bringing dictators to power. I'm far more afraid of the bring-this-country-to-the brink-of-fascism actions of our own government.-
Once in a while I listen to Democracy Now, which is broadcast on WPFW here in Washington, DC. Only thing is, that news show is a bit too ideological for my taste. I can literally predict what they'll say on any given issue, just like I can predict what Fox News will say. On the other hand, Democracy Now devotes more attention to these issues than many of the mainstream sources.
-
That's why I listed it - to find a source that actually covers these topics that mainstream news ignores. That's why so many people who don't seek out alternative news sources are oblivious to the question we're discussing.
And, whether you like the ideology or not, Democracy Now usually gives substantial documentation for their viewpoint. It's not the only news source I follow, by the way; I listed it here because it has given substantial coverage to the habeas corpus issue you started this thread with. -
True, they document, which makes it easier for one to form one's own judgement.
-
-
From the site:
This is Habeas Corpus.
On October 17, 2006, he went missing without a trace. Last seen in Washington, D.C., his current whereabouts are unknown. Where is he? We don't know.
But we do know Habeas Corpus needs our help. What can you do? Get involved and help us restore Habeas Corpus to his rightful place in our Constitution!
www.findhabeas.com/-
Never saw that site. Good idea by the ACLU. Too bad they haven't updated it since 9/11/2007.
-
I know... that's a bummer! I was hoping that I could generate some renewed interest for them. I put this button on my 3rd blog (not listed on BC yet)
wayoutsidemybrain.wordpress.com
-
-
I am pleased that the dissent on this decision, written by Chief Justice Roberts, recognizes the habeas corpus rights of the Gitmo detainees. The dissent claims that habeas corpus rights had been honored already, by the existing procedures. The majority ruled that was not the case.
All the justices said the detainees are entitled to the rights of habeas corpus, by virtue of the fact they are held by the US government. The argument among the justices is whether the rights had been adequately provided via due process. The majority said no, the dissent said yes. All said they have habeas corpus rights, but they differed on exactly what constitutes those rights.
This is a far cry from one side being in favor of fair due process and the other being against it. Both sides are for it, but they differ on how to apply it.
This decision is one of the court's greatest decisions. It fully upholds habeas corpus, provides a path for applying, and a path for limiting it. Great example of balance of power. Our founding fathers are proud of this decision, both the majority side and the dissenting side.-
That's not how I read Scalia's remarks from the bench.
-
elaborate?
-
He talked about how Americans would die because of this decision. In other words, the issue was national security, not the law. By the way, I've only read second-hand accounts of the decision. I didn't see it on the Supreme Court's website yet, whose PDF files seem only to run through 2007.
-
-
Okay, here's the full text of the decision for the two cases. It was from 2007 cases, so that's how they were listed on the Supreme Court's website. If you have a slow internet connection, be warned. The link leads to a 35-page PDF file. I'll be printing it out and reading it later.
www.supremecourtus.gov/opinions/07pdf/06-1666.pdf
Add Your Comment
Login to leave a message.
