Guantanamo Inmates May Seek Release, High Court Says

[Firetxmi]

Guantanamo Inmates May Seek Release, High Court Says

Greg Stohr
2 hours, 40 minutes ago

June 12 (Bloomberg) -- Guantanamo Bay inmates have constitutional rights and may seek release in federal court, the U.S. Supreme Court ruled in a rebuke to the Bush administration and Congress on their handling of accused terrorists.

The justices, voting 5-4, said a 2006 law unconstitutionally stripped Guantanamo prisoners of the right to file so-called habeas corpus petitions. The majority rejected arguments that a system of limited judicial review set up by Congress was adequate to protect inmate rights.

``The costs of delay can no longer be borne by those who are held in custody,'' Justice Anthony Kennedy wrote for the majority. ``The detainees in these cases are entitled to a prompt habeas corpus hearing.''

The ruling bolsters the legal rights of the 270 inmates at Guantanamo's Camp Delta, set up in 2002 to detain accused al- Qaeda fighters captured after the Sept. 11 attacks. More broadly, the decision may mean a more powerful wartime role for the judiciary.

Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter joined Kennedy's opinion. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented. Scalia took the unusual step of reading a summary of his dissent from the bench.

``The nation will live to regret what the court has done today,'' Scalia said in his written opinion.

1903 Lease

The Bush administration contended that the Constitution and its guarantee of habeas rights don't cover enemy prisoners held outside the country, in this case on Cuban territory that the U.S. occupies under a 1903 lease. Habeas corpus is a legal device that dates back to 14th-century England and lets inmates claim they are being wrongfully held.

Kennedy wrote that Guantanamo ``while technically not part of the United States, is under the complete and total control of our government.'' He said the constitutional habeas guarantee ``has full effect at Guantanamo Bay.''

The justices were reviewing appeals by 37 inmates being held as ``enemy combatants.'' The group includes six Algerian natives seized in Bosnia in 2002 and a larger group of men who were taken into custody in Afghanistan or the bordering areas of Pakistan.

None of those inmates have been criminally charged, although today's ruling may affect those who have been. The military plans on prosecuting about 80 inmates, including Khalid Sheikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. Prosecution efforts have stalled in recent months, and at most a handful of trials are likely to go forward this year.

Combat Status Review

All Guantanamo inmates appear before a Combatant Status Review Tribunal, or CSRT, a military panel that decides whether the men are ``enemy combatants'' who should remain in detention. A 2005 law gives inmates only a limited right to appeal that conclusion to a federal court in Washington.

Lawyers for the prisoners say those procedures are a poor substitute for habeas rights. During CSRT hearings, shackled inmates appear before a panel of three officers.

The inmates can't have a lawyer present, are barred from seeing much of the evidence against them and in most circumstances can't call witnesses in their defense. In a number of cases, a second CSRT was convened after the first panel concluded an inmate wasn't an enemy combatant.

Officials at Guantanamo say the CSRTs have led to the release of more than three dozen prisoners.

The cases are Boumediene v. Bush, 06-1195, and Al Odah v. United States, 06-1196.


Link:http://news.yahoo.com/s/bloomberg/20080612/pl_bloomberg/anxynpmlvax0;_ylt=AlFp188nugjZqYLhBb6u40Gs0NUE

[hank]

Wow, that is a big reversal of the Eisentrager decision and the Japanese prisoner decision, both from WWII. Kennedy voted for the reversal as well I see.

I have to say its the right decision IMO but that I'm surprised Kennedy voted for the reversal also.

hank

[Power_serj]

I hope this doesn't set a new precedent that non-US citizens are subject to Constitutional rights.

[hank]

I hope this doesn't set a new precedent that non-US citizens are subject to Constitutional rights.

That wouldn't be new precedent. Non-US citizens in the US have had lots (but not all) constitutional rights and have forever. The issue here was whether Gitmo was part of the US or not. The previous cases said no it wasn't. This case says yes Gitmo is part of the US. Thus, if a non-US citizen is at Gitmo he has the same constitutional rights at Gitmo that he would have if he was in Montana. And that include habeas corpus which is the issue here.

hank

[Hollis]

I hope this doesn't set a new precedent that non-US citizens are subject to Constitutional rights.


Depends on where they are, the jurisdiction involved.

I am thinking, maybe reading the whole opinion would be worth it.

[hank]

Here's a link to the opinion Hollis. Have fun. Its 134 pages of pdf heaven.

http://www.supremecourtus.gov/opinions/07slipopinion.html

The case is Boumediene v. Bush - just click the link and it opens up in pdf.

hank

[Hollis]

Here's a link to the opinion Hollis. Have fun.

http://www.supremecourtus.gov/opinions/07slipopinion.html

The case is Boumediene v. Bush - just click the link and it opens up in pdf.

hank


Thanks Hank,

H.

[Hollis]

Hanks, thanks again. I need to read it through a few more times. What caught my eye was this:

"CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, 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. "


Definately not 100% clear cut. I tend to think it is a step in the right direction, but as Roberts seems to point out, where is the "direction".

I guess there will be more on this issue.

Aways, need to read it again, I saved it as a favorite.

Thanks Again,

H.

[hank]

I agree. But its a little disengenuous to say none of the detainees have tried to avail themselves of Habea Corpus right. Some have and those that haven't have not been allowed an attorney who could even do it. Its kind of like locking a guy in a dungeon where he can't be heard at all and then saying "I don't hear him complain." Not compelling IMO.

hank

[Hollis]

I agree. But its a little disengenuous to say none of the detainees have tried to avail themselves of Habea Corpus right. Some have and those that haven't have not been allowed an attorney who could even do it. Its kind of like locking a guy in a dungeon where he can't be heard at all and then saying "I don't hear him complain." Not compelling IMO.

hank


I am just glad I am not involved. These detainees, remind me of a old mountain man story. The MM was walking by and saw something flickering in the sun, it was a mountain lions tail. He thought it would be funny to grab a hold of it. Once he grabbed ahold of it, the realization hit him, "How does he let go of it." He couldn't let go of it and get bitten nor did he wanted to keep holding on and make the cat madder." Kind of like the Gitmo detainees, we got them, now what?

Almost a lose/lose situation. We keep them locked up we lose, if we let them go and they turn around and "bite us" (terrorist attack) we lose.

H,

[hank]

That is a perfect analogy. With all that has already happened there is really no good solution. Had enough thought gone in up front this was easily avoidable. But now its a real pickle.

I've been trying to read that opinion. Its very dense. Even more dense than usual.

hank

[2Sheds_Jackson]

I've been reading the opinion (which I think is wrong, no big surprise there) - but it's long and giving me a headache. I must say that Robert's dissent is pretty damning. In a nutshell, he seems to be saying that the court ruled based on hypothetical circumstances which have yet to exist (which the court is not supposed to do), and rather than give the most latitude to Congress possible, that the court subjected them to a "constitutional bait and switch". Congress didn't get it exactly right so they're not going to play ball. I agree - the CSRT coupled with the DTA would seem to provide adequate habeas review...acknowledging that these folks are supposed to have limited habeas rights, not full habeas rights like a shoplifter in NYC. You can almost smell the majority's mistrust for the military tribunal system.

Sheesh...he even winds up sounding like me when I start ranting about the court system. When rhetorically asking "who has won?" he answers himself "Not the rule of law, unless by that is meant the rule of lawyers,who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges." Yikes.

[Power_serj]

That wouldn't be new precedent. Non-US citizens in the US have had lots (but not all) constitutional rights and have forever. The issue here was whether Gitmo was part of the US or not. The previous cases said no it wasn't. This case says yes Gitmo is part of the US. Thus, if a non-US citizen is at Gitmo he has the same constitutional rights at Gitmo that he would have if he was in Montana. And that include habeas corpus which is the issue here.

hank

That what I meant, I should have been more specific. What I meant is that POWs and terrorist detainees should not have Constitutional Rights. Obviously, a non-citizen who is here on a green card, for example, should have constitutional rights.

[little icebear]

That what I meant, I should have been more specific. What I meant is that POWs and terrorist detainees should not have Constitutional Rights.

Care to explain why?

[hank]

2 sheds, remember the big picture though. The Gitmo detainees would not have HC rights if they are not on US sovereign soil. Think back to WWII. POWs in Germany or Africa did not have HC right. That is beyond dispute and no one would even argue otherwise. So, if the govt had left the detainees where they captured them they could be held there as long as that war was ongoing and no one would complain (or at least not successfully).

But that's not what happened. We capture these people outside the US where everyone agrees we don't have control and HC (or the con for that matter) do not apply. Then we take them to Gitmo which for all practical purposes is US soil. If Cuba tried to come on the land we'd repel them with force. We could have taken them to a US base in Germany where the German authorities have some rights to come on the base and it would have been different. We chose Gitmo and we knew it was a gray area that was closer to US soil than not.

Then we drafted terrible legislation that wrongfully treats them as if they were held in Astan or elsewhere. That is the fallacy the majority recognizes. And its been anticipated for a long time. I have argued this point here and in law school. The Eisentrager decision (which this overturns) almost compels the decision as it dealt with control and sovereignty. A first year law student (or in my case a 2nd) can recognize that this result was possible it not likely if/I] prisoners were taken to Gitmo and that it was unlikely if they were held in Astan.

So for Roberts to act like the Court is acting on hypos is a little disengenuous. The majority is simply responding to something that doesn't make sense. I promise you that Roberts is not surprised at this result. Its been anticipated that this could be the outcome. The only real issue was what Kennedy would do and he sided with giving HC.

The con gives HC rights to everyone in the US and the practical reality is these guys are [I]in the US. That's not a crazy result. You and Roberts may not like it but its certainly something that should have been anticipated and dealt with up front. To complain now is a spilt milk scenario.

Nobody is saying that the minority position is stupid. Its easy to make compelling arguments for both sides. And it could easily have gone either way. But to say its a terrible mistake is kind of silly. Lots of people have known this was possible if not likely and nothing's been done to address it.

I wish for once you'd stop the silliness with Judges. You act like the majority is trying to screw you over. Funny you don't think that when Kennedy votes with you. This is a very close issue and the majority won out. Could it have come out differently? Yes. Is it the end of the world? No. But don't blame judges. They wrote neither the HC clause or the terrible legislation that never adequately addressed the Eisentrager decision and the control factor. They didn't make the decision to put these people at Gitmo. They just have to pick up the pieces when all those monumental mistakes get in front of them. And they did that.

hank

[hank]

That what I meant, I should have been more specific. What I meant is that POWs and terrorist detainees should not have Constitutional Rights. Obviously, a non-citizen who is here on a green card, for example, should have constitutional rights.

Yeah, you missed my point. POWs and detainees wouldn't have con rights if they were held in Astan or where captured. This decision recognizes that taking them to Gitmo is essentially the same as taking them to Montana where they would have rights. So its not increasing rights given to all POWs and detainees. Its simply saying that when we took them to Gitmo we took them to a place where they would get the same rights as a green-card holding legal immigrant or an illegal immigrant.

hank

[little icebear]

POWs wouldn´t have habeas corpus rights anyway if I´m not mistaken. But at least they do have rights.
Convicted criminals do have habeas corpus rights.
But the prisoners in Gitmo aren´t treated as convicts nor as POWs. And I think it´s about time that people come to terms with that issue.

[hank]

POWs wouldn´t have habeas corpus rights anyway if I´m not mistaken. But at least they do have rights.
Convicted criminals do have habeas corpus rights.
But the prisoners in Gitmo aren´t treated as convicts nor as POWs. And I think it´s about time that people come to terms with that issue.

POWs held in the continental United States would have some constitutional rights. That is what the Eisentrager decision dealt with. It hadn't happened since the German POWs that were held in the US (a lot of them in MS at Camp Shelby in Hattiesburg).

Its the same concept as illegal immigrants in jail. They still have constitutional rights (although not all constitutional rights).

POWs held anywhere outside the US do not have constitutional rights of any kind. That's why the decision to use Gitmo was suspect from the start. Its status is so similar to US soil because of the wording of the lease and the fact that no one can get into Gitmo due to our relations with Cuba. Legal scholars have been concerned that this would happen ever since we've had detainees at Gitmo.

hank

[Hollis]

Hank, I see it as a issue where something needed to be done. Legality is based on opinion, but the only opinion that eventually matters is the final court hearing the case.

In hind sight, this a goof.

You mentioned A-Stan, Ok a prison in A-Stan may not have held up to the same argument. I think if the prison was under US command and control, it could fall in to the same category as Gitmo.

If the Prison was under another countries military's command and control, probably not.

When you mentioned A-Stan the thought that entered my mind, in extending the majority opinion , one could say where ever US Government exercises command and control, the constitution is there.

Irregardless of fault finding, this problem needs to be resolved in a way, even the court agreed that does not cause harm to national security or safety but still provide relief.


As, it is said,the Administration rushed into this situation, I hope more prudent thinking is applied in our haste to end the situtaion. It seemed that this was Robert's concern.


Anyways far better minds are probably working on this right now. Heck wait another 6 mos, and it will be another POTUS's curse or blessing.

[2Sheds_Jackson]

2 sheds, remember the big picture though. The Gitmo detainees would not have HC rights if they are not on US sovereign soil. Think back to WWII. POWs in Germany or Africa did not have HC right. That is beyond dispute and no one would even argue otherwise. So, if the govt had left the detainees where they captured them they could be held there as long as that war was ongoing and no one would complain (or at least not successfully).

For the sake of clarity - forget about where these people are, and let's just say that they do have HC rights. All HC rights are not the same. The SC has already held that those rights can be severely limited by the Executive branch during wartime...and that even applies to US citizens on US soil. The court today pretended that such a concept has never existed, and that all HC rights must be the same (i.e. full)...that allowed them to then state that the current framework of the CSRT coupled with the DTA was not good enough (even though Congress specifically wrote that procedure to match up with the SC's previous ruling.)



So for Roberts to act like the Court is acting on hypos is a little disengenuous. The majority is simply responding to something that doesn't make sense. I promise you that Roberts is not surprised at this result. Its been anticipated that this could be the outcome. The only real issue was what Kennedy would do and he sided with giving HC.

What Roberts is talking about here is the fact that nobody has yet been materially denied anything "The majority rests its decision on abstract and hypothetical concerns....This (current) statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history."

Roberts may well not be surprised...I'm certainly not. It doesn't mean that either of us agree with the majority.



Nobody is saying that the minority position is stupid. Its easy to make compelling arguments for both sides.

Huh? I never said it was stupid - it's just wrong. Lots of smart people are wrong.



I wish for once you'd stop the silliness with Judges. You act like the majority is trying to screw you over. Funny you don't think that when Kennedy votes with you. This is a very close issue and the majority won out. Could it have come out differently? Yes. Is it the end of the world? No. But don't blame judges. They wrote neither the HC clause or the terrible legislation that never adequately addressed the Eisentrager decision and the control factor. They didn't make the decision to put these people at Gitmo. They just have to pick up the pieces when all those monumental mistakes get in front of them. And they did that.


Don't really know what you're on about here - I don't take it as a personal affront - those were Robert's words I posted, not mine. I blame the judges who's opinion was wrong for being wrong and not much else. If I suspected that they knew what was correct and deliberately voted the other way in order to damage the nation, well, I'd say so.

[Andrew Chalmers]

For the sake of clarity - forget about where these people are, and let's just say that they do have HC rights. All HC rights are not the same.

Which HC rights are you referring to? Not all HC rights are the same? How many HC rights are there?

My understanding of Habeas Corpus merely means that Article 3 courts have the ability to review a petitioner's detention for legality.



The SC has already held that those rights can be severely limited by the Executive branch during wartime...and that even applies to US citizens on US soil. The court today pretended that such a concept has never existed, and that all HC rights must be the same (i.e. full)...that allowed them to then state that the current framework of the CSRT coupled with the DTA was not good enough (even though Congress specifically wrote that procedure to match up with the SC's previous ruling.)

Just so we can be more specific - which rulings are you referring to? Which the Executive Branch may do this unilaterally without legislative input?


What Roberts is talking about here is the fact that nobody has yet been materially denied anything "The majority rests its decision on abstract and hypothetical concerns....This (current) statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history."

Roberts appears to be making the argument that the circumstances are not ripe for judicial review - unfortunately, unlike Roberts, we're not limited to facts presented before us by the petitioners and respondents. I know there have been detainees that presented a threat released - I also know there are detainees who have done absolutely nothing who remain in Guantanamo. The CSRT review determination that a detainee is not an illegal enemy combatant does not in fact result in the detainee being released. In addition, because CSRTs are not sufficiently independent of the Executive Branch, I wouldn't trust it to replace the writ of habeas corpus.

[Hollis]

Which HC rights are you referring to? Not all HC rights are the same? How many HC rights are there?




Read the link Hank posted (Scotus opinion), it is all there and the references needed to understand.

[Andrew Chalmers]

Read the link Hank posted (Scotus opinion), it is all there and the references needed to understand.

No - 2Shed implies there are multiple types of HC writs, and that they are not all equal. I've read through the majority's lengthy academic journey through the history of the writ; it ranges from English judicial acts to Blackstone; discusses the jurisdictional limitations (legislative and adjudicative), but doesn't say there are multiple types of HC.

How many types of HC writs are there? What are they? Which opinions says they're not the same and that the Executive can limit them?

[hank]

Why bother Andrew? Stuff like law isn't applicable once its been decided that SCOTUS did bad. And believe me its been decided that SCOTUS did bad. No amount of fact or law can overcome the declaration that the majority got it wrong. Thanks for your understanding on this issue.

hank

[Hollis]

Why bother Andrew? Stuff like law isn't applicable once its been decided that SCOTUS did bad. And believe me its been decided that SCOTUS did bad. No amount of fact or law can overcome the declaration that the majority got it wrong. Thanks for your understanding on this issue.

hank


Hank, you have been a very bad jurisprudence or jurisimpudence or ????


:P

[Semper Fi]

Honestly, this seems to me a little ridiculous. I feel like our military people are keeping everyone there for a specific purpose. The intel guys probablly know many things that we dont, and it seems like this is going to possibly allow for the release of some extremely dangerous people. Anyway, I believe that the al-Queida guys are classified as 'terrorists', not POW's, which makes them not subject to ANY US rights (which I do not beleive POW's are allowed to have anyway). This is not a regular army or a regular war, so i really dont think the Genva Convention should even apply. They certainly have not followed it, yet our soldiers cannot bend a few rules to get vital information from terrorists.

I really think the best solution may be just to turn them over to the Israelis

[Violet Fashion by Mindy]

What I want to know is.

How can a crime be committed against the United States of America when the act or crime was not committed in the United States?

[Semper Fi]

What I want to know is.

How can a crime be committed against the United States of America when the act or crime was not committed in the United States?

Easy

The United States is the people, plain and simple. When you attack citizens, installations, embassies, etc. you are attacking US soil and killing its citizens. Same goes for warfare.

[Violet Fashion by Mindy]

I talk about death and destruction to the US everyday. Come and arrest me!

[Limeyfellow]

What Roberts is talking about here is the fact that nobody has yet been materially denied anything "The majority rests its decision on abstract and hypothetical concerns....This (current) statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history."



That would be an interesting arguement but for the fact enemy combatant was made up only a few years ago as a way of holding people in legal limbo, so what Roberts is saying is disingenous at best. Everyone knew there was going to be a problem sending them to Guantanamo Bay because it isn't held by a country. If Cuba infact claimed it we would have had to try them in the past under Cuban law. What the Supreme Court has said that this is as good as US property as anything else, being a US military base for a century, under US authority, with US judges, overseen by the US government. This would classify it as the same as you would US Embassies and other few limited areas that are not on US recognised land but are still US soil.

Of course if the government can't make the very basic evidence to appease HC, which is rather simple evidence to hold them, with the claims that these are the most dangerous killer men in the world, there is a serious problem. This was a needed step to solve a legal black hole that should never have happened in the first place.

[LRPV]

I talk about death and destruction to the US everyday. Come and arrest me!


The Extraordinary Rendition crew are on the way...pack your toothbrush :)


Gitmo...Extraordinary Rendition....regardless of the original goal, these processes have damaged the US interests amongst friendly countries. Both are signs of an Orwellian power complex.

[Hollis]

I talk about death and destruction to the US everyday. Come and arrest me!



Wrapping the pres up in jelly and peanut butter and then having wicked women lick if off is not a threat to national security.

Minny, your wicked ways are too well known. Now if Bill Clinton was pres, your white house invite is on it's way.

[Holycrusader]

That what I meant, I should have been more specific. What I meant is that POWs and terrorist detainees should not have Constitutional Rights. Obviously, a non-citizen who is here on a green card, for example, should have constitutional rights.

Innocent until proven guilty...

[Calanen]

I hope this doesn't set a new precedent that non-US citizens are subject to Constitutional rights.

They already were. In most cases. Illegal immigrants always get the right to silence, right to counsel etc...

[Calanen]

I've been reading the opinion (which I think is wrong, no big surprise there) - but it's long and giving me a headache.

Try reading a few hundred of them a week.

[2Sheds_Jackson]

Which HC rights are you referring to? Not all HC rights are the same? How many HC rights are there?

The Hamdi decision already tred this ground before this case. They found that for these prisoners, the HC process merely needed to be "adequate" and not a full mirror of what's available to the average American walking the street. For example...the Hamdi decision allowed for hearsay evidence to be introduced in HC courts...while the majority in this decision suddenly finds that's unacceptable.

More from Robert's dissent:


"It is worth noting again that the Hamdi controlling opinion said the Constitution guarantees citizen detainees only“basic” procedural rights, and that the process for securing those rights can “be tailored to alleviate [the] uncommon potential to burden the Executive at a time of ongoing military conflict.”

...

To what basic process are these detainees due as habeas petitioners? We have said that “at the absolute minimum,” the Suspension Clause protects the writ “‘as itexisted in 1789.’” St. Cyr, supra, at 301 (quoting Felker v. Turpin, 518 U. S. 651, 663–664 (1996)). The majority admits that a number of historical authorities suggest that at the time of the Constitution’s ratification, “common-law courts abstained altogether from matters involving prisoners of war.” Ante, at 17. If this is accurate, the process provided prisoners under the DTA is plainly more than sufficient—it allows alleged combatants to challenge both the factual and legal bases of their detentions.




Roberts appears to be making the argument that the circumstances are not ripe for judicial review - unfortunately, unlike Roberts, we're not limited to facts presented before us by the petitioners and respondents. I know there have been detainees that presented a threat released - I also know there are detainees who have done absolutely nothing who remain in Guantanamo. The CSRT review determination that a detainee is not an illegal enemy combatant does not in fact result in the detainee being released. In addition, because CSRTs are not sufficiently independent of the Executive Branch, I wouldn't trust it to replace the writ of habeas corpus.

If I'm reading the information correctly, the CSRT, combined with the DST provides what passes for a minimum HC review. Again, it's not the same as for the average Joe - but that is by design.

It really seems to me that the majority fails to understand that we are at war, and that we can't afford to pretend that we're not. No amount of playing nice on this side of the Atlantic will make our problems on the other side go away. In fact, if we reduce our military to serving subpoenas all day long, and spend our time releasing those we've failed to convict...we'll never prevail. Being nice no matter what is certainly a valid modus operandi, but in my view it's the wrong one to have in the middle of a war. If we can't face the reality of war here, then we shouldn't be having one at all.

[little icebear]

Being nice no matter what is certainly a valid modus operandi, but in my view it's the wrong one to have in the middle of a war. If we can't face the reality of war here, then we shouldn't be having one at all.

This is at least an honest opinion that has not to be agreed on by everybody, but it must be respected.

Since I can´t leave without my daily amount of Bush-bashing ;) I´d like to add that we would certainly see a very different GWOT if everybody was as honest about his real intentions and opinions as you are.

[Andrew Chalmers]

The Hamdi decision already tred this ground before this case. They found that for these prisoners, the HC process merely needed to be "adequate" and not a full mirror of what's available to the average American walking the street. For example...the Hamdi decision allowed for hearsay evidence to be introduced in HC courts...while the majority in this decision suddenly finds that's unacceptable.

Hamdi was a plurality decision in which 8 of 9 justices ruled that the Executive Branch cannot detain a US citizen indefinitely without judicial review. I'm still not sure what you mean by implying that there are multiple forms of habeas corpus review.

Conceptually - what O'Connor outlined in her plurality in Hamdi the test we use to determine whether the procedures satisfy the due process required for habeas corpus review.

The writ of habeas corpus only refers to a general notion that detainees have the opportunity to have judicial body (independent of the detaining authority) review the legality of the detention.

Also - the Court did not rule that the admission of hearsay evidence in the CSRTs were per se violations of due process requirements imposed by habes corpus review; it just found that the CSRT's procedures were flawed beyond the minimum standards required by the writ.



It really seems to me that the majority fails to understand that we are at war, and that we can't afford to pretend that we're not. No amount of playing nice on this side of the Atlantic will make our problems on the other side go away. In fact, if we reduce our military to serving subpoenas all day long, and spend our time releasing those we've failed to convict...we'll never prevail. Being nice no matter what is certainly a valid modus operandi, but in my view it's the wrong one to have in the middle of a war. If we can't face the reality of war here, then we shouldn't be having one at all.


Give me a break - habeas corpus review only means that an independent judicial body will review a petitioner's assertion that they are being held without legal basis. If we have any sort of evidence that someone was an illegal enemy combatant, we can hold them.

The writ of habeas corpus protects those who are being held without evidence, without charge or cause. One would have to be naive beyond belief to believe that the Executive Branch makes no mistakes or holds detainees longer than necessary to save face or embarrassment. The Executive, just like the Judiciary, are composed of people and make mistakes.

[shocker1]

As I prepare for the inevitable backlash from the everything is either with us or with terrorists crowd, I ponder McCain's recent words. I am just a mechanic so what do I know but I will say it anyway.

We may be at war, there are very bad people and I want Justice. McCain has decided that only humans in America have basic rights. Which really surprises me coming from a man who has seen the Dark Side of War. I was raised that America stands for truth and Justice, what we see here is not the case. Human beings deserve certain rights according to key principles honed in the fires of civilization for thousands of years no matter how evil and murderous. For some God himself gave humans certain rights, this is what makes America great.

So in the end the actions of this current American Government that claim Conservative Christian Values have watered down the hold each human on this planet has bad or good to basic Justice. I hope someday someone sees the prisoners in Cuba and everywhere else American Justice reins for what they truly are. They are either P.O.W.s, criminals or innocent with rights accordingly applied.



McCain said he has worked hard to ensure the U.S. military does not torture prisoners but that the detainees at Guantanamo are still “enemy combatants.”

“These are people who are not citizens. They do not and never have been given the rights that citizens in this country have,” he said. “Now, my friends, there are some bad people down there. There are some bad people.”
http://elections.foxnews.com/2008/06/13/mccain-guantanamo-ruling-one-of-the-worst-decisions-in-history/

[Hollis]

As I prepare for the inevitable backlash from the everything is either with us or with terrorists crowd, I ponder McCain's recent words. I am just a mechanic so what do I know but I will say it anyway.




McCains quote:


McCain said he has worked hard to ensure the U.S. military does not torture prisoners but that the detainees at Guantanamo are still “enemy combatants.”
“These are people who are not citizens. They do not and never have been given the rights that citizens in this country have,” he said. “Now, my friends, there are some bad people down there. There are some bad people.”


Shocker, maybe you are reading too much into it. If you read the Opinions, non Citizens do not have all the rights of Citizens. That is a FACT. One of the rights is the right to Vote. OK makes sense now.


He is labeling the detainees as to what they are, which is consistent with what they are called now. He mentions the fact, they are not citizens.

He is not stating that they do not have rights, even implies that they do in the first sentence.

He is pretty much just making a status quo statement.

[hank]

This whole non-US citizen thing is a red herring. If you are in the US and detained you have habeas corpus rights except as provided in the con (rebellion and such). Even if you come from mars. The key finding in this opinion is that HC rights extend into Gitmo. All the rest is superfluous.

What this opinion highlights is that the decision to take prisoners to Gitmo was a huge mistake designed to get them in the US where we could do as we see fit without giving them HC rights. And the govt got the rug pulled out from under it. Not surprisingly on the law but maybe a little that the court followed it. They should have anticipated this and taken them somewhere else then this wouldnt' be a problem. But they did and now they look silly.

hank

[Power_serj]

Based on the article and what you guys are saying, the detainees have a right to habeas corpus. That is a fair judgement. I'm sure that there are some people who are falsely detained. The only way to fix this problem is habeas corpus. In a court case, however, does the court mention how they must be tried? With a lawyer? No lawyer? federal courts? military tribunal?

[shocker1]

Shocker, maybe you are reading too much into it. If you read the Opinions, non Citizens do not have all the rights of Citizens. That is a FACT. One of the rights is the right to Vote. OK makes sense now.


He is labeling the detainees as to what they are, which is consistent with what they are called now. He mentions the fact, they are not citizens.

He is not stating that they do not have rights, even implies that they do in the first sentence.

He is pretty much just making a status quo statement.
Exactly, he danced around the issue, did not really say they have any rights at all. While leaving it open to people saying, well they don't have the right to vote like we do. That is not what we are talking about here, he knows that and you do too. A true leader would have said, Americans do not put people in unending detention without a speedy trial or confirmation as a POW with the rights accordingly applied. Basically he left it open. The safe answer so to speak, which concedes to anyones interpretation. Including the current Admin's actions.

To me it is all a slippery slope, bend the rules a little here. Then justify bending them elsewhere. However things seem to be working towards the better side. Getting away from the Dark Side mentality. Let's hope this continues.

[Hollis]

Based on the article and what you guys are saying, the detainees have a right to habeas corpus. That is a fair judgement. I'm sure that there are some people who are falsely detained. The only way to fix this problem is habeas corpus. In a court case, however, does the court mention how they must be tried? With a lawyer? No lawyer? federal courts? military tribunal?


Serge the only ones I am concerned with are those who where "falsely detained", mistakes in the "fog" of the time, if there any. The actual Tangos, I'll leave that up to other's imagination on dealing with them. What I thought was interesting was the "checks and Balance" aspect of this. It is something I truly agree is one of the greatest safety features of our political system that prevents us from being taken over by some despotic regime.

[Power_serj]

Okay good. I was worried that the court would go into how, where and when the detainees can be tried. I, however, found no evidence of that in the court case document (Thank God). Since this only mentions that detainees must be given habeas corpus to protect those falsely detained, I agree with HOLLis/the majority opinion. Anything more than habeas corpus would be giving them more rights then POWs, which would then be outrageous.