The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.Justice Kennedy writes for the 5-4 majority. Chief Justice John Roberts, for dissenting, accepted the government's "generous set of procedural protections."
UPDATE: Orin Kerr says it's exactly what he expected and what "you could see coming from miles (or in this case, years) away."
Posts
230 comments:
«Oldest ‹Older 201 – 230 of 230UWS guy said...
"Only a moron would put on a uniform, line up in a row, and fight any western power. Roman legion in formation staring at a horde of naked germans and saying, 'hey no fair put on some clothes already.'"
The goal is not to afford them a fighting chance, or to give them fair opportunity to land a sufficient number of punches to satisfy some sense of honor! You seem oblivious (or at least indifferent) to the reality that the goal is to prevent their fighting in the first place. If an enemy would be "moron[s]" to fight us in conventional military formations, yet fighting us in irregular formations is understood to deprive them of the rights of regular combatants, one might think that this would produce the entirely salutary effect of deterring them from fighting in the first place.
UWS guy said...
"The Republic can withstand giving OBL limo driver a due process. After all, they're the barbarians not us..."
Well done on recognizing that our enemies are barbarians; that's a great deal more candor than most of our more multicultural liberal friends seem to recognize. Anyway: the Republic may "withstand giving OBL limo driver a due process," but some of its soldiers may not. What you fail to appreciate is that most of those who are detained in Gitmo are not innocent (even DTL cannot bring himself to assert more than that "some of those in Gitmo surely are innocent," ante, at 11:21 AM), and those who are not will return to the battlefield on their release. That isn't speculation - it has already happened, as Justice Scalia's dissent notes.
If all that is proposed is that detainees should have the ability to challenge the factual predicate for their detention as enemy combatants, then I have no beef with that; see my reply to Doyle, ante, at 4:52 PM. But that is precisely the system that is today invalidated by the courts. What is urged by opponents of what we might call the Gitmo system -- this is tangential to the point I was getting at in my very first comment in this thread, replying to FLS -- isn't that prisoners should be able to mount such a challenge, but rather, as I understand it, that detainees should be regarded as part of a criminal law process wherein they are initially detained without bail, and must then be given a full dress trial where the government will either convict them or, having failed to do so, release them. I reject that quite different and utterly novel proposition. It enjoys no place in our traditional treatment of prisoners of war, and even if there were sound reason to reconsider that tradition,* it is poor policy.
_____
*FLS (ante, at 2:00 PM) and Doyle (ante, at 2:37 PM), inter alios, suggest that there is such reason, based on the notion that this was has indefinite dimensions. I rejected that proposition above, see ante at 3:35 PM.
Mortimer Brezny said...
"Simon, There is no point in arguing with these idiots. ... They do not care about logic or legal craft, nor do they care about rule of law. They care about politics."
The commenters here, or the majority? ;)
"They hate Bush and they hate Bush policies and they believe in civil liberties and if you try to explain that this is more complex than that, they will accuse you of hating freedom."
They believe in civil liberties that they avail themselves of, or feel that they might at some point want to avail themselves of. That belief runs out when a civil liberty cuts athawrt a policy that they approve of, when it protects and activity that they lack interest in, or, worse yet, both. That is why today's chorus of aproval will turn to a different hymn sheet should Justice Thomas write for the court later this term in Parker.
madawaskan said...
Titan- So today's decision keeps it all within military jurisdiction-is that what you are saying? Which is organized under the D.O.D. and The Executive? Have I got you right on that?
Not exactly. The military can still hold its trials, but the Court basically announced today that it will review those trials (through the mechanism of habeas corpus).
So it can still be an all-Executive affair as long as the Executive does a good enough job, but the Executive will be subject to the oversight of the federal judiciary.
This doesn't mean the judges will be over-intrusive (they have said that want "minimum" requirements) but it does mean they won't "butt out" entirely like Bush wanted.
Madison Man said:"When was the last time an illegal got a passport?"
Sometime today when the latest anchor baby was born to illegals.
"Titus, that would be a fabulous idea alas, we wouldn't be able to because since you're gay and Muslims hate gays more than Republicans, it would be considered culturally insensitive, racist and demeaning to expose these poor folks to your person"
That's the idea Hoosier-it would be considered worse than torture for them and for that I would offer a fabulous contribution. And yes, I know they hate me more than republicans. For some reason some republicans think gays have some sort of empathy for muslim fanatics. Not true, we just want to fuck them and ruin their lives.
Skeptical said...
"Simon, Can you explain what you find abhorrent about a nation claiming jurisdiction over actions that occur outside their borders and by non-citizens?"
Sure: the creation of binding law presupposes that the sovereign is invested with some kind of authority to bind those of whom compliance is expected. That's the basis of the concept of limited government in the United States: that the federal government can only make such binding law as it has been delegated authority by the Constitution to make. But no one in Germany, for example, owes any duty of obedience to the laws of the United States, and our founding document, our very raison d'etre as a nation, the Declaration of Independence, rejects the concept that Americans owe any duty to obey laws other than of their own making.
In my comment above, I suggested a hypothetical where a German engaged in conduct in Germany that is not criminal in that country, yet is in our country, and asked if we could arrest her for her conduct should she later come into our jurisdiction. But the that door swings both ways, and I think you'll see the problem if we invert the hypothetical. Suppose Belgium enacted a law that banned smoking, carrying a $100 fine for each incident. Should you travel to Belgium and smoke therein, you would of course be liable to such fines as would accrue under their laws. But suppose on your arrival, you were detained, and told that you would be released as and when you paid the $200 in fines you owe for violating their no smoking law. They are in posession of genuine and uncontroverted photographic evidence of you smoking two cigarette outside of Newark Airport while awaiting your flight. I fancy that while you might pay the fine, to escape custody, you would feel that their action was illegitimate - what right to they have to fine you for conduct you undertook in America that was legal in the place in which you did it? I think the answer is none at all.
You're invoking, I think, the natural law of self defense. And I have no objection to waging war - including preemptive war - in service of our self-defense. I can't accept, however, that a state has any authority to bind any nation but its own. We should find and detain or kill (in view of today's ruling, as several commenters above have noted, the latter must now be preferred) those terrorists that would do us harm, wherever they might be. But we should do so because we are at war with them, recognizing that war permits no less, not out of some pretense that they have some duty to follow our laws and that we are therefore carrying out a law enforcement exercise.
Did ancients have to deal with, "well! so-and-so senators stance is just like Hannibal!", "blah-blah when we fought the Carthaginians!"
Abraham Lincoln invoked the Revolutionary War as a metaphor for the struggle against the Confederacy. It is better known as "the Gettysburg Address".
Simon,
With regard to your hypothetical directed to DTL at 11:03, I don't think prosecution of the German would require a novel legal theory at all if the chemical weapon was used against a United States national or against any property that is owned, leased, or used by the United States or by any department or agency of the United States. In fact, if the chemical weapon was used against either a U.S. national or against property of the U.S. it would probably take a novel legal theory to thwart a prosecution on extraterritorial grounds because the language of the statute quite clearly contemplates the statute applying to extraterritorial acts.
I was a bit perplexed at your indignation that such a prosecution could be pursued until I skimmed your article on SSRN and found the genesis of the hypothetical. While I share your concern about my speech here being subject to prosecution abroad, I think there is a categorical difference between speech and actions such as producing and using a chemical weapon.
This well footnoted article by the Congressional Research Service gives useful background on the extraterritorial enforcement of American criminal law. On pages CRS-11 to CRS-14 (footnotes 39-44) it discusses the intersection of international law and domestic law.
I don't believe legal precedents are the issue for this administration. This administration doesn't see itself as being above the law, but rather views itself as being the law. It says whatever it wants, without regard to truth or anything remotely resembling truth, in order to further its own aims. The sooner it is gone the better. What concerns me is Chief Justice Roberts. He will be around for a long time.
And thank God Justice Roberts will be around for a long time. We will then at least have a semblance of the judiciary actually making decisions based on the law rather than the digestive tract of the various judges.
We have an undeclared war, with enemy combantants of no fixed address, whisked away to a place of presumed non-jurisdiction, to await nothing except eternal limbo, creating unprecented 'un-persons'...but it's JUDICIAL activism that concerns you??
How will the so-called 'conservatives' shudder when the unchecked reigns of an Exectuve Branch is handed over to the other party...
what fools these mortals be.
Is there any point in being an actual US citizen then?
The free speech (at least so far), and especially (though not only) if raised under this system, the deeply ingrained sense of entitlement to, and dignity of having, it.
Yeah, that'd be number one. Precious beyond words.
Well, that's what I think, anyway.
We have an undeclared war
Congress declared war in both 2001 and 2003.
with enemy combantants of no fixed address
Whatever that means.
whisked away to a place of presumed non-jurisdiction
Also known as "a US military base on foreign soil", over which the civilian courts don't normally have jurisdiction.
to await nothing except eternal limbo
To be held until the war is over or we feel they are no longer a threat.
creating unprecented 'un-persons'
There's nothing unprecedented about holding captured enemies for the duration of the war. It has been done in every single war we've ever fought.
but it's JUDICIAL activism that concerns you??
Yes. The Constitution grants the Commander in Chief power to the President and the power to determine the laws of warfare to Congress. The Supreme Court needs to shut the fuck up and obey the law for a change.
Simon,
Can't the Bush Administration simply ignore the court ruling? What's the court going to do about it if they do?
If you can't think of one, you're not trying.
When was the last time an illegal got a passport? Pretty lame for a 200th post, but there ya go.
Oh gee you're right I missed that one. Probably because illegals evidently didn't need one to get in this country.
It's been awhile since I have had a passport and can't recall what benefits that one provides me other than the ability to visit foreign countries.
I thought that almost nothing would make me, a committed activist Conservative get up off my ass and vote for John McCain.
And then the 5 Liberal Supremes went and did this.
Now, things really are much more complicated.
What will I ever do now?
Simon,
Well, of course the US has no authority over Germans in Germany. But it does not seem at all to be a stretch to have a class of rules that constitute a middle ground between treating a non-US-citizen as a under US authority and treating him or her simply as a threat to US interests. And the middle ground is nicely provided by those norms that non-US-citizens are already bound — morally, though not legally — to follow with respect to the US, e.g. not to engage in terrorism in the US or against US citizens.
If a non-US-citizen is hauled into a US court for an act committed abroad under such a norm, the US can claim a right to enforce that norm as a matter of natural justice. Surely the non-US-citizen isn't being wronged.
Another way to think about it: if your doing x gives the US a right to vaporize you with a cruise missile, it a fortiori gives them a right to haul you in and make you answer for what you've done.
Of course the smoking case is irrelevant, since no one in Germany is going to claim that I am violating a German's rights by having a smoke in Newark!
A Scalia has proven to be an activist judge who rules not on the plain language of the Constitution but on his own fears and paranoia.
Also, let's not forget a lot of these people in, or formerly in, Gitmo are innocent. They were delivered to US troops by Afghan mercenaries for a bounty. Not exactly a robust truth-finding system and many innocents were swept up.
Why do we want to be a nation that incarcerates and tortures innocent people? Can't we agree that's not us? I guess not because some people are frightened.
It's so disappointing to hear so many Americans so eager to throw away Constitutional liberties. The right wing, especially, should be deeply ashamed to abandon justice.
A Scalia has proven to be an activist judge who rules not on the plain language of the Constitution
Actually, the core of Scalia's dissent here is that Kennedy badly misinterprets Eisentrager. Scalia ably shows precisely how and why Kennedy's outcome is possible only if one deliberately misreads the applicable precedent.
I fail to see what that has to do with the text of the Constitution (it deals with precedent, not constitutional text) and I fail to see what that has to do with judicial activism (criticizing another judge for failing to adhere to long-standing precedent is not activist), but perhaps you can open my eyes.
But it does not seem at all to be a stretch to have a class of rules that constitute a middle ground between treating a non-US-citizen as a under US authority and treating him or her simply as a threat to US interests.
Of course. But that doesn't mean non-citizens on foreign soil have a constitutional right to habeas, nor does it mean the class of rules constituting a middle ground that Congress has provided are inadequate substitutes for habeas proceedings.
revenent-
I must have missed the Declaration of War...instead what I saw was an authorization to carry out military operations. The last time Congress declared war was in December 1941.
And to hold 'prisoners of war' when no war has been declared de jure, though a 'state of war' exists de facto, and then to elaborate a policy of virtually eternal conflict is to render such 'prisons' to a state of limbo.
The fact is that the Bush Administration specifically chose the place, language, and title of the confinement in an effort to subvert any oversight whatsoever.
George Bush has substituted his worldview for the rule of law (and not just in this particular case) setting the Executive Branch not just supreme among the three branches of government but as the sole branch of the government...and that's the not in the Constitution I've read.
The fact is that the Bush Administration specifically chose the place, language, and title of the confinement in an effort to subvert any oversight whatsoever.
The irony here is you fail to realize you have just asserted that Bush followed the law as it existed at the time.
RSA: Interesting point. However, the Constitution does not define how a declaration of war is to be stated, simply that one may be passed by Congress. The AUMFs of 2001 and 2002 pass muster as DoWs since both authorized force to be used in the respective situations. Whether the words "Declaration of War" need to be stated as such in a DoW is not at all clear and not a requirement per se.
This country did declare that we're going to fight in Afghanistan and later in Iraq and that's a statement that a war was going to be waged. So, the DoW issue is a phony baloney issue to raise against the Bush Administration.
Of course, it could be said that we didn't touch home base so that run didn't score but then the umpire was out of position on that call.
Also, let's not forget a lot of these people in, or formerly in, Gitmo are innocent.
Really? Which of the ones currently in Gitmo are innocent?
I must have missed the Declaration of War
That much is obvious.
instead what I saw was an authorization to carry out military operations
That's a declaration of war. This is really very simple, and I'm amazed that so many people can't understand it:
(1): When you use military force against someone who uses it against you in return, that's "war".
(2): Congress authorized this.
(3): Ergo, Congress authorized war.
(4): Congress publicly declared that they were authorizing the use of military force against Al Qaeda, Iraq, etc.
(5): Ergo, Congress publicly authorized war.
Now, it may be that you think that there's some critical difference between "publicly authorizing a war " and "declaring a war". But there's no basis for you belief in either the Constitution or in international law.
setting the Executive Branch not just supreme among the three branches of government but as the sole branch of the government
In matters of war, the President was placed supreme among the three branches of government by the representatives of the thirteen states that ratified the Constitution. The President is commander in chief. Congress raises and funds the army (which it did), determines who it may be used against (which they did), and passes laws for the conduct of that army (which it did). The President decides how the war is conducted. That's how our system works -- it is how it has ALWAYS worked.
ron,
The AUMF is a declaration of war. The Consitution gives Congress the power to declare war, but nowhere does it specify the language which must be used.
Morty,
"The irony here is you fail to realize you have just asserted that Bush followed the law as it existed at the time."
Nice catch! Yes, folks, it's the old "loophole" fallacy.
Just thought I'd pass along this story:
America's prison for terrorists often held the wrong men
Innocent people have also been freed from Gitmo and others are being held. Can we agree that is an injustice?
And, who was the first King to establish habeas corpus rights?
Forgot the link:
America's prison for terrorists often held the wrong men.
Now that the anti-science, superstition-based initiative presidency ends, we need several public works science Manhattan projects to make us great again and boost us out of this Grotesque Depression. First we must provide free advertising-based wireless internet to everyone to end land line monopolies. Then we must criscross the land with high speed rail. Because bovine flatulence is the major source of greenhouse gases, we must develop home growable microbes to provide all of our protein. Then we must create microbes which turn our sewage and waste into fuel right at home. This will end energy monopoly by putting fuel in our hands. We must address that most illness starts from behavior, especially from parents. Since paranoid schizophrenia is the cause of racism, bigotry, homelessness, terrorism, ignorance, exploitation and criminality, we must provide put the appropriate medications, like lithium, in the water supply and require dangerous wingnuts who refuse free mental health care to be implanted with drug release devices. CHurches should be licensed to reduce supersition and all clergy dealing with small children should be psychiatrically monitored to prevent molesting. Osama bin Laden and Timothy McVeigh were the ultimate superstition based initiatives. Widen navigation straits (Gibraltar, Suez, Malacca, Danube, Panama and Hellspont) with deep nukes to prevent war. In order to fund this we must nationalize the entire financial, electrical and transportation system and extinguish the silly feudal notion that each industry should be regulated by its peers. Technology mandates a transformation of tax subsidies from feudal forecloseable debt to risk sharing equity. Real estate and insurance, the engines of feudalism, must be brought under the Federal Reserve so we may replace all buildings with hazardous materials to provide public works. Insects, flooding and fire spread asbestos, lead and mold which prematurely disables the disadvantaged. Disposable manufactured housing assures children are not prematurely disabled and disadvantaged. Because feudalism is the threat to progress everywhere, we must abolish large land holdings by farmers, foresters or religions and instead make all such large landholding part of the forest service so our trees may diminish greenhouse gases. We must abolish executive pay and make sure all employees in a company are all paid equally. We must abolish this exploitative idea of trade and monopoly and make every manufactured disposable cottage self sufficient through the microbes we invent.
Post a Comment