Habeas Corpus Still Applies

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Well imagine that - it actually is against the Constitution to hold people indefinitely without ever bringing charges against them. Everyone knew this already except the Bush Administration:

Supreme Court rules Gitmo detainees have the right to challenge their detention in U.S. Courts

 

I'm conflicted on the basic premise of the detainments. Looking at this little excerpt:

it seems to me that at least some learned people believe that the detainment process is valid.

Please note that this in no way represents an endorsement on the torture that occurred / is occurring at Gitmo. Only the detention situation.

 

I just read Scalia's dissent

That's simply fear-mongering, and it's intellectually dishonest, too.

Sure, what he says is true. To the extent habeas corpus -- or any other civil liberties -- result in a potentially dangerous and/or guilty persons to go free, then yes, more Americans are likely to be killed. That's just the price one pays for a free society, and it means that "more will be killed" is never, by itself an argument for anything.

But of course Scalia knows all this. The reason why he is saying it anyway is that he is playing politics. The president is commander in chief of the armed forces. He is not the commander in chief of the nation. Scalia's remark of the commander in chief indicates he is a proponent of the unitary executive theory.

 

@LKD,

The problem I have is that some of these people have been held there for over 6 years and have not been charged with anything. It's fine to hold suspects while you gather evidence, but if in the course of six years you don't have enough evidence to press charges, you can't just keep holding these people indefinitely.

Perhaps a little background to this story as to how we've got to this point would be helpful. The reason is that the Bush administration has basically said that the Geneva Convention (GC) does not apply to these people. The GC has rules for how to treat prisoners of war (enemy soldiers) and civilians. You would think that all people would have to fall into one of the two categories, but it turns out that Bush and Co. have made a third category - called "enemy combatants". "Enemy combatants" are neither soldiers nor civilians, and thus there is no direction in the GC of how to deal with them.

That, of course, is baloney. To assert that the GC did not consider resistance groups operating within an occupied country - when revisions to the GC were done in the years immediately following WWII when France had an active resistance to the Nazis throughout the war - is absurd. The reason this issue keeps coming up to the Supreme Court (SC) is because clearly we have to do something with these people, and if international law does not provide a resolution, then national law should.

In fact the two previous times that this came up to the SC, it ruled that national laws do apply - only to have the then Republican controlled Congress make revisions to the aforereferenced laws so that they no longer applied. This time, however, it's going to be a lot harder to get around, because the SC ruled on a Constitutional basis - that holding them without charges being brought violates habeas corpus - and thus is unconstitutional. The only way to get around this ruling would be to change the Constitution.

How any free-thinking U.S. citizen can claim it's all well and good to keep people imprisoned indefinitely without any charges being brought against them is perplexing to me. Moreover, this ruling doesn't even say they all have to be set free. All it does is allow a lawyer, on the imprisoned person's behalf, to make a case before a federal court that his client is innocent of any crime and should be released.

Of course, I still have a probelm with gathering evidence for six years without charging them with a crime. In that length of time you either should have the evidence you need, and thus charge them, or realize that the evidence against them is not forthcoming and thus release them. I'm not saying that all 270 detainees at Gitmo are innocent. Just that in six years we should have been able to sort them out.

 

I agree with most of what you are saying -- one thing I am not clear on anymore is what the US would have to do (under the Geneva Conventions) for these detainees if it acknowledged them as enemy soldiers. IMHO, it doesn't matter if they were not part of a country's military -- they were engaged in combat operations and likely violated the Geneva Conventions many times by so doing, but that still makes them enemy combatants. I venture to guess that there is no limit on how long you can keep an enemy soldier detained.

 

Does a 5-4 ruling mean that out of a table of 9 people, only 5 agreed that holding people without charge is wrong? If that's the case I'm astonished and horrified. Or am I reading that incorrectly?

 

While I understand the arguement that these combatants do not meet the GC criteria for prisoners of war (though I'm not sure if its true), the idea that they can be held without law is flat out unconcionable. At the same time, however, those that are not US citizens should not necessarily be subject to US laws and procedures. Does the UCMJ have anything to say about treatement of prisoners other than SEE GC? If not, that seems like the appropriate place to put measures to deal with such things.

 

In a typical war, if they are designated as enemy soldiers, then they would be POWs. POWs are discussed as part of a cease fire/surrender deal. That obivously isn't going to happen, because they aren't part of an organized army from a recognized country. It would be more logical to assign civilian status to them. Of course, you can be put to death even if you are civilian for attack US soldiers, so what you classify them as is really moot. I was more or else arguing that assigning them to a third category was done simply to allow them to sit in legal limbo all this time.

@Barmy - agreed.

 

You are right. That was just the point. This third category was completely fictious, invented just for that end.

It gives testimony to how far right some of the judges on the supreme court actually are, and on effect the last appointments.

 

Well, I hold no love for the detainees in Gitmo, but I have no problem saying that the US should either fish or cut bait with them and eliminate the stupid 3rd category then. Treat them as foreign citizens who committed a murder against a US military member-- have a trial that proves that, and then execute them. Sounds easy to me. The legal limbo thing is a bit much (although once again it looks like there must be SOME legal backing -- say what you will about the justices, they're not all lay hacks like myself.)

 

We already know that the vast majority did no such thing. A great many of the inmates in Gitmo are there because the US offered a bounty to locals for turning in Al-Quaida operatives. As a result, pretty much every Arab living in Afghanistan was turned in by Afghani locals seeking the bounty.

 

I'm sure that the US military is holding a bunch of choirboys because they have nothing better to do with their budget I'm sorry, Drew, but I don't buy the idea that the US military is that stupid or wasteful. I agree that they should be classified and tried, or classified as POWs and held until their parent organization negotiates a prisoner exchange, just as was done in WW2 and earlier.

In one case that is popular up here, a Canadian citizen named Omar Khadr is being held in Gitmo. He was 15 years old when he killed an American soldier in the middle of a firefight. The fact he killed the soldier isn't under debate. He is not a child soldier forced into the firefight -- he left Canada and trained as a soldier under his own volition. Some Canadians are screaming that this little dork's rights, but me? I think that he should be classified one way or the other, tried as a killer, and then executed. Hiding behind his Canadian citizenship or his age to excuse his radical, murderous, fanatical crap? I don't support that for a second.

 

LKD, check out Inside the Wire, a book written by a former Arabic linguist and comrade of mine who worked as an Arabic translator at GITMO. No, the GITMO inmates weren't all boy scouts, but a good number of them weren't terrorists, either.

 

So, LKD, if you fight in in a war and kill an enemy soldier you should be tried as a killer? I personally like that idea, just didn't think you would. It reminds me of my old Soldier thread. Or wait, no, this kid killed white American soldiers, that is different then you are a murderer. Being a young, brainwashed, muslim idiot who kills someone is completely different than if you are a young, brainwashed, American idiot who kills someone.

For all of you who defend American actions, turn the table, what would your view be if the same rules the US use would apply to them themselves? Sure, might makes right and the US is the mightiest around but that probably won't last forever and what goes around comes around. Will I see the same people arguing for the right of China to go in and capture and detain enemy combatants indefinately after China steps in to liberate America from the warlords that took power in the wake of the 2154 civil war?

 

Drew, LKD,
this is shorter (and immediately available).

John Roberts lamented in his dissent that the court struck down "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Interesting formulation. Indeed, considering that the administration invented the enemy combatant in 2001, and that there are no preceding US rules on enemy combatants, who had legal no rights at all until the Military Commissions Act of 2006 came along, Roberts is technically certainly correct. But he is deceptive. I think you have a problem when you see supreme court judges trying to sucker you.

All that the Geneva conventions require procedurally is that a party in war that to hold a brief trial determining the status of prisoners - if they're POW they can be held for the duration of the entire conflict, if they committed war crimes they can be tried for them. If they're civilians they can be treated as criminals and subjected to a criminal trial if they committed acts against US troops or other crimes (= put to jail for a very long time if need be), if they have not they are to be set free. There is no third category. This is what the JAG corps wanted so set up as it reflects the generally accepted view of Geneva and is the way the US treated prisoners in WW-II, Korea, Vietnam and Gulf War I.

After 9/11 the Whitehouse wanted something else. The troubles they're now in are a result of their half-assed decision to invent the third category of enemy combatants for the convenience of circumventing US law and (breaking) treaty obligations. Gitmo was chosen because it was thought to be outside US jurisdiction. The wording 'enemy combatant' blurs the difference between a POW (who is an enemy and a combatant) or an irregular civilian (who is an enemy and a combatant). That it is confusing is amply demonstrated by martaug. I think the wording was chosen to that effect.

So what with those few really high value detainees who are in CIA custody? Well, they are criminals, terrorists, they are murderers who would undoubtedly receive long sentences or the death penalty, but the policy makers hadn't thought through what to do with them when they ordered 'special treatment'. Once a prisoner's rights were violated there was no way of reintegrating them into the court system. They will remain in limbo after the verdict. It will be a mess for later administration to sort out, a legacy if you will.

What's coming down on the administration is that the people in Gitmo didn't get status trials in several years because of the administration's insistence on this third, fictious category. So there are people who have been held for 6 years or so. It means they will have served a full sentence for a crime for which they have not yet been tried, much less convicted, and which they even may be innocent of.

That is a lot of trouble that the administration could have spared itself.

 

Ragusa, show me one single post where i have ever said a single word about enemy combatants.

 

Ok, here's a link to the text of the 3rd Convention (regarding the treatment of prisoners of war), and particularly during the chapter that deals with release of such prisoners: http://en.wikisource.org/wiki/Third_Geneva_Convention#Part_IV:_Termination_of_Captivity

Now, if the prisoner is not actively supporting the insurgents/Taliban/whatever or no evidence of such support can be found, he can't be considered a PoW in the first place. If they were a member of a militia and thus a legitimate PoW, they should be released upon cessation of hostilities, which can be a rather tricky part given the number and splintering of such militias.

On the other hand, Gitmo - and other such bases - clearly violate the conventions about how such prisoners are held, which imo is the more important matter.

 

You know, this reminds me of the little dispute over 688 that we had a few days ago ...

You are in your posts very much pro-administration. Uncritically so. I have gotten the impression that such wording games work well on you and fully achieve the desired effect. I absolutely expect that you share the administrations line that 'enemy combatants' as a legal category do exist. I would be shocked, just shocked, if I had done you injustice.

 

Spot on.

LKD - you're scaring me.