It's Unlikely, But Worth Noting:
In today's debates on Boumediene v. Bush, I think it's worth noting that there's a way in which Congress could still go back to the pre-Rasul or pre-Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (emphasis added)
As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.
As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.
I suppose you could argue that 9/11 was an invasion of sorts.
Let's be serious here - these are political decisions on the courts part, not legal ones. I'd be impressed if more legal analysts were willing to call a spade a spade.
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The founders put measures in the Constitution with an eye that darn serious events might dictate some deviation from the "ideal" co-operation of three branches.
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But not even in the Civil War, or WWI, or WWII did Congress suspend habeas. The three branches (mostly) continued to cooperate.
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I'm not inclined to say that we ought to make the trigger for suspending habeas sensitive enough that it should go of at this instant, due to the WOT.
Well, I can't be surprised that a lawyer would think that way. But the system is not supposed to place such power in the courts.
There is one part of govenment which libertarian lawyers are pleased to see expand, and that's the judicial branch.
Lincoln suspended habeas corpus in the Civil War -- unconstitutional, but as far as I know no court ruled against him. Were there any?
Would it be possible to call the Sept. 11 attacks by those responsible who were living here an "invasion"?
Habeas corpus was suspended during both the Civil War and WWII. During the Civil War they suspended it nationwide and in WWII it was suspended it in Hawaii pursuant to the Organic Act of 1900.
With time out for a habeas petition and an appeal to the Supreme Court.
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I stand presumptively corrected (not that it'll teach me to comment without researching first!), and thank you for the approximate cites.
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WRT Civil War, I based my impression on Ex parte Merryman, 17 F. Cas. 144 (1861) and Ex Parte Milligan, 71 U.S. 1 (1866). I never did look for Congressional acts. Likewise with WWII, just based on a hunch that the Courts were entertaining habeas petitions. I hadn't considered a Hawaii "carve-out."
i am not advocating suspending the writ... but as to whether it COULD be suspended based on the invasion justification
1)al qaeda had already declared war on us years before... (officially, i might add)
2) the 911 hijackers were foreign nationals, many here illegally
3) they were members of al qaeda (see (1))
4) they did what they did to further al qaeda's aims
sounds like an invasion to me...
the DOD military dictionary doesn't list invasion, fwiw.
conventional dictionary meanings are consistent with what al qaeda did on 911
If you did, wouldn't you have to conclude that the invasion is over when the invaders are dead? Even granting that 9/11 was an "invasion," the plain language of the suspension clause quoted above would seem to indicate that the writ cannot be suspended now.
IANAL, etc.
Oh, my mistake!
I wonder if Sen. Kennedy and Byrd appreciate /that/, even if they agree with the outcome?
Who says the invaders are dead? We know the nineteen highjackers are dead. But how about their support network? What do we know about that? Were they always on some bogus uncle's mastercard for motels and meals, or were there what amounted to safehouses? Although, if nobody's looking for you, practically anyplace is a safehouse. Still, they probably weren't bunking in with FBI agents. Although, in the final analysis, that might have been safest of all.
The question remains? How do we know all the invaders are dead?
Not necessarily, unless you could conclude there are no more sleeper cells in the US.
And while AQ members have been argued to fall under unlawful enemy combatants, I think there needs to be a new category for transnational terrorists (terrorist = using violence to achieve political goals). Domestic terrorists fit well under a nation's criminal law, but all these S.Ct. cases seem to suggest that we do need a new category for them, with new international treaties. Normal rules of evidence &police work don't work well on the battlefield or with soldiers who are not cops.
Of course I don't have a good idea what such a category would look like.
I think there are two overlapping methods to describe the scope of (and rationale for) suspension. One being geographic, that courts can't be "open" or "trusted" (see KKK situation) in a lawless geographical area. The other is as applied to a class of people. The fact that some infraction of the UCMJ can't be put before an Article II Court does not mean that habeas has been suspended as to members of our active military.
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My sense of the over-riding point of habeas is that justice should be detached, transparent and objective; to the full extent practicable.
the casse deals with whether a stauteory scheme is constitutional.
congress cannot strip the right of scotus to determine what is constitutional. (marbury v madison)
Electrocuted, actually.
Who says the invaders are dead? We know the nineteen highjackers are dead. But how about their support network? What do we know about that?
rbj:
Not necessarily, unless you could conclude there are no more sleeper cells in the US.
Well, if you don't know whether there are more supporters or sleeper cells in the U.S., then you certainly can't conclude that we are currently undergoing a rebellion or invasion.
This is the worst SCOTUS decision in the history of the United States.
I'm pretty sure the burden of proof is going to fall on the government in that scenario-- even assuming for the moment that terrorist sleeper cells constitute an "invasion" within the meaning of the Suspension Clause, the government would have to demonstrate that such groups are active within the U.S. in order to justify suspension; simply saying "Well, you can't prove they're not!" wouldn't even make it past the Fourth Circuit.
Not true. Congress may not strip the Supreme Court of authority to determine the questions falling under its original jurisdiction. However, the exceptions clause does allow Congress to strip the Supreme Court of its appellate jurisdiction over any other question.
It is not yet tested whether Congress, having removed the Supreme Court from jurisdiction over a particular matter, may also use its plenary authority over the jurisdiction of the inferior courts to remove them as well. That would make the matter completely judicially unreviewable. The text of Article III seems to allow this.
In such a case, were the elected branches to use the legal black hole to do something patently unconstitutional, the remedy would lie with the people: throw the bastards out in the next election. Constitutional rights do not exist and are not vindicated solely by judicial say-so.
my mistake your right congress can remove appellate jurisdiction from the supreme court-and this was an appeal
but the statute took away the federal courts right to hear habues-not the federal courts right to hear whether taking away habeas was constitutional.
btw-was for the case where congress takes away origonal jurisdiction from lower courts and appellate jurisdiction from the supreme court-we would be left with original jurisdiction in the supreme court would we not?
Times of rebellion applies to neither.
I mean, to me the argument would make more sense to transfer all detainees in Cuba to a floating airline brig above NYC where at least an attack occured (seven long years ago) and then suspend Habeus and then get rejected by the Sup Ct as being completely stupid. John Yoo said that if they are floating above 8,000 feet, they aren't technically "ON" U.S. soil and we can burn and eat them as we see fit. No rules apply in make believe land. Brown people are still bad and must be feared though.
Oh, and in a pre-emptive move - let me just state for the record- i hate the u.s. and love turrists.
The Supreme Court would retain its original jurisdiction over the matters the Constitution specifically grants it, namely only:
There are very few cases (perhaps one per year), that fall under the Supreme Court's original jurisdiction. Congress may neither truncate nor expand this jurisdiction.
The subject matter over which the inferior courts presently have original jurisdiction, if such jurisdiction is removed from them, does not then fall under the original jurisdiction of the Supreme Court. There would simply cease to be federal judicial jurisdiction in the matter.
fact remains that the statue did not strip courts of ability to determine constitutionality-they only stripped them of the right to hear habeus
Ilya said:
Did you even read the first part of Scalia's dissent, sir?
Was anything ever more political and less legal?
Yes. And it was on-point.
Well, here in D.C., we acknowledge the importance of tourists to the local economy, but I wouldn't say we "love" them.
Personally, I am not in favor of granting Habeas to enemy combatants captured in other countries simply because they have been transfered to Guantanamo. However, anybody arrested in the US should at least have the right to challenge their detention.
In short, there is a constitutional mechanism for suspending habeas corpus for US citizens and for doing so within the sovereign territory of the United States. But there is no constitutional mechamism for suspending habeas corpus for enemy aliens captured in foreign conflicts. None. Period. Full stop.
If that sounds like an absurd outcome, it is. It is for the simple reason that the "invasion or rebellion" clause presumes a mandatory application of the writ limited to the actual sovereign territory of the United States. Congress may, of course, extend the reach of habeas by statute, but the suspension clause of the Constitution by its very terms presumes a limited territorial reach.
So here's the trick: the Court has now converted the very language in the Constitution that presumes a limited territorial reach for mandatory habeas into a constitutional bar on legislative suspension of habeas outside that territorial reach.
I am thoroughly disgusted.
Discuss.
My personal belief is that it should be justiciable, for otherwise the protection, which is supposed to operate as a constraint against a majoritarian Congress, would not effectively constrain it, since the majoritarian Congress would get to decide its terms. Nonetheless, Justices Scalia and Stevens in Hamdi certainly believed that the clause was not justiciable, as did Clarence Thomas in his concurrence.
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I'd put Wickard, Casey, and Kelo as worse for a society that aims to value individual freedom and the transparent and accountable exertion of the power that flows from the barrel of a gun.
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What if Congress and the President worked in cahoots, and established GTMO as a black hole for detention? Is there no room for SCOTUS intervention?
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Just saying, at some point any reasonable person would call for the Court to step in - e.g. if Congress and the President agreed that per se being at GTMO means guilt and the guilty have no right of rebuttal.
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Give the miscreants a fair and transparent process, then execute or detain the guilty.
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And so, the devil is hanging out there in the details, as to whether or not the Court saw a sufficiently fair and transparent process. 5 out of 9 claim they didn't.
Such a view may well presage a view in which jurisdictiion over potential life increase with its likelihood of becoming actualized in a way that may well represent a more conservative view of abortion (although not an absolute one) then the present Roe v. Wade regime. Under this view, the government may some right to regulate even when the potential is relatively far from actualization, just as it retains it in territories that the U.S. doesn't intend to make states and whose inhabitants it doesn't intend to make citizens.
Bush should pull a Jackson or Lincoln and just ignore the court, which I have been doing for a while now. The court is more interested in advancing great society rhetoric than sitting in judgement.
The case basically hinged on the question of whether Guantanomo bay was or was not U.S. territory; the Court took a de facto rather than a de jure definition. But the U.S. could simply move the prisoners to detention camps unequivocally outside U.S. territory and there would be no basis for complaint.
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You are misconstruing the scope and effect of the ruling. If it was as you describe, I'd be hyperventilating along with you.
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SCOTUS left room for Congress to legislate a MCA that lies at some indefinite place between what it did put out, and access to "all the rights of a US accused criminal defendant." It permits the military to hold POWs without recourse to courts.
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But THIS MCA, ruled the Court, is not an adequate substitute for access to an independent Court. And for the folks who have been detained for 6 years, more or less, well, come on in to Court and see how you fare.
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Honestly, if the government has the evidence, the miscreants have short reviews and are then disposed of.
How do we know that everyone in Gitmo is the equivalent of a German sabateur? As far as we know, a lot of them could easily be someone whose neighbor lied to get a US Government reward or out of some personal vindictiveness. We really only have Bush's word that the people at Gitmo really are enemy combatants at all.
Under Bush's theory, he could pick up any person anywhere, declare that person a terrorist, and have the unreviewable authority to detain that person forever or kill him.ubl
rubbish.
al qaeda has declared war on us
they have installed cells and agents in the US (including those that committed 911)
they have even taken responsibility for 911 (only a truther nut doubts they did it)
that's an invasion by any reasonable definition. certainly by the dictionary one.
it's not like they are going to invade like a CONVENTIONAL army, with a bunch of troops in uniform. the whole reason we are having this discussion (UNLAWFUL enemy combatants) is that they do not WEAR uniforms, or follow the conventional rules/restrictions of war.
so, we should reward them for that?
Many of the people in Gitmo appear to be innocent bystanders. That's explained here:
Those claims are well-documented (pdf).
You shouldn't take the majority's opinion seriously as if it were annunciating any legal theory here. This is just power politics. Although an effort to try to find any mechanism of overturning Roe v. Wade is to be appreciated, it won't happen by taking THIS majority seriously. This decision is clearly a political decision, as was Roe. There is no legal theory advanced at all. It just asserts that Courts must have a say in things, which is to be expected from a power-hungry Court. Moreover, since Roe was a political decision also having no foundation in the actual Constitution, the means of overturning it must depend on ousting from the Court those corrupt judges who determine the law based on their own personal preferences.
The correct response to this decision is to impeach the majority. Unfortunately, since the Democrats are in power, that won't happen. In a just society ruled by competent politicians, it would. It's an indication of how debased our political culture has become that the current Congressional majority is happily a slave to the Court's aggrandization of power. If I were President Bush, I'd also tell the court to go to Hell, at least to see the reaction of Justice Kennedy's face. It requires an Executive Branch to enforce the law.
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Except the effect of "We're being invaded, man the battery!" is conflicted with "Keep shopping, go about your business."
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Not that you can't draw the definition of "invasion" anywhere you want to. Understood, you hold that the US is presently under invasion. Oh, that that anybody who thinks otherwise is unreasonable.
My comment went only to the text of the Constitution and the reach of habeas, not to the content of what the detainees' trial process will or must be.
I think this judgment makes it more likely that we will release people we shouldn't, or that we will harmfully compromise our intelligence assets, but I am certain of neither.
I am certain, however, that the Court has left no constitutional mechanism for suspending habeas corpus for enemy aliens captured in foreign conflicts - no, none whatsoever - and that it has done so by ignoring the Constitution's implicit territorial limitation of habeas when it wanted to grant the right to the detainees, but by standing upon that territorial limitation to the last punctilio where it wants to review any potential justifications for suspending habeas.
That is adequate cause for disgust.
Yes, the Constitution fails to contemplate that we would be going around the world capturing people outside our sovereign territory, in order to perpetually hold them without any legal recourse, despite having a fully functional legal system at the time, and no particular logistic difficulties in the way of giving them a chance to establish that we have no basis for holding them. It's funny that way.
I will never cease to be amazed at how people who mistrust government in so many other arenas are so eager to take its word at face value on this point.
Many people in America hate the Supreme Court for many reasons. Abortion, Bush v. Gore, etc. It is increasingly apparent that the Court is just another political branch. I suspect that while they and many lawyers view their power as greater than ever (and it is, on one level), the people will increasingly treat the Court with disgust and with the contempt it deserves. Power is usually supreme when the rot begins to creep in. If this keeps happening, expect the Court to be ignored or its justices to be impeached. I just hope it happens soon enough before the Court does permenant damage to our country. If the Court, for instance, upholds the DC gun ban, then I think the people will really begin to rebel against it.
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Be certain means no argument or rationale will be persuasive to you. And so. "Ok"
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But, FWIW, I'm not hyperventilating along with you.
I'd love to be persuaded out of my certainty. How do you see such a suspension as possible after this decision?
(Also to the people who are quibbling about dictionaries: despite judges' bizarre interest in relying on them, dictionaries do not provide actual word meanings. They provide is somewhat random lists of quasi-synonyms, not anything remotely resembling necessary and sufficient conditions. But of course for the purpose of legal analysis they are relevant because judges are completely ignorant of even the most basic linguistics.)
whit, you might want to check that dictionary for the definition of "many."
Fifteen of the 19 hijackers obtained their U.S. travel visas in Saudi Arabia.
If a small number of foreign terrorist wannabes with grandiose but completely ludicrous dreams of overthrowing the government constitute an "invasion", the U.S. will be under perpetual invasion, even if none of them ever attack anything.
you leave out the fact that al qaeda had already declared war on us, is well organized (if well decentralized into cells), etc.
you can call them foreign terrorist wannabes all you want. sounds like minimizing to me. we have been continually breaking up cells, before and after 911. we have been intercepting attempts (including here in WA state) etc.
an organization (not a nation in the case of al qaeda) declares war on us, sends agents over here to train and commit terrorist acts, etc. and it's NOT an invasion?
riiiiiiight
You might want to refine that definition a little. As stated, it covers wars.
Under the court's reasoning how did the hundreds of thousands of German POWs detained on US soil during WW2 presumably not have the right of habeas?
From my read of the opinion, it appears that the writ, as a constitutional matter, would have extended to German POWs detained on US soil. Can someone disabuse me of this notion?
By the way, for the record, myself and my roommate are declaring war on Canada, we've visited there a few times and flagrantly violated their laws and we intend to invade and overthrow their government. By whit's definition, Canada appears to be under a bona-fide threat of invasion and can suspend the common-law writ (or whatever they have there).
Elliot, did you read the link you provided? The article says if you ask a different question, you find that the number of people who have "a great deal" or "quite a lot" of confidence in the Court is at its lowest point EVER.
Besides, I didn't say that gun ownership would be the issue that would tip the scales in leading a backlash, I merely said that if that case goes the incorrect way, then certain people might openly rebel against the Court. There is no way that the Court can credibly find a right to butcher an unborn baby in the Constitution, yet fail to read the 2nd Amendment as granting the right to own a gun. It stains credulity, and as each person finds that an issue they care about is being read politically by a Court, the number of people realizing just what a sham the Court is will increase. Be it guns, abortion, the war, private property, drugs, or something else - people know when they're being scammed and when the Court is acting politically.
I wouldn't underestimate the effect of this case either. It is a sham decision and clearly political, and it will infuriate many people who support the war on terror.
At this point, I wonder if a policy of "the worse the better" is the approach to take. How do you fight against clear injustices from a quasi-Judicial branch (quasi because they're clearly not doing any real judging here). What's going on in Canada with its Human Rights Commissions may be instructive. It might be that we should goad the Court into really overstepping its bounds, so Congress and the President put some real limits on it by impeaching the corrupt judges, or limiting the size and jurisdiction, or abolishing a lot of the district and appellate courts, or de-funding everything but their salaries (which are never raised), etc.
I'm suspect the Court would say that habeas does not apply to POWs. Even if it said that habeas did apply, it would hardly matter because Germans captured in uniform by American troops were not likely to have any case on the merits.
I don't see how the writ couldn't apply under Boumediene (forgive the double negative). Assuming a POW wants to challenge that he was in fact a POW, this opinion seems to allow it.
The merits is somewhat beside the point, because the incredible burden would still be there for proving that the particular POWs were in fact enemy soldiers.
If you wanted to avoid outcomes like this, you should have insured Geneva-correct treatment for the prisoners. Bush and Cheney have tried to mix-and-match laws and jurisdictions with the one constant of maximizing executive power and removing any sort of oversight (their claims in Padilla amounted to nothing less than the introduction of lettres-cachet to America). Five justices are tired of this nonsense.
No small amount of sometimes-dubious SCOTUS decisions came from its determination, in the 1960s, to enforce the outcome of the Civil War of the 1860s. Who knows how much more the Court will have to do against George the Lesser to enforce the outcome of our war against George III?
Dare I suggest simply appointing different judges? I know it's not as sexy as demanding impeachment, but that's how the system works.
except that's not what is required. it says "INVASION". it does not say "invasion with the actual ability to overthrow the government"
iow, you change the text/move the goalposts to suit your political agenda.
invasion is a simple word. try looking it up.
no, that's not by my definition. are you part of an internationally recognized international terrorist organization, such as al qaeda? i thought not
stop protesting your political agenda and try using logic, and use words for what they actually mean, not to suit your agenda.
It's not good enough that better judges are appointed, because the institution as a whole has too much power and that power can corrupt even the best of men. No, those who are corrupt must be punished. A bad politician is voted out of office, or at least made to answer for himself in the next election. Bad judges are unaccountable and do incredible long-term damage. The system was not designed for numerous corrupt judges who maximize their power at the expense of other branches. The other branches have to fight back. There is no "balance of power" if they allow the Court to walk all over them.
Most of these detainees will remain in prison for the next 6 months, while their cases are argued and appealed ad nauseum in the district and circuit courts.
when the new President takes over, if it's Obama, I suspect most will be released and the rest given normal civilian trials a la Moussaoui and Ramzi Youssef. If McCain wins, the same thing will happen unless McCain gets to replace one of the liberals, at which point today's case will be overruled, and the MCA reinstated, the commissions carried out, and most of the detainees executed. but all that is a few years in the future.
for the forseeable future, these detainees will remain in prison in Gitmo, and then be moved to prison stateside under the new administration.
this was purely political. Kennedy concedes as much when he says the case could have gone either way but the majority chose to invalidate it, even though no less than Alezander Hamilton and James Madison clearly said that they should have done the opposite and affirmed.
Kennedy disappointed me today. I thought based on the oral argument there was a chance he'd go the other way and when I saw that Stevens wasn't writing this, that strengthened. Oh well. Can't win them all. Kennedy has been pretty good lately, though. From Carhart II, FEC v WRTL, Hein, Parents Involved, Baze, Crawford, Medellin, Ledbetter, Williams and a few others, he's mostly been with the conservatives.
Hopefully he's with them in Heller and Kennedy and the term can end on a good note.
In the long run, a conservative win in Heller will be way more important and consequential than this case is. Kennedy will be largely forgiven if he's part of a majority in Heller that finally after 200+ years affirms the 2nd amendment as part of the constitution.
the reason, to some extent they are rather slim is that we keep breaking up cells and intercepting attempts. like here in WA as i mentioned, by an alert customs agent.
you create a catch -22 . we have to suck at intercepting attempts and breaking up cells. how many 911's would qualify as "not slim?".
do you want us to do a BAD job at fighting terrorism so that it doesn't seem "slim?"
it's not MY definition of invasion. it's called a dictionary . try one. this is a non-uniformed non-conventional enemy. so, were not going to see subs off our coast and hordes of uniforms streaming into our country.
i'm not interested in keeping us in a state of invasion, nor did i say we should use this "invasion" exception. but i said, by the letter of the law, what al qaeda has done meets the definition of invasion.
But you are certainly, however, wrong. This decision relies on the relatively unique conditions at Gitmo, which is de facto, but not de jure, American soil (due to the absolute United States control over what is technically Cuban land, etc). If it is so terribly, terribly vital for detainees to be held indefinitely without trial, the United States can do so in one of its many hidden prisons in Afghanistan and Iraq and Eastern Europe, or, perhaps, in one of the prison ships floating in international waters. One might wonder why it was so terribly important to make so many prisoners disappear, and to guard so thoroughly against inquiry by seditious organizations like the Red Cross... but then, if one did not believe that foreign nationals were nonpersons with no inherent rights, one would not be a libertarian/conservative :)
Last I checked, we called those 'criminals'. We didn't need to suspend habeas corpus to catch Timmy McVeigh.
I guess my biggest question is how this decision affects prisoners of war in a conventional setting. If we capture tens of thousands of enemy soldiers and hold them at make shift POW camps as we have in times past, is this decision relevant to them or is it more narrowly tailored?
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Yeah. Sure. But by some other letter of law, your declaration is worth as much as James Burnham's - and he beat you to the punch by a few years.
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I declare, by the letter of the law, that we've been invaded by Democrats.
We called them criminal before 9/11. Then Congress went and passed a law saying that Al Qaeda was no longer considered criminal, but was instead considered a legitimate target of warfare. After the series of Al Qaeda attacks on US interests throughout the '90s, this was a very conscious and deliberate (and near-unanimous) act on the part of Congress to not treat Al Qaeda as criminals any longer.
This may have been poor policy, but it was the decision that was made. If you don't like it, agitate for Congress to rescind the war authority they granted to the President in this matter.
But don't blur the lines between war and criminal conduct. That won't work out to anyone's benefit on either side of the line.
First Thoughts on Boumediene.
Whatever you confiscated and are now smoking, pass it this way.
Your riposte does not lay out a constitutional method for suspending habeas corpus for enemy aliens captured in foreign conflicts. Hiding detainees from the courts in secret prisons, besides being impractical in the long term (as well as probably immoral) is not a suspension of habeas corpus. I stand by my point.
whatever you can say about mcveigh, he was not part of an invasion. he was not beholden to a foreign power, he was a US citizen (born here fwiw), he was not part of an internationally recognized terrorist organization that has foreign roots, etc.
again, i am surprised you have such trouble with a simple word. was mcveigh a terrorist? undoubtedly. was his terrorist act part of an invasion? no.
invasion necessarily implies a foreign entity. that is true in medicine, in war, etc.
a knife can invade my body. my gallbladder can't. both can cause life threatening problems. but the latter cannot INVADE my body, cause it's part of my body.
if that's too difficult i don't know what more to say.
and there is another point that another made, that needs to be repeated. there are crime issues, and there are war issues. al qaeda is not a crime thing. it's a war thing.
the problem that many people have is that their vision of war involves people in uniform in foreign countries. that's why i said al qaeda is unconventional.
but warfare needs to be distinguished from criminal acts.
Show of hands, anyone who think the Founders were thinking of Barbary Pirates being held Corsica when the Suspension Clause was penned.
The idea would never have crossed their minds, and if it did it would have been hysterical.
You can argue this is a just extension of Constitutional protections certainly. I dont think you can rationally argue this was the Founder intent.
oren, this "incompetent religious buffoon" meme gets old. it was old years ago, but it's still going strong in the radical left.
al qaeda is far from incompetent. but again, you create a catch-22. if we work hard to intercept attempts (as we have done) and break up cells (as we have done), then they are - by definition - incompetent, because they didn't succeed. but if we let them succeed, we would be committing treason - letting our enemies win, just so you could feel confident they aren't incompetent.
you are using the tired minimization meme. it doesn't fool anybody, but probably plays big among the moonbats.
prior to 911, few would believe some "incompetent buffoons" could have done the damage they did with some flight training, and some box cutters.
If he went with the conservatives, he'd have been persona non grata for the rest of his life.
Those summers and the time he spends with all his european buddies are the high points of his calendar.
Now, when he returns to Austria he'll be greeted as the conquering hero, with applause and flowers.
pretty sad that he's insecure in that way, but that's how it is.
hopefully McCain wins, gets to replace one of the liberals, and Kennedy becomes irrelevant on the court.
I could just as well harp against the AQ "maximization meme" that trots out the specter of nuclear bombs going off in American cities as anything more than an idle fantasy in OBL's mind.
You are profoundly misguided if you think that 9-11 was made possible because the hijackers had box cutters (hint: how many unarmed men does it take to tackle a few guys with knives in an enclosed space?). The damage they did was not due to the box-cutters, it was an exploitation of our mindset that advised cooperation and negotiation with hostage-takers. In a sense, they exploited a glitch in the thought process of the passengers and tricked them into thinking they were hostages instead of fodder.
you could, except i didn't bring up that meme. you did bring up that silly "incompetent buffoons" meme.
which doesn't dispute my point
prior to 911, you would have said it was ridiculous that a few guys with box cutters, some flight training, and a plan would have been able to do what they did.
and of course, just like now, you would be wrong.
i am the first to admit that (among other things) airport security was a JOKE prior to 911. i've carried my gun legally on airplanes pre and post-911 and pre, it was ABSURD how easy it was to walk on a plane with a gun. i flashed my badge, said i was on extradition, and that's it.
you are correct that the reason the box cutter thang wouldn't work now is, partially, because the mindset has changed.
another part of our mindset changing, which goes back to the original point is that we treat this as a WAR thing, NOT as a crime thing. that's the point.
again, it is a tired left-wing minimization meme to claim that al qaeda (specifically al qaeda in the USA) are just a bunch of incompetent buffoons.
Prior to 911, I would have said it was ridiculous that a president would see a memo called "Bin Ladin Determined To Strike in US" and decide to spend the rest of the month clearing brush.
Speaking of ridiculous, this was Bush's idea of fighting terrorism, pre-9/11: promote SDI. That's why on 9/9/01, Rummy argued that SDI was more important than counterterrorism.
"it is a tired left-wing minimization meme to claim that al qaeda (specifically al qaeda in the USA) are just a bunch of incompetent buffoons."
Calling AQ in the US a bunch of incompetent buffoons is a response to the fact that 'plots' that have been uncovered have mostly been incompetent buffoonery. That's the proper description, for example, for a plot to dismantle the Brooklyn Bridge with a blowtorch.
By the way, it seems that the only evidence indicating the use of box-cutters was one phone call by one passenger on one plane. It's interesting to notice how this has been enough to convince almost everyone that we know for a fact that box-cutters were used on all the planes.
I am fascinated by how committed some commenters on this blog are to preceding tired cliches with terms such as "left-wing," "leftist," "lefty," "radical," etc...
I frequently listen to "lefty" radio (and conservative radio, too) and read "left-wing" blogs (and conservative blogs, too). I can honestly say that I have never heard/read any "lefty" make the argument that whit attributes to those "radical leftists." Not that it has never happened, as I am sure there is some wacko commenter on some blog that has said as much. However, I am equally sure that it is far from common. I am also sure that the sentiment that whit expresses is the product of a "right-wing" echo chamber.
Wow, it is really, really, really, easy to utilize meaningless cliches!!
It might very well apply, though I could see a Court holding that it does not when formal POW status is given. My real point is that while you do raise a potentially problematic point, it's really not very likely to cause any disruption in the real world. The courts are going to accept the records of US troops concerning uniformed soldiers captured on the battlefield.
The problem here was created by the Bush Administration's pathological need to exalt executive power and it's overreaching towards the captives. As I mentioned in another post, the Brits allow habeas petitions by their captives and it just isn't a problem.
The spirit of the courts today is different. And there's the rub. Granting the detainees access to habeas would not be potentially pernicious if we could be certain that the courts would give deference to procedures established by statute. There are no clear constitutional bars preventing Congress and the President from defining by law the procedural privileges that the US will accord persons captured abroad as enemy alien combatants. Yet, we can be certain that the courts will not be content to uphold the present procedure. So the question of what the procedure shall be is no longer in the hands of the elected branches: it is in the hands of the courts.
The only means the courts have of circumventing statutory law is by reference to constitutional right. The constitutional rights the courts will find ready at hand are primarily those of criminal procedure. But domestic criminal procedure does not take into account military needs such as intelligence gathering, intelligence protection, and the hurly-burly of combat operations. It is unclear which rights of criminal procedure will apply to the detainees, how they can be applied while giving due deference to the national security needs, what prerogatives the detainees will enjoy (e.g. of discovery), etc. All of these questions will now be determined by the courts - and the answers will be handed down as imperatives of the Constitution of the United States.
The courts are not best placed to balance the competing interests involved and, being accustomed to civil and criminal procedure, will, when they err, tend to err against the interests of national security. The potential for decisions pernicious to the public safety and the national interest is very great indeed.
In a different age, granting the detainees habeas rights would only have meant, practically speaking, that they could ask the courts whether the United States had followed the procedure required by the laws it had on the books. Now habeas means that the courts will themselves the define the proper procedures, pronouncing the supposed mandate of the Constitution, regardless of the laws Congress enacts.
Alas for representative government.
So why on earth would any enemy wear a uniform? Wear a uniform and you're summarily detained without recourse. Shed your uniform and blend in with non-combatants, then you get (ever-expanding) recourse in our civilian courts.
That's the incentive structure you want?
I'd much prefer that our system encourage the behavior we want and punish the behavior we don't want. Enemy combatants violating the rules of war should, under any rational system, have less rights than a legal combatant.
Will there be cases of injustice? Undoubtedly. But assuming good faith (as assumption I recognize many do not grant the Bush Administration) moral culpability for any injustice falls on Al Qaeda - they are the ones who have willfully erased the combatant/non-combatant distinction.
Isn't it painfully obvious? A uniform or insignia helps to prevent you from being killed by your own side.
And I'm not even a veteran.
Nope, all that's necessary to avoid friendly fire (in a visual identification scenario) is that the enemy be wearing a uniform.
Which our military is considerate enough to do.
i agree with you...only 1 problem
when your cuaght wearing a uniform and holding a gun-your probably not going to prevail in your habeus claim-even if you have a right to bring one.
why bring a claim that your not a Nazi soldier and hence your detention is illegal when you were found in that manor-you will loose-not becuase you don't have the right to argue that (now under Boumediene you do) but becuase the argument is frivolous
contrast that with the Guantanamo people-who are not wearing uniforms and many of which have complex intellegnece based evidence against them (if they have any evidence against them at all)...once you give them the right to argue they are innocent (in a meaningful way which complies with due process-notably a lawyer and a chance to review evidence-or even allegations-against them) many of them will demonstrate they are there by mistake
Because you consider yourself at war with the detaining power and bringing the claim enables you to harass and annoy the enemy - something the US Military Code of Conduct requires US POWs to do ("If I am captured I will continue to resist by all means available."). Imagine 100,000 Nazis all asserting their right to judicial review...they could easily grind the US judicial system to a halt. And what if they had the right to face their accusers? How many soldiers could they temporarily remove from the battlefield to appear in court.
I think the burden of proof is on you. Why wouldn't they assert every right offered to them? If nothing else, they might get lucky.
Good point. That's why it's important for our system to punish leaders who act like they are above the law.
there aare easily more than 100k pro se nuisance suits brought evry year by prisoners-and they dont bring the system to a halt-they are handled and dismissed by pro se clerks becuase they either have no legal basis or they dont plead any facts that could reasonably be gained from discovery.
and nobody said there is full confrontation rights-im only insisting on full access to the facts the gov has on you
and if 'getting lucky' means finding the one guy who actually wasn't a german soldier and was actually a civilian forced along for some reason-then i say good for them for asserting it.
on the other hand-maybe wwIi is different for precisely this reason and thats why the pow;s need no habeus-i.e. theres no doubt about guilt in 99% of cases-however in the invisable war on terror-there is much more margin for error-so more due process is required
Unless they have the actual ability to invade and overthrow the government, no.
You haven't seen "The Mouse That Roared" :)
He doesn't have to declare the person a terrorist -- there's no issue of guilt or having done bad things. Such ideas imply a concept of personhood, but the word "person" simply lacks extraterritorial application. As in abortion, it's simply a question of whether or not the individual is wanted. There is simply no bar to safe, effective, and legal termination. Congress doesn't have to have a reason for declaring a war. War does not imply in any way that the other side has done anything wrong. We may simply not like them, and the reason why we don't have to tell. So with war's execution. There may be a question of whether Congress or the Executive has authority in "gray war" cases, but here Congress has acted and is in agreement with the President, so there is no authority question. If Guantanamo were not U.S. territory, or these individuals were taken to another location outside U.S. territory, there would be no personhood and hence no problem.
Except that someone has to claim you are wearing a uniform, or holding a gun, and that someone will be representatives from the executive branch. So we again have a problem. This entire issue does seem to be the courts nosing deeply into executive (if not legislative) business at its strongest point- prosecuting a declared war. Once the court states that the executive doesnt have absolute authority over prisoners in a time of war... whereever they are detained (specifically not on soveriegn US soil) where does that take us? Uniforms, weapons, military status... the executive has absolute authority over these. Congress isnt likly to be sending a blue ribbon panel into Afghanistan to establish whether the SEAL team is on the up and up, much less the Court.
I suspect that the judges (Justices) you consider exemplary (e.g., Scalia) would find your view, as applied to the likes of Kennedy, ridiculous at best.
Er. A habeas corpus claim exists for two classes of people:
1) all American citizens held in American custody, anywhere
2) all persons, citizens or no, held on American soil
The courts decreed that Gitmo is close enough to American soil to count for (2). Neither (1) nor (2) apply to secret prisons outside the United States, prison ships, etc. It follows that 'enemy aliens' in such situations still, despite the recent ruling, have no right of habeas corpus to suspend.
A prisoner of war has certain benefits - he cannot be tried or punished for legitimate acts of war, he cannot be tortured for information, he must be released after the end of hostilities. Those benefits were considered too dangerous to grant to detainees. As I understand it, at least some of the people in Gitmo *were* taken in uniform (or as uniformed as Afghanis get). Bush then made the claim that the Taliban didn't count as a government, and so none of its soldiers would be treated as prisoners of war with the rights thereof. That policy seems to have the same problem with incentives, wouldn't you say?
On the other hand, your argument (that foreign civilians have no habeas corpus rights and no prisoner of war rights), taken to its logical conclusion, would deny any and all legal protections to any 'enemy' civilian population; American troops and contractors could kill, rape, rob, and brutalize them without penalty. ... oh, wait, that's been American policy in Iraq for years. Never mind.
The idea that terrorists would prefer non-combatant status is ridiculous—it just happens to be the semi-official argument for un-American claims to unlimited executive authority. However, goatherds who got sold out to us for a bounty, for them, non-combatant status and a trial looks like the only way out.
Bush could have treated all of the prisoners as lawful POWs or held