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Innocent Until Proven Non-Person
That habeas corpus link Julian Sanchez highlighted below is worth a look, in case you haven't. It's a Washington Post op-ed by Guantanamo-detainee lawyer P. Sabin Willett. Excerpt:
I wished the senators could meet my client Adel.
Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.
The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus. [...]
The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever.
|11.14.05 @ 3:54PM|#
I sure hope that bounty hunter is no longer on the payroll. See, I owe a debt to this alien gangster named Jabba....
|11.14.05 @ 4:04PM|#
This is what the no-trial apologists kept insisting could not possibly happen. Will they now insist it's an isolated one?
|11.14.05 @ 4:04PM|#
Well, now were finding out that these secret tribunals aren't as
bad as everyone feared.
Granted, the process after the tribunal is pretty fucked up, but
still...
|11.14.05 @ 4:07PM|#
jf-
The tribunal itself might not be as bad as we thought, but the
system is indeed every bit as bad as we thought. Worse, even, if
acknowledged innocents are being kept locked up anyway.
I know that this guy can't be safely sent back to China. Still,
there must be some place where a guy facing persecution in his
homeland could go. Some nation that has a history of safely and
effectively assimilating such people.
|11.14.05 @ 4:10PM|#
thoreau:
Yes, the system is horrible. The Senate has failed freedom time and
time again and yet these clowns continue to get re-elected as long
as they bring the pork back home.
Cute last paragraph, by the way.
|11.14.05 @ 4:11PM|#
The important thing is not to be swayed, the conservative side
may be leaning away, but with SCOTUS members like Thomas, the
really important things like property and small government will be
protected. Libertarians must stand firm with the conservative
brothers. We must remember, Hilary and the Democrats are the real
enemies of liberty.
Physical liberty will be preserved for those who focus on property,
rather than civil rights...
Something like that, RIGHT?
theOneState|11.14.05 @ 4:13PM|#
Yeah, jf, let's say...but if we let the gov't arrest, prosecute,
punish w/o any kind of oversight or even just some reporting
requirements for god's sake we're heading towards a dark, dark
place.
I.e., this is pretty messed up.
You do have some Senate committees that ought to be informed and be
providing some oversight, but that kind of power legislated over to
the executive is frightening.
I feel bad for this guy. No one will take him (how 'bout his own
country???). I bet there are lots of these folks. Maybe the
military should set up some kind of camp for folks like this, you
know, so they can have a bit of freedom, get some exercise, enjoy
the weather, and maybe earn their keep while they're at it. There's
lots of stuff we could have them do....
(That was a joke, in case anyone's sarcasm detector is on the
fritz.)
|11.14.05 @ 4:28PM|#
There is middle ground between full public trials and what we
have now. Get congressional oversight right now, for a
starter.
I completely see that we might have to hold someone in the absence
of evidence for a period of time longer than we'd be comfortable
with for a domestic crime. What I don't see is a tribunal
designation of innocence and throwing away the key anyway.
I do not agree that full public trials will work. Tribunals and a
congressional oversight panel should be a good starting point.
|11.14.05 @ 4:32PM|#
If he has been found innocent, why are they still holding him? If no other country has agreed to take him, let him loose in the US and he can figure it out from there.
|11.14.05 @ 4:33PM|#
Jason,
Why a Congressional oversight panel? Why not habeus corpus; ie, a
judicial oversight panel?
Habeus corpus is a method of protecting due process. Due process
for a battlefield captive isn't the same as due process for an
arrested civilian, but it isn't a big ZERO, either.
|11.14.05 @ 4:35PM|#
When it comes to scrapping habeas corpus (and implementing policies that are basically censorship) why does Abraham Lincoln get such a pass? I'm reading DiLorenzo's The Real Lincoln. It seems like Lincoln really sucked ass.
|11.14.05 @ 4:37PM|#
joe:
I'd have to see what is entailed in habeus corpus for a battlefield
captive. I was thinking that demands for habeus corpus were demands
for civilian habeus.
|11.14.05 @ 4:38PM|#
Jason-
I can entertain the notion that some cases may require longer
detentions and looser standards of evidence than your typical
shoplifting case.
But why not put the third branch of government in charge of
handling those cases? They're already capable of handling different
burdens of proof for civil vs. criminal cases. Surely they can rise
to the challenge and provide independent oversight.
And I don't see why an innocent man can't just be released into the
US. I know he can't be sent back to China because they've been
known to put their Muslims in prison without trial, and even
torture them. But that doesn't mean he has to be kept in Cuba
without a trial.
|11.14.05 @ 4:47PM|#
Jason L,
IIRC, there isn't really a "habeus corpus" right for POWs. But
then, most of these prisoners aren't really POWs. They are an odd
amalgamn of arrested suspects and captured enemies, and our laws
haven't really caught up to the circusmstances.
To me, that suggests that we need to catch up out laws to the
circumstances, to make sure the proper balance is struck between
the two mandates of checking the government's power/protecting
rights and providing security.
To others, is suggests that, since there are no restrictions on the
government drawn up in existing law - yeehaw! It's on!
|11.14.05 @ 4:51PM|#
To others, is suggests that, since there are no restrictions
on the government drawn up in existing law - yeehaw! It's
on!i>
We will pursue with vengeance and hatreds to the end of the World
any Vala, Demon, Elf, or Man...
|11.14.05 @ 4:53PM|#
THIS GUY WASN'T A BATTLEFIELD CAPTIVE! He was kidnapped by people paid by our government.
Viking Moose clad in the codpi|11.14.05 @ 4:54PM|#
yeah. just send em back to the bus station in some third world country. after all, only bad guys hang out there. i'm gonna be careful at harrison and the dan ryan... eek.
|11.14.05 @ 4:56PM|#
Imagine how much easier, once attitudes like JL's become de
rigueur, to hold "battlefield" capture's of the "other" war. The
war on drugs.
This is part of a two pronged attack against any concept of habeas
corpus, both the spirit of holding innocents (even non-citizens)
and the laws against holding innocents.
First, deny all judicial revue of battlefield captures, secondly
pass laws limiting habeas corpus for citizens.
Imagine how effective the government will be in fighting wars
than.
Can't wait.
I take it I'm still not allowed to call them fascists? (and by
them, I mean anyone who supports this kind of pro-government
non-sense, not any political party)
|11.14.05 @ 5:02PM|#
I think you're being unfair to Jason Ligon, Johnny. He certainly has not hewed to the Bushite line on this.
|11.14.05 @ 5:02PM|#
Look, you're either with us or against us. If those Teleri won't
let us use their boats to pursue Morgoth, well, DON'T YOU AVARI
REALIZE WE'RE AT WAR HERE?
Bottom line, you can't make an ommelete without breaking a few
eggs. If some innocent Teleri got killed, well, we are at war.
Morgoth is much worse.
|11.14.05 @ 5:05PM|#
jack, as a practical point, you are right - the way that some of
these poor bastids ended up in our gulags is just plain wrong,
wrong, wrong. Stupid, stupid, corrupt policy.
As a legal point though, it's a little less enlightening -
"battlefield captive" is their legal status. Every single one of
them is going to say "You got the wrong guy." The question is, then
what? If we were able to sort out beforehand which captives should
have been taken and which should not, this would be a lot easier.
But what we've got are some guys who are evil terrorist bastards,
and some who are completely innocent, and we don't immediately know
which is which.
|11.14.05 @ 5:06PM|#
"To me, that suggests that we need to catch up out laws to the
circumstances, to make sure the proper balance is struck between
the two mandates of checking the government's power/protecting
rights and providing security."
Yes, this is my position as well. I was going with tribunal with
nonmilitary oversight as a check as a way to handle it. I don't
care if the nonmilitary oversight is judicial or legilative, they
just have to be vetted to get full access to all information the
military has, and that isn't a whole lot of people outside of the
DoD. I don't think you can go to full civilian courts.
TallDave|11.14.05 @ 5:18PM|#
Yeah, that's all great until they release "Adel" and he impinges
on my freedom by flying a plane into a building where I'm working.
If he's still in prison, I'm betting there's a reason.
It's a messy GWOT. See, they've actually recaptured several
terrorists who were judged "not Taliban or Al Qaeda" and released
from Gitmo after vowing to forsake violence. So I find the sob
story about sweet innocent persecuted-by-the-evil-American-military
"Adel" 1) hard to believe and 2) hard to sympathize with.
|11.14.05 @ 5:43PM|#
joe writes: "As a legal point though, it's a little less
enlightening - "battlefield captive" is their legal status."
Seems to me the Bush administration has essentially declared the
entire planet a battlefield for purposes of taking prisoners.
They're doing CIA kidnappings in the middle of Europe, for pete's
sake.
"Battlefield captive" has been rendered meaningless by the Bush
administration.
|11.14.05 @ 5:59PM|#
"thoreau has won this thread, I think."
No, he hasn't, nor has anyone else because we don't have the
facts, only a raw assertion by an attorney! It's reasonable to
argue that we ought to know the facts here, but the reality is we
don't. There might be an outrage here, but there might not. Never
trust an uncorroborated statement by an attorney; ask anyone who
has been involved in litigation.
|11.14.05 @ 6:02PM|#
The article says that the tribunal concluded he was not al Qaeda, not Taliban, not a terrorist. But does that mean he was found innocent? Was he even charged with specific crimes?
|11.14.05 @ 6:09PM|#
"To me, that suggests that we need to catch up out laws to
the circumstances, to make sure the proper balance is struck
between the two mandates of checking the government's
power/protecting rights and providing security."
I still say we'd be better off if we treated all prisoners
as if they were Prisoners of War under the Geneva Conventions
regardless of qualification.
I haven't seen anything to suggest that the benefits of treating
them otherwise outweighs the associated costs.
|11.14.05 @ 6:12PM|#
SY,
But the attorney said he was found innocent, and he would like for
the senators to meet him.
sounds like a good guy to me
The Wine Commonsewer|11.14.05 @ 6:46PM|#
As the Senate prepared to vote Thursday to abolish the writ
of habeas corpus
WTF?
They can't do that. Can they?
|11.14.05 @ 6:52PM|#
No, he hasn't, nor has anyone else because we don't have the
facts, only a raw assertion by an attorney! It's reasonable to
argue that we ought to know the facts here, but the reality is we
don't. There might be an outrage here, but there might not. Never
trust an uncorroborated statement by an attorney; ask anyone who
has been involved in litigation.
You missed my point. I'm talking about humor value only.
|11.14.05 @ 7:04PM|#
"WTF? They can't do that. Can they?"
Yes, they can actually. Article I, Section 9, Clause 2 of the U.S.
Constitution states:
The 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.
|11.14.05 @ 7:37PM|#
Ken-
I see your point about using POW status. My only concern is that,
IIRC, a POW has to be released when the conflict is over. When,
exactly, will we know that this conflict is over.
I see Jason's point about the need for a lower standard of
evidence, or longer detention before trial. My biggest fear is that
creating a laxer set of standards will also create a fun new way to
fight the drug war. It will start with kingpins, of course. But
soon they'll go after anybody who brings something in from
Canada.
I still think that we should strive to handle terrorism cases in
the same way that we'd handle any other violent felony, or at least
come as close as possible to that standard.
|11.14.05 @ 7:58PM|#
Having to release terrorists after the conflict is a legitimate concern. Even under the Conventions, however, there are ways to convict POWs of war crimes.
|11.14.05 @ 8:17PM|#
...We might have tried terrorists in a Nuremberg Trials like
spectacle, using it to heap the scorn of the world on terrorism and
its ideology. Instead, we've managed the seemingly
impossible--we've created sympathy for terrorists.
If I said this was further evidence of Administration incompetence,
would it take away from my point?
|11.14.05 @ 8:56PM|#
"If he's still in prison, I'm betting there's a reason."
This sentiment sure makes me proud to be an American.
SY, "There might be an outrage here, but there might not. Never
trust an uncorroborated statement by an attorney; ask anyone who
has been involved in litigation." Doesn't the fact that we're not
allowed to corroborate the attorney's statment strike you as an
outrage?
thoreau,
First, knock it off with the silly elvish name. We don't cotton to
your identity politics around here.
Second, this isn't a metaphorical war. This is an actual war.
Ken, Jaysus, you're right. We've managed to make Talibs look like
the good guys.
|11.14.05 @ 9:02PM|#
Ken makes a good point.
I respect Jason Ligon's position. I might draw lines differently
from where he does, but he agrees that the exercise of government
powers must be done in accordance with the rule of law. If somebody
falls into a category not covered by ordinary criminal procedures
and not covered by the Geneva Conventions, that means we need to
establish laws to cover that category. It doesn't mean that it's a
free for all for the government.
If the government is not kept on a leash, Lynndie England will
start putting us on leashes.
|11.14.05 @ 9:36PM|#
lower standard of evidence
nonmilitary oversight
Sounds like you're describing the UCMJ and court-martials.
Preponderance of the evidence, Court of Appeals for the Armed
Forces (civilian appellate judges appointed by the Senate).
I recall some service JAG's making this argument, but it's possible
they're sissies who hate America.
|11.14.05 @ 9:58PM|#
Happy Jack-
I would seriously consider that as a suitable trade-off for
terrorism suspects arrested overseas. I really would. Especially if
the civilian appellate court is included in the process, and the
trials are not conducted in secret.
I need to think about it more, but if sentences can be appealed to
civilian judges confirmed by the Senate then I would seriously
consider it. If I expressed reservations about it in the past, it's
because I thought that the verdicts would be subject to the
ultimate review of the Defense Secretary and President rather than
the third branch of government.
I don't revere judges as divine figures, but their independence is
crucial in our republican form of government.
|11.14.05 @ 10:13PM|#
I've thought about it some more: The basic rationale for a lower
standard of evidence in some terrorism cases is that when the crime
involves things done in places where local authorities are either
weak or complicit, it's not really possible to collect evidence
with proper warrants and do all the other sorts of things that one
would expect in domestic criminal investigations.
OK, fair enough. But we have in our prisons a lot of people who
have worked with foreign drug cartels. Many of them did most of
their work in countries where the local authorities are even more
corrupt than ours. How did we put those guys on trial?
I realize that it's rather ironic to look to the Drug War for
guidance on due process. Maybe that's a sad comment on how our
idiot rulers are conducting the War on Terror.
I will say this much: If there are cases where ordinary criminal
procedures are truly inadequate, I will give serious consideration
to courts martial supervised by civilian judges. It would certainly
be better than what our wannabe Stasi are doing with Jose Padilla.
But the relaxed burden of proof described by Happy Jack should be a
last resort rather than standard procedure.
|11.14.05 @ 11:26PM|#
I should clarify that for a soldier, in a court- martial,
reasonable doubt is the norm. However, other cases will allow for
preponderance.
As the president is allowed to define the terms of military
commissions, preponderance would be a step up from "probative
value", which is what he wants.
I should also add that the limited case law appears to make this
contingent on congressional authority (war declaration). The
Patriot Act may have some limits on Bush's authority, which would
explain why Graham's amendment explicitly denies habeus corpus.
|11.14.05 @ 11:34PM|#
I'm fine with a UCMJ type approach. Obvously, the actual UCMJ as
a code of law wouldn't work, but procedurally, that is more or less
what I'd envisioned the tribunal rules of conduct to be. I would
add to preponderance of evidence an available option for an
extended holding timeframe to allow tactical and or strategic
situations to change.
I would argue for the necessity of a lower standard of proof that
is consistently lower. Having a floating standard is asking for
trouble in that consistent law and precedent can't really evolve
along two distinct paths for the same people. What we are seeking
to define is the in-between cases that result in conflict engaged
in this particular way. Geneva doesn't apply and fully civilian
procedure is inadequate. Let's just say that the Universal Code of
Terrorist Justice (or whatever) applies to the gap cases we've
found.
|11.14.05 @ 11:36PM|#
What is "probative value", and how does it differ from
"preponderance of evidence"?
How is the President allowed to define the terms for military
commissions? I thought that military law was still subject to some
kind of Congressional oversight? And I thought you said that cases
are appealed to civilian judges?
Basically, what I'm looking for is a system that's independent of
the President and forces the gov't to do a good job of proving its
case. I thought that the idea of "preponderance of evidence" was
that it's simply which ever side has the stronger case, while
"reasonable doubt" could give a victory to the defense even if the
prosecution's case was stronger (just not strong enough). If so,
then reasonable doubt puts the burden on the gov't, and
preponderance makes it a level playing field. So, wouldn't
"probative value" put the burden on the defense?
I'm scared.
|11.14.05 @ 11:39PM|#
Jason-
I read your post after responding to Happy Jack. In addition to my
concerns over procedure, I also worry about how we'll decide which
cases are subject to this lower standard. Under what circumstances
would you say our ordinary procedures are inadequate? Before you
answer, remember that Hillary Clinton is supposedly interested in
being President some day.
|11.14.05 @ 11:45PM|#
Final thought: The criterion for deciding who gets a regular trial and who gets something else should be better than "Well, we have evidence, just not enough to convict in a regular court."
|11.14.05 @ 11:59PM|#
thoreau:
US citizens get full constitutional protection.
Those captured in active conflict between uniformed armies get POW
status and Geneva applies.
Those captured on US soil for acts that transpired on US soil get
the US court system.
Those captured as part of military operations on foreign soil
designed to interdict terrorists or others who engage in such
tactics as to make Geneva inapplicable get the reduced evidenciary
burden.
The Wine Commonsewer|11.15.05 @ 12:31AM|#
SR, thanks for the info.
I had to get a writ once to get this crazy ass chick out of the
looney bin that shoulda probably been left there.
So, did they abolish the writ of habeous corpus?
Scanned through the last 30 posts but didn't see if anyone
mentioned the outcome of the vote.
|11.15.05 @ 1:45AM|#
thoreau- I'm not saying that we have to strictly follow the
court-martial model, just to use it as a framework for uncharted
waters. We could be setting some bad precedents for years to
come.
Probative value in this context means any evidence that provides
proof. This would include confessions under torture, which
obviously isn't allowed in a normal court. Preponderance is the
standard of civil law.
A military court-martial does allow for civilian appeal.
Preponderance would be used in an Article 15, minor stuff, and if
you don't like the outcome you can request a court-martial, and
then go to appeal.
The President gets his authority for commissions from Art. 21 of
the UCMJ, as Commander-in-Chief. This power is delegated by
Congress, so they should be able to write the rules under Art. 1
Sec. 8 of the Constitution. Whether they step up to the plate
remains to be seen.
Dave W.|11.15.05 @ 6:14AM|#
This is what the no-trial apologists kept insisting could
not possibly happen. Will they now insist it's an isolated
one?
They are probably worried about things like precedent aned PR and
liability. Since I don't have many real facts to work with: here is
a hypothetical:
Let's say enemy combatant X defends against charges by claiming
that he was in uniform and part of a sufficiently regular fighting
force such that he should be entitled to the protections of the
Geneva convention. Furthermore, let's say X shows the inventory of
his possessions and it includes a red headscarf with an emblem and
Islamic badge he wore as a uniform. He describes the military
training he received, to show that the fighting force was
sufficiently regular.
In my hypothetical, let's say a judge buys into X's arguments (they
might be correct for all I know -- I only got to see Walker Lindh
after they laid the duct tape on him -- I didn't see pix of the
rest of them at all -- it would be disturbing to me if
revolutionaries could *never* be protected by Geneva Convention --
presumably there is some factual showing X could make on
this).
Now imagine this hypothetical comes to pass. The US gov't would
have the following new worries:
- bad PR for US
- X sues under Geneva Convention
- Belgium (or whoever) files war crimes charges
- every other prisoner defends on similar grounds, using X's case
as precedent
- a veritable extravaganza of international lawyers suing the US
civilly and criminally.
Now please bear in mind, this is just one plausibility that I came
up with in 15 minutes thinking about it. There is probably a
multitude of similarly ruinous outcomes the US is worried
about.
Dave W.|11.15.05 @ 6:17AM|#
Further to previous: In other words, Jennifer, the gov't isn't worried about ppl like Adel. Rather, it is worried about ppl like X. But if you start trying the Adel's then you have to start trying the X's too. That's where it gets sticky.
Dave W.|11.15.05 @ 7:50AM|#
and, of course, they will never, ever, ever lay it out plain for you like I did just now. I am telling you what they are thinking and not saying.
Hakluyt|11.15.05 @ 7:58AM|#
Jason Ligon,
Even those caught on U.S. soil don't get the U.S. courts. The eight
Nazi sabotuers we caught on U.S. soil in WWII only got into a civil
court upon the Supreme Court honoring their cert petition (which is
obviously discretionary). Those caught on U.S. soil could very well
go before a military tribunal just as the eight Nazi sabotuers
did.
Hakluyt|11.15.05 @ 8:02AM|#
Dave W.,
The Geneva Conventions don't provide for liability in that way.
Belgium got rid of its universal jurisdiction law about a year or
so ago.
Its basically up to the U.S. (and other signatories) to enforce the
Geneva Conventions re: its own actions. The U.S. courts have
continuously refused to take suits based on the Conventions,
arguing that they need to take up their complaints with the
President and the Congress. Don't look for the courts to change
their mind.
Hakluyt|11.15.05 @ 8:04AM|#
Happy Jack,
The Congress does have laws in place that deal with these issues
and the Executive branch cites them when it discusses how it deals
with people it detains.
|11.15.05 @ 8:06AM|#
Jason-
What you propose seems reasonable. A lot of people will probably
point out that what you propose is not necessarily
mandated by law, but that's sort of the point: There are
areas where the law does not provide clear guidance, so it's
important to come up with laws to cover those gaps, rather than
taking the government off its leash (and letting them put inmates
on leashes instead).
Civilian courts for US citizens and people caught on US soil.
Geneva Conventions where applicable.
Military courts, with preponderance of evidence and civilian
appellate courts, for everybody else.
It seems reasonable.
|11.15.05 @ 8:14AM|#
One other thought:
Civilian trials might also be appropriate for foreign nationals
extradited from friendly countries. Standards of evidence might be
a problem if the person was captured in rural Pakistan without
cooperation from local authorities (can't really subpoena
witnesses), but a terrorism suspect captured by the French or
Canadians is a somewhat different story.
What I'm worried about is the prospect of Canadian pot dealers
being sent here for military trials. You can laugh if you want, but
the Patriot Act was basically a Drug War wish list. Any step toward
lower standards of evidence could easily become a tool for the Drug
War.
Hakluyt|11.15.05 @ 8:25AM|#
thoreau,
There are areas where the law does not provide clear
guidance...
The guidance exists. Its more of an issue of whether they want to
follow it or not.
Civilian trials might also be appropriate for foreign nationals
extradited from friendly countries.
That's not your thought.
Standards of evidence might be a problem if the person was
captured in rural Pakistan without cooperation from local
authorities (can't really subpoena witnesses)...
If the Pakistanis captured him (which they invariably would since
we're not supposed to operating on their side of the border) he'd
be tried in a Pakistani court (like lots of them have been).
...but a terrorism suspect captured by the French...
The French don't extradite people to other countries. He'd be tried
in France.
, but a terrorism suspect captured by the French or Canadians is a
somewhat different story.
Dave W.|11.15.05 @ 8:30AM|#
"Geneva Conventions don't provide for liability in that way."
True, the evidence of violation of the Geneva convention would be
used as evidence to prove things like intent level under some other
body of law. The commonlaw tort of false imprisonment springs to
mind.
Belgium: would bring back their old laws after Prisoner X won in a
US court. It would be the zeitgeist thing to do at that future
juncture. If you want to get pedantic about it: I initially said
"Belgium or somebody else" to foreclose the exact objection you
made, anyway. D'oh. Now I remember why I am not talking to you.
Hakluyt|11.15.05 @ 8:37AM|#
Dave W.,
There is no one else. No other country has anything resembling what
Belgium had. And your statement presumed that Belgium has such a
law.
True, the evidence of violation of the Geneva convention would
be used as evidence to prove things like intent level under some
other body of law. The commonlaw tort of false imprisonment springs
to mind.
The point is that its up to either the Congress or the Executive
branches to deal with the issue. No court in the U.S. is going to
take on such a charge and they have repeatedly stated so over the
years at the district and circuit court levels. There is no right
of action under the Geneva Conventions in other words.
Hakluyt|11.15.05 @ 8:41AM|#
Dave W.,
See, in the U.S., before you can sue the government for something
like a common law tort, you've got to have the permission of the
government to do so. Last time I checked the various laws which
waive S.I. none of them mentioned violations of the Geneva
Convention and none of them mentioned the sort of fact patterns you
are describing here.
You stopped responding to me because I disabuse you of the fantasy
land you appear to be living in.
Hakluyt|11.15.05 @ 8:44AM|#
Leave it to Dave W. to forget the concept of Sovereign Immunity. I mean really, who are they going to sue for false imprisonment? A high level executive branch official would be absolutely immune from suit. Anyone else would likely qualify for qualified immunity.
Hakluyt|11.15.05 @ 8:53AM|#
So, let's recap:
The Geneva Conventions provide for no right to sue.
Any common law suit would be turned away under existing S.I.
doctrine.
Now, what an individual could do is attempt to sue the government
for a constitutional tort, or in a habeas corpus action. But they
won't find any succor for such under the Geneva Conventions,
they'll have to hang their hat on the text of the Constitution (or
if they are claiming a violation of statute, something violates
just plain old U.S. law).
Dave W.|11.15.05 @ 8:54AM|#
Hak,
I never said Prisoner X would win. Patent lawyers know about
so'vern 'mutiny. It comes up in our field, believe it or not.
Whether Prisoner X would win his suit is pretty much irrelevant to
the point I was making above about why there is so much mysterious
resistance to trying ppl like Adel. That is the point I would like
for you to focus on and assimilate.
Hakluyt|11.15.05 @ 9:03AM|#
Dave W.,
Your basic point is that there would be bad P.R., but as a court
wouldn't even entertain his claim, its not a likely worry. So its
not even an issue of winning or not; its getting in the courthouse
door to start with.
No, this is more likely a case of flat out confusion on the part of
the bureaucrats. They are unsure as to how to deal with the issue
so they dither. Its typical of bureaucracies.
Hakluyt|11.15.05 @ 9:05AM|#
Dave W.,
There is a lot of literature (starting with Weber of course) on
what happens to bureaucracies when they don't have clear marching
orders, and this looks just like the sorts of problems associated
with that issue.
Hakluyt|11.15.05 @ 9:10AM|#
I'd imagine that a whole lot of mixed signals are coming out of the Executive branch on these issues, and that individuals like this are caught in the middle of this sort of bureaucratic morass. If one reads what Executive branch attorneys write on these matters (and thus suggest to the President) it becomes very clear that they don't really speak with one mind and that neither Bush nor Rumsfeld have given them any clear marching orders or given any to those in charge of these programs. What they do seem determined to do is this though - make their own policy (eventually) on their own. The overriding point in their minds in other words seems to be enhancing the powers of the President when it comes to detentions like this and making such powers independent of the other branches.
Hakluyt|11.15.05 @ 9:14AM|#
In both the Hamdi and Padilla briefs their claim of exclusive control in these areas was oozing out everywhere. Such claims of exclusive Executive power control in the area of national defense and foreign policy are what I found most troubling, though the Bush administration is hardly the first Presidency to make such outrageous claims.
Dave W.|11.15.05 @ 9:20AM|#
Hak,
If they let Adel out and he brings a lawsuit, then you owe me a
coke (whether Adel wins or loses). So'vern 'mutiny or no, if there
is a release of all the innocent and other wrongfully held
prisoners, pro bono lawyers will be hired, suits will be brought
and the world will think substantially less of American justice.
That is true regardless of the details.
You seem to like so'vern 'mutiny a lot. Maybe it is time to see
what the rest of the world really thinks about this doctrine and
its consequences. Let the lawsuits begin: may the party most
respectful of other soverns win. This is why Adel is gonna stay put
for a bit.
Hakluyt|11.15.05 @ 9:23AM|#
Dave W.,
Heh. I don't recall entering a bet with you. I put it down to plain
old bureaucratic confusion based on crappy signals out of the
WH.
Hakluyt|11.15.05 @ 9:32AM|#
Dave W.,
You seem to like so'vern 'mutiny a lot.
I don't like or dislike it. It just exists. I have to deal with the
law the way it is.
Maybe it is time to see what the rest of the world really
thinks about this doctrine and its consequences.
Well, the rest of the world practices some form of it, so they'd be
hypocrites if they criticized our use of it.
|11.15.05 @ 9:54AM|#
"Thanks for the cite, SR. What rebellion or invasion have we
suffered?"
In my opinion, none, but I've seen those who would argue for the
suspension say that 9/11 constituted an "invasion".
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