Because Habeas Corpus Is Sooooo 1215

Julian Sanchez | October 20, 2006

Well, its nice to see the current administration can act quickly and efficiently to something: The Military Commissions Act President Bush signed on Wednesday led almost immediately to a notification being sent to the U.S. District Court that it lacks jurisdiction to consider habeas petitions from Gitmo detainees. Critiques of the act are online from the ACLU and Center for Constitutional Rights.

Comments

|10.20.06 @ 2:39PM|#

Now the court will decide if it has jurisdiction or not.

|10.20.06 @ 2:41PM|#

Ah, at last a post on this topic.

My eyes are wide open and darting as I wait anxiously for somebody here to defend the administration. Not that they'd necessarily be wrong, but hopefully someone will bring out an argument better than, "terrorists don't deserve the same rights as you and me!"

|10.20.06 @ 2:55PM|#

Seems like a stretch based on the actual language in the Constitution. But, is it more of a stretch than (almost) anything else Congress has assumed authority to legislate about? No. (Caveat, this is not a defense of the substance of the act).

|10.20.06 @ 2:57PM|#

Seems like a stretch based on the actual language in the Constitution. But, is it more of a stretch than (almost) anything else Congress has assumed authority to legislate about? No. (Caveat, this is not a defense of the substance of the act).

|10.20.06 @ 2:58PM|#

I'd vote straight Democratic if they'd come out and say they want to fight the terrorists but without all of the dings on civil liberties. You know, 'cause those dings are, like, wrong and stuff. And not within the power of the government to do, anyway.

Naturally, they'll do no such thing.

Off thread: I see that another cloaking device breakthrough has occurred. Strange, but I thought that was the least likely thing to come true from the Trek universe. I'd rather have a transporter, but no one asked me :( I like that the article I linked to mentioned the myth of Gyges in passing--at least someone reads the classics still. Invisibility leads to évil.

|10.20.06 @ 3:03PM|#

Seems like a stretch based on the actual language in the Constitution.

Isn't stretching the actual language of the Constitution to fit your views the whole point of what these idiots in Congress have been doing for decades?

The selective outrage of some people never fails to amuse me. Habeas corpus is an inviolate part of the Constitution, but hey, "the right to bear arms" is an outdated anachronism.

|10.20.06 @ 3:20PM|#

The selective outrage of some people never fails to amuse me. Habeas corpus is an inviolate part of the Constitution, but hey, "the right to bear arms" is an outdated anachronism.

This is a good point. At the risk of getting off topic, I'm not pro-gun control (well, I am in the sense that we all are; none of us think that murderers on parole should be allowed to own a gun. ...Right?), but I will admit that this case worries me more than the fact that a U.S. citizen can't legally buy an assault rifle or a bazooka (does a bazooka fall under the 2nd amendment?). Like most other things, I think the government has handled gun regulation ineptly, but since non-criminals can legally purchase guns for hunting and personal protection in the U.S. (though they often try to make it harder), I'm not so worried about gun-rights in this country. Obviously, I'm not a gun-owner, in which case I might be more educated and therefore, more worried.

So, I'm open to the fact that there might be something wrong with me since, among the things that makes America such a special place, I value habeas corpus more than the 2nd amendment (which I still feel should be respected and certainly has prevented the government from completely disarming the populace). But isn't this bill evidence that habeas corpus is in more trouble than the right to bear arms?

|10.20.06 @ 3:39PM|#

This is intensely depressing, and at the same time, aggravates the shit out of me. It's hard to think of anything not explicitly treasonous to say about it.
How did we get here? Can we turn around and go back?

|10.20.06 @ 4:44PM|#

I could never quite grasp the outrage on this, other than it fits the story some people are trying to sell.

1. It seems obvious captured people from Afganistan aren't protected by the US Constitution.
2. So, what protects them?
3. The Geneva Conventions? I'll buy that.
4. According to the Geneva Conventions, what are unlawful enemy combatants are entitled to?
5. Tribunals. OK.
6. Bush figured he would conduct tribunals as they've been done in the past. OK, seems reasonable.
7. Somebody sued. Cool.
8. Supreme court said No, Bush, Congress must set the rules, not you. Alrighty then.
9. Congress set the rules.
10. Bush is using the new rules.

Couldn't someone argue this is a great example of the system actually working?

|10.20.06 @ 4:47PM|#

We'll see how "originalist" or "constructionist" the conservatives on SCOTUS are. The language is plain and simple. Congress is the only one with the ability to supend habeas, and only in cases of invasion or rebellion. There is no invasion or rebellion. There is no Constitutional standing for its suspension. Whitehouse rhetoric will not fly at SCOTUS.


""But isn't this bill evidence that habeas corpus is in more trouble than the right to bear arms?"""

I want to agree with that, but I have to point out that Congress is not planing to suspend habeas corpus for U.S. citizens (or so I'm told) so I would say for us the right to bear arms is more in danger than habeas. For us, anyway.

You don't have to register for habeas, but you have to register for a gun. When the day comes that the people running this country determine that gun owners are a risk, that registration data will be real useful.

|10.20.06 @ 5:18PM|#

4. According to the Geneva Conventions, what are unlawful enemy combatants are entitled to?

You've skipped the step where the government has to prove that the detainee is, in fact, an unlawful enemy combatant.

The government has proved time and time again that it can't tell the difference, so there's no reason to give it the benefit of the doubt.

|10.20.06 @ 5:22PM|#

I want to agree with that, but I have to point out that Congress is not planing to suspend habeas corpus for U.S. citizens (or so I'm told) so I would say for us the right to bear arms is more in danger than habeas. For us, anyway.

Actually, there's nothing in the bill that says U.S. citizens suspected of helping a terrorist organization can't be detained and held indefinitely without habeas corpus because they're U.S. citizens. All it takes is the suspicion of the government.

I see your point about gun registration. As one ignorant of gun laws/rights, how do we prevent violent felons from obtaining guns once they're paroled?

|10.20.06 @ 5:23PM|#

Pro Libertate,

To take this even more off topic, regarding invisibility = evil, have you heard the "This American Life" piece about choosing between the power of flight or invisibility? Most people reach the same conclusion as Plato. As I recall, most of them still preferred invisiblity. Interesting, no?

I don't believe evil exists, but I would choose flight.

|10.20.06 @ 5:24PM|#

Julian,

You are so rarely arbitrary, so why 1215? I get the whole "rights are so old-fashioned" sarcasm, but why pick a date. My wife was guessing that it might be that 12:15 on a clock puts the hands in the shape of an 'L' (though not as good a one as 3:00).

|10.20.06 @ 5:26PM|#

Julian,

Nevermind.

|10.20.06 @ 5:29PM|#

Rimfax,

King John signed the Magna Carta in 1215.

highnumber,

Flight for sure. I'm not evil.

|10.20.06 @ 5:33PM|#

I am disappointed that the issue of due process for persons detained in connection with counter-terrorism is not playing a more significant role. If I understand the situation correctly, the government is now claiming the right to hold someone indefinitely as an alleged enemy combatant; without charges, without allowing the person to contest that status, and without having a clear reasonably likely set of circumstances that will constitute the end of hostilities with that person's alleged combat organization.

Am I missing something about this? Does this apply only to people known to have been captured on a battlefield? What about those captured under murky circumstances (eg: by a bounty hunter with questionable credibility)? Those arrested somewhere besides Iraq and Afganistan with alleged terrorist connections?

Actually, there's nothing in the bill that says U.S. citizens suspected of helping a terrorist organization can't be detained and held indefinitely without habeas corpus because they're U.S. citizens. All it takes is the suspicion of the government.

If that is even close to being true than I am definitely opposed to anyone who favors this bill continuing to hold office (though I know that many almost certainly will win reelection).

|10.20.06 @ 6:33PM|#

Does this apply only to people known to have been captured on a battlefield?

Not at all.

What about those captured under murky circumstances (eg: by a bounty hunter with questionable credibility)?

The murkiness of the circumstances will be determined by the same government that has imprisoned lots and lots of innocent people under murky circumstances.

Those arrested somewhere besides Iraq and Afganistan with alleged terrorist connections?

Yep. If someone is suspected to have aided terrorists in any way (a charity fronted by a terrorist organization, for instance) they can be detained indefinitely without being charged and without due process.

There are those, of course, who feel like the ACLU is a bigger threat to freedom in the U.S.A..

Mike Laursen|10.21.06 @ 12:40AM|#

Hey, let's look on the bright side. Habeas corpus had a run of almost 800 years! That's over forty times as long as Cats.

[attempt #5]

|10.21.06 @ 4:31AM|#

"1. It seems obvious captured people from Afganistan aren't protected by the US Constitution."

Really, this right there is what bugs me. Either human rights are inalienable, or they aren't. Human rights are not derived from the Constitution; rather, the Constitution simply recognizes human rights and attempts to create a peaceful society that respects them but can still survive in the real world. So basically, the idea is that everyone in the world actually has these rights, and the American government is a special one because it's one of the few that recognizes them.

So in other words, human rights as spelled out in the Constitution, if they really are universal human rights, are held by combatants from overseas just as much as American citizens, and you can't violate foreigners' rights any more than you can violate citizens' rights.

Apparently that isn't the way people think in this country.

Todd Frye|10.21.06 @ 9:13AM|#

One of the most troubling aspects of the situation - and there are many - is that 'enemy combatant' is a recently-made-up term which has no legal or even real-world definition.

This was a smart but (pardon the term) insidious device of the Bush administration to get around calling people 'prisoners of war,' so that we wouldn't have to pay heed to the Geneva conventions. (And people still make fun of Clinton's 'is'...)

This sort of linguistic legerdemain allows the govt to create a class of people who have absolutely no rights and can be treated like shit at will. Sure, a lot of murderous characters will fall into that group, but the United States was founded ideas such as the one where even the most despicable among us cannot simply be thrown into prison without enjoying a long list of protections and privileges.

In my opinion, the term won't hold up under any kind of vigorous legal proceedings... it will, in fact, fold up like a cheap lawchair once the Supreme Court or Congress grows some cajones and tries to put a stop to things.

Oh, and I'd choose invisibility. So that I could grab girls' butts without repercussions.

|10.21.06 @ 11:21AM|#

Czar:
Excellent comment.

I dream of flying almost every night, I've never once dreamed of being invisible. I choose flight.

|10.21.06 @ 12:05PM|#

Todd Frye,

If only that were true...

"In the 1942 Supreme Court of the United States ruling Ex Parte Quirin the court used the following characterizations to distinguish between unlawful combatants and lawful combatants:

Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."



Here is the text of the new law.

http://www.theorator.com/bills109/s3930.html

The Libertarian Guy|10.21.06 @ 12:48PM|#

How many Constitutional rights do we give to people in other countries, "enemy combatants" or otherwise?

Do we give them 2nd Amendment rights? Lawyers paid for out of our taxpayer kitty? Property rights Food stamps? Where does it end?

IMO, if American citizens' Habeas rights are violated, that's reason for rebellion. But where's the middle ground in extending the Bill of Rights across our borders?

|10.21.06 @ 3:32PM|#

IMO, if American citizens' Habeas rights are violated, that's reason for rebellion. But where's the middle ground in extending the Bill of Rights across our borders?

I think when the U.S. government decides to detain any civilian anywhere, the Bill of Rights should apply.

|10.21.06 @ 4:24PM|#

The Libertarian Guy:
You asked some good questions, I'll see if I'm up to it.

"Where's the middle ground in extending the Bill of Rights across our border?"

I would say a guy in another country who is in US custody is "within our borders". An American Embassy in another country is within our borders.

Do we give them 2nd Amendment rights? Not if the're under arrest, on trial or in jail. Or if they're violating their probation or breaking the law.

Lawyers paid for out of the taxpayer kitty? If you arrest an enemy combatant or illegal alien, or capture an enemy soldier, and put them ON TRIAL, they should not be denied counsel.

You don't give them food stamps, but if they are under your custody, you should to feed them.

Where does it end? We're the most civilized nation on earth, we should treat people right.

|10.21.06 @ 4:57PM|#

The best, if not sole, defense we have against arbitrary imprisonment or "disappearance" is independent judicial review. The Executive branch, with the spineless acquiescence of the Legislature, is trying to eliminate that.

If we eliminate Habeas Corpus, and deny prisoners the ability to force the government to prove the crimes alleged against them, in open court, we are just another banana republic.

The Libertarian Guy|10.21.06 @ 5:59PM|#

Buckshot,

Maybe so. I left out the "torture" part, but my take on that follows:

There are people who think it's wrong to torture, but do some of them go too far defining it downwards? Would it be "torture" to subject Taliban members to Woody Allen movies? Being served pork and beans by Jackie Mason while he tells "your mother's so fat" jokes?

The line from the Geneva thing, about "humiliating or degrading" treatment... leads me to believe some folks consider "torture" anything less than a mug of hot cocoa, a fluffy pillow, and politely-asked questions ("Mr. Abdul, would you pretty-please tell us what we'd like to know?" "Die, infidel pig-dog! And bring me more Britney Spears videos or I'll call my attorney!")...

There's "treating people right", and being WAY kinder than we need to be.

If ANY American were denied habeas, I'd be among the first to pick up a pitchfork and a torch to storm the castle gates. But I really could care less about Muslim extremists.

|10.21.06 @ 6:01PM|#

I am not sure if I would want flight or invisibility. I would have to think about it for a while.

Les

If this really is the way you describe it, isn't it obviously unconstitutional? Didn't the supreme court rule against exactly that kind of thing?

And maybe I haven't been watching the news enough but the Military Commisions Act seems to have gotten far less coverage than it merits, given the seriousness of its content. Maybe that it bacause right after congress passed it the Foley thing happened. Has anyone seen any televised discussion of this bill recently? And what are the bill's defenders saying about it?

|10.21.06 @ 6:23PM|#

The Libertarian Guy

Would it be "torture" to subject Taliban members to Woody Allen movies? Being served pork and beans by Jackie Mason while he tells "your mother's so fat" jokes?

No and no. I'll agree that for something to be torture it has to be worse than mildly annoying.

If ANY American were denied habeas, I'd be among the first to pick up a pitchfork and a torch to storm the castle gates. But I really could care less about Muslim extremists.

Well acording to what I am hearing/reading this bill allows for Americans to be denied habeas, though I don't know if that power has been used so far. Also some people have been captured by warlords or bounty hunters and handed over to the US so it is not certain that they are muslim extremists.

Also, I don't know about US citizens, but there was an innocent Canadian (don't remember his name) who was mistakenly thought to be affiliated with terrorists and sent to Syria for interogation. The Syrian authorities did use torture (and I don't mean Woody Allen movies) and US authorities knew, or should have known, that the Syrian government would probably do so. It is not too much of a stretch to think they might do something similiar with regaurd to a US citizen they suspect of terrorism.

We may want to start checking out Ebay for good deals on tourches and pitchforks just in case :)

The Libertarian Guy|10.21.06 @ 7:48PM|#

That's part of the problem, BG... we're ALL suspects now. Although, I must admit it was fun to read that Ted Kennedy wound up on a no-fly list, and it was a scream that Al Gore got a similar dose as Kennedy.

Although, to be honest, I consider both of those men to be deserving of suspicion...

|10.21.06 @ 7:49PM|#

BG,

It seems to me to be obviously unconstitutional, but what do I know? Hopefully, it will be challenged in court.

Libertarian Guy,

I hear what you're saying about torture. To me, something like waterboarding is very obviously torture and it's an approved technique, in use by the CIA.

|10.21.06 @ 8:34PM|#

Libertarian Guy:

There's treating people right, and being WAY kinder than we need to be."

I totally agree.

"I could really care less about muslim extremists."

I don't like them, either. But I've been in the Army M.P.'s custody and I think there's a limit to the amount of degradation you should be allowed to heap on someone. Real men don't just respect the humanity of people they like, you have to stiffle those emotions and do the right thing.

In combat situations where soldiers lives are on the line, the normal rules of civilization don't aply. You torture, shoot people in the knees, stick a gun in there mouth, it's a terrible thing.

You guys who think Woody Allen movies are torture haven't seen his movies, he's one of the best Directors ever. "Love and Death", "Bananas", and "Take the Money and Run" are classics.

|10.21.06 @ 9:20PM|#

Buckshot,

Just so long as we're talking his earlier, funnier movies, I agree. I love the ones you listed, and I could throw in four or five more worthies. Especially Sleeper. His standup was good, too.

|10.22.06 @ 12:59PM|#

Pro Libertate:
Even since I posted that Love and Death comment, I've had Prokofiev's 1st symphony stuck in my head. I might have to take the In A Gadda Da Vida cure.

The Libertarian Guy|10.22.06 @ 5:41PM|#

My point about forcing Abdul to watch Woody Allen movies isn't the content... it's b/c Allen is Jewish.

Buckshot - "sticking a gun in their mouth" isn't as bad as actually pulling the trigger. If it scares the shit out of one of 'em, that's not applying-electrodes-to-the-genitals type torture.

And "degredation"... hey, I got picked on a lot in government school. There weren't any Geneva Convention protections for me.

|10.22.06 @ 7:14PM|#

In reading the comments on this site, I'm sorry so many chose flight. Fight doesn't have to be violent.
I would like to see a candle light vigil in Washington one night, ...perhaps a nice funeral, with a coffin in toe.

Farewell Habeas Corpus, you served us well.

|10.22.06 @ 8:07PM|#

Libertarian Guy:

Now I understand the Woody Allen reference. Sorry.

Sticking a gun in their mouth doesn't constitute torture, I agree. It's more along the lines of the threat of violence being a better way to get what you want than violence itself.

Why do we incarcerate people? To punish them, to rehabilitate them, to keep them from running away before their trial, or to get information out of them. None of these reasons requires degrading people too excess, incarceration itself is quite degrading. It's not just a choice between Club Fed & the Black Hole of Calcutta, there are a lot of ways to make someone uncomfortable without extreme degradation. From what I've read and heard, cops and military intelligence experts seem to agree that torture will get you as much misinformation as anything else, they (the subject of the excercise) will tell you want they think will get the pain to stop.

Torture and degradation are wrong, ask ANYONE you know who's ever been in prison what they think.

Any talk of the suspension of Habeas Corpus sends a chill down my spine. Many jailers, whether they're deputy sheriffs, Union card-carrying Correctional Officers, M.P.'s, or private security personnel, are among the scum of the earth. No human being should ever be abandoned to these animals without a line to the outside. George Bush might not even be capable of understanding what he's really doing, he's lived too sheltered a life. Can stupidity degrade into evil?

The Libertarian Guy|10.22.06 @ 8:54PM|#

Buck, I just remember the uproar over the "naked Muslims in a pile" incident, in particular, and how it struck me as overkill to get THAT upset over it.

Also, for everyone who (perhaps, sometimes rightly) voices concern over Guantanamo, but how many of them (usually the liberal hand-wringers) give two damns about *Fidel's* side of Git'mo?

If habeas had only been suspended for non-American terrorists, I'd not be personally bothered. The more I think about it, though, it looks bad for Americans as well, potentially.

But I think this groundwork is being laid for future administrations, and it's been a pet theory of mine that, if we ever wind up in a police state, it will be with a Democrat in the Oval Office. Especially Bill Clinton's wife. Her and the minion-types she holds power over, seem more suited for Dictator duty than even our current crop of ne'er-do-well's.

|10.22.06 @ 10:09PM|#

Also, for everyone who (perhaps, sometimes rightly) voices concern over Guantanamo, but how many of them (usually the liberal hand-wringers) give two damns about *Fidel's* side of Git'mo?

I strongly oppose any torture or indefinite detention without charges inflicted on prisoners in the Cuban government's custody also. I don't know if I count as a "liberal hand-wringer" though. And Castro's human rights record is not going to affect how I vote (or encourage others to vote) in US elections, but this will which is why it is getting my attention more.

If habeas had only been suspended for non-American terrorists, I'd not be personally bothered. The more I think about it, though, it looks bad for Americans as well, potentially.

I would still be concerned even if the government only claimed the right to put foreigners in jail permenantly without charges. I wonder if that would apply to resident aliens in connection with crimes unrelated to terrorism.

But I think this groundwork is being laid for future administrations, and it's been a pet theory of mine that, if we ever wind up in a police state, it will be with a Democrat in the Oval Office. Especially Bill Clinton's wife. Her and the minion-types she holds power over, seem more suited for Dictator duty than even our current crop of ne'er-do-well's.

Whatever may be said about her, Clinton at least voted against the Military Commisions Act. Her republican opponent expressed support for it, and those facts alone are enough to make me hope she wins re-election (though not necessarily enough for me to vote for her).

|10.22.06 @ 11:48PM|#

"Buck, I just remember the uproar over the "naked Muslims in a pile" incident, in particular, and how it struck me as overkill to get THAT upset over it."

That is one sad statement.
I would hate to live in your world.

|10.23.06 @ 8:29AM|#

The Libertarian Guy:

"If Habeas had only been suspended for non-American terrorists, I'd not be personally bothered."

But what if the non-American in custody isn't really a terrorist, what if he's just some unlucky sap who was in the wrong place at the wrong time and got swept up in a dragnet? How many days, weeks, months do you hold him without charges or legal represetation? Where do you draw the line between, THIS person deserves his day in court, but THAT person doesn't? It isn't wrong for Fidel to torture and degrade prisoners because he's a communist, it wrong because the prisoners are human beings.

The naked Muslims in a pile revolted me to no end. I doesn't surprise me that the jailers would do something like that, they're the scum of the earth and will do anything they can get away with. And anyone who thinks these sadists did that out of their own warped desires without approval of the officers in charge, well, I've got a bridge I'd like to sell you. I remember that cunt of a brigadier general, whats-her-name, going on TV and saying she accepts full responsibilty for what happened under her command. Then she clamed up and let her TWO lawyers explain why she shouldn't be held responsible! Rule #1 in the military, Cover Your Ass.

That could be you in a pile of naked bodies, it's a matter of what your perceived crime is and who's running the show.

The Libertarian Guy|10.24.06 @ 12:03AM|#

Depending on who else is in the naked pile, I'd be okay with it... Anna Kournikova and Halle Berry? Sign me up.

Look, in my book, the naked-pile-of-Muslims thing wasn't on the level of, say, hooking up their man-sacks to car batteries. THAT is "torture"; playing on Muslim homophobia is more like playing with their minds. Thumbscrews and the rack, it ain't. If we'd flayed them alive and immersed them in a vat of rock salt and vinegar, I'd say "that's way over the line".

As for Madame Rodham-Borgia, it will say and do *anything* to further her putsch towards the Oval Office. Nothing else matters to it.


"I would still be concerned even if the government only claimed the right to put foreigners in jail permenantly without charges. I wonder if that would apply to resident aliens in connection with crimes unrelated to terrorism."

I agree with that. How, though, do we determine exactly WHO Ahmed works for, if he really was just an unlucky schlub or a bomb-toting "kill the infidels" type? If we can figure out how to do that, then we hold the scumbags who *do* bomb the shit out of non-believers (and, occasionally, each other), and let the innocent go free.