On preview – everything I just typed erased, because DSYoung explained it perfectly.
A few legal misunderstandings I’ve seen in this thread:
It is not true that conditions of confinement can never be legally considered punishment. For pre-trial conditions challenges, see Turkmen v. Ashcroft, 2006 WL 1662663 (EDNY 2006) (stating the Fifth Amendment standard for when conditions of confinement are considered punishment.)) For post-trial, see Wilson v. Seiter, 111 S. Ct. 2321, 2327 (1991) (setting out the Eighth Amendment standard.) So it is not the case that as a matter of the scope of the Fifth or Eighth Amendments that torture can never be punishment–it can be if it is intended to punish, and it is clear from many of the FOIA documents that at least in some cases this is the intention.
Those citing Eisentrager seem to be assuming that it is still good law on this issue. As the court said in Rasul, “Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.” Those distinguishing characteristics are also true of, say, detainees in Abu Ghraib.
The Constitution can indeed extend beyond our borders if those detainees have a procedural way to get into court. As the court also noted in Rasul, "In Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973), this Court held, contrary to Ahrens, that the prisoner’s presence within the territorial jurisdiction of the district court is not “an invariable prerequisite” to the exercise of district court jurisdiction under the federal habeas statute. Rather, because “the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction…”
Of course, Rasul did not need to directly overrule Eisentrager because they found that the habeas statute provided for relief, but Boumediene might. The argument that the Constitution might apply to some of those under our control and jurisdiction in another country deserves more serious consideration than it has been given in this thread.
Now, the fact that conditions of confinement can equal punishment and habeas can be brought by aliens abroad does not mean that aliens abroad can bring habeas actions for torture. Generally habeas is about challenging the basis for detention. But I think this focuses the debate a little and moves past some of the falsehoods being propagated.
In the case of Chaplain Yee, he was being held in a Navy brig, not Gitmo. It should also be pointed out that he had access to a trial - a court martial - that ultimately found him not guilty.
I cannot comment on the rest of his charges - I don’t know how true they are. But this by itself makes this not particularly a great example to cite.
As for the other matter - I see no particular reason why an American citizen ought to be treated much differently from another enemy combatant if said American has gone through the rather extraordinary steps of joining these groups in foreign countries and then shooting at our soldiers. Said actions essentially nullify citizenship, and that person ought to be treated as an enemy unless they can be proven not to be one.
Even the Hamdi case affirmed that they can be detained - just that said detention could be challenged.
Well, that news story is 2 years old. Did the legislation pass?
As for Yee… first off, he was punished under military justice, which does has different standards than the civilian courts. But if you have any court cases that have ruled solitary confinement or sensory deprivation are cruel and unusual in similar circumstances to his, let’s see them. He’s also free to sue in the courts if he thinks his constitutional rights have been violated. The government violates citizens’ constitutional rights all the time, and people address that in the court system. Until and unless Yee does that, we won’t really know how they would rule.
What an odd thing to say. They can be detained if they are indeed unlawful enemy combatants, which is the point of the challenge.
The bulk of my argument has been narrowly directed to the applicability of the Eighth Amendment, because that’s the justification that Scalia was discussing.
With respect to the more general issue, right now the rule in Boumediene is the circuit court’s binding decision, which, I take it, you don’t support.
If the Supremes overturn Boumediene, you’ll have a point to make.
I disagree. Absent the need for hanging and ear-cutting, such language in the Constitution that restrains such laws is now justifiable. His whole statement is couched in qualifiers, which, if met, make his objection moot.
That’s fine. But the inapplicability is not about the definition of punishment, as some had suggested. In addition to that error, which relates directly to the Scalia discussion, I thought it prudent to correct other less-related errors.
Rasul undermines Eisentrager. That was my point.
I referenced Boumediene only because I was addressing the validity of the argument. This is a close, controversial legal issue that deserves more than the cursory analysis that “no existing law supports it.” If no existing law supported it, we wouldn’t all be on the edge of our seats waiting for this decision.
Has any of this been legislated? Near as I can tell Bush just says what he wants and it is so. The courts rule they have no jurisdiction outside of the US (which somehow Guantanamo is not deemed US territory) and Congress has no ability to interfere with the Commander-in-Chief telling his military what they are to do (including military tribunals and so on).
So, apparently we have a situation where the reach of the Executive branch is fine and not encumbered by pesky things like laws, UCMJ, international law or the Legislative branch.
If that is somehow wrong let me know…I hope it is.
Oh…and whatever happened with Jose Padilla?
My recollection is he was an American citizen caught in America for crimes relating to 9/11. Bushites dubbed him an enemy combatant and voila…he now can be held indefinitely with no trial.
IIRC it got to the Supreme Court who dodged the issue and sent it back to the lower courts at which point I have no clue what happened.
Nevertheless an American citizen caught in America denied his Constitutional rights because Bush said so. Am I the only one troubled by that?
Rasul and Eisentrager get along just fine. Rasul hinges on the habeas relief law.
No, to get where you’re going, you need Boumediene to overrule the circuit’s decision.
You’re on the edge of your seat. I’m calm. I’ll take a bet right now that the Supremes uphold.
I thought we were discussing Scalia’s views on torture and the 8th amendment. If you want me to defend Bush’s handling of Mr. Padilla’s situation, you’ve come to the wrong place.
While it is true that the holdings are consistent, as I quoted extensively, there is some reason to believe that Rasul distinguishes Eisentrager in other ways.
So your position is that the Supreme Court took the case in order to uphold the Circuit Court on this matter of absolutely clear-cut law?
I don’t doubt that they will uphold, given the balance of the court. But I think they are doing so precisely because of the open nature of the legal issues. Well, me and virtually every SCOTUS-watcher. Have you not been privy to the excitement over the settling of very longstanding open questions about Habeas?
Admittedly a sidetrack that was in response to US citizens being denied constitutional protections. Perhaps best left for another thread (although also likely already done to death).
As for Scalia’s opinions on the 8th Amendment and torture seems like it has already been discussed and settled. Regardless of how some of us feel about it the facts are the 8th Amendment is not relevant in this case and Scalia is correct. I still think it is screwy but that counts for pretty much nothing and I know it.
You need to learn to read English, then, I think. 
The analysis I made draws directly from the two sentences. It references the actual words, it shows how the second sentence refers back to the words contained in the first sentence.
Your interpretation would make no sense of the rhetorical question asked, which equates to, “are you telling us (with this langauge) we can’t hang, whip and ear lop?” The answer he offers is, “no, we will continue to hang, whip and ear lop, even if you say we can’t use cruel and unusual punishments, until such time as we no longer need to use such punishments, having discovered better means and adopting them.”
It’s all there, plain as day. And that interpretation is why, for example, the statement is cited in the analysis of the Constitution I linked from the GPO Access site.
That, and the fact that it takes only four to grant cert. It seems to me they initially denied cert, as well… or am I confused?
OK. So even you agree that shortly, any open questions will be answered consistently with the arguments I’ve made above?
So your plan is… what? Argue the issues now before the Court cuts your legs out from under you?
Do not be harsh on yourself about it. Your assumption that the Constitution protects people from all misbehaviour by the government is natural these days. I remember entering my Constitutional Law class having much the same opinion, and that’s despite having had an excellent class in Constitutional History at college. It is a legacy of the extensive efforts, starting in the post-WWII period, by the Supreme Court to change our society through the use of the Constitution. We have come to believe it is both sword and shield.
Which is why when someone like Justice Scalia comes along and waves his hand and says things like, “Hello? Original intent? Plain meaning? Judicial restraint?”, we have a tendency to look at him like he’s sprouted a second head or something.
The Constitution does not prohibit all bad governmental acts (even all the ones we would agree on overwhelmingly). That’s why, periodically, we tweak it to make it better. I would say that, depending upon how this election goes, and how things go in Iraq in the next few years, we might see a move to undertake one of those tweaking efforts.
We’re losing focus on the most frightening thing Scalia said:
Frightening because constitutionally, this is true. Scalia is a Supreme Court Justice - he has the power to make something constitutional just by saying so (assuming he can get four of his fellow justices to agree).
If you continue to misquote Samuel Livermore, I suppose you can conclude anything. I don’t see how his statement can be interpreted other than how I have explained it.
Not sure. I just think that the fact that this case is widely regarded as the most important of the term suggests that the legal issues are in play. Which cases do you think definitely determine the outcome?
I’m not even trying to attack the lower court’s ruling in Boumediene. I’m just trying to say that there are open questions, in terms of there not being any SCOTUS rulings on point.
I actually think the court will take any opportunity it can find to duck the fundamental question about core habeas. It wouldn’t surprise me if they find a way to do so.