# Time to Kiss Habeas Corpus Goodbye **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 28, 2006, 6:16pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517 "2006-09-28T18:16:27Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 28, 2006, 6:16pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/1 "2006-09-28T18:16:27Z")
[Down it goes, 51-48](http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00255). All those moderate Republicans that [Broder thought would keep this Administration from passing evil stuff](http://www.washingtonpost.com/wp-dyn/content/article/2006/09/20/AR2006092001586.html) - McCain, Warner, Graham, DeWine - all voted against _habeas corpus_, and to keep in the Torture Bill the clause that would give Bush (and future Presidents) the right to hold enemy combatants as long as he damned well pleases. It boggles my mind that we’re even _talking_ about this stuff. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 28, 2006, 6:28pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/2 "2006-09-28T18:28:51Z")
They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation. Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 28, 2006, 6:29pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/3 "2006-09-28T18:29:29Z")
They caved because they’d lose. In no wise does this alleviate thier shame, but it is almost certainly true. The Bushiviks are salivating at the prospect of limning thier political enemies as being soft on terrorism, as well as eager to put an _ex post_ cloak of legitimacy on their actions. We are told, for instance, that there is some great rush by CIA agents to purchase insurance to indemnify themselves if they are charged with war crimes. Has anyone seen any proof of this? The slightest morsel of proof? Who is purchasing such insurance? From whom would such insurance be available? Perhaps rather than signing this legislation, The Leader might use the Imperial Seal? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 28, 2006, 6:36pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/4 "2006-09-28T18:36:41Z")
[QUOTE=Bricker] They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation… [/quote] No. _We_ correctly understand that the right to confront your accusers and his evidence is a _human right_, one of those truths we hold to be self-evident. It is not a privilege reserved for those who had the good sense to be born American. The Leader has been very public about his belief that human rights are God-given, he rather slipped by not pointing out his authority to overule the Lord of Hosts. Must have been a signing statement appended to Scripture. > [@](#): > > …Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations. By “battlefield detentions”, are you including such persons who were turned over to us by bounty hunters? Please advise as to the limits of that designation, as it seems generous to the point of limitless. ---
**Author:** ![Starving\_Artist](https://avatars.discourse-cdn.com/v4/letter/s/aeb1de/32.png) [@Starving\_Artist](https://boards.straightdope.com/u/Starving_Artist)\ **Post date:** [September 28, 2006, 6:38pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/5 "2006-09-28T18:38:40Z")
[QUOTE=RTFirefly] and to keep in the Torture Bill the clause that would give Bush (and future Presidents) the right to hold enemy combatants as long as he damned well pleases. [/quote] And just how long would you suggest we hold enemy combatants before we set them free to try to kill us again? [QUOTE=RTFirefly] It boggles my mind that we’re even _talking_ about this stuff. [/QUOTE] Yeah, no shit. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [September 28, 2006, 6:44pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/6 "2006-09-28T18:44:09Z")
[QUOTE=Starving Artist] And just how long would you suggest we hold enemy combatants before we set them free to try to kill us again? [/QUOTE] How do we know they’re enemy combatants? Do you volunteer to be held in a [del]gulag[/del] former Soviet Prison Camp without communication from the outside world based on a crime you didn’t commit? Are you really that dedicated to the TWAT? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [September 28, 2006, 6:44pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/7 "2006-09-28T18:44:52Z")
[QUOTE=Starving Artist] And just how long would you suggest we hold enemy combatants before we set them free to try to kill us again? [/QUOTE] And how do you know they were trying to kill us at all ? “Enemy combatant” means “any random person we grab”. Do you think it’s OK to keep them forever, without trial or appeal ? Do you think that “disappearing” people like dictatorships do isn’t making us _more_ enemies, anyway ? ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [September 28, 2006, 6:48pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/8 "2006-09-28T18:48:53Z")
[QUOTE=Starving Artist] And just how long would you suggest we hold enemy combatants before we set them free to try to kill us again? [/QUOTE] And how long do you think it is permissible to hold innocent people without charging them of anything? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 28, 2006, 6:49pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/9 "2006-09-28T18:49:46Z")
[QUOTE=elucidator] No. _We_ correctly understand that the right to confront your accusers and his evidence is a _human right_, one of those truths we hold to be self-evident. It is not a privilege reserved for those who had the good sense to be born American. The Leader has been very public about his belief that human rights are God-given, he rather slipped by not pointing out his authority to overule the Lord of Hosts. Must have been a signing statement appended to Scripture. [/QUOTE] No, it’s not a human right. It’s not one of those things we hold to be self-evident. YOU may, and that’s your privilege, but thankfully you do not control public policy for this country. Even in this country, it’s not a limitless right. There are circumstances in which confined prisoners here are no longer permitted access to the writ of habeas corpus, and it’s a wise move when it’s done. In any event, it’s not a human right. You think it is, and when you run your own country, you can certainly make it so within your borders. In this country, however, our process, which involves duly elected representatives expressing the will of the people through legislative enactments, disagree. And they are the ones that have the power to decide. They are, to borrow a phrase, the deciders. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 28, 2006, 6:49pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/10 "2006-09-28T18:49:57Z")
[QUOTE=Bricker] They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation. [/quote] Since you are a lawyer, I shall ask you to define ‘in the context of’ and ‘armed conflict.’ How small a demonstration of gunplay constitutes an ‘armed conflict’ (or does someone have to certify a conflict to be such, and if so, whom?), and how far from the conflict in question does the ‘context’ reach? > [@](#): > > Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations. OK, you capture someone in Afghanistan in 2002, because someone else said they were a Taliban supporter. You ship them to Gitmo. Are they forever a ‘battlefield detention,’ when the battlefield is half a world away and many years behind? Of course, [we’re not just talking about the physical battlefield](http://thomas.loc.gov/cgi-bin/query/F?r109:1:./temp/~r109jiJydV:e131313:), I hope you realize. > [@](#): > > ``(1) UNLAWFUL ENEMY COMBATANT.–(A) The term `unlawful enemy combatant’ means– > > ``` > ``(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); **or** > > ``(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. > > ``` Bolding mine. ---
**Author:** ![GargoyleWB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gargoylewb/32/199_2.png) [@GargoyleWB](https://boards.straightdope.com/u/GargoyleWB)\ **Post date:** [September 28, 2006, 6:52pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/11 "2006-09-28T18:52:11Z")
[QUOTE=Starving Artist] And just how long would you suggest we hold enemy combatants before we set them free to try to kill us again? [/QUOTE] Are you suggesting that we may still be holding WW2 German POWs, or that we should? What arbitrary distinction do you use to decide the transition between “bloodthirsty prisoner hell-bent on killing” and “war’s over…sorry about the shooting, you can go home to be a normal citizen again”. This is why we operate on a consensus of laws and human rights, otherwise undeclared wars, undefined enemies, and unregulated despots make the world a miserable place for us civilized folks who wish to be treated with respect. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 28, 2006, 6:54pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/12 "2006-09-28T18:54:04Z")
[QUOTE=Bricker] In this country, however, our process, which involves duly elected representatives expressing the will of the people through legislative enactments, disagree. And they are the ones that have the power to decide. They are, to borrow a phrase, the deciders. [/QUOTE] Maybe you’re mistaking _the Constitution of the United States_ with _Federal law_. The former can be altered only by the combination of two-thirds majorities in both Houses of Congress, and the concurrence of the legislatures of three-fourths of the several States. The latter, absent a Presidential veto, can be altered by a majority of each House of Congress. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [September 28, 2006, 6:54pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/13 "2006-09-28T18:54:46Z")
[QUOTE=Bricker] They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation. [/quote] And _Hamdan v. Rumsfeld_? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 28, 2006, 6:54pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/14 "2006-09-28T18:54:48Z")
[QUOTE=BobLibDem] And how long do you think it is permissible to hold innocent people without charging them of anything? [/QUOTE] Does your strawman keep the crows away as well as the ones in cornfields do? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 28, 2006, 6:55pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/15 "2006-09-28T18:55:56Z")
[QUOTE=RTFirefly] Maybe you’re mistaking _the Constitution of the United States_ with _Federal law_. The former can be altered only by the combination of two-thirds majorities in both Houses of Congress, and the concurrence of the legislatures of three-fourths of the several States. The latter, absent a Presidential veto, can be altered by a majority of each House of Congress. [/QUOTE] Nope, I’m not making any such mistake. The gripe the Supreme Court had was that the tribunals were not Congressionally authorized. Now they are. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [September 28, 2006, 6:58pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/16 "2006-09-28T18:58:09Z")
[QUOTE=Bricker] Does your strawman keep the crows away as well as the ones in cornfields do? [/QUOTE] Do you contend that every person detained in Gitmo is guilty of something? Do you think Maher Arar would consider it a strawman? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 28, 2006, 6:59pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/17 "2006-09-28T18:59:01Z")
[QUOTE=Hamlet] And _Hamdan v. Rumsfeld_? [/QUOTE] The opinion that says: > [@](#): > > The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions–with the express condition that he and those under his command comply with the law of war. What of it? The President can’t invoke military tribunals on his own. He needs Congressional approval. That’s what _Hamdan_ says, and that’s what we’ve got. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 28, 2006, 6:59pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/18 "2006-09-28T18:59:15Z")
[QUOTE=Bricker] They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation. Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations. [/QUOTE] There _is_ the question of whether a handover of persons (in exchange for a cash bounty) with no proof that they had engaged in combat legitimately constitutes a battlefield detention. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [September 28, 2006, 6:59pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/19 "2006-09-28T18:59:24Z")
:eek: :eek: ☹ :eek: :eek: ☹ :mad: It can be reversed at a later time, should sanity return to our leaders, right? ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [September 28, 2006, 7:02pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/20 "2006-09-28T19:02:22Z")
[QUOTE=Bricker] No, it’s not a human right. It’s not one of those things we hold to be self-evident. YOU may, and that’s your privilege, but thankfully you do not control public policy for this country. [/QUOTE] So, if _you_ were hauled off in the middle of the night and held without outside communication or even being told _why_, you’d have no problem with that ? For years ? Forever ? It’s people like you who have made America into the loathsome nation of thugs that it is. [Next page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=2)