# 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:** 8\ **Page:** 21
**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:** [October 2, 2006, 5:24pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/401 "2006-10-02T17:24:51Z")
[QUOTE=Bricker] They saw it coming, and did not issue any guidance on it. If you are now contending that it’s inevitable they will find the current scheme violative of the Constitution, the UCMJ, or the Geneva Convention, I will be quite surprised. [/quote] I would be quite surprised also if I thought it was inevitable that they would strike the MCA in whole, because I don’t. There are certainly parts (the definition of enemy combatants that may allow for the detention of citizens or people in the US) that may be problematic, but we’re not talking about those, we’re talking about denying habeas relief. > [@Bricker](#): > > Don’t throw my past up at me. Much of what I believe today is the result of working that side of the system. I ardently believe in the necessity of someone being a zealous advocate for all the accused, no matter their situation, but you’ll notice that I no longer believe I am the right “someone” to do it. My position now stems friom what I believe the wisest course for our country is in light of the present world situation. I didn’t intend to “throw your past at you”, I only meant that, of all people here, you would understand the importance of the Great Writ, both in helping innocent people, and in the checks and balances system. > [@Bricker](#): > > OK. I understand that, and I think that’s a very defensible position to hold. It’s reasonable and it’s fair. I disagree with you, though – I think you’re wrong and it’s not a bad idea. Other than avoiding a clogged docket, what does denying habeas accomplish? It seems to me that, along with other parts of the act, the only thing it accomplishes is allowing my government to detain non-citizens, without trial, for the rest of their lives. And, it has the added benefit of protecting this administration from having the judicial branch keep it in check. > [@Bricker](#): > > It’s a necessary idea in view of the enemy and the tactics that enemy is capable of using against this country. Please, do expand. I don’t forsee habeas becoming a dangerous tool in the terrorist’s box, and I don’t see how the suspension of habeas makes us any more safe from attack. > [@Bricker](#): > > The Constitution is not being violated, and, moreover, the Constitution is not a suicide pact. Again, I don’t understand. It sounds so much like the rhetoric you hear from this administration when it goes about violating the law or the Constitution. I thought you were better than that. > [@Bricker](#): > > You see a slippery slope here, and I don’t. I’m not really arguing that there is a slippery slope, I’m saying it’s wrong. It’s bad policy, it’s against our ideals, it lowers us to the enemies standard, and it’s just stupid. And, I’ll point out, with this administration’s arguments in Padilla, Hamdi, Rasul, and the NSA stuff, we’re already well down that slope. > [@Bricker](#): > > Now, I fully admit that I may be wrong. If the next few years show dramatic erosions into civil rights domestically as the result of these “inroads,” then I will have been in the wrong here. Again, I have not made any arguments about slippery slopes, or that denying habeas to non-citizens will somehow lead to denying habeas to US citizens. I fear you’re arguing against someone else in this thread. > [@Bricker](#): > > But I don’t believe that will happen. I view these as necessary and reasonable steps that will not remain in perpetuity. Did you ever imagine that a US citizen would be arrested on US soil, and held for years without trial? Did you imagine some of the outlandish arguments this administration has made in it’s executive power grab. I didn’t, and now I regret it. Now, if you have some reasons why such unchecked power should be given to the executive, and why your country should be able to detain people forever and without trial, I’d like to hear them. I’d also like responses to my other posts in this thread. And a pony. I want a pony too. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [October 2, 2006, 5:28pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/402 "2006-10-02T17:28:02Z")
[QUOTE=Bricker] As long as the 22nd Amendment remains in place? Yes. [/QUOTE] Because its only temporary? Until the War on Terra is done, that moment to be determined by them? So long as the Amendment remains in place, its temporary abrogation is not a threat, since the men in whom we place this extraordinary power are as worthy of our trust as Lincoln? Power corrupts lesser men, but not such palladins as these? I don’t believe you. Not that I don’t believe that you are a partisan, that I don’t believe you are a fool. Or less a patriot than myself. Accordingly, I will save a place on the barricades for you. Bring pie. And ammo. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 2, 2006, 5:58pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/403 "2006-10-02T17:58:39Z")
[QUOTE=uglybeech] It’s pretty simple. Every legal analyst I’ve read on this (pro and con) says the same thing. - \*\*Non-citizens \*\* can be detained without judicial review indefinitely. No determination about their status need ever be made. In fact the goverment doesn’t even need to determine whether it thinks they’re enemy combatants, and it can keep them in an eternal state where that determination is still being made. There are certain review procedures in place should the government decide to charge them with war crimes, but there’s no reason why the government would ever want to do that for most detainees. - \*\*Citizens \*\* can also be detained as enemy combatants, however they do have the right to habeas corpus review - i.e. they have the right to stand before a judge and challenge their determination as an enemy combatant. This does not amount to a trial however and they can also be detained indefinitely without charges or trial. The definition of an enemy combatant is vague, and amounts to whatever the government deems “material support” to the enemy or directly engaged in hostilities against the U.S. or its allies. As you can imagine that can be pretty much anything the government wants it to be. And again, at no point is the government required to bring you to trial to prove that you’re doing either of these things. [/QUOTE] I am a U.S. citizen. My wife is a permanent resident. My cousin is here on a student visa. My gardener’s assitant is probably an illegal alien. Are you telling me that if the army came and took us all away one day, that I would be the only one that would ever have the opportunity to prove that I am not an enemy combatant? My wife would never have the ability to prove that she was entitled to habeus corpus because there is no requirement that she be afforded such an opportunity in the new law? My cousin and gardener’s assistant are probably SOL if my wife doesn’t get habeus. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 2, 2006, 6:37pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/404 "2006-10-02T18:37:16Z")
[QUOTE=Starving Artist] Or even _more_ to the point, can you imagine the Right Wing reaction if 9/11 had happened on Clinton’s watch and he responded to it with the same impotency he displayed in regard to the hundreds of other American lives that were lost due to terrorist attacks on his watch? He would likely have cautioned against over-reaction (again!) and found dozens of ideas why any real action would be a bad idea. Oh, he’d have thrown around lots of tough-sounding words, which our enemies would have laughed at (again!); issued more lame excuses about other countries being soverign and all that; perhaps tried to find some way to entice, bribe or impose sanctions on whatever governments his emaciated intelligence services told him were financing and/or protecting the terrorists responsible, and in general taken the position that it was essentially a _police_ problem – notwithstanding, of course, the fact that there were no _police_ anywhere capable of dealing with the problem in the first place! [/QUOTE] 9/11 was different. No sitting President would have just let it go as you seem to think Clinton would have done. We had to neutralize al Queda and perhaps even look a the root causes of organizations like al Queda. Clinton had plenty of military activity during his adminsitration and to think that he would not have at least deposed the Taliban is more than mere partisan naivete. Before 9/11 you were more likely to be struck dead by lightning (not just struck by lightning, struck DEAD by lightning) than you were to die to a terrorist attack (about 800 killed by terrorism since WWII, about 5000 killed by lightning in that time). Before 9/11 the only year in which there were more domestic deaths due to terrorism than due to lightning was the Oklahoma City bombing (1983 and 1988 were the other two years when we had high mortality due to terrorism). If you were in America, your chances were significantly better of getting struck dead by lightning. Between WWII and September 10, 2001 there have only been 10 people killed by foreign terrorists (and 4 of those were by Puerto Rican terrorists). There are 28 times as many domestic deaths resulting from domestic terrorism (168 dead in the Oklahoma City bombing) as there are from Middle Eastern terrorists (6 dead in the 1993 WTC bombing). On 9/11 we lost almost 3000 civilians to foreign terrorists. We could not afford to have this become the new standard for terrorist attacks. By 9/12, I believe that just about every other terrorist organization from the IRA to Hezbollah and Hamas condemned the attacks on 9/11. Please correct me if I am mistaken but, the only organization that supported the idea of massive civilian casualties in acts of terrorism (and the only one that does so to this day) is al Queda. NOT Hezbollah, NOT Iraqi nationalists, NOT Hamas, NOT the IRA, NOT Democrats… ONLY al Queda. If you really want security, you should go after al Queda, not create a situation in Iraq that will help al Queda recruit a new generation of whackos all over the world. The argument has been made that our activities in Iraq has done a lot to disrupt al Queda’s activities. I guess I think that there were other ways to do that without losing 3000 soldiers, over 300 billion dollars, almost all international goodwill, 100,000 Iraqi civilians, a new generation of recruits for al Queda and a deeply divided America. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 2, 2006, 6:53pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/405 "2006-10-02T18:53:56Z")
[QUOTE=Starving Artist] No, I’m not counting OKC. I have to leave right now but I’ll try to find substantiating information when I return. I may be wrong, and perhaps I’ve conflated instances that occured under other administrations but I don’t think so. Given that I don’t have time to research it now, and that a poster I have regard for such as yourself appears to doubt the amount, I will momentarily retract my statement regarding “hundreds” of victims until I can substantiate it. [/QUOTE] This seems to be a fairly accurate listing of terrorist attacks against us. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 2, 2006, 7:26pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/406 "2006-10-02T19:26:04Z")
[QUOTE=Bricker] They saw it coming, and did not issue any guidance on it. If you are now contending that it’s inevitable they will find the current scheme violative of the Constitution, the UCMJ, or the Geneva Convention, I will be quite surprised. [/QUOTE] Judicial silence on an issue indicates nothing. We often reach negative inferences from legislative silence especially where there is support in legislative history but we cannot reach negative inferences from judicial silence. SCOTUS does not speak with a single voice these days. These are the relevant headnotes from teh hamden case: > [@](#): > > Holdings: The Supreme Court, Justice Stevens, held that: > (1) Detainee Treatment Act (DTA) did not deprive Supreme Court of jurisdiction; > (2) abstention was not appropriate; > (3) military commission was not expressly authorized by any congressional act; > (4) military commission’s procedures violated Uniform Code of Military Justice (UCMJ); and > (5) military commission did not satisfy Geneva Conventions. > > Reversed and remanded. > > Justice Breyer filed concurring opinion in which Justices Kennedy, Souter and Ginsburg joined. > > Justice Kennedy concurred in part and filed opinion in which Justices Souter, Ginsburg and Breyer joined in part. > > Justice Scalia filed dissenting opinion in which Justices Thomas and Alito joined. > > Justice Thomas filed dissenting opinion in which Justice Scalia joined and Justice Alito joined in part. > > Justice Alito filed dissenting opinion in which Justices Scalia and Thomas joined in part. > > Chief Justice Roberts did not participate. It seems to me that the lack of Habeas was not even an issue in Hamden, as a matter of fact, the court seem to indicate the opposite without explicitly saying so. ---
**Author:** ![uglybeech](https://avatars.discourse-cdn.com/v4/letter/u/82dd89/32.png) [@uglybeech](https://boards.straightdope.com/u/uglybeech)\ **Post date:** [October 2, 2006, 8:59pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/407 "2006-10-02T20:59:11Z")
[QUOTE=col\_10022] Are you telling me that if the army came and took us all away one day, that I would be the only one that would ever have the opportunity to prove that I am not an enemy combatant? [/QUOTE] Yes. But let me correct that: > [@](#): > > if the military or any agency designated by Bush came and took us all away one day, that I would be the only one that **might** have the opportunity to prove that I am not an enemy combatant? Your wife and cousin are completely SOL. Legally, they’re in the same boat with the gardener’s assistant and the people caught in Afghanistan and Pakistan. But even as a citizen I wouldn’t be too optimistic about your chances of proving anything. Habeas corpus doesn’t amount to a trial. And realize the definition of “enemy combatant” now just amounts to providing “support” to enemies. It’s completely unclear what that really means. For all you know you may be supporting enemies of the U.S. or its allies. Do you know all about your charities? Your investments? Who knows. I live with a permanent resident too. I know how you feel. I won’t be contributing to any Muslim charities in the near future. Or for that matter visiting [al-Jazeera.com](http://al-Jazeera.com). You think buying Noam Chomsky’s books supports our enemies? I’m not sure. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [October 2, 2006, 9:20pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/408 "2006-10-02T21:20:33Z")
[QUOTE=uglybeech] Yes. But let me correct that: Your wife and cousin are completely SOL. Legally, they’re in the same boat with the gardener’s assistant and the people caught in Afghanistan and Pakistan. But even as a citizen I wouldn’t be too optimistic about your chances of proving anything. Habeas corpus doesn’t amount to a trial. And realize the definition of “enemy combatant” now just amounts to providing “support” to enemies. It’s completely unclear what that really means. For all you know you may be supporting enemies of the U.S. or its allies. Do you know all about your charities? Your investments? Who knows. I live with a permanent resident too. I know how you feel. I won’t be contributing to any Muslim charities in the near future. Or for that matter visiting [al-Jazeera.com](http://al-Jazeera.com). You think buying Noam Chomsky’s books supports our enemies? I’m not sure. [/QUOTE] The courts will (if at all possible) read legislation to comport with the constitution. So if there is any way to read this law in a way that comports with the constitution, they will do so. It is central to constitutional law that your constitutional rights cannot be legislated away. It is pretty well settled law that constitutional rights extend to all US citizens anywhere and to all persons within US borders. If the new law cannot be read to provide habeas rights to all US citizens and to all people within US borders, it is unconstitutional. If it can be, then that is how the courts will interpret the laws, so if the President interprets these laws in contravention of the constitution, I believe that will remove the imprimatur of congressional support from his actions. It seems to me that times of war and conflict is when the constitution is most needed and most at peril. [Previous page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=20)