# 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:** 5
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [September 28, 2006, 10:48pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/81 "2006-09-28T22:48:37Z")
[QUOTE=Bricker] I do believe that these procedures offer any detainee a reasonable way to demonstrate that he is not a person that should be detained, if in fact he is not. [/QUOTE] I too would like to know what you base this rather generous optimism on. BobLibDem asked you a question about Maher Arar in post #16 which you never responded to. [A refresher on his ordeal](http://www.maherarar.ca/mahers%20story.php). Here was an innocent man who was at various times denied legal counsel, brutalized for hours on end, forced to sign false confessions under the threat of torture, and systematically ignored whenever he tried to “demonstrate that he is not a person that should be detained.” He was incarcerated for over a year. What more, exactly, could he have done to assert his innocence? Or is the fact that he was freed at all evidence that the system “works”? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 28, 2006, 10:51pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/82 "2006-09-28T22:51:12Z")
[QUOTE=ArchiveGuy] I too would like to know what you base this rather generous optimism on. BobLibDem asked you a question about Maher Arar in post #16 which you never responded to. [A refresher on his ordeal](http://www.maherarar.ca/mahers%20story.php). Here was an innocent man who was at various times denied legal counsel, brutalized for hours on end, forced to sign false confessions under the threat of torture, and systematically ignored whenever he tried to “demonstrate that he is not a person that should be detained.” He was incarcerated for over a year. What more, exactly, could he have done to assert his innocence? Or is the fact that he was freed at all evidence that the system “works”? [/QUOTE] As bad as that case seems, it pre-dates the \*Hamdan \*decision and this legislation, which were meant to remendy that type of situation. ---
**Author:** ![El\_Cid\_Viscoso](https://avatars.discourse-cdn.com/v4/letter/e/41988e/32.png) [@El\_Cid\_Viscoso](https://boards.straightdope.com/u/El_Cid_Viscoso)\ **Post date:** [September 28, 2006, 11:04pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/83 "2006-09-28T23:04:58Z")
[QUOTE=John Mace] While they may not have the right to challenge their detention in the US criminal court system, they can challenge their detention in the military tribunals authorized by Congress, no? [/quote] Correct. 949f, but the language is a little flimsy. There’s also provision for appeal. > [@](#): > > Does this bill allow the government to detain “unlawful enemy combatants” indefinitely without any type of hearing? I saw nothing about due process or speedy trial, but as in the “Detainee Treatment Act of 2005,” there must be an annual unclassified report (Sec 948e) made to Congress on the status and comport of tribunals. So theoretically, the Senate and House Armed Services Committees may face the onus of driving the process. Messy. ---
**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, 11:07pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/84 "2006-09-28T23:07:08Z")
[QUOTE=El Cid Viscoso] …b) Exclusion of Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made." [/QUOTE] Good as far as it goes. How does a detainee go about it? If he claims to have been tortured, and his warders deny it, that’s it? (By the by, “…except against a person accused of torture as evidence that the statement was made…” is a marvel of opacity. What is the translation into English?) ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [September 28, 2006, 11:26pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/85 "2006-09-28T23:26:59Z")
[QUOTE=John Mace] As bad as that case seems, it pre-dates the \*Hamdan \*decision and this legislation, which were meant to remendy that type of situation. [/QUOTE] Well, according to [this](http://www.salon.com/opinion/feature/2006/09/26/habeas/), things haven’t improved much since then, and won’t with the new legislation. Excerpts: > [@](#): > > My office represents and coordinates writs of habeas corpus on behalf of all 460 detainees held at Guantánamo. Almost none of these detainees have been charged with a crime. Many, according to the administration’s own claims, have never actively taken hostile action against the United States, but were turned over to the Americans by war lords or bounty hunters. Others are confused, elderly, or simply arrested in error. As Col. Bill Cline, deputy camp commander at Guantánamo, acknowledged, “Some of the prisoners are victims of circumstance, caught up in the wrong place at the wrong time.” > > But without habeas corpus hearings, there is no way for detainees to know the charges against them, or to refute any evidence that might be wrong. Like our client Maher Arar – a Canadian sent by the United States to Syria, where he was tortured in a secret prison until the Canadians finally demanded his release – they are unable to prove their innocence because they have no way to test their detention. And without accountability to a court, as we have seen over and over, abuse of prisoners quickly becomes rampant. > > We have been trying to get the Guantánamo prisoners a habeas corpus hearing in federal court for nearly five years. We had a major victory in June 2004 (Rasul v. Bush) when the Supreme Court ruled that courts are open to aliens held outside the United States, and that they have the right to file writs of habeas corpus to test their detentions. Evoking the central importance of habeas corpus to our system of law, the court wrote: “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.” > > … > > And yet, as of today, not one of our clients has been given the required habeas corpus hearing that would determine whether he was properly detained. The administration stonewalled, stalled and flatly refused to obey the court, fighting hard to retain the privilege of kings. > > In 2005, the Bush administration went to Congress and got legislation passed that it hoped would abolish habeas corpus for our clients. It did not work. Once again the Supreme Court stepped in and in June 2006 (Hamdan v. Rumsfeld) ruled that the legislation, called the Detainee Treatment Act, did not apply to our clients. > > Refusing to accept the court’s verdict, the administration went back to Congress yet again: This week, Republicans in Congress appear ready to pass new bills abolishing habeas corpus. The current legislation does not just apply to those held at Guantánamo but to aliens detained anywhere outside the United States; it is retroactive, so any pending habeas petitions will be knocked out of court. ---
**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, 11:32pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/86 "2006-09-28T23:32:51Z")
Believe it or not, it appears to mean that if, say, Mr. Rahman reveals his mother’s recipe for _babaganough_ under torture, that recipe will not be admissible as evidence in Mr. Rahman’s trial for possessing WMD’s. However, if SSgt. Cornshucker is later tried by courtmartial for the torture, the fact that the recipe was elicited may be used against Cornshucker. Have I got that about right, **Bricker**? ---
**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, 11:34pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/87 "2006-09-28T23:34:33Z")
My last post was intended to be in answer to **elucidator’s** query of post #84. ---
**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, 11:35pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/88 "2006-09-28T23:35:13Z")
[QUOTE=kaylasdad99] Believe it or not, it appears to mean that if, say, Mr. Rahman reveals his mother’s recipe for _babaganough_… [/QUOTE] I can’t eat Middle Eastern food, it makes me feel awful. ---
**Author:** ![eleanorigby](https://avatars.discourse-cdn.com/v4/letter/e/ee7513/32.png) [@eleanorigby](https://boards.straightdope.com/u/eleanorigby)\ **Post date:** [September 28, 2006, 11:37pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/89 "2006-09-28T23:37:10Z")
Why do we continue to hand terrorists causes on silver platters? Where the hell is my country? We declare to the world that we stand for freedom and democracy, justice and fair trials. Where are those? And yes, I include military tribunals in that. Jesus, a guy goes out for a loaf of bread, gets picked up in what is essentially racial profiling and sits in prison for an unknown number of years-no contact with family, no legal counsel, no redress, no way of even knowing what he is accused of? This is fair and right and just because we’re at “war” (with an enemy that we change to suit us as needed). I sure would hate to be an American muslim who perhaps gave money to a muslim charity which is accused of giving material aid to Al Queda–you could land in jail and never the more will you be seen… Who the hell wants that as any system of any kind of government? This is going to spread democracy? This is Freedom on the March? This is wrong-on all levels. **Bricker** can split the hairs to fiberoptics, it’s still wrong. No one knows if any detainee is the enemy, the only humane thing to do is to let that person defend themselves. Stalin looks better all the time. You knew where you were with Stalin… ---
**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 29, 2006, 12:03am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/90 "2006-09-29T00:03:33Z")
[QUOTE=kaylasdad99] Again: can you just let the grownups talk for a while, please? [/QUOTE] :rolleyes: If **Bricker** is one of the “grownups” in your eyes, I’m glad I don’t qualify. Lame insults don’t impress me. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [September 29, 2006, 12:21am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/91 "2006-09-29T00:21:29Z")
[QUOTE=Bricker] A lawful combatant is one who is entitled to the protections of the Geneva Conventions, including: etc [/QUOTE] See, I’ve seen this quote used a milliion times and as always the 2 questions are: - what is the source? Not _a_ source, but _the source used for this quote_. Because it omits some text which discomforts the position put forward, which is awfully covenient don’t you think? - what is the status of prisoners of indeterminate status before a competent tribunal has determined _whether or not_ those persons are entitled to the GC protections? I would imagine there is an item of text somewhere that discusses that quandry. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 29, 2006, 12:32am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/92 "2006-09-29T00:32:07Z")
[QUOTE=El Cid Viscoso] Correct. 949f, but the language is a little flimsy. There’s also provision for appeal. I saw nothing about due process or speedy trial, but as in the “Detainee Treatment Act of 2005,” there must be an annual unclassified report (Sec 948e) made to Congress on the status and comport of tribunals. So theoretically, the Senate and House Armed Services Committees may face the onus of driving the process. Messy. [/QUOTE] It’s my understanding that they also do have access to the DC circuit Federal Court of Appeals, although it’s not clear to me how easy that access will be. One thing to note is that the final bill passed the Senate with a 65 vote majority, so it would appear that at least 10 Senate Dems voted for it. Whether those votes were political in nature, I wouldn’t know. Some may have voted yes knowing that it would pass anyway and not wanted to be on record as “soft on terror”-- the Republican’s mantra for whomever disagrees with them. I don’t think this bill is as bad as is being portrayed by some here, but I’m going to reserve final jdugement until I get to chance to see more legal experts weigh in. And of course we will probably be in for another SCOTUS ruling as this bill gets challenged in the courts. No surprise there-- the longer the process drags out, the better it is for Bush. We may find that it will be up to “future presidents” to finally deal with those being detained. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [September 29, 2006, 1:02am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/93 "2006-09-29T01:02:31Z")
[QUOTE=John Mace] the final bill passed the Senate with a 65 vote majority, so it would appear that at least 10 Senate Dems voted for it. [/QUOTE] [Eleven](http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00259), plus the sole Senator from the Connecticut for Lieberman party. Every Republican voted for it except for Chafee, who voted against, and Snowe, who didn’t vote, and was apparently absent all day, since she didn’t vote on amendments either. > [@](#): > > As bad as that case seems, it pre-dates the Hamdan decision and this legislation, which were meant to remendy that type of situation. What this legislation was _meant_ to do? Sure _looks_ like it was meant to give cover of law to as much of the nasty stuff as possible that GWB & Co. have been doing all along. That’s how it looks through my eyes, anyway. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [September 29, 2006, 1:13am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/94 "2006-09-29T01:13:48Z")
I’m just curious as to whether one of the apologists here is going to offer a straight answer to **John Mace** ’s eminently reasonable query? Whether _habeas corpus_ applies only to American citizens or not is irrelevent in the grand scheme of things. The fact still remains that we are detaining people who are offered essentially no ability to represent themselves in front of a judicial body, seek aid in such representation, or indeed, obtain information about the transgressions against which they’re being held. That harkens back to the gulag’s of the darkest days of the Soviet Union or the worst imaginings of Orwell. Either we’re all about freedom and democracy–in which case, we need to start living up to that ideal not only in word but in action–or we’re not, and our executive bobblehead needs to stop mouthing hypocritical platitudes to the effect in support of his foreign policy. Once you start playing the bully, you stop being the victim. Stranger ---
**Author:** ![CBEscapee](https://avatars.discourse-cdn.com/v4/letter/c/b19c9b/32.png) [@CBEscapee](https://boards.straightdope.com/u/CBEscapee)\ **Post date:** [September 29, 2006, 1:28am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/95 "2006-09-29T01:28:13Z")
[QUOTE=Der Trihs] I don’t believe you, and you are assuming a fair trial instead of a kangaroo court, _and_ you are assuming there will ever be a trial. [/QUOTE] You need to remember that this is a US kangaroo court. Makes all the difference, don’t you know. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 29, 2006, 1:35am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/96 "2006-09-29T01:35:06Z")
[QUOTE=Stranger On A Train] I’m just curious as to whether one of the apologists here is going to offer a straight answer to **John Mace** ’s eminently reasonable query? Whether _habeas corpus_ applies only to American citizens or not is irrelevent in the grand scheme of things. The fact still remains that we are detaining people who are offered essentially no ability to represent themselves in front of a judicial body, seek aid in such representation, or indeed, obtain information about the transgressions against which they’re being held. That harkens back to the gulag’s of the darkest days of the Soviet Union or the worst imaginings of Orwell. Either we’re all about freedom and democracy–in which case, we need to start living up to that ideal not only in word but in action–or we’re not, and our executive bobblehead needs to stop mouthing hypocritical platitudes to the effect in support of his foreign policy. Once you start playing the bully, you stop being the victim. Stranger [/QUOTE] Which eminently reasonable question were you referring to? It doesn’t sound from the rest of your post that you’re referring to anything I remember posting in this thread. I’m not convinced that _habeas corpus_ has indeed been eliminated, but you seem to think it has. Has it? Is access to the entire US criminal system the only way that _habeas corpus_ can be obtained? Your post has left me a bit confused… ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 29, 2006, 1:42am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/97 "2006-09-29T01:42:38Z")
[QUOTE=RTFirefly] [Eleven](http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00259), plus the sole Senator from the Connecticut for Lieberman party. [/quote] The CfL party has a 10% lead in the polls, btw. [Link](http://www.courant.com/news/elections/hc-qpoll-sem0928-ap,0,7928868.story). > [@](#): > > Sure _looks_ like it was meant to give cover of law to as much of the nasty stuff as possible that GWB & Co. have been doing all along. That’s how it looks through my eyes, anyway. If you’re talking about the “aggressive interogation” techniques, I’ll agree that this legislation seems to give the president too \*\*way \*\*much leeway. I don’t like that aspect of it, although I’m still uncertain about the _habeas corpus_ part. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [September 29, 2006, 1:55am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/98 "2006-09-29T01:55:46Z")
[QUOTE=Bricker] No. It [“unlawful enemy combatant”] is a phrase that is defined and has a specific meaning. [/QUOTE] In the absence of a trustworthy procedure for determining whether or not a specific individual is an “unlawful enemy combatant”, it is for practical purposes a phrase that is ill-defined and lacking in useful meaning. Obviously, to base this procedure upon the assumption that the rules for unlawful enemy combatants apply is to engage in the fallacy of circular reasoning. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [September 29, 2006, 2:10am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/99 "2006-09-29T02:10:53Z")
[QUOTE=John Mace] The CfL party has a 10% lead in the polls, btw. [/quote] Always the ray of sunshine. Can we make a stipulation here? May we assume that at least _some_ of the detainees are not guilty? Men who find themselves at our mercy for no other reason than a misfortune of war? I would think that fair enough, given that in some instances their transmittal into our grasp comes by suspicious means. To say the least. What then is our first duty? Are we more concerned with assuring ourselves that the guilty not escape, or that the innocent are protected? Which approach is more consistent with our pretense to world leadership and standard bearer for democracy and human rights? Shouldn’t we have the courage, being the single most powerful nation in human history, to take the risk? To say “We know that by extending full and fair rights to these people, some guilty will escape us. We choose to protect justice because we are a just people, and are not afraid.” Or perhaps that antiquated statue in New York has outlived its moment, some modifications are in order. On the tablets in her left hand, engrave the word “Secret”. Replace the torch with a set of electrodes. Haliburton should have in done in a couple years, $6 billion, tops. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [September 29, 2006, 2:56am UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/100 "2006-09-29T02:56:16Z")
[QUOTE=Zabali\_Clawbane] It can be reversed at a later time, should sanity return to our leaders, right? [/QUOTE] Freedom, once surrendered, is regained only by revolution. In the United States it is possible to have a revolution without a war, but give the number of craven cowards in our population who crave safety, and have little use for freedom, you can pretty much be sure that you will never see this one come back. Tris [Previous page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=4) [Next page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=6)