# 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:** 8
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:21pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/141 "2006-09-29T15:21:05Z")
[QUOTE=Cervaise] Have you no sense of decency sir, at long last? Have you left no sense of decency? [/QUOTE] Shut up, you worthless git. That quote refers to a completely different situation, and it is offensive to use it here. You’re arguing against some phantom scheme that exists in your mind only – well, yours and the rest of the Left-Wing Lockstep Sheep, baaaing along in their usual herd. McCarthy’s tactics were far different than what is being used here. Yor comparison is inept, irrelevant, and foolish. ---
**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, 3:24pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/142 "2006-09-29T15:24:50Z")
Folks… The \*habeas \*issue is largely a red herring. This legilsation does allow for detainees to get hearing. Now, we can argue if those hearings are fair or not, but that’s a different issue. As far as I see it, the real problems with this bill is that: 1. It elevates conspiracy to the level of a war crime per the definintion of unlawful combatant (thanks for the definition, **El Cid** ). Also, the definition linked to above (post #59) appears to be rather circular, although if the term “lawful combatant” in the definion means you qualify under Article 4, then I’m OK with that part of the definition. 2. The executive branch is the sole “decider” of which interrogation techniques constitute torture. 3. It’s unlcear to me how quickly the gears are required to turn for each detainee to get to his or her tribunal. These aspects are what trouble me the most. ---
**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, 3:27pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/143 "2006-09-29T15:27:47Z")
[QUOTE=John Mace] There is nothing in that clause that places treaties above federal law. [/QUOTE] Yes and no, AFAICT. Congress can of course pass a resolution specifically abrogating a treaty, but as I understand it, a statute passed by Congress that contradicts American treaty obligations without claiming to abrogate the treaty must yield to the language of the treaty. But IANAL, so maybe one of our legal eagles can chime in on this. ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [September 29, 2006, 3:35pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/144 "2006-09-29T15:35:11Z")
[QUOTE=Bricker] Shut up, you worthless git. That quote refers to a completely different situation, and it is offensive to use it here. You’re arguing against some phantom scheme that exists in your mind only – well, yours and the rest of the Left-Wing Lockstep Sheep, baaaing along in their usual herd. McCarthy’s tactics were far different than what is being used here. Yor comparison is inept, irrelevant, and foolish. [/QUOTE] Actually, the quote refers to the point at which the herd _stopped_ following a fucking rightwing lockstep goosestepper. One who had lists of names of people essentially presumed guilty of something, generally by mere association, and without much of a trial or chance to confront their accusers. Oh, yes, many were PROVIDED A HEARING, sure. In a manner and time wholly at the whim of the accuser. I think the comparison is very apt. The fact that you bristle at it so only convinces me more that it hit the mark. (“Shut up”? How about “Sit down and shut up!” That’s also good.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:36pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/145 "2006-09-29T15:36:24Z")
[QUOTE=RTFirefly] Yes, it does. Does it _require_ hearings within a time certain? I don’t see any guarantee on that, but it’s always possible that I (and many other more learned readers of this legislation) have missed this point. [/QUOTE] The Detainee Treatment Act passed last year lays out timetables for the review of the status of detainees, yes. This legislation changes the way those reviews are conducted, but it doesn’t change the time limits specified last year. ---
**Author:** ![Gary\_Kumquat](https://avatars.discourse-cdn.com/v4/letter/g/4491bb/32.png) [@Gary\_Kumquat](https://boards.straightdope.com/u/Gary_Kumquat)\ **Post date:** [September 29, 2006, 3:36pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/146 "2006-09-29T15:36:48Z")
[QUOTE=Bricker] What I am convicned of is the fact that this system is the appropriate balance between the detained persons and the necessary freedom to operate that the US military requires. [/QUOTE] “appropriate balance”…“necessary freedom to operate”…this is the jargon you use to excuse locking people up without cause, trial or even telling them what they are guilty of? By the Rome Statute, forced disappearance is a crime against humanity. But you, evil little cunt that you are, you garnish it in terms of military operational freedom and appropriate balances and try to claim it’s some appropriate response in your precious battle against the terrorists. Fuck it, by your nations own intelligence these atrocities you so self-righteously try to justify give fuel to the real terrorists. Fuck me, amnesty estimate that there’s in the order of 70,000 people currently detained either by the US or at your behest. That’s thousands of families who are going to learn to detest your nation, it’s people, and everything it stands for. Oh well, who cares eh? It’s all a legitimate, appropriate and balanced necessity in your military operations. ---
**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, 3:40pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/147 "2006-09-29T15:40:24Z")
[QUOTE=Bricker] The Detainee Treatment Act passed last year lays out timetables for the review of the status of detainees, yes. This legislation changes the way those reviews are conducted, but it doesn’t change the time limits specified last year. [/QUOTE] Do you understand the act well enough to explain just how quickly a detainee must be given a hearing? I haven’t been able to figure that out. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:40pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/148 "2006-09-29T15:40:55Z")
[QUOTE=Hentor the Barbarian] Actually, the quote refers to the point at which the herd _stopped_ following a fucking rightwing lockstep goosestepper. One who had lists of names of people essentially presumed guilty of something, generally by mere association, and without much of a trial or chance to confront their accusers. Oh, yes, many were PROVIDED A HEARING, sure. In a manner and time wholly at the whim of the accuser. I think the comparison is very apt. The fact that you bristle at it so only convinces me more that it hit the mark. (“Shut up”? How about “Sit down and shut up!” That’s also good.) [/QUOTE] In McCarthy’s case, it was lists of names of people essentially presumed guilty of something, generally by mere association, and without much of a trial or chance to confront their accusers. Here, in contrast, it’s people who will be reviewed by a legally-constituted military tribunal, in time-frames set out not at whim but by federal law. Which precise part of the comparison is apt? And I’ll keep in mind that the more someone bristles at an accusation, the more true it must be. If you’re ever accused by anyone of sexually molesting prepubescent children, I know that you will continue to hold to that measure. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:45pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/149 "2006-09-29T15:45:31Z")
[QUOTE=Gary Kumquat] “appropriate balance”…“necessary freedom to operate”…this is the jargon you use to excuse locking people up without cause, trial or even telling them what they are guilty of? [/quote] Have you even read the law you are inveighing against? I doubt it, you little moron. Let’s see. You say “locking people up without cause”. What does the law say? > [@Sec 948q](#): > > `(a) Charges and Specifications- Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state– > > `(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and > > `(2) that they are true in fact to the best of his knowledge and belief. > > `(b) Notice to Accused- Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges and specifications against him as soon as practicable. I see that also handles the “telling them what they are guilty of” section you ALSO claimed didn’t happen. And since the ENTIRE FREAKIN LAW concerns trial procedures, how can you say it involves not giving people a trial? Really - seriously. Did you read it? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:49pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/150 "2006-09-29T15:49:36Z")
[QUOTE=John Mace] 1. It’s unlcear to me how quickly the gears are required to turn for each detainee to get to his or her tribunal. [/QUOTE] Quick questions: A. What would be a reasonable time frame? B .For a criminal defendant in the United States, what is the maximum time he may be locked up before proceeding to trial? And if A is less than B, please explain the discrepancy. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 29, 2006, 3:50pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/151 "2006-09-29T15:50:27Z")
[QUOTE=Bricker] No, but irrelevant. Can YOU cite any cases in which POWs or spies captured on overseas battlefield HAVE been given access to the writ? [/QUOTE] I made no such claim. You justified denying _habeas corpus_ in advance on ground that > [@](#): > > There are circumstances in which confined prisoners here are no longer permitted access to the writ of habeas corpus, without saying whether or not those “circumstances” were anything like those under discussion. > [@John Mace](#): > > Folks… The habeas issue is largely a red herring. This legilsation does allow for detainees to get hearing. Now, we can argue if those hearings are fair or not, but that’s a different issue. I don’t agree. The essence of justice is that the accused gets a hearing before an impartial review panel. As I understand this law, the accuser and the panel doing the hearing is a part of the same branch of government. In other words the president states that someone is an unlawful combatant and whether or not that is true is decided by a panel appointed by the president. I don’t think that’s the way it is supposed to work. ---
**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, 3:51pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/152 "2006-09-29T15:51:40Z")
[QUOTE=Bricker] Because “the rights of accused” is a phrase that applies to people arrested in the ordinary criminal context, not people captured on a battlefield. [/quote] That’s an interesting description of [O’Hare Airport](http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28alleged_terrorist%29#Arrest). > [@](#): > > Just as soldiers don’t have to read Miranda rights to captured prisoners before they are interrogated, so, too, do those prisoners not have the right to demand a court review their captivity. The writ of habeas corpus has a long history, and it has never been applied to captured wartime combatants. Once again, how big is the battlefield? I am quite aware that, in the midst of a conventional war, one simply captures enemy soldiers on the battlefield and holds them in POW camps until a prisoner exchange or cessation of hostilities. But we’re fighting a “Global War on Terror” against everyone and no one, with no clear end (no end at all, ever, really) to the hostilities, and apparently a global battlefield. Persons that have been apprehended to date in this war have frequently been nowhere near an actual battlefield, in the sense of persons firing lethal projectiles or blowing things up. > [@](#): > > In short – these are not “accused” in the sense of criminal wrongdoing. They are enemies. They are not deserving of criminal justice protections, because they are not part of the criminal justice system. This is former Attorney General Ed Meese’s formulation that the police only arrest persons who are guilty of crimes, moved to another environment. In many cases, all we have is the say-so of some random person that a detainee was an enemy. But you, **Bricker** , say any detainee is by definition an enemy. You win the Junior Meese Award. I suppose in a sense you’re right, though: we’re making enemies out of ordinary Muslims through our actions. ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [September 29, 2006, 3:51pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/153 "2006-09-29T15:51:47Z")
[QUOTE=Bricker] And I’ll keep in mind that the more someone bristles at an accusation, the more true it must be. If you’re ever accused by anyone of sexually molesting prepubescent children, I know that you will continue to hold to that measure. [/QUOTE] Nice! That’s great reasoning. Of course, if I am accused of such, and all I can do is bluster “Shut up you worthless git!”, I’m quite sure I will not have done much to make myself look _less_ guilty. I’m not really surprised that you’re damaging your reputation for reasonably and factually considering an issue from a legal standpoint. I’m just suprised that you still had any sort of reputation for being able to do so. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:51pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/154 "2006-09-29T15:51:50Z")
[QUOTE=David Simmons] I made no such claim. You justified denying _habeas corpus_ in advance on ground that without saying whether or not those “circumstances” were anything like those under discussion. I don’t agree. The essence of justice is that the accused gets a hearing before an impartial review panel. As I understand this law, the accuser and the panel doing the hearing is a part of the same branch of government. In other words the president states that someone is an unlawful combatant and whether or not that is true is decided by a panel appointed by the president. I don’t think that’s the way it is supposed to work. [/QUOTE] :rolleyes: Well, I guess every single military person ever court-martialed was done a grave injustice, eh? ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [September 29, 2006, 3:54pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/155 "2006-09-29T15:54:58Z")
[QUOTE=Bricker] Yor comparison is inept, irrelevant, and foolish. [/QUOTE] So that would be a no, then. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2006, 3:57pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/156 "2006-09-29T15:57:19Z")
[QUOTE=RTFirefly] That’s an interesting description of [O’Hare Airport](http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28alleged_terrorist%29#Arrest). [/quote] I agree that Padilla’s detention was improper. However, he has now been indicted, so his detention NOW is proper. > [@](#): > > Once again, how big is the battlefield? I am quite aware that, in the midst of a conventional war, one simply captures enemy soldiers on the battlefield and holds them in POW camps until a prisoner exchange or cessation of hostilities. > > But we’re fighting a “Global War on Terror” against everyone and no one, with no clear end (no end at all, ever, really) to the hostilities, and apparently a global battlefield. Persons that have been apprehended to date in this war have frequently been nowhere near an actual battlefield, in the sense of persons firing lethal projectiles or blowing things up. They’ve been (a) outside our national borders; and (b) involved with blowing things up, either directly or as part of a group conspiracy. ---
**Author:** ![Dob](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Dob](https://boards.straightdope.com/u/Dob)\ **Post date:** [September 29, 2006, 4:00pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/157 "2006-09-29T16:00:34Z")
I am soooooooo not a GWB fan, and at the start of this thread my outrage was pretty high… But I have to say **Bricker** has calmed me somewhat. While I think this policy could be handled better, I just dont see this as “sky is falling” type stuff. The true test will be in Nov, if the dems take over, or in '08 if a dem gets the White House. If tis peice of legislation is not overturned in the first few months it will tell us alot. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [September 29, 2006, 4:12pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/158 "2006-09-29T16:12:24Z")
[QUOTE=Bricker] They’ve been […] (b) involved with blowing things up, either directly or as part of a group conspiracy. [/QUOTE] And the actual evidence of such is…? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 29, 2006, 4:12pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/159 "2006-09-29T16:12:37Z")
[QUOTE=Bricker] :rolleyes: Well, I guess every single military person ever court-martialed was done a grave injustice, eh? [/QUOTE] Probably not, but If you were in the military you know that kangaroo court justice isn’t at all unheard of and not all that uncommon. If you get to a formal Court Martial your situation is improved as to having a set of rules. I must say though, that I’ve always been suspiction about the results of a court martial brought by a base commander and tried by a panel responsible to the base commander and with a defense counsel who was provided by the base commander. I know that the JAG’s do their best to be independent by there comes a point when your whole carrer can depend upon the wishes of a martinet. Yes, you can appeal up the chain of command but the bias of higher command is toward the commander in the absence of nearly open and shut evidence to the contrary. ---
**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, 4:12pm UTC](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517/160 "2006-09-29T16:12:39Z")
[QUOTE=David Simmons] I don’t agree. The essence of justice is that the accused gets a hearing before an impartial review panel. As I understand this law, the accuser and the panel doing the hearing is a part of the same branch of government. In other words the president states that someone is an unlawful combatant and whether or not that is true is decided by a panel appointed by the president. I don’t think that’s the way it is supposed to work. [/QUOTE] But this is no different from US soldiers tired under the UCMJ. Keep in mind, too, that the \*Hamdan \*decision did not require the judicial branch to be involved in the tribunal process. Also, there are provisions for Congressional review of the tribunals, so there is some oversight provided, if not by the judicial branch. And keep in mind that the detainees do have access to the one court within the Judicial branch-- the DC Circuit Federal Appeals Court. [Previous page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=7) [Next page](https://boards.straightdope.com/t/time-to-kiss-habeas-corpus-goodbye/374517.md?page=9)