Time to Kiss Habeas Corpus Goodbye

[kaylasdad99]

@Bricker

My last post wasn’t exactly a model of reasoned discourse, was it?

I’ll come back to this thread tomorrow and answer Hamlet and Kaylasdad.

:smack: Shoulda previewed, I guess. Sorry, Bricker. Please disregard the barb. I’ll look forward to tomorrow. Or Monday, depending on how the weekend plays out.

[RTFirefly]

@kaylasdad99

:smack: Shoulda previewed, I guess. Sorry, Bricker. Please disregard the barb. I’ll look forward to tomorrow. Or Monday, depending on how the weekend plays out.

Maybe it’ll slow down some over the weekend. I know I’m planning to pull myself away from the computer long enough to mow the lawn, watch some football, and maybe even squeeze in a bike ride.

[elucidator]

@Bricker

…But let’s not worry about those poor schlubs. There are detainees to save!

For instance…

…The oldest detainee at Guantanamo Bay — an Afghan man who is at least 71 and hobbled around the U.S. prison in Cuba using a walker — has been sent home, his lawyer said Monday.

Haji Nasrat Khan was among five men from Afghanistan transferred over the weekend, said attorney Peter Ryan, who received the news in an e-mail from the U.S. Department of Justice.

Ryan was not told why Khan was transferred, and was trying to determine whether he would be held in custody in Afghanistan or allowed to return home.

The U.S. military did not disclose the names of the five men sent back to Afghanistan and declined to comment.

**Khan was not charged with a crime and Ryan said the government never said why he was detained.

“We couldn’t figure out why he was there,” Ryan said. “He could barely walk and he could barely hear.”…**

http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2006/08/28/international/i160422D45.DTL

[elucidator]

Ooops!

(Emphasis added with dismay)
(Bolding mine, mine, all mine bwah ha ha haha!)

[RTFirefly]

Hey, just because he’s old, barely ambulatory, and can barely hear, doesn’t mean he’s not an enemy!

Bricker says he’s an enemy, so there you go!

[elucidator]

@John Mace

I would like to see that!

What’s your take on the length of detention? How long does this legislation allow the detainee to be held without a hearing? We can come back to the question of how fair those hearings are set up to be later.

To me, secondary. If I could have some solid reason to believe that a good faith effort was being made, I would naturally be inclined to cut some slack. After all, some of those people really *are * enemies. I have no such assurance.

[ElvisL1ves]

Well, if he didn’t hate us before, he sure does now.

[elucidator]

But, he’s old, so not for very long. You gotta look on the bright side, Elvish

[ElvisL1ves]

But how many descendants does he have, all burning with the desire to avenge Grampy?

[Hamlet]

@John Mace

I would like to see that!

I could put a little extra swish of the hips in there just for you if you like.

@John Mace

What’s your take on the length of detention? How long does this legislation allow the detainee to be held without a hearing?

To the best of my knowledge, there is no time period set. These detainees can be held for as long as this administration wishes, so long as there are periodic reviews of the status of their detention. If I am wrong, I welcome correction, but I couldn’t find anything that sets any kind of time limit on detention.

It’s a bit longwinded, but the Supreme Court in Hamdi mentioned this issue when they said:

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

 It is a clearly established principle of the law of war that detention may last no longer than active hostilities. (citations removed)

 Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. (citations removed).

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

In that case, they were only dealing with Hamdi (whatever happened to that guy anyway?, Oh, that’s right, that dangerous man was… deported. Ouch!). The fact of the matter is we are involved in a war that will never have an end, and nobody has figured out how to deal with that in regards to detainees. Bricker is correct in that our country, and all countries, have detained enemy soldiers for indefinite times until the conflict was resolved. The problem is we’re in a conflict that will never be resolved. Which was why I spent so much time in my earlier posts bemoaning the loss of the moral high road, respect for freedom and fairness, and the ability to lead this world in balancing national security and recognition of human rights, when those things are precisely what we need right now.

So, legally, I see nothing that will limit the amount of time these detainees can be held. Perhaps once operations are completed in Afghanistan, the courts will get involved (oh, wait… we can’t have the courts involved in this!), but there is nothing to stop this administration from holding them indefinitely without trial.

Personally, I would be happy with a time period that balances the need to keep national security secrets, yet still protect the detainee’s rights. Whether that is for 90 days, 9 months, 9 years, or 99 years, I honestly don’t know. I have no problem with indefinite detention… if they’ve been proven to be a true enemy combatant. Unfortunately, not one of the people has been yet. And we’ve been waiting 5 years.

[elucidator]

Per Dennis Hastert:

…According to Hastert, liberals want to take “the 130 most treacherous people, probably in the world…and release them out in the public eventually.”…

(From ThinkProgress, sourced to Fox News)

I wonder, really really wonder, just where that number came from?

[Bosstone]

@Bricker

Because the situations are very different. But it’s clear to me that the protections afforded to detained combatants should not be GREATER than those offered to domestic accused criminals. if you don’t agree with that proposition, then I am absolutely at a loss.

Would you accept equivalent protections, then? It’s plain from what you say here that you believe being American trumps or at least cancels out being a POW (POWs are not criminals, after all). That notion disturbs me, but I don’t believe I would have personal qualms if POWs were treated no worse than a convict serving jail time (provided the person in question is proven to actually be an enemy combatant).

Right now, though, the detainees, by all accounts, are indeed being treated worse, and they haven’t even been proven to be enemy combatants yet!

Honestly, in my opinion, treating people badly simply because they’re not American is going to lead to some nasty repercussions down the road. We’re already starting to see them, I believe.

[Shayna]

@ElvisL1ves

But how many descendants does he have, all burning with the desire to avenge Grampy?

Let’s not worry about those poor schlubs. There are detainees to torture!

[Squink]

@elucidator

Per Dennis Hastert

Hastert? Isn’t he the guy who kept a paedophile on as assistant majority whip?

[Damuri_Ajashi]

@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.

Well it is a common law right. Its not like the founding fathers made up the concept. It is a concept of general applicability. You don’t have to let the enemy combatants go but you’ve got to prove that there is some reason to keep them (if its because they are indeed enemy combatants then fine keep them until its safe to let them go, but don’t you at least need to determine that they are enemy combantants and not just some guy that the local tribes handed in for the bounty money).

[Damuri_Ajashi]

@whole bean

prove it!

I thought the point was that he would not be given the opportunity to prove it.

[aclubs]

And surely habeas is one of the substantive due process rights “fundamental to our concept of ordered liberty.” I’m not sure how much more esteemed a right can become.

I’d argue that habeas acts to protect the right to Freedom of Movement, which is often categorized as a human right.

[Loopydude]

@col_10022

Well it is a common law right.

Ayuh, as I noted bitterly in my first post. Not that that counts for anything, I guess.

[Damuri_Ajashi]

@Inigo Montoya

Uless I’m missing something, it looks like Bricker’s quote eliminates US Citizens as enemy combatants. Last time I checked the US Constitution and associated ppw applied only to US Citizens. While it may be distasteful to hold furriners without charges until…later…I can’t see exactly how a doctrine intended for US Citizens can be applicable for anyone else.

The real protests should be coming from their respective countries of origin. Has Afghanistan et.al. been clamouring for the release of their citizens from US custody? (honest question)

Constitutional rights apply to all US residents (not citizens) and anyone who happens to be in the USA. This has lead to some historically funny results. The FBI went to Mexico to kidnap a mexican drug lord that had killed an FBI agent. They did so without a warrant or anything, they just went. When they got the guy back in the states, all of a sudden he was imbued with all the contitutional rights and for a while the government footed the bill for his lawyer until his brother found out where he was and was surprised to learn that his brother was actually getting a trial.

[David_Simmons]

@Hamlet

The fact of the matter is we are involved in a war that will never have an end,

Oh I don’t know. It’s my opinion that Islam now is about where Christianity was 800 years ago. If radical Islam is the problem we only have to wait anothr 700 years or so and things will work themselves out. Take heart.