Well, the WTC attack was a sort of an invasion by enemy aliens and I guess the penumbra of that allows congress to suspend habeas corpus. Some of our posters might suddenly see the value of “penumbra.”
I don’t know if you were just speaking in general there, or if you meant that to apply to the particular case of the detainees. If the latter, then we’re talking about non-citizens captured outside the country. Must they be read their Miranda rights? Must they not be subject to “unreasonable search and seizure” as defined by the SCOTUS?
And I don’t see how this law amounts to the suspension of habeas corpus. Have military detainees ever been determined to have that right in the first place? I’m not talking about whether they should or should not have that right-- I’m talking about whether they actually do. If I’m wrong on that, I’ll welcome the correction.
Nope. He’s on record as saying he accepts all that as settled law but preferrs not to continue the process from this point forward. And of course there is plenty of jurisprudence that isn’t based on SDP.
As usual, it depends who you ask. Nine federal judges sent this letter to Congress before the enactment of this bill, showing their concern over the stripping of the federal courts power to hear habeas petitions.
Without getting into tedious details (details of which I’m still fuzzy and currently researching), the administration has relied heavily on Johnson v. Eisentrager (article about it here, and argued that there is no Constitutional right to habeas for aliens. Thus, the argument goes, this new stripping (and the stripping which was done in 2005 in the Detainee Treatment Act of 2005) of habeas only goes to statutory habeas relief, which only Congress can confer or remove. Congress, in stripping statutory habeas, basically overruled the Supreme Court’s ruling in Rasul. Now we just need a determination if non-statutory habeas extends to alien detainees.
I don’t remember who said it, but one of our esteemed Justices once said that the touchstone of “unreasonable search and siezures” is reasonableness. What’s reasonable for wartime detainees might not be reasonable for John Q Public out walking his dog. I don’t think it would be reasonable to give AlQ Miranda rights, and I don’t think that SCOTUS would rule that way. Terrorists who want to kill Americans probably don’t have the same “reasonable expectation of privacy” as do normal folk.
No doubt. But I’d hazard to guess that even if habeas wasn’t enumerated in the Constitution, it would fall under SDP.
But that’s just rabid speculation on my part.
If we’re talking about US citizens, possibly SDP would be involved, but I think it would be completely unnecessary to even consider SDP when the Constitution clearly refers to habeas relief.
But we’re not talking about US citizens, we’re talking about aliens who have never even set foot in the United States and are afforded little to no Constitutional protections. SDP doesn’t even enter the picture.
Can you explain what “statutory habeas” and non-statutory habeas" mean?
No. The removal of habeas applies to any non-citizen, whether a legal resident of the U.S. or not.
Oh I was speaking generally about the theory behind the constitution and who has the power to bestow rights to citizens. I think it is absolutely silly to think that the people would establish a government and then think that if same government that they had just established didn’t give their their rights, those rights didn’t exist. The government is a creature of the people, not vice versa. This was all occasioned by the talk, of which I was reminded. about “substantive due process” and the silliness about “activist judges finding rights” that are not spelled out in the constitution Harrumpf.
I think the detainees should be treated as POWs until a determination by an independent board as to their status. If that status is POW then I think even the corrent administration knows what to do. If it is some other category, which will be temporary pending a more complete investigation, then I think any statute governing their treatment should incorporate the Geneva convention rules as to handling of prisoners. In the case of this conflict I think the prisoners should have some mechanism available to them to compel a final determination so as to not be in peril of indefinite captivity since no one can tell when or even how or even if the conflict will ever end.
I personally don’t think a year is an unreasonable time to give the government. After all, it does take some time to determine by investigation whether an individual is a terrorist or just an unlucky schmo. If they are found to be a terrorist then sentence to life without parole to some lockup, maybe even Guantanamo Bay, or shoot them if it is determined that they had a hand in murder.
By the way, the reason for two categories with both treated as POWs is that there might be some who are actual POW’s, although I think that would be pretty unusual in the present situation. Most of them would be in the non POW detainee group.
Got a semester? 
Rather than try and muddle my way through a tortured description, I’ll quote Eugene Volokh, a UCLA law professor, which I found Here.
In regards to habeas, he goes on to say:
He wrote that before Congress stripped statutory habeas rights from the detainees, and now we’re at that point where the Court will have to answer if they do have a Constitutional habeas right. I haven’t researched enough to say one way or the other on the Constitutional issue, but I am damn sure it’s a bad idea.
Got it. Thanks.
But I’m still not clear that Congress has stripped statutory *habeas *rights since they can appeal to the DC Circuit Court of Appeals, per the 2005 Detainee Treatment Act. Wasn’t the issue in Rasul the fact that the deatinees weren’t even guaranteed any kind of hearing at all? So, these guys all get hearings in front of a military tribunal and then can appeal that result in the DC Circuit Court of Appeals. No? They can’t petition their detention in US court before their hearing in front of the tribunal, but why shoudl they be able to do that?
No. AFAIK, the government can keep them indefinitely “awaiting” determination of whether they are enemy combatants.
I don’t think that’s permited under Hamdan.
You know, when a bunch of smart-asses as bright as this bunch of underachievers can’t figure out what something says, it suggests to me that something has been made deliberately obtuse. I think, but cannot prove, that inaction is the whole thrust of the excercise.
The Bushiviks do not want to proceed with any form of adjudication unless the get to play Republican poker: all your cards are dealt face up, you get five, they get seven and get to draw twice. But if they had solid cases they wouldn’t have to!
Think about it. If they had solid evidence, documents, photos, Taliban enlistment papers, AK-47s with fingerprints, that sort of thing…they would be perfectly thrilled to offer the detainees all of the benefits of American criminal procedure. Couldn’t ask for a better propaganda point than something like that.
Trouble is, they can’t. This is plausible under the circumstances, what sort of evidence can you imagine might exist? A photo of the subject in Taliban uniform, that is, looking like any other Pashtun tribesman? I think it very likely that there any number of detainees who are entirely guilty of being our enemies, but no proof exists that we would find acceptable in our “internal” code of justice. So. How to avoid releasing them? And, equally important, how to avoid admitting you have slammed up scores of people for nothing much.
Stall. Create a confusing legal situation, and insist that you cannot proceed until all these details are cleared up. If you can stir up and nice and lengthy Supreme Court review of the issues, so much the better. Surely you can’t proceed without clarity from the Supremes, out of respect for the seperation of powers. Stall. Slow it down, quietly release more innocent or harmless detainees, winnow it down to that group most convictable.
With any luck at all, the shit won’t really hit the fan anytime soon. Could be years, will be months.
(Aside: I’m still fascinated by this whole load of crap about CIA agents burdened with the need to buy evilpractice insurance, to cover them if charged with a war crime. Now those are some actuarial tables that would be uniquely interesting! How does one go about figuring the premium? How likely is it that a non-smoking 35 year old man with a family history of diabetes will be charged with a war crime?
So, if the entire world is a battlefield, and we are at war with everyone on the battlefield, how is it that GWB has not started World War III?
But, hey, why not just declare war on everyone that disagrees with the President of the US, and let the Secretary of Defense decide what constitutes “disagrees.”
Tris
You don’t need freedom of speech if all you want to do is applaud and defend those in power.
Not at all, in fact Hamdan is quite explicit about not taking up the issue of the government’s right to detain him indefinitely and only deals with the government’s behavior should they decide to go ahead and and try him for a crime. It concludes:
Furthermore Hamdan is only relevant insofar as the court decided it had jurisdiction because congress had not been explicit enough about barring them from hearing these cases. This bill was precisely meant to be that explicit bar.
In other words, all of this discussion is perfectly moot. If the government never tries or even determines the status of the detainees, they can be held indefinitely, unless SCOTUS goes back and says that there is a consitutional right to habeas corpus here that is being violated by this bill.
You do realize that this applies to combatants who don’t wear uniforms, and try to kill our soldiers; and not Johnny Messageboardposter, don’t you? Please tell me you realize the distinction. And don’t tell me you realize the distinction just because I told you to tell me. Tell me because you understand the unique nature of the war we’re fighting and it makes sense.
Ok, Steve McQueen, who was turned over to us by bounty hunter, and who have we captured, trying to kill our soldiers, while not wearing a uniform themselves? I’m really curious if you actually know this, or are wildly speculating in hopes that it proves some point.
Mince, like the administration you’ve missed the essential point.
If you want to show that they were captured:
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not wearing uniforms and
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trying to kill your soldiers.
It is up to you to show it and pronto. That is kind of what the hubbub is all about.
The US administration cannot show it. And knows it. Thereby it is trying to come up with some new crimes or offenses to ‘charge’ them with, that can be substantiated by the evidence they have picked up.
Offenses like:
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Not liking us and having a beard.
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Being a muslim.
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Knowing how to operate a firearm in the Middle East.
I’m only exaggerating slightly. There will be no charges like the ones you are imagining. No such convictions, you watch and see. It’ll be different but in a way that is made to look enough like what you have described.
Bruce Ackerman, professor of law and political science at Yale and author of “Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism.” Los Angeles Times, September 28, 2006:
Sounds like Johnny Messageboardposter is fair game here. Though I’m sure the apologists will eagerly trot out the threadbare “you have nothing to fear if you haven’t done anything wrong” excuse next.