Time to Kiss Habeas Corpus Goodbye

The BBQ Pit
101

[QUOTE=elucidator]
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.
[/quote]

I’ve said exactly that many times on this board. I suspect that many of the Gitmo detainees are innocent, or at the very least of little danger to the US.

I’ve said that, too. Just pragmatically, I suspect that we’d be safer, overall, if we just let most of these guys go.

But that’s an intellectual excersize, and it just aint’ gonna happen. If John Kerry had won, that wouldn’t have happened, although I’m pretty confident that the tribunal process would’ve been sped up considerably.

102

[QUOTE=RTFirefly]
Eleven, plus the sole Senator from the Connecticut for Lieberman party.
[/QUOTE]

Fuck. Just…for fuck’s sake. The Pubs are dead to me, and have been for a long time, so…can we have a fucking alternative, please? You know, somebody, anybody who can gather together a sufficient number of spines to make it at least look like some portion of America stands for common law and basic human rights? Hello?

103

[QUOTE=Loopydude]
Fuck. Just…for fuck’s sake. The Pubs are dead to me, and have been for a long time, so…can we have a fucking alternative, please? You know, somebody, anybody who can gather together a sufficient number of spines to make it at least look like some portion of America stands for common law and basic human rights? Hello?
[/QUOTE]

  • crickets *

:frowning:

104

A civil rights lawyer’s take on it.

His outro:

Pathetic.

105

From the Boston Globe, quoted on another board; the link there appears dead however.

[QUOTE=Boston Globe]
WASHINGTON – A last-minute change to a bill currently before Congress on the rights of prisoners at Guantanamo Bay could have sweeping implications inside the United States: It would strip green-card holders and other legal residents of the right to challenge their detention in court if they are accused of being ``enemy combatants."

An earlier draft of the bill sparked criticism because it removed the rights of Guantanamo Bay detainees to challenge their detentions in federal court. But changes made over the weekend during negotiations between the White House and key Republicans in Congress go even further, making it legal for noncitizens inside the United States to be detained indefinitely, without access to the court system, until the ``war on terror" is over.

< snip >

Other last-minute additions to the bill include provisions that would broaden the definition of enemy combatant to include anyone who gives material support to enemies of the United States and its allies, and would prevent detainees who have been released from US custody from suing the US government for torture or mistreatment.

But the part of the bill that worries advocates for immigrants most is the one stating that ``no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
[/QUOTE]

And from here.

[QUOTE=Yahoo]
The bill would eliminate some rights common in military and civilian courts. For example, the commission would be allowed to consider hearsay evidence so long as a judge determined it was reliable. Hearsay is barred from civilian courts.

The legislation also says the president can “interpret the meaning and application” of international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts.
[/QUOTE]

106

[QUOTE=Bricker]
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.
[/QUOTE]

And the scary thing is I don’t think you’re just splitting hairs here. Really, I think you believe that there’s nothing wrong with detaining people on the basis of rumours and paid for accusations, as long as they’re not American. I honestly believe your stance that such people are enemies, and thus do not deserve some explanation for why they are detained.

107

[QUOTE=Der Trihs]
From the Boston Globe, quoted on another board; the link there appears dead however.
[/quote]
Here’s the link to the Boston Globe article.

108

[QUOTE=EddyTeddyFreddy]
Here’s the link to the Boston Globe article.
[/QUOTE]
Thanks !

109

I may be a tad late in the game to answer this, but as I read the Constitution, it most certainly gives habeas rights to non-citizens in the US criminal justice system. Check the Fifth and Fourteenth Amendments. They state that no person shall lose due process rights to either the feds or the states. Assuredly, these due process rights (under the general heading of Substantive Due Process rights) include the right of habeas corpus, which shall not be suspended except in case of rebellion or invasion, neither of which we have here. The Constitution’s construction of “person” extends to everyone, not just citizens. The exception that proves the rule resides in many clauses, such as the qualifications for President or Congress. They say such things as “No person shall be eligible for President without being a citizen for 7 years” or some such thing. Obviously, in the American Constitution, “person” and “citizen” are different things entirely.

However, habeas rights bear only on criminal proceedings, not on military detentions. (German POWs in World War II in American custody certainly didn’t have the right to sue their way out of POW camps.)

However, the US has also signed the Geneva Conventions, which are superior to federal law. (Article 6.) The USSC, in Hamdan, has determined that Common Article 3 controls our actions with regards to Al Qaeda. Thus, if we break Geneva, even if we pass a federal law which “reinterperets” Geneva, we’re breaking the laws of war, punishable under the War Crimes Act.

Which is obviously a bad thing.

110

This is just the U.S. committing suicide. While following Hannah Arendt’s recipe for how to bake a totalitarian state. Create an extralegal space and fill it with people who have no real legal rights, then slowly expand your definition of who belongs there, until eventually the society at large feels too threatened to oppose.

And with this law, the expanding circle of intimidation has caught up with me. I live in the same household with a non-citizen who’s been here for decades but is now subject to being disappeared. There’s no protection for him, so I’m not going to make serious waves.

End of story for the U.S., I think. I’m willing to call it anyway. Really, in a world where globalization is so important, what non-citizen would want to come here, base their businesses here, or send their kids here to study - when they can be disappeared without warning? Because let’s be real, the current definition of “enemy combatant” amounts to anyone the government feels threatened by.

111

It will be interesting to see if any signing statements are attached to this bill.

Since the detainees have not yet been convicted of a crime, why are they not protected by the Fourteenth Amendment which provides for equal justice for anyone under American jurisdiction?

I cannot cite for this, but this morning on MSNBC news, Sen. Majority Leader Frist made the claim that the Supreme Court had “called upon Congress” to authorize military courts for the detainees. The way he expressed it made it sound almost like a court order.

You forgot the rest of the logic:

…And they are not part of the criminal justice system because they are not deserving of criminal justice protections.

112

This is a bad thing. Let’s be clear, its a bad thing. Question is, is it going to Hell in a handbasket, or riding the Express Hellbound Train? The former.

This has been going on for a while, so the state of life for the victims of all this hasn’t changed much. There was no realistic option that it could be changed, even with the whole weight of the Dem minority. Not now.

Realisticly, they have only the one slender hope: that this can be reversed by the next Congress, which might be organized along different lines. Pencils have erasers.

If the Dems fought this tooth and nail, down to the last ditch, the Pubbies would be screaming over every available outlet how the Dems want to coddle those foul and fiendish terrorists. Hell, they already are, its thier only hope! They wouldn’t talk about anything else, not Iraq, not Katrina, not health care, not the Abramoff slime carnival. Just that. I would hope that wouldn’t work, that a campaign of fear, smear, and queer will not fool the people. Again. But it might, and if it does, these poor schmucks will be even worse off!

We’ve been served a turd sundae, and we pretty much have to eat it. But that which goes around, comes around, and, Og willing, there still is a chance that one day soon we will be holding the scoop, and they get the spoon.

Ms. Dickinson famously remarked the hope is the thing with feathers. Sometimes, it can be a thing with teeth.

113

I think, Zoe, that these detainees aren’t part of the criminal justice system because they’re wartime detainees. If we fought a war against Canada, their troops wouldn’t be a part of the normal criminal justice system. Not because they don’t “deserve” it, but because they’re detained in the context of a war.

Having said that, I still oppose this bill for two reasons. First, the torture stuff doesn’t seem to live up to the American traditions of fairness and justice. Second, I frankly have serious questions about this expansion of “the battlefield” to include anywhere at any time. I don’t like how any citizen can suddenly become an enemy combatant on the say-so of some guy who’s been subjected to “coercive interrogation” in a tiny cell in Cuba. Because a GTMO detainee knows my name, and happens to blurt it out under duress, I lose my rights. That’s what scares me.

114

[QUOTE=aclubs]
I think, Zoe, that these detainees aren’t part of the criminal justice system because they’re wartime detainees. If we fought a war against Canada, their troops wouldn’t be a part of the normal criminal justice system. Not because they don’t “deserve” it, but because they’re detained in the context of a war.
[/QUOTE]
Except these aren’t troops; those would be POWs, who have rights. This is all about defining a class of people who have none.

115

I’ve got to wonder how provisions like these would have been viewed in America if during only relatively recently suspended 'Irish Trouble’s ’ Britian had implemented provisions like this then started picking up and holding as illegal enemy combatants US Citizens who had provided financial support etc to Sein Fienn IRA.

Perhaps if the ‘Troubles’ restart Britian should employ it as a model.

116

[QUOTE=elucidator]
This has been going on for a while, so the state of life for the victims of all this hasn’t changed much. There was no realistic option that it could be changed, even with the whole weight of the Dem minority. Not now.
[/quote]
Nope. But the difference is that now it’s not just a rogue President (to borrow tristero’s phrase) that’s behind this. Now it’s the official position of the United States of America that this is the way we shall treat detainees.

The next Congress can pass whatever it wants, but Bush will still be President, and if the Dems control Congress, he’ll start using his veto for more than stem cells. And if St. John McCain gets elected in 2008, then the Torture and Detainment Act will be safe from Democratic interference for a good deal longer than that.

117

[QUOTE=aclubs]
I think, Zoe, that these detainees aren’t part of the criminal justice system because they’re wartime detainees. If we fought a war against Canada, their troops wouldn’t be a part of the normal criminal justice system. Not because they don’t “deserve” it, but because they’re detained in the context of a war.
[/QUOTE]
Except we aren’t in a war. A so-called “war” against an abstraction isn’t a war, it’s a rhetorical device, and in this case, an excuse. And the people this bill allowed to be called “enemy combatants” can be anyone. Anybody the government suspects might be “giving support to the enemy.” (And what defines support? And what defines the enemy?) Giving to a banned charity will probably do it. And frankly it doesn’t matter, since the government doesn’t actually have to prove anything anyway. That’s rather the point of this bill.

[QUOTE=Der Trihs]
Except these aren’t troops; those would be POWs, who have rights. This is all about defining a class of people who have none.
[/QUOTE]
Yes, exactly.

[QUOTE=Hanna Arendt “The Origins of Totalitarianism”]
The first essential step on the road to total domination is to kill the juridical person in man. This was done…by putting certain categories of people outside the protection of the law…[and] by placing the concentration camp outside the normal penal system, and by selecting its inmates outside the normal judicial procedure…Under all circumstances totalitarian domination sees to it that the categories gathered in the camps…have aready lost their capacity for both normal or criminal action. Propagandistically this means that the “protective custody” is handled as a “preventative police measure,” that is a measure that deprives people of the ability to act.
[/QUOTE]

118

[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. 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.

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.
[/QUOTE]

Jesus Fucking Christ - year after year cite after cite demonstrates that these people were not captured on the battlefield unless you define ‘battlefield’ to equal the whole friggin’ world. You know this yet you repeatedly repeat the same old crap. No wonder people dismiss you as a toadying apologist.

They are just mostly innocent people plucked from the streets.

And you know full well the Geneva convention specifies that anyone captured is covered by there provisions until a competent tribunal determies they are an unlawful combatant. Lawful is the default assumption.

And torture if fucking torture and it is illegal and immoral whatever your lying shitsack of a president says, whatever your spineless sack of weasels in congress say and whatever lunatic hairsplitting and hand waving you engage in.

You can’t be debated with because you are as dishonest as they are. From now on I’m bracketing you with Clothalump, Shodan, Scylla and Starving Artist as stupid or dishonest shills whose humanity is non-existent.

You should be ashamed of yourself for providing a smokescreen for such inhumanity. for anyone wondering why America is so hated in the world they need only read this thread.

It’s damn hard to make the distinction between govt and people when the people themselves have such a fucking hard-on for torturing and imprisoning people. I certainly hope you don’t consider yourself a Christian because if you do you’re in for a real surprise some Judgement Day. Along with the rest of your torture cheerleading compatriot scum.

it’s no wonder people hate lawyers too.

Who would Jesus torture and Imprison? No-one.

119

[QUOTE=Steve MB]
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.
[/QUOTE]

Unlawful combatant in GC

Although the Convention did not think that any nation would be so evil as to define the entire world as a battlefield on the basis of using the term ‘war’ as a rhetorical device it is clear. Anyone, whether they meet the definitions in Article 4 are entitle to the protections of the GC until a ‘competent tribunal’ decides otherwise.

Competent Tribunal

C

Once I would have hoped that the self-proclaimed Shining City on the Hill would understand the difference between ‘competent Tribunal’ and ‘Lynch Mob’ but since 9/11 that country, that had no problem with killing millions in Vietnam, has acted like a psychopathic pack of cowards. Any brutality, any evil act is now justified and at least half the people go along with it and your politicians and their fellow travelling lickspittles like Bricker dance on the heads of pins to justify it when you all damn well know it is is wrong. That this is not what America is supposed to be about.

120

Speaking as a non-American, this latest news is discomforting, to say the least. It’s just not cricket.