Time to Kiss Habeas Corpus Goodbye

[BobLibDem]

Not only does the law strip detainees of basic human rights, none of us are safe from being nabbed and held forever with no trial. Yale Law Professor Bruce Ackerman points out some of the chilling possibilities:

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an “enemy combatant” upon his arrival at Chicago’s O’Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president’s extraordinary action, the Supreme Court refused to hear the case, handing the administration’s lawyers a terrible precedent.

Washington Post columnist Andrew Cohen summed it up well:

Do you believe the Administration has over the past five years earned the colossal expanse of trust the Congress is about to give it in the name of fighting terrorism? Do you believe that Administration officials will be able to accurately and adequately identify so-called “enemy combatants” here at home so as to separate out the truly bad guys from the guys who just happen to be in the wrong place at the wrong time? Did you want your legislative branch to abdicate so completely its responsibility to ensure that there are adequate checks and balances upon executive power even in a time of terror? You might have answered “no” to all three questions. But your answer doesn’t matter. And neither does mine. To Congress, the answer is “yes, sir.” Our Congress is about to make yet another needless mistake in the war on terror and this time the folks making it won’t be able to say that the White House tricked them into it.

This isn’t a matter of splitting legal hairs, this is an abandonment of everything the United States stands for. Thanks to Congress, we now live in a police state.

[CBEscapee]

How would someone like Lori Berenson make out in a case like this? Peru was heavily criticized for their treatment of her. The US can no longer complain if any of their citizens are detained in similar circumstances.

[Hentor_the_Barbarian]

On NPR this morning, a report was discussing the visit by Kazakhstan’s President Nazarbayev. They discussed how some were hoping that Bush would pressure Nazarbayev to improve their record regarding human rights abuses. They did so with a straight face - no mention of the diminishing capital that the US has in terms of leading the world on human rights issues or pressuring others to do better. Whether Bush would even care to try to influence others to stop such abuses was not addressed either (although a perfunctory comment by a spokesperson that he would bring up the matter was featured).

Also missing from the mainstream media, as far as I’ve seen (and I admit I consume much less of it than I have in the past) is any discussion of our new model citizens, Libya, and the likelihood that they are going to execute six foreign medical workers who have been detained and tortured since 1999. These are the people chosen to chair the Human Rights Council of the UN?

It’s hard, elucidator, to feel that we aren’t on the express train that you mentioned before.

“All that we can do is just survive. All that we can do to help ourselves is stay alive.”

[RTFirefly]

@tagos

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.

Good luck in getting a response from Bricker. In post #2 he said that the detainees were “captured in the context of armed conflict.” In post #10, I asked him to define “in the context of” and “armed conflict,” but over 100 posts later, I’m still awaiting a response, as I am to several other points.

[Bricker]

@Banquet Bear

1. I am not a citizen of the United States. Why should I have confidence in the United States, their systems of detaining people oversees, and their judicial processes?

Do you have confidence in the United States’ INTERNAL judicial processes? My answer to you depends upon your answer to this question.

2. Considering that you have read some of the transcripts of the CSRT, why do you have confidence that the CSRT are competent, the detainees have had a fair chance to defend themselves, and that innocent people have had every chance to prove their innocence?

I’m not confident that innocent people have had every chance to prove their innocence. That chance doesn’t exist under ANY SYSTEM operating in the world today. Innocent people are sometimes convicted in EVERY SINGLE CRIMINAL JUSTICE SYSTEM, and every single such system has rules that eventually require a conviction be considered final. There are, in other words, only a limited number of chances for peope to prove their innocence. Everywhere.

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.

3. Should somebody that has been handed to United States Forces in exchange for a bounty payment be classified as an unlawful combantant? Should he have the right to be treated as a POW? How much effort should the US Administration go to in these cases to check out the evidence against these particular detainees? Do you think the administration has put in the right amount of effort?

If sufficient evidence exists to convince the tribunals that this legislation provides for that the person is an unlawful; combatant, then they should be considered an unlawful combatant. The fact that they were handed over for a bounty payment is not evidence for, or against, such a finding. In this country, people are arrested and convicted after their erstwhile friends rat on them for a CrimeSolvers reward. Should we reverse all those convictions? No.

Should he be treated as a POW? No. Not unless he meets the POW conditions in the Geneva accords.

I believe that the administration’s efforts so far have been lacking, but that this legislation is the right step in ensuring that the level of effort put out henceforth is correct.

4. Do you consider this entire situation moral?

Yes.

[David_Simmons]

@Bricker

They correctly understand that the right to habeas corpus is not applicable to prisoners held by militray forces, captured in the context of armed conflict. It’s sad that you and 48 senators wanted to disregard that basic fact, but fortunately, that ill-formed opinion did not derail this legislation.

Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations.

Very carefully worded. If they are “prisoners held by militray forces, captured in the context of armed conflict” shouldn’t they be treated as prisoners of “armed conflect” [translation: war] until an impartial hearing determines their status? I believe that’s what the convention calls for. One problem is, the “context” of this “armed conflict” is so amorphous that, combined with this new law, being in the wrong place at the wrong time can result in your winding up inprisoned for life. And you were only going to the store for a loaf of bread.

John W. Dean spoke of those who agree with and justify the actions of authorities merely because they are authorities. This sounds like a case of that. I can not understand how it is possible to value justice and still support leaving the fate of people to the judgements of one person with no effective recourse beyond that person. Call me a cockeyed idealist but I really think that justice requires more than that.

Of course if you have already know these people are guilty of something that we don’t like then …

[David_Simmons]

@Bricker

Even in this country, it’s not a limitless right. There are circumstances in which confined prisoners here are no longer permitted access to the writ of habeas corpus,

Can you cite any coses of this happening in advance of any trial or other type of hearing?

[jayjay]

I’m sorry, Bricker. You lost me. I used to respect you, and I have even defended you on these boards against charges of homophobia or right-wing lemmingism. I’m done. This recent cleaving to the kangaroo justice of Bush’s Amerika has wiped your slate clean as far as my regard goes. You lost me. I’m sorry.

[John_DiFool]

Any chance the Supreme Court will jump in here and put a stop to this madness?

Or will the Reagan/GHWB/GWB appointees just fall in lockstep with their Republican masters?

I am now convinced that a large portion of the US population (and many of our lawmakers)
are completely and totally insane. In a sane country no Republicans anywhere
would be getting a single vote in the fall. And don’t feel like I’m giving the spineless
wimps in the Democratic party a free ride either.

Where’s V when you need him?

[Bricker]

@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. 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”?

Why don’t you ask me about the Amistad, and how I dare to explain the injustices that happened there?

That case pre-dates this legislation, and would not be permitted under it.

[Bricker]

@David Simmons

Can you cite any coses of this happening in advance of any trial or other type of hearing?

No, but irrelevant.

Can YOU cite any cases in which POWs or spies captured on overseas battlefield HAVE been given access to the writ?

[Hentor_the_Barbarian]

@Bricker

Why don’t you ask me about the Amistad, and how I dare to explain the injustices that happened there?

That case pre-dates this legislation, and would not be permitted under it.

Are you really saying, here, that the problem with cases of people contesting their incarceration would go away because they could no longer bring cases? Yikes, dude.

You are right - if innocent people who are incarcerated never get to be heard, we will never hear about innocent people who are incarcerated.

[Bricker]

@kaylasdad99

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?

Exactly. The fact that a statement was made under torture is highly relevant in a trial against the accused torturer.

[Bricker]

@Sevastopol

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?

My source for that quote was the on-line Geneva articles. What text do you claim was ommitted?

• 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.

Before any determination is made, they should be treated as POWs.

[Bricker]

@Hentor the Barbarian

Are you really saying, here, that the problem with cases of people contesting their incarceration would go away because they could no longer bring cases? Yikes, dude.

You are right - if innocent people who are incarcerated never get to be heard, we will never hear about innocent people who are incarcerated.

No.

Stop saying that. We’re discussing legislation that lays out precisely how cases are to be heard, and somehow in your mind it’s morphed into “their cases will no longer be heard.”

How does that happen? Are you all sucking in the Left Wing Hookah Mind Control Smoke? Is there anyone in this thread debating the actual elements of the legislation, or are you all spouting this “locked up forever with no hearing” nonsense?

The LEGISLATION PROVIDES FOR HEARINGS.

[RTFirefly]

@Bricker

No.

Stop saying that. We’re discussing legislation that lays out precisely how cases are to be heard, and somehow in your mind it’s morphed into “their cases will no longer be heard.”

How does that happen?

<snip of useless ranting verbiage>

The LEGISLATION PROVIDES FOR HEARINGS.

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.

[John_Mace]

@aclubs

However, the US has also signed the Geneva Conventions, which are superior to federal law. (Article 6.)

That is a common fallacy. Article 6 does not place treaties above statutory law:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Congress defines how the treaty will be interpreted in statutory law. There is nothing in that clause that places treaties above federal law. What that article addresses is that states cannot violate the constitution, or any laws passed by Congress or any Treaties ratified by Congress.

[Cervaise]

@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.

Have you no sense of decency sir, at long last? Have you left no sense of decency?

[Bricker]

@Zoe

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.

Strawman. That’s not my argument.

I say they are not part of the criminal justice system because, by long-standing tradition and for good reason, wars and the battlefield are not part of the criminal justice system. We don’t take a captured soldier and put him on trial on manslaughter or murder, even if he kills hundreds of American soldiers on the battlefield.

The scope, purpose, meaning, and outcome of the criminal justice system inside the borders of our country is DIFFERENT from the battlefield and the acts of violence and mayhem committed OUTSIDE the borders of our country.

So don’t attribute to me some simplistic circular statement like that. I never said such a thing.

[BobLibDem]

@Bricker

The LEGISLATION PROVIDES FOR HEARINGS.

Within what time frame? Unless I’m missing something, anyone can be detained forever without ever being heard.