Checks and Balances, Baby...Checks and Balances.

[Athena]

Liberty fans, rejoice!

A bi-partisan effort known as the Military Commissions Act of 2006 has been checked. Specifically, Section 7, the portion of the act that eliminated habeas corpus for enemy combatants, has been ruled as unconstitutional in a 5-4 decision. In short, detainees at Guantanamo have the right to challenge their detention in a Federal Court proceeding, rather than the painfully subpar military tribunals the feds were using to review the detentions. In the tribunals, defendants were not allowed a lawyer, government evidence was automatically assumed to be valid, and detainees weren't allowed to challenge (if they even got to know about) the evidence against them. Can you imagine if that were you charged with a crime? The Supreme Court determined that there was entirely too much room for error...and they're right.

In its beautifully written decision, the Court emphasized some very important values.

The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .

Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive's power to detain. . . .

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.


This is especially good news in light of cases like this:

Here’s more on the case of Khaled al-Masri, the German citizen who says he was kidnapped by the CIA, whisked off to Afghanistan, tortured, then dumped in rural Albania after the CIA realized they had an innocent man. The Supreme Court threw out al-Masri’s lawsuit against the U.S. government last year, siding with the Bush administration’s claims that such a suit would expose “state secrets,” a bullshit doctrine perpetrated on a fraud that the Bush administration uses quite frequently to cover up its mistakes. Note that to date, no government has denied that al-Masri was abducted and tortured, or that he’s innocent.

The U.S. and German governments are only arguing that holding anyone accountability for it would compromise national security.

So, if these people can't sue over wrongful imprisonment, at least now, they can try to prevent being wrongfully imprisoned to begin with.

[Athena]

Haha! I don't think John McCain knows what "habeas corpus" is! :p

We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material.

Habeas corpus is a writ, or a legal action, by which detainees can challenge their detention if they believe it to be unlawful. Not to bitch about the eggs or getting Stuff instead of Maxim. It's a way to say, "You have no legal right to keep me here."

Every time I start to get comfortable with this guy again, he strikes a way off chord.

[gprime]

Every time I start to get comfortable with this guy again, he strikes a way off chord.

I know the feeling. The only Republican nominee I liked less was Huckabee. So the thought of voting for him was already unpleasant. I wanted to vote for him based solely on Iran, but he's a huge censor. And while I perfer him on foreign policy, his blindness to real science has led him to embrace liberal environmental policies with major economic and security problems. His unfamiliarity with such an important term is a bit noteworthy, but not necessarily all that unsurprising. I mean, in fairness to him, the very notion of rights under foreign detainment are strange, given the treatment he got in Vietnam.

Having said all that, I'm a bit torn on the issue. On the one hand, I'm a firm believer in the importance of a fair trial, and having a justice system where you must actually be accused of a crime to be held (which many democracies do not have). More importantly, the US claims territorial control over Gitma, suggesting that these rights would logically be applied to those held there. However, the US control of Guantanamo Bay is most probably illegal due to the Vienna Convention on the Law of Treaties, as the Cubans are so fond of noting. And thus, if US presence there is already a violation of international law, and the territory cannot be considered truely American, a different legal standard applies. If this were used as a tool against American citizens who were not a threat to national security, such a loop hole would bother me greatly. However, those captured are taken from battles going on thousands of miles outside of the United States, with the detainees being expected to pose a threat to the civilian population or military members in regions where the US is at war.

[Abroad]

Sorry for going slightly OT, but which are these democracies where one can be held without being accused of a crime? I cannot think of any where one does not need to be charged within a reasonable period of time, usually a few days.......

[Athena]

Having said all that, I'm a bit torn on the issue. On the one hand, I'm a firm believer in the importance of a fair trial, and having a justice system where you must actually be accused of a crime to be held (which many democracies do not have). More importantly, the US claims territorial control over Gitma, suggesting that these rights would logically be applied to those held there. However, the US control of Guantanamo Bay is most probably illegal due to the Vienna Convention on the Law of Treaties, as the Cubans are so fond of noting. And thus, if US presence there is already a violation of international law, and the territory cannot be considered truely American, a different legal standard applies. If this were used as a tool against American citizens who were not a threat to national security, such a loop hole would bother me greatly. However, those captured are taken from battles going on thousands of miles outside of the United States, with the detainees being expected to pose a threat to the civilian population or military members in regions where the US is at war.

I certainly understand that viewpoint. It's not that I want enemy combatants to be treated with the rights of an American citizen, necessarily. However, I don't want hundreds of innocent people being swept up in raids and detained indefinitely without so much as knowledge of the charges against them. It's not as though we don't have the resources to get these people processed more quickly and, with some of what I've read regarding the rate of innocence among those at Gitmo, I would think it in our own best interest to get these people released in short order to free up space for the next round.

It's my understanding that habeas corpus is, essentially, a default position in this situation. Habeas corpus is being used in this situation because the military failed to provide a reasonable substitute. I think it (or a reasonable substitute) is productive, ultimately.

[Pete Bondurant]

Here’s more on the case of Khaled al-Masri, the German citizen who says he was kidnapped by the CIA, whisked off to Afghanistan, tortured, then dumped in rural Albania after the CIA realized they had an innocent man. The Supreme Court threw out al-Masri’s lawsuit against the U.S. government last year, siding with the Bush administration’s claims that such a suit would expose “state secrets,” a bullshit doctrine perpetrated on a fraud that the Bush administration uses quite frequently to cover up its mistakes. Note that to date, no government has denied that al-Masri was abducted and tortured, or that he’s innocent.

How naive you are. Your first mistake? No one is innocent! Remember this and comport yourself accordingly.

What the United States should have done from the beginning, in so far as Guantanamo Bay is concerned, is to have prohibited any and all media from entering the place. A complete and total communication blackout should have been instituted immediately. Mystery breeds fear. The inmates therein? You really have no choice. They should...all of them...be shot. Their remains should be cremated and disposed of in the bay. All information regarding their existence should be destroyed. You really have no choice. You cannot release a single one of them. Why take any chances? It is really better for you this way. Believe me, my children. I know of what I speak.

[CPL CHUD]

If I was living in the desert without running water I'd beg to be imprisoned in Guatanamo Bay. Most of these guys are living way better there than they have their entire lives.

[Athena]

If I was living in the desert without running water I'd beg to be imprisoned in Guatanamo Bay. Most of these guys are living way better there than they have their entire lives.

I almost wish that were true. But, I can't help but note that these people are trying desperately to get out. There are complaints left and right. Would that really be the case if life was so much better?

[CPL CHUD]

I almost wish that were true. But, I can't help but note that these people are trying desperately to get out. There are complaints left and right. Would that really be the case if life was so much better?

There are also people begging to be kept inside. They don't want to be released back to their country out of fear of being marked as a traitor. In other cases the counties they belong to don't even want them back because some of the one's we've released have later been scooped up again as being confirmed to have particpated in further terrorist activities. It's a weird situation.

And really, who wouldn't complain no matter how a country percieved as your enemy treated you after detainment? These aren't uniformed soldiers. These are guys that follow a creed that gives them a moral pass at blowing up kids with makeshift bombs.

[Athena]

There are also people begging to be kept inside. They don't want to be released back to their country out of fear of being marked as a traitor. In other cases the counties they belong to don't even want them back because some of the one's we've released have later been scooped up again as being confirmed to have particpated in further terrorist activities. It's a weird situation.

And really, who wouldn't complain no matter how a country percieved as your enemy treated you after detainment? These aren't uniformed soldiers. These are guys that follow a creed that gives them a moral pass at blowing up kids with makeshift bombs.

Be that as it may -

Our underhanded conduct shouldn't be deemed justified solely on the grounds that the alternative is worse for these people. Also, we ought to keep in mind that a good many of these folks may very well be innocent and, currently, have absolutely no recourse if this is the case, during or after detainment. We should be offering them, at the very least, a reasonable substitute for habeas corpus; some sort of vehicle to allow them to try and prove their innocence.

[Pete Bondurant]

Be that as it may - We should be offering them, at the very least, a reasonable substitute for habeas corpus; some sort of vehicle to allow them to try and prove their innocence.

The only thing they should be offered, is a blind-fold before they are shot.