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Yeah, because after seeing this, no one would be tempted to turn in a personal enemy or some random stranger for millions of dollars.
surrrreeeee.... just like all those little ing dirty vietnamese... farmers by day and murderers by night.
Yeah, because after seeing this, no one would be tempted to turn in a personal enemy or some random stranger for millions of dollars.
This is the best analysis I've seen of what the decision means.
Analysis: What are detainees’ rights now?
Thursday, June 12th, 2008 3:59 pm | Lyle Denniston | Print This Post
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The Supreme Court’s lead opinion in the Guantanamo Bay cases Monday declares simply: “The detainees in these cases are en led to a prompt habeas corpus hearing….The costs of delay can no longer be borne by those who are held in custody.”
But that does not mean any detainee is going to be released soon — although that ultimate remedy does have to remain available as a potential outcome. Much was decided on Monday — particularly in terms of cons utional magnitude — but much remains open for the future. What is next, and where might the decision lead in the end? Answers, but only preliminary answers, can be suggested.
First, however, some policy and political calculations have to be gauged. The decision does leave President Bush and Congress with the power to try again (assuming they could find some common ground) to head off habeas. Even though Monday’s decision was a cons utional ruling, the Court did not say that there can never be any subs utes for habeas review of detention. But, as a matter of political reality, a Republican President with only six months left in office and historically low popular approval ratings, and a Democratic Congress that is less and less deferential to the Executive even on war-on-terrorism issues, very likely will not be able to agree in the short time realistically available to find an alternative to habeas that has any chance of surviving a court test.
The Pentagon, too, still has some options open to it. It can scrap the existing system that decides who is to be designated as an “enemy combatant” and thus must remain confined. The Court did not strike down the so-called Combatant Status Review Tribunals; indeed, it said, they “remain intact.” But, the less such a filtering system protects a detainee’s legal rights, the more chances he has to challenge the enemy label and the detention in court, according to Monday’s decision. Does the Pentagon have a military interest in expanding detainee’s rights up-front? Given its history with CSRTs, the answer is probably not.
The Pentagon perhaps also might ponder some changes in the system for trying detainees on war crimes charges — the so-called military commissions that are ponderously moving forward at Guantanamo. But the Court said nothing about the commission system Monday, so the military may have no incentive to re-think a system that it has struggled to keep going amid a host of difficulties, major and minor. Still, the Court’s ruling does portend some serious challenges to the military commissions through habeas cases, even though the specific cases decided Monday involved challenges only to detention, not to prosecution.
There is one other political calculation to take into account: the prospect that Guatanamo Bay itself may be shut down entirely as an apparatus for detention and prosecution of captives in the war on terrorism. That could change, in wholesale ways, the fate of the detainees, and Bush Administration policy. But, between now and the start of a new Presidency, the time may be too short to find an alternative to Guantanamo, at least one that the President and Congress could agree on.
Thus, leaving aside all the prospects for political change of greater or lesser moment, what is going to happen next for the detainees is going to be legal in nature. As the Court said, the captives must have a “prompt” habeas hearing. What will go on in those hearings is going to be discussed shortly by the judges of the U.S. District Court in Washington (where such hearings will be held) joined by lawyers for the detainees, and for the government (Justice Department and Pentagon, in particular). As an earlier post on this blog indicated, the judges are already planning for such discussions.
Those in on the discussions about habeas proceedings have some leeway in how to proceed, because the Court said explicitly on Monday that its “opinion does not address the content of the law that governs” the Guantanamo detention. “That is a matter yet to be determined.”
But there is a good deal of guidance in the Court’s opinion written by Justice Anthony M. Kennedy, although some of its is a bit contradictory, or perhaps at least a bit unclear. On the one hand, for example, the Court says the detainees must have a “prompt” habeas hearing. But elsewhere, the opinion says that “federal courts should refrain from entertaining an enemy combatant’s habeas corpus pe ion at least until after the [Defense] Department, acting via the CSRT, has had a chance to review his status.” The latter point, however, does not explicitly take account of the fact that all of the detainees now at Guantanamo (270 or so remain) have had at least one CSRT review, and a few have had more than one. The Pentagon, though, may want to have some additional “do-overs,” especially if it fears that the existing basis for a specific prisoner’s detention is vulnerable to a strong habeas challenge, so the Court may be anticipating some time for those to occur. And it obviously did have in mind future captives, not yet at Guantanamo.
It is clear from the opinion that the detainees who already have had their CSRT reviews may proceed directly to District Court, with a new or reopened habeas challenge. (Some 200 habeas pe ions are already waiting there.) The Court said that the detainees in that category need not pursue their challenges to CSRT decisions in the D.C. Circuit Court under the Detainee Treatment Act (Congress’ alternative to habeas). To require those who have been held for six years to complete that process ahead of habeas “would be to require additional months, if not years, of delay,” the Court said.
In fact, in the two cases that the Court explicitly decided Monday (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196), the Court ordered the D.C. Circuit to send them back to District Courts for the habeas review now required.
Still, the Court said it was not disturbing the DTA process that Congress assigned to the D.C. Circuit, so it will be up to that tribunal, in cases other than those in which detainees have been held for years, to decide how to proceed, if at all, now. Lawyers in some of the DTA cases pending at the Circuit Court are already under orders to advise that Court on what they think should happen following the Supreme Court decision. One of the cases in which such an updating order has been issued involves Salim Ahmed Hamdan, who has seeking to use his DTA not only to challenge his detention, but his war crimes prosecution before a military commission. The Circuit Court already has under advisement an appeal testing the legal rights of another Guantanamo detainee, Omar Ahmed Khadr.
But, returning to the habeas cases that are expected to resume in District Court, what rights will the captives have? Or, at least, what did Monday’s decision seem to say about those rights, even while insisting it was not providing a final checklist of rights?
Two somewhat general principles were stated: (1) that, if the detention decision comes in a proceeding in which the captive’s legal rights are limited so that the process was not “thorough,” the habeas review must be more expansive and comprehensive; and (2) that the judges handling habeas cases “must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”
Going beyond those generalities, the Court made comments, in critiquing the CSRT and DTA proceedings, that suggest what habeas rights a detainee probably has to have before a court can uphold a decision that he must remain in detention or before a court would allow him to be tried for war crimes (since a CSRT or other designation of enemy status is necessary for a war crimes trial):
1. The habeas hearing must be prompt — at least for a detainee who has been held for several years (the time factor is uncertain).
2. The habeas review must be sufficiently comprehensive to significantly reduce the risk of error in an enemy designation, and the court must have the authority to correct errors in that designation.
3. The detainee must have a meaningful right to rebut the Pentagon’s evidence that seeks to support an enemy label, including some right to bring in additional evidence challenging the enemy status finding.
4. The detainee must have the assistance of a lawyer.
5. The detainee’s habeas case may demand an answer to the question of whether the President has the authority to order a captive held indefinitely — in other words, to challenge the basic authority of the Executive to have a prolonged detention policy for war-on-terrorism captives.
6. Release of custody, at least a “conditional” release (unspecified conditions), must remain one of the remedy options. It would not be enough, cons utionally, for a court merely to order a new CSRT proceeding as the only possible remedy.
Potentially, the first five of these rights may exist in a habeas case brought by a detainee who is facing a war crimes prosecution before a military commission. That is because a habeas challenge in that context would be, in part, a challenge to the enemy designation that must be made before a detainee may be charged with war crimes. But a habeas challenge in the war crimes context might also involve other cons utional claims of defects in the military prosecution itself — such as a denial of access to classified evidence against the accused. It is unclear, though, whether a habeas court would have the authority to examine those challenges in a pre-trial habeas case — or would have to await a final conviction. There might be other ways, different from habeas, for challenging the cons utionality of the commission process. The Court said nothing Monday about such challenges. Those, too, are for the future.
There is no way, at this point, to predict how many — if any — detainees now at Guantanamo may win their freedom as a result of the ruling. District Court judges already have been divided in their views of detainees’ rights, and that conflict is likely to continue.
An entirely separate question arises over whether the decision will provide habeas access for any detainees held elsewhere than at Guantanamo Bay — for example, at the U.S. military’s detention facility at Bagram air base in Afghanistan. Detainees there now have attempts at habeas pending in the District Courts in Washington. Their attorneys surely will attempt to take advantage of the ruling, and of the separate decision Monday (in Munaf v. Geren, 06-1666), finding that habeas rights do apply to those held by the U.S. military in Iraq. The Munaf decision involved only American citizens so held, but lawyers predictably would contend that should apply to foreign nationals so held, too — on the same ratrionale that the Guantanamo decision recognized habeas rights for foreign nationals at the Cuba base.
Do they get to pick the Federal judge, since there aren't too many around Gitmo?
wtf do you know about vietnam? you didn't serve, so STFU!!
Don't we have enough evidence on every detainee to put them away for life or kill them, much less simply keep them in custody?
Don't we?
i served in the military. so yourself.
"Illegal enemy combatants" is a legal fiction invented by the Bushies to deny POW status to suspected terrorists and the human rights that cannot be denied to any one. If the detainees are given POW status, then we have to determine when the war on terror is over so that they can be repatriated.
The writ of Habeas Corpus grows out the the natural right to the freedom to move about. In a state of nature, it is just as wrong to restrain another person from hunting or foraging as necessary as it in more civilized states to lock him up and throw away the key on the whim of the King or the President. We insist that the President give a reason to holding any other human against his will, and we do that for our own safety. A tyrant unrestrained by a legal structure who can incarcerate Khalid Sheikh Mohammad and put him on trial without due process can do the same to any one.
Yes, there has to be some structure here. The Military Commissions Act is the chaos of tyranny. Every part of it is uncons utional. Every part of it is a violation of the natural rights of every man or woman on this planet, who lives or has ever lived or who will ever live.
There is no such thing as "natural" rights. Otherwise there wouldn't be the right of abortion. Okay!
I don't know the details, but I think it is yes. We have plenty of evidence for all of them detained. The problem is that not all of them are caught by evidence the military wishes to share, and some of it is even classified as to the means of knowing they are guilty.
Consider the ones caught by military operations. When the court trial comes, the defense can demand evidence entered that may give away the military operations that should remain unknown to the enemy. We do not want to share our tactics with them. This is information that should not be shared until military operations there are over.
For classified information, this is how some of the worse of them may be caught. We may have means of surveillance that should remain classified for years to come. The only evidence that holds some will never be seen outside a military tribunal.
I'm sure I'm not good at explaining this, but I think you can get the general idea.
There are ways to deal with this on a federal court. Sealed do ents et all.
The FBI goes through the same problem as far as having to hide surveillance and tactical methods when dealing with gangs/mafia. This is really no different.
Two attorneys that represent one of the Gitmo detainees put a profile together of all the detainees using government do ents.
I saw one of these guys speak at a function and was surprised by what he had to say.
That information gets leaked all the time and people die.
So we should just stick with an uncons utional system?
You define your ideology as a 'Libertarian conservatism' but you seem to abide to the cons ution only whenever it fits your beliefs.
That was an interesting report, but it misses a few things. First of all, they would not have access to classified do ents that didn't apply to their ONE client.
Now look at the wording.
so what. That is far from saying 55% are innocent, and it doesn't say there is no evidence against them. Just because they didn't commit hostile acts does not bean they didn't do something like manufacture IED's, do planning, finance, or something else.Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies
So, are we to believe the only people that should be detained are either al Qaeda or Taliban?Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.
Give me a break. That's absolute idiocy.
Now payment may be relevant. However, could they be the ones already let go? Did you look at appendix A? It isn't as simple as just capturing someone and claiming they are the enemy. Besides, that statement in the executive summary doesn't match what is said in the report. That should automatically raise red flags of accuracy. On page 14:This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.
That's just 47% or more. These two en ies are 86% of the detainees where the captor is identified. Not 86% of the detainees. The authors were not given information on who captured 44% of the detainees, yet they conclude no more than 7% by the USA.Figure 12 explains who captured the detainees. Pakistan was the source of at least 36% of all detainees, and the Afghanistan Northern Alliance was the source of at least 11% more.
Reality check please...
We are talking about people found on the battlefield, or taken from elsewhere involved in the war, outside of the USA. The courts should have no right to them as long as the battles continue. They are war prisoners. They have no right to our cons utional protections.
That's exactly the problem. This government do not want to classify them as POW. If they would, they wouldn't have this problem (but would have others). They also don't want to classify them as regular criminals. They want this made up thing in the middle.
I actually don't have a problem with them being declared POW. But then the US needs to abide to the Hague and Geneva Conventions.
The let's put them all on trial.
Now you have a point there, but also keep in mind the USA doesn't want to treat then with the respect under the Geneva Convention, because they are criminals of that treaty also! The don't wear uniforms, then when the dead are left, propaganda says we killed innocent civilians. They don't deserve the Geneva Convention, and are not a memeber of the agreements.
Let me add that under Article 1, Section 8 of the cons ution:
This has been done, and now it's not good enough?To cons ute Tribunals inferior to the supreme Court
From noted America hating, left-wing commie radical George Will.
Contempt Of Courts
McCain's Posturing On Guantanamo
By George F. Will
Tuesday, June 17, 2008; Page A17
The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are en led to seek habeas corpus hearings, John McCain called it "one of the worst decisions in the history of this country." Well.
Does it rank with Dred Scott v. Sanford (1857), which concocted a cons utional right, unmentioned in the do ent, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the cons utionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?
Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court -- meaning, which candidate would select the best judicial nominees -- a campaign issue.
The decision, however, was 5 to 4. The nine justices are of varying quality, but there are not five fools or knaves. The question of the detainees' -- and the government's -- rights is a matter about which intelligent people of good will can differ.
The purpose of a writ of habeas corpus is to cause a government to release a prisoner or show through due process why the prisoner should be held. Of Guantanamo's approximately 270 detainees, many certainly are dangerous "enemy combatants." Some probably are not. None will be released by the court's decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests.
As such, the Supreme Court's ruling only begins marking a boundary against government's otherwise boundless power to detain people indefinitely, treating Guantanamo as (in Barack Obama's characterization) "a legal black hole." And public habeas hearings might benefit the Bush administration by reminding Americans how bad its worst enemies are.
Critics, including Chief Justice John Roberts in dissent, are correct that the court's decision clouds more things than it clarifies. Is the "complete and total" U.S. control of Guantanamo a solid-enough criterion to prevent the habeas right from being extended to other U.S. facilities around the world where enemy combatants are or might be held? Are habeas rights the only cons utional protections that prevail at Guantanamo? If there are others, how many? All of them? If so, can there be trials by military commissions, which permit hearsay evidence and evidence produced by coercion?
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Roberts's impatience is understandable: "The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date." Ideally, however, the defining will be by Congress, which will be graded by courts.
McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, "quote 'First Amendment rights.' " Now he dismissively speaks of "so-called, quote 'habeas corpus suits.' " He who wants to reassure cons utionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as "the great writ of liberty."
No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America's Cons ution, which limits Congress's power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees' habeas claims?
As the conservative and libertarian Cato Ins ute argued in its amicus brief in support of the pe ioning detainees, habeas, in the context of U.S. cons utional law, "is a separation of powers principle" involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.
In Marbury v. Madison (1803), which launched and validated judicial supervision of America's democratic government, Chief Justice John Marshall asked: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Cons ution.
,,,
The legality of the tribunals are not in question here. This case revolves around the fact that it's cons utional for Congress to replace the Habeas right (which they did), with one granting at the very least the most fundamental habeas rights (like the defendant actually knowing what they're accused of).
When Congress wrote it, they tought it would pass cons utional munster, but we know now that's not the case.
Thing is, Congress could still amend the provision or create a new one before any of these cases get to a federal court, but obviously with the current Congress it's not going to happen.
In actuality, they probably didn't even have access to classified do ents that applied to their ONE client. The attorneys representing these guys received very little information regarding the allegations against their clients.
Without expending the time to get into details, there's even more information on the detainees in the West Point study. As you did, they conclude that a higher percentage of the detainees are "demonstrated threats" by being more inclusive in their definition. It's a valid point.
http://www.ctc.usma.edu/csrt/CTC-CSRT-Report-072407.pdf
I also found this article from McClatchy interesting -
I'm not positing that these detainees are innocent of what they are accused of, but I do think we need to make sure they are not subjected to arbitrary or unlawful restraint.
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