Judge Orders Release of Gitmo Detainee With Ties to 9/11 Attacks

[spursncowboys]

http://en.wikipedia.org/wiki/Boumediene_v._Bush

Read Scalia and Robert's dissent. That is what I have been argueing.

[LnGrrrR]

Read Scalia and Robert's dissent. That is what I have been argueing.

You know their dissent really has nothing to do with whether habeas corpus is a "privilege" or not. It mainly is resting on whether or not habeas corpus must be applied at GTMO since it's not sovereign territory, backed up by lesser claims as well (that the judicial branch is the least qualified to make national security decisions, that the provisions of the MCA are good enough to 'count' as habeas corpus).

Nothing in their dissent talks about a distinction between "privilege" and "right" that I'm aware of.

[spursncowboys]

You know their dissent really has nothing to do with whether habeas corpus is a "privilege" or not. It mainly is resting on whether or not habeas corpus must be applied at GTMO since it's not sovereign territory, backed up by lesser claims as well (that the judicial branch is the least qualified to make national security decisions, that the provisions of the MCA are good enough to 'count' as habeas corpus).

Nothing in their dissent talks about a distinction between "privilege" and "right" that I'm aware of.

the habeas corpus not being a right was just one sentence in everything I was writing about in that response to you.

[FromWayDowntown]

Likewise. It's always a pleasure to talk to a rational intelligent human being about important issues with an open mind. , if I didn't talk to people like you I would have never learned anything. I feel like the yellow journalism (i know that term isn't technically correct but it serves the point) that is so prevalent now by both sides makes it much much harder for people like you and me to talk because you have to wade through so many parrots to get to a person.

I think we can agree to disagree... but in no way do I think that it should halt further debate. People have changed my mind before and I've changed some myself.

If you've backed off of your stance that all detainees should be summarily executed, I'm satisfied. Not an I win, you lose sort of thing; please understand that.

You and I are unlikely to ever reach full agreement as to the the merits of detaining those we capture in foreign lands, the means of questioning them, the rights afforded to them, and the ultimate respect of their right to life (once defined to be an inalienable right, bestowed upon all men by their creator -- not specifically reserved to Americans) until forfeited by conduct. I have said before in this forum, and will repeat here again, that I fundamentally believe that if we fight a war to preserve our way of life, we should at the very least abide by that way of life in prosecuting the war. To me, that doesn't mean that we should find exceptions and loopholes that save us from the consequences of the choices that comprise our way of life. If we believe in due process, the nationality of a person should have no bearing upon whether or not we afford that right to anyone within the United States' adjudicatory systems. If that leaves me labeled and despised, so be it.

I remember my sister asking me a question that really made me drop my jaw once.

It was about gay couples adopting kids... I thought it would put them at a disadvantage...

She asks me... so they would be better off growing up in the orphanage than in a loving home with a gay couple?

Got me there.

Mind Changed.

It's good to hear. My mind is sometimes changed too. I've never really understood the reprisals that our society seems to impose upon those who publicly change their minds on substantial subjects. There was plenty to ridicule John Kerry about in 2004, but the fact that he changed his mind on the propriety of fighting a war never really struck me as one of those things. I'd hope that anyone who is elected to political office would reconsider positions in light of new evidence or better arguments. I'd hope that those of us who do not hold or seek office would reconsider our positions when we learn more. That doesn't mean I think everyone who sees things differently than I do should change his mind and see things my way. It does mean that I don't think it's a bad thing to change your mind.

[LnGrrrR]

the habeas corpus not being a right was just one sentence in everything I was writing about in that response to you.

You seemed to stress the privilege/right distinction, but have yet to provide the legal a en to support that distinction.

If you agree with Scalia, well, great. However, he was overruled by the rest of the court (and rightfully so). And even Scalia didn't say that the prisoners could be denied habeas corpus, really. He was arguing more about the territorial jurisdiction of the US, as I understand it.

I'm probably in the minority, but I don't like many of Scalia's rulings. He touts his proclaimed Originalism (or whatever it's called), but when it suits him he's more than willing to reinterpret the Cons ution.

[Shastafarian]

Also worth repeating since he keeps dodging

If you've done the work, please explain the distinction between 'privilege' and 'right', and the legal theory behind the two terms' distinction.

[spursncowboys]

You seemed to stress the privilege/right distinction, but have yet to provide the legal a en to support that distinction.

If you agree with Scalia, well, great. However, he was overruled by the rest of the court (and rightfully so). And even Scalia didn't say that the prisoners could be denied habeas corpus, really. He was arguing more about the territorial jurisdiction of the US, as I understand it.

I'm probably in the minority, but I don't like many of Scalia's rulings. He touts his proclaimed Originalism (or whatever it's called), but when it suits him he's more than willing to reinterpret the Cons ution.

the stressing was due to having to deal with three trolls and yourself wanting to make this an issue. Privilege was used specifically in that situation. It isn't interchangable with right in the context of a cons ution.
here are some links I got real quickly on the diff of right and privilege:
http://stason.org/TULARC/society/law...privilege.html
http://www.ibiblio.org/rdu/a-prvrgh.html
http://blogcritics.org/politics/arti...s-an-essay-on/

I haven't read enough of any justices' opinions, but liked this one.

roberts' dissent
Chief Justice Roberts' dissent focused on whether the process afforded the Guantanamo detainees in the Detainee Treatment Act were an adequate subs ute for the Habeas protections the Cons ution guaranteed. By arguing in the affirmative, he implied that the issue of whether the detainees had any Suspension Clause rights was moot (since, if they did, he found that those rights were not violated anyway). This line of reasoning was arguably more in line with the plain reading of Johnson v. Eisentrager (which denied German prisoners of war Habeas rights primarily due to both practical logistical concerns and the determination that they had been afforded an adequate subs ute: traditional military war crimes trials, which complied with the Geneva Conventions) than that of Justice Scalia, and also avoided the more controversial and complicated issue of whether the detainees were en led to file Habeas pe ions in the first place. However, the claim of the Chief Justice that the Court has struck down generous procedural protections afforded 'enemy combatants' and replaced them with a set of "shapeless" procedures to be defined by federal courts, has been described as disingenuous by some commentators.
http://en.wikipedia.org/wiki/Boumediene_v._Bush

[Shastafarian]

Did you read through any of those links?

A right is something you are born with, and you will
die with, granted to you by your "Creator" (whatever you
imagine He/She/It/Them to be). A privilege is granted to
you by the King, General, Church, or the State, and may be
revoked at any time, if one loses favor. This is usually
caused by a failure "consider the king", a failure to pay
the "royalty", tax, indulgence, he, license fee, etc.

Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Also how did you manage to move the goal posts of "habeas corpus isn't in the cons ution" to "they're given something just as good"? Why can't you just admit you said something incredibly stupid?

[LnGrrrR]

SnC, from your link:

A privilege is granted to
you by the King, General, Church, or the State, and may be
revoked at any time, if one loses favor.

Yet the Cons ution specifically lists only certain instances where it may be revoked. That goes against the definition of "privilege" listed here.

I know the normal usage of the word "privilege". What I'm looking for is a defense of a LEGAL distinction between habeas corpus being a "privilege" as opposed to a right. Can you find any precedence that explains this distinction in a court case? Any lawyers or law professors arguing this? Or is this a pet theory of yours?

[FromWayDowntown]

I'd argue that it might be considered a "privilege" only because the relief of habeas corpus isn't self-actuating and may be denied upon a failure to prove that one qualifies for it.

Upon meeting the relevant burden of proof, however, I don't know how habeas corpus can be anything other than a right.

[ChumpDumper]

So SnC, in addition to claiming habeas corpus isn't in the US Cons ution, also thinks that dissenting Supreme Court decisions are binding law.

He certainly has "done a lot of work" here.