Buy My Book Here

Fox News Ticker

Please check out my new books, "Bullied to Death: Chris Mackney's Kafkaesque Divorce and Sandra Grazzini-Rucki and the World's Last Custody Trial"

Thursday, June 12, 2008

Detainees to Get Habeas Rights

According to the SCOTUS Blog, the Supreme Court ruled just recently that foreign nationals held at Gitmo are entitled to rights of habeas corpus.

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.

For those not familiar with Latin or jduicial terminology, here is the definition of habeas corpus.

is the name of a legal action, or writ, through which a person can seek relief
from unlawful detention of themselves or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual
freedom against arbitrary state action.

Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

In simple terms, habeas corpus prevents an individual from being detained without being charged. It is one of the bedrocks of our CRIMINAL justice system.

My problem with this perspective as well as that on FISA is that applying criminal laws and philosophies to war is nonsensical. Let's take the case of Jose Padilla. He was stopped at O'Hare Airport and he is suspected of trying to blow up a so called "dirty bomb" within the U.S. Now, do we really want the government to only detain someone like Padilla only after they have enough to criminally charge him?

Do we really want to make the standards for all terrorists a legal one? This is what I have never understood. During World War II, the U.S. apprehended six German spies in New York. Should we have afforded them criminal rights? In my opinion, that is absolute nonsense because these spies were NOT committing crimes. They were committing acts of war. The same goes for Padilla and everyone else being held at Gitmo. They don't deserve the legal protections afforded to criminals because they are NOT criminals. They are enemy combatants attempting to commit acts of war.

The two are wholly different. In a criminal investigation, a crime has already been committed. In this case, an act of war is about to be committed. If we wait until there is enough evidence to detain someone like Padilla, the evidence may very well be the "dirty bomb" he is trying to set off. Never before in the history of U.S. warfare has the enemy been afforded the rights of criminals in our judicial system. Yet, that's exactly what some want now. How can we possible prosecute the war on terror effectively if our enemy is treated as criminals rather than enemies in war? Yet, that's exactly what this ruling has done.

More coverage from Michelle Malkin and Red State and Daily Kos and Huffington Post on the left.


Mr. Underachiever said...

I understand your concern completely and I know what you are saying. The problem is, we don't trust the Bush Administration enough to give them these powers. They have proven time and again that they are partisan hacks who can't be trusted not to give away the store to their wealthy contributors. Also, the war on terror will never end. There will ALWAYS be someone out there who doesn't like us, who wants to bomb us, and that will be used to usurp the rights of the citizens of this country indefinitely. I know, I know, you don't think a dystopia like 1984 could happen, and that, eventually, we'll declare the war on terror over and we'll go back to things as normal. The problem is, this war is different. The suspension of Habeas Corpus is meant only to be used when there is a conceivable end to a war. In the old days, the country would surrender and then we'd go back to normal. There is no country to surrender now. Therefore, the only way the people of the US can tell the war is over is if the President tell us. Given that war is very profitable for many, like Halliburton (who won no-bid contracts for the war and whose former leader now stands in the No.2 slot), I believe that we would never get Habeas back--that the war on terror would always have a new front, that it would be dragged out forever, with no way for the American people (the RULERS of this country, remember) to ever figure out if the suspension of the law was just or not. We cannot just blindly trust our leaders here in this new type of conflict. In your mind, how would you see Habeas Corpus coming back other than this way? Do you really believe that politicians would give up this power so easily when they can just keep saying that there are terrorists out there? I sure as hell don't trust the liars that have been in office for the past 7 years. Do you? And if you do, the important question is WHY?

mike volpe said...

With all due respect, there must be a mouse in your pocket because you keep saying WE even though you only speak for yourself. I don't much care whether or not you trust Bush with these powers. That is NOT how it works. The President, and the President alone, has the power of Commander in Chief. Period. We are in war and we only have one commander in chief.

If there is evidence of abuse then it is up to Congress to investigate that abuse. They have the power of oversight. Until then, quit spewing your 1984 style conspiracy theories. When you have something tangible then bring it forward, until then, the President is still the commander in chief, no matter how much you don't trust him in that role.

Anonymous said...

There's just one problem: there's no way to tell who's a terrorist or "enemy combatant" and who isn't without giving evidence. (Despite what some on the right may believe, skin color or religious preference doesn't give it away.) If someone were to lock Mike up and say "we're locking Mike up because he's a thief," that would be one thing. It's another thing entirely if it's illegal for Mike to disprove that he's a thief (or even to see what the evidence is). That was the issue today.

mike volpe said...

I know this is going to just eat at you Bush haters, but ultimately that is the responsibility of the Commander in Chief. That's why I said that Congress must have oversight and any abuse of power is impeachable. If someone locked me up as a terrorist, that would be an impeachable offense unless there is evidence I am not aware of.

Anonymous said...

You grossly misunderstand the Constitution. The President, as Commander-in-Chief is in charge of the Armed Services. The Commander-in-Chief does NOT get to pick and choose who he/she thinks is the enemy during war and lock them as Prisoner of War. Congress has to declare War. There has never been a declaration of War on the state of Terror. So, the President does NOT get to pick and choose who a terrorist is.

If we as a Nation were at war with Terrorists, then why wasn't that declared back in the 90s, when Timothy McVeigh or other Conservative Christians who have killed abortion doctors or attacked clinics. Those are terrorist acts. Following your logic, all conservative christians should be sent to Guantanamo forever.

mike volpe said...

First of all we declared an authorization to use military force against AQ right after 9/11, so if you want the distinction there it is. Second of all, the commander in chief, commands all warfare. Detaining the enemy, wherever they are, is a crucial part of warfare. Thus, detaining AQ members wherever they are is a crucial part of this war.

Frankly, the President needs no distinction. He or she is the only CinC and all duties of CinC are up to them. Detaining the enemy in any war situation is solely the responsibility of the CinC, the President. Oversight is the sole responsibility of Congress, and thus, investigating any and all abuses of said power is up to Congress.

GrEaT sAtAn'S gIrLfRiEnD said...

Besides - these cats were mostly picked up on the Battlefield or busted on a warrant. Not like they stopped at the store for a mocha latte and fell helpless and sweetly innocent into Great Satan's clutches.

Mr. Underachiever said...

Just give me a scenario where you imagine the War on Terror would reach a conclusion and the president would graciously return things to normal. When do we decide that AQ is done? Will it ever be done? Can you really imagine a world where there's NO ONE that wants to bomb America? As long as there is, the president can keep his wartime powers (even though congress never actually declared war on anyone). The constitution was set up to go to war against a nation, not a group of randomly placed individuals.
Also, couldn't the president decide to detain members of Congress saying that they were possible terrorists? Wouldn't that limit congress's power to enforce impeachment? With the right wing spewing out rhetoric about left wingers helping terrorists by not doing that or by doing this, isn't that a warning sign to the people that maybe this war on terror might be used as a power grab?

mike volpe said...

There is no such scenario. Terrorists are now, and always will be, enemy combatants in a war that we are fighting against them. They do not know, nor will they ever, be afforded the rights of criminals. They are not criminals. They are not trying to commit crimes. They are trying to commit acts of war.

We are in a normal state. If you are NOT a terrorist, you are afforded the rights of a normal citizen. Terrorist don't know or ever get the rights of criminals. They aren't criminals.

Again, that is why Congress has oversight responsibility. If the President ever abuses this power that is immediate grounds for impeachment. I think it is safe to say that without an extraordinary amount of evidence the President can't deem any member of Congress a terrorist. I don't know how long the GWOT will last, however I do know that terrorists are not criminals. Their acts are not crimes, and they should be treated as the enemy combatants they are.

Anonymous said...

"During World War II, the U.S. apprehended six German spies in New York. Should we have afforded them criminal rights? In my opinion, that is absolute nonsense because these spies were NOT committing crimes. They were committing acts of war."

One main difference is that we were at war with Germany. "Authorization to use military force" is not the same thing. Technically, we are not at war with Al Qaeda, nor are we at war with Iraq, because war can only be declared by Congress, and again "authorization to use military force" is not the same thing. In fact, "authorization to use military force" sounds a lot like authorizing the military to take a police action. Just because it is done by the military does not mean it is war. Legal mumbo jumbo? Probably, but hell, that's what a Constitution is!

A very easy way to settle all of this is with a Constitutional Amendment: "The Executive branch may declare a person an enemy combatant and in so doing strip said person of Habeus Corpus rights". Piece of cake...if these were really "activist judges" in the SCOTUS, the American people would overwhelmingly approve said Amendment to the Constitution.

All that said, I hope for aggressive prosecution of each and every one of these suspected terrorists. If evidence exists, they will be found guilty, and I have no problem with then, and only then, imposing the maximum punishment that they deserve.

Anonymous said...

What truly terrifies me is this idea that this is a normal state. The United States government, a beacon of democracy, is declaring that its leader has the authority to send troops into any american neighborhood and take any american to be held indefinitely without trial. That pretty well sums up the definition of a police state: your supreme leader has the right to disappear anyone, at any time, for any reason. Your own government is claiming that, in fact, it has always been a police state, and always had these powers, but this is the first time they really needed them, so stop asking questions and come along quietly. Yeah. Sounds pretty darned normal. "They haven't come for me personally, and therefore, it's all a big scare." Mike Volpe, you're the intellectual of the year. And since we're very concerned with grammar, yes, I'm saying YOUR government. I moved to Canada, chasing after the democracy as it fled northwards, and now simply watch in horror from what seems increasingly like not a long enough way away.

Anonymous said...

We did not authorize the use of military force against Al Qaida, the congress authorized the use of military force in Iraq. Your example of Hose Padilla proves the counterpoint to your argument. Hose Padilla was not charged with attempting to create a "dirty bomb," as a matter of fact the government dropped almost all charges against him and only stuck with conspiracy charges. In other words, Jose Padilla was convicted of doing nothing. He committed no act of war. BTW he was a US citizen and he did get a trial and his right to habeas corpus. Turns out the government was full of shit.

If the "detainees" (otherwise called prisoners) on Guantanamo were really prisoners of war, as you suggest, they would be freed by now. Most were picked up on the battlefield in Afghanistan. That country is pacified. Our normal procedure is to repatriate prisoners of war. In World War II we only held trials for the officers, we did it in an international court, we afforded the prisoners the right to a trial and a defense. Don't think that the government is all knowing, they aren't. They have proven themselves to be adept at both lying, and at incompetence. Don't think that a miscarriage of these flawed government schemes couldn't land you in the same place , just remember the name Brandon Mayfield. He was the attorney in Oregon who our government wanted to brand a terrorist and hold without trial... until he wasn't a terrorist (oops.)

Mike, jump off that sinking ship and join the rest of us free thinking and free people who have a general mistrust of the government.

~ your friend, Mike H

mike volpe said...

Let me take the last three comments at once.

There is no distinction between an AUMF and an act of war, but more importantly than that the President doesn't need a declaration of war to be the CinC. The President is the CinC at all times. For instance, LBJ ordered a draft for the "police action" known as the Vietnam War. There was never a formal declaration of war, and yet LBJ was well within his constitutional powers to order a draft regardless. In the same way, the current President is well within his Constitutional authority to arrest and imprison the enemy in this war, whether formally declared or not, and try them through military means.

Now, to the second comment. Please end the melodrama. Lincoln suspended habeas corpus during the Civil War and he did that to American citizens. Woodrow Wilson created a Creel Commission to, among other things, spy on American citizens. FDR created an office of censorship. LBJ started a draft. Please end the melodrama. Presidents have always used their constitutional powers of CinC liberally during war times.

Now, to the last comment, we absolutely did create AUMF against Al Qaeda. It was done in October 2001 and voted overwhelmingly by Congress. We created another AUMF against Iraq before that war as well.

As to Padilla, I am not so concerned what he was convicted of. He was here to set off a dirty bomb, and that is the point. We don't have time to gather evidence against someone about to commit an act of war against the country. The only responsibility the President has against such a person is to take them out of play and extract as much information from them as possible.

I never said the folks at GITMO were prisoners of war. POW's fight in uniform for a country. These folks are enemy combatants and illegal ones at that. Frankly, our government would like to re patriate most of these guys, except 1)they usually wind up on the battlefield against us 2) their home country doesn't want them, or 3) their home country wants them to torture them.

Anonymous said...

We authorized use of force against "terrorists," not specifically Al Qaeda.

Jose Padilla wasn't here to set of a dirty bomb, if he was that would have been included in his conspiracy charges. You bought the story hook line and sinker, from a government that has been proven to lie to you over and over. Naive and melodramatic.

Detained enemy combatant, prisoner of war... same difference. You want to have it both ways. Declare war, have a war, but the captured combatants are not prisoners of war because they didn't shop at the military uniform store. Tell half of the Russian Army, The Chetnicks, the French underground during world war II, any populous lead insurrection including a large majority of our own patriot army in our war of independence, that they weren't soldiers because they weren't issued a uniform.

You should note that 420 of the prisoners have been released without charge. Try to note the relationship between fascist gulags ,concentration camps, and executive tyrants holding people prisoners without charge and the current situation.

Frankly, you have no clue what our government wants to do with these guys because they are being held without charge and all communications are classified.

You are confident that the idiots in charge are working on your behalf and in your interests. Unfortunately the rights you exclude yourself from today, will be your undoing tomorrow. My family fought hard in many wars to secure the rights of liberty and freedom. Why are guys like you so quick to give them up when someone goes boo?

Anonymous said...

Your argument regarding the draft and LBJ doesn't really hold water because war is not necessary to institute the draft. Nor is a AUMF necessary to institute the draft. It can be instituted at any time, for any reason whatsoever; in fact, I don't know if a reason is actually necessary. Right now, all males in the US register for the draft and theoretically could be drafted at any time. They are not drafted, because it is a political death for anyone who even recommends it; you'd be better off trying to save Social Security. Bottom-line: the Selective Service has nothing to do with the argument of an AUMF vs a declaration of war.

It also makes no difference whether or not the President is the Commander in Chief of the Armed Forces, in a time of war or not. The argument that the President, because he is the CINC, can detain any person without trial, regardless of citizenship, for any reason whatsoever, is the classic definition of a dictatorship or a police state, not of a constitutional republic.

The fact that most, if not all of those detained are likely guilty of absolutely heinous crimes and are extremely dangerous is not a valid argument either; if they have committed a crime against US citizens or property or have conspired to do so, there are criminal laws to deal with this behavior, and they can easily be convicted within the US criminal legal system. In addition, US laws exist that allow for evidence to be given in secret, so as not to endanger US Intelligence Agents abroad and to prevent other criminals from discovering what we know. If it is such an open and shut case that the US President can say "lock them up and throw away the key", I would imagine that the evidence against each is damning, and could easily warrant the death penalty or life imprisonment if convicted with a fair trial. However, A trial in which the accused have no right to attorney and the presumption of guilt is on the accused is both not fair and is what most civilized people would consider barbaric, and more appropriate for Europe in the Dark Ages than America in the 21st century. I am aware, by the way, that France has a system where presumption of guilt is on the accused, and while it is their country and they can do what they wish, I am adamantly opposed to such a system...glad to be an American!

Again, I bring back the idea of a Constitutional Amendment; if it is so important that the Executive Branch have the right to imprison anyone that said branch has knowledge to be an Enemy Combatant, we should put it to a vote. Until then, Habeus Corpus stands, even for non-citizens who are likely terrorists and are detained by a US Military Force; the SCOTUS appears to agree.

One last thought...I think all of us, Conservative and Liberal, are all on the same page when it comes to this. We all want justice to be served if it is proven that it needs to be administered. Personally, I just happen to love the rule of law; I love that no person, no matter how disgusting the crime, can be unjustly imprisoned without the right to defend him/herself. If those accused are guilty, I want justice to be served, and I assume that all Americans do.

Sorry for all that text...thanks for reading this far. Any mistakes in constitutional law/legal theory, I take full responsibility for; any spelling/grammar mistakes I blame on my neighborhood bar. :) Also, I may have argued in this text against an argument that no one appears to have is likely in that circumstance that I was regurgitating an argument I had with a radio station during my drive home.

Anonymous said...

Mr. Volpe,

Unfortunately, I think your logic doesn't hold up in a fair and unbaised review.

You remark, "I know this is going to just eat at you Bush haters, but ultimately that is the responsibility of the Commander in Chief."

This speaks volumes about where you are coming from. Sorry, but I know this is going to just eat at you Bush lovers, but ultimately, it is not the responsibility of the Commander in Chief...

If it were the responsibility of the Commander in Chief, why not just wage unecessary war all the time and keep the war Commander in Chief tag on all the time?

No, even by your own (twisted) logic I am not convinced that you support yourself. How are we to know that these people are criminals or enemy combatants? Without trial or oversight?

Here's a question for you (keep your line of reasoning straight, please)... If oversight or rules can be determined by the Commader in Chief without checks, and this commander makes a mistake, is it OK to try you or your son or daughter as a terrorist, without Habeus Corpus, and pronounce a, say, death sentence on you or your child?

I suspect that you are too cowardly to answer this question or post it.

- Voted for Bush in 2004.

mike volpe said...

It's going to be too long to respond to all three in one post, so let me respond to the last person first.

In fact, you don't need to tell me about people being wronged, I have featured several doctors being wronged all over the country and they supposedly enjoy the same civil rights as all other citizens.

You can check out any of those important stories at your leisure. The point being is that you don't need to waive habeas corpus to be able to have an abuse of power.

The point I am making is that we created a system in which one person, the President, holds a significant amount of power on military matters. We didn't have to do it that way. We could have had a committee by the CinC. We didn't because the CinC needs to make quick and decisive decisions. As such, you absolutely center power into one individual's hands. That's what we have Congressional oversight for, and furthermore, elections. Again, you cannot pre empt the President's CinC role because you don't trust him. If you have evidence of abuse then bring it, but you cannot pre empt his power as CinC simply because you think he may abuse it.

mike volpe said...

Now, to Mazda's point. Well, you actually prove my point. The President can institute a draft anytime and that's because the President is always the CinC. If he can institute a draft at anytime, the President can also detain the enemy during war and NOT give them the rights afforded criminals. That's because someone intent on committing an act of war doesn't get the rights of a criminal.

Again, the President CANNOT detain anyone for any reason. The President can only detain the enemy in a time of military conflict and not give them the same rights afforded to a criminal. If the President abuses that power, that is what we have oversight by Congress and elections for. AGain, you cannot pre empt the President's constitutional power as CinC just because you think he may abuse it. If he abuses that power, that is an IMPEACHABLE offense, however there is no evidence of abuse.

Until you have evidence of abuse, the President can aggressively go after AQ anywhere they are and he does NOT, in my opinion, have to give them the legal protections afforded the average criminal.

mike volpe said...

Now, to Mike H. We absolutely did create an AUMF against Al Qaeda specifically though if it were merely against terrorists that would actually give the President even more sweeping power. Again, it is NOT necessary to have the AUMF anyway, however he got it.

Neither one of us know exactly what Padilla was here to do, but my point is proven by the fact that we couldn't charge him with conspiracy in a criminal court. I do not want terrorists held to the guilty beyond all reasonable doubt standard. We will NOT win the GWOT if we have to convict terrorists based on such a standard. The important thing about the Padilla case is that he is off the street. Again, if you have evidence of wrongdoing then bring it forward, but merely spewing rhetoric is nonsense.

Mr. Underachiever said...

But, Mike, no one will ever have any evidence because it's all secret!! All they have to say right now is, "we have evidence that makes us suspect they are a terrorist." No one has to SHOW us the evidence, right? So, practically speaking, there is no evidence at all. Which means, you can just lock up who you want with trumped up charges that will never be reviewed by anyone to see if it's true. Oh sure, AFTER the president leaves office, all kinds of things will surface, and I bet we'll find impeachable offenses. But, by then the damage is done, isn't it?

I don't mean to make it personal or anything, I appreciate you having a discussion about this. It's what makes a free society great.

mike volpe said...

You and I may not know anything about this however Bush is NOT the first President to have classified information. That again is what Congressional oversight is for. It will be up to those Congressional committees with security clearance to maintain oversight over any such classified program to maintain oversight.

The system is actually perfectly fit to handle this, and it will even keep Bush in line, if you just allow it to work.

Anonymous said...

I agree with you Mike. The key to this ruling is precisely what you asked,

"How can we possible prosecute the war on terror effectively if our enemy is treated as criminals rather than enemies in war? Yet, that's exactly what this ruling has done."

This court has ignored the historical precedents of all previous wars prosecuted by this country.

The SCourt affords a pure and innocent fetus no rights, but gives habeas rights to foreign enemy combatants and terrorists.

I fear no President, only the men and women in black.
How can we stop them from grabbing more power over this country?
We should be talking about impeaching the justices imho. TimB