Last week, the Supreme Court ruled for a third consecutive time against Bush administration policies denying writs of habeas corpus to prisoners unlawfully held at the military compound at Guantánamo Bay, Cuba. Bush and his yes-man attorneys have been defying Constitutional law for far too long, and I am very pleased that the people who have been held at Gitmo for seven years may soon finally have their days in court. The right of a detainee to challenge his or her detention is the absolute foundation of our justice system, and is guaranteed by the Constitution, both in Article 1, Section 9:
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.
...and in the 14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Has there been a rebellion or invasion I am not aware of? Are non-citizens not people? Is not Guantánamo Bay part of the sovereign United States of America, or at the very least "within its jurisdiction"? This is absolutely cut-and-dry to me - the Constitution clearly states that people held at locations under the jurisdiction of the USA have the right to challenge unlawful detention, and that the government cannot deny liberty without due process of law.
I am grateful that justices Breyer, Ginsburg, Kennedy, Souter and Stevens were there to stand for the Constitution and for human rights. Justice Kennedy, author of the majority opinion in this case, eloquently wrote, "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 the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."
I am equally disgusted with justices Alito, Roberts, Scalia, and Thomas for their short-sighted ploy to twist and bend the Constitution to suit the times. Kennedy's assertion that the Constitution was designed for extraordinary times is absolutely correct. Just because we grant Gitmo detainees due process does not make us any less safe - each detainee will still be tried by our best prosecutors in a court of law - it just makes us right, fair, and balanced. Just like Fox News. :)
If not for habeas corpus, how are we any better than the Vietcong who held and tortured John McCain for years in a time of war? How can we expect other nations or entities to treat our soldiers with respect if we cannot treat theirs with the same respect? If America wishes to claim the moral high ground, she cannot wantonly imprison and indefinitely detain whomever she wishes.
In order to ... establish justice
Posted by big.bald.dave on 6/19/2008
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I admit I don't know enough about this to really take a side (or argue intelligently), but it seems to me that the argument would be over this line:
unless when in cases of rebellion or invasion, the public safety may require it.
Does the public safety require it? You pointed out that there has not been a "rebellion or invasion" per say, but the war on terror is a different kind of war. I honestly don't know, but I am a little fearful of turning people loose who have the intent to harm us if we don't have the "evidence" to keep them. (In fact, this extends to other areas – releasing child molesters, etc. At what point do their “rights” to freedom after serving their time outweigh my child’s “right” to live being unmolested?)
If government's main role is to protect its people, and this policy has worked at preventing terrorist attacks, then I am not sure I am so ready to throw it under the bus. But, like I said, I don't know enough to really argue either way.
We're not "turning them loose", we're just allowing them to be tried in court like human beings as provided by our Constitution.
There are bad people in this world, and they don't operate by the Rules. It's very true. The question is, does that mean we get to throw the Rules out as well, or do we hold ourselves to the higher standard?
Whether the "public safety requires it" or not, the Constitution only allows for suspension of habeas corpus in times of rebellion or invasion. The only times in our history habeas corpus has been lawfully suspended was during the Civil War (rebellion by the South) and during World War II (invasion by Japan).
Has there been a rebellion or invasion I am not aware of?
I think it depends on how you are going to define rebellion or invasion. My assumption here is that the attacks of September 11 qualify as an invasion, and here is the aftermath (from wikipedia):
In the wake of the September 11, 2001 attacks the United States Congress passed a resolution known as the Authorization for Use of Military Force Against Terrorists (AUMF) on September 18, 2001, wherein the Congress invoked the War Powers Resolution. Using this authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". The administration chose to call those who it detained under the Presidential Military Orders "enemy combatants". Since then the administration has formalized its usage of enemy combatant by using the term specifically for detained alleged members and supporters of al Qaida or the Taliban. For example
Under the provisions of the Secretary of the Navy Memorandum Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatant Detained at Guantanamo Bay Naval Base Cuba ... An enemy combatant has been defined as "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."
I really don't know enough about it to have formed an opinion yet, but I do think President Bush's argument has merit.
BBD is right: For habeus to be suspended, first there has to rebellion or invasion. Then, in addition, the public safety has to require it. You can't construe the Constitutional text to mean, "Well, there's no rebellion or invasion, but we can suspend habeus anyway because the public safety requires it."
And Wizzle is right that the Court's ruling will not necessarily result in anyone being turned loose. (However, the Court didn't quite rule that the detainees have a right to be tried in court. It ruled that they have a right to a habeus corpus hearing, which is a sort of preliminary in which the government has to demonstrate to a judge that the accused is being lawfully held. But it's not the trial itself.)
The reason habeus corpus is so profoundly important is that it's the single most basic check on arbitrary government power, a first line of defense against tyranny. If the government arrests you, it has to show in court, within a reasonable period of time, that it did so not arbitrarily but in accordance with the law. Most habeus hearings in fact don't result in the accused being let loose, partly because the government, knowing that habeus requires it to justify any imprisonment, doesn't go around locking people up arbitrarily in the first place.
All the government has to do is show it had some acceptable reason to be holding the accused. You might wonder, if that's all it has to do, the administration doesn't want habeus hearings. My suspicion is that some of the prisoners are being held not because the military thinks they did anything wrong, but because they can be milked for information. And a judge might well rule that that's not a legal reason to hold someone for years and years.
And the mere fact that a policy helps prevent terrorist attacks does not make it acceptable. The policy also has to be legal.
--David
Come on, right-wingers, this is supposed to be one of your signature issues! I mean, I know we've still got a kickin' discussion on health care going, but not one word of vitriol for the "activist judges"? ;)
Sorry BBD...I'm actually coming up on the finals week from hell. I check this site on my study breaks. The only reason I've left so many comments on the wizzle's healthcare posting is because since I am going into that practice I can pop out a comment without too much brainpower.
I'll check this thing out more fully in 10 days. :-)
Did you hear this interview on NPR. Very interesting.
http://www.npr.org/templates/story/story.php?storyId=91684540
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Im all for holding "suspicious" people for extended periods of time but I also agree the they do need their day in court and in a timely manner.
I think David is right, "My suspicion is that some of the prisoners are being held not because the military thinks they did anything wrong, but because they can be milked for information. And a judge might well rule that that's not a legal reason to hold someone for years and years."
I would be in favor of having an additional set of laws and procedures for terrorists as I don't feel that just letting them go is logical, that is, if we have proof of their knowledge of terrorists activities even if they haven't actually commited a crime.
The problem again is the potential abuse of power by the government.
Whats the now, as far as having knowledge of other illegal activities even if not actually participating in them? Is that being an accessory? Does that set of laws already exist?
First sentence should read "what the law now"...
A pox on my miserable sloppy typing and this edit-less comment function!
Dave, this has nothing to do with Homosexual marriage, abortion, or socialism - what would the conservatives have to say?
just playing. really - important point, and well said.
Silly conservatives...always caring about the important things like family values, human life, self reliance/responsibilty... silly, silly conservatives.
Dave, this is a good post, but I am not well read on the subject thus the lack of comment.
sorry that was me, not my wife.
I drive her crazy going on this site:)
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