pageok
pageok
pageok
It's Unlikely, But Worth Noting:
In today's debates on Boumediene v. Bush, I think it's worth noting that there's a way in which Congress could still go back to the pre-Rasul or pre-Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that "[t]he 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." (emphasis added)

  As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.
Adam K:
Do you even get to the "public safety" question, if you can't show that there's been a "rebellion" or "invasion"?
6.12.2008 3:26pm
DanG:
So I guess the dissenters are wrong about the majority having put the nation in grave danger by substituting federal judges' decisions for those of national security "experts" in the political branch. The framers provided a way for the political branches to temporarily alter the balance between liberty and security by suspending the writ.
I suppose you could argue that 9/11 was an invasion of sorts.
6.12.2008 3:37pm
SIG357:
Yes, they could do this. But I think it's pretty clear at this point that there are five justices on the Supreme Court who would come up with some reason why it's unconstitutional.

Let's be serious here - these are political decisions on the courts part, not legal ones. I'd be impressed if more legal analysts were willing to call a spade a spade.
6.12.2008 4:03pm
cboldt (mail):
Suspension of habeas, by Congress, would be a darn serious move.
.
The founders put measures in the Constitution with an eye that darn serious events might dictate some deviation from the "ideal" co-operation of three branches.
.
But not even in the Civil War, or WWI, or WWII did Congress suspend habeas. The three branches (mostly) continued to cooperate.
.
I'm not inclined to say that we ought to make the trigger for suspending habeas sensitive enough that it should go of at this instant, due to the WOT.
6.12.2008 4:04pm
SIG357:
subject to the possibility of judicial review of their assessment of the need for the suspension

Well, I can't be surprised that a lawyer would think that way. But the system is not supposed to place such power in the courts.

There is one part of govenment which libertarian lawyers are pleased to see expand, and that's the judicial branch.
6.12.2008 4:07pm
George Weiss (mail) (www):
what i don't get is why the administration didn't argue that the AUMF and the DTA DID suspend habeus with regard to Guantanamo. isnt that what your doing when you tell the courts not to hear habeus cases??
6.12.2008 4:09pm
rbj:
Of course German saboteurs who landed on US soil in WWII were given a quick military tribunal and then shot.

Lincoln suspended habeas corpus in the Civil War -- unconstitutional, but as far as I know no court ruled against him. Were there any?

Would it be possible to call the Sept. 11 attacks by those responsible who were living here an "invasion"?
6.12.2008 4:13pm
CDU (mail) (www):
cboldt wrote:
But not even in the Civil War, or WWI, or WWII did Congress suspend habeas.


Habeas corpus was suspended during both the Civil War and WWII. During the Civil War they suspended it nationwide and in WWII it was suspended it in Hawaii pursuant to the Organic Act of 1900.
6.12.2008 4:18pm
MarkField (mail):

Of course German saboteurs who landed on US soil in WWII were given a quick military tribunal and then shot.


With time out for a habeas petition and an appeal to the Supreme Court.
6.12.2008 4:20pm
Oren:
I suppose you could argue that 9/11 was an invasion of sorts.
No, not really.
6.12.2008 4:24pm
cboldt (mail):
-- During the Civil War they suspended it nationwide and in WWII it was suspended it in Hawaii pursuant to the Organic Act of 1900. --
.
I stand presumptively corrected (not that it'll teach me to comment without researching first!), and thank you for the approximate cites.
.
WRT Civil War, I based my impression on Ex parte Merryman, 17 F. Cas. 144 (1861) and Ex Parte Milligan, 71 U.S. 1 (1866). I never did look for Congressional acts. Likewise with WWII, just based on a hunch that the Courts were entertaining habeas petitions. I hadn't considered a Hawaii "carve-out."
6.12.2008 4:25pm
whit:

Cases of Rebellion or Invasion


i am not advocating suspending the writ... but as to whether it COULD be suspended based on the invasion justification

1)al qaeda had already declared war on us years before... (officially, i might add)

2) the 911 hijackers were foreign nationals, many here illegally

3) they were members of al qaeda (see (1))

4) they did what they did to further al qaeda's aims

sounds like an invasion to me...

the DOD military dictionary doesn't list invasion, fwiw.

conventional dictionary meanings are consistent with what al qaeda did on 911
6.12.2008 4:26pm
Nick P.:
Would it be possible to call the Sept. 11 attacks by those responsible who were living here an "invasion"?

If you did, wouldn't you have to conclude that the invasion is over when the invaders are dead? Even granting that 9/11 was an "invasion," the plain language of the suspension clause quoted above would seem to indicate that the writ cannot be suspended now.

IANAL, etc.
6.12.2008 4:31pm
DanG:


I suppose you could argue that 9/11 was an invasion of sorts.

No, not really.


Oh, my mistake!
6.12.2008 4:36pm
nobob (mail):
Didn't the DTA strip SCOTUS of its ability to hear appellate cases of this sort? If so, it seems to me that the big news here is not the habeus rights of unlawful combatants, but rather that some of the Legislative Branch's powers under the Constitution (III sec 2) are now inoperative.

I wonder if Sen. Kennedy and Byrd appreciate /that/, even if they agree with the outcome?
6.12.2008 4:36pm
Richard Aubrey (mail):
Nick P.
Who says the invaders are dead? We know the nineteen highjackers are dead. But how about their support network? What do we know about that? Were they always on some bogus uncle's mastercard for motels and meals, or were there what amounted to safehouses? Although, if nobody's looking for you, practically anyplace is a safehouse. Still, they probably weren't bunking in with FBI agents. Although, in the final analysis, that might have been safest of all.
The question remains? How do we know all the invaders are dead?
6.12.2008 4:38pm
cboldt (mail):
Interesting reference link here US Constitution Annotated - Habeas Corpus Suspension

The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900).
6.12.2008 4:39pm
rbj:

Would it be possible to call the Sept. 11 attacks by those responsible who were living here an "invasion"?


If you did, wouldn't you have to conclude that the invasion is over when the invaders are dead? Even granting that 9/11 was an "invasion," the plain language of the suspension clause quoted above would seem to indicate that the writ cannot be suspended now.

IANAL, etc.


Not necessarily, unless you could conclude there are no more sleeper cells in the US.

And while AQ members have been argued to fall under unlawful enemy combatants, I think there needs to be a new category for transnational terrorists (terrorist = using violence to achieve political goals). Domestic terrorists fit well under a nation's criminal law, but all these S.Ct. cases seem to suggest that we do need a new category for them, with new international treaties. Normal rules of evidence &police work don't work well on the battlefield or with soldiers who are not cops.

Of course I don't have a good idea what such a category would look like.
6.12.2008 4:44pm
cboldt (mail):

I think there are two overlapping methods to describe the scope of (and rationale for) suspension. One being geographic, that courts can't be "open" or "trusted" (see KKK situation) in a lawless geographical area. The other is as applied to a class of people. The fact that some infraction of the UCMJ can't be put before an Article II Court does not mean that habeas has been suspended as to members of our active military.
.
My sense of the over-riding point of habeas is that justice should be detached, transparent and objective; to the full extent practicable.
6.12.2008 4:45pm
George Weiss (mail) (www):
nobob-

the casse deals with whether a stauteory scheme is constitutional.

congress cannot strip the right of scotus to determine what is constitutional. (marbury v madison)
6.12.2008 4:46pm
Brett Bellmore:
Arguably, since the judicial system is still fully functional, the "rebellion or invasion" can't be serious enough to justify suspending habeas. But it strikes me as unlikely that the Court would bother to make that call if Congress actually bothered to explicitly act to suspend habeas.
6.12.2008 4:50pm
Seamus (mail):
Of course German saboteurs who landed on US soil in WWII were given a quick military tribunal and then shot.

Electrocuted, actually.
6.12.2008 4:51pm
Nick P.:
Richard Aubrey:
Who says the invaders are dead? We know the nineteen highjackers are dead. But how about their support network? What do we know about that?

rbj:
Not necessarily, unless you could conclude there are no more sleeper cells in the US.

Well, if you don't know whether there are more supporters or sleeper cells in the U.S., then you certainly can't conclude that we are currently undergoing a rebellion or invasion.
6.12.2008 4:52pm
Lior:
As far as I can tell, Guantanamo bay is not under invasion or rebellion. It is therefore not clear why public safety requires the suspension of the writ there.
6.12.2008 5:06pm
Bill Dyer (mail) (www):
This badly needs to become an election issue for both POTUS and Congress, and the best way to do that is for the President to propose that legislation immediately.

This is the worst SCOTUS decision in the history of the United States.
6.12.2008 5:07pm
Bill Dyer (mail) (www):
Lior: You think 9/11 didn't qualify as an invasion? You think those guys were born and raised in Yonkers?
6.12.2008 5:08pm
Guest101:
"Not necessarily, unless you could conclude there are no more sleeper cells in the US."

I'm pretty sure the burden of proof is going to fall on the government in that scenario-- even assuming for the moment that terrorist sleeper cells constitute an "invasion" within the meaning of the Suspension Clause, the government would have to demonstrate that such groups are active within the U.S. in order to justify suspension; simply saying "Well, you can't prove they're not!" wouldn't even make it past the Fourth Circuit.
6.12.2008 5:09pm
Jeremiah:

congress cannot strip the right of scotus to determine what is constitutional. (marbury v madison)

Not true. Congress may not strip the Supreme Court of authority to determine the questions falling under its original jurisdiction. However, the exceptions clause does allow Congress to strip the Supreme Court of its appellate jurisdiction over any other question.

It is not yet tested whether Congress, having removed the Supreme Court from jurisdiction over a particular matter, may also use its plenary authority over the jurisdiction of the inferior courts to remove them as well. That would make the matter completely judicially unreviewable. The text of Article III seems to allow this.

In such a case, were the elected branches to use the legal black hole to do something patently unconstitutional, the remedy would lie with the people: throw the bastards out in the next election. Constitutional rights do not exist and are not vindicated solely by judicial say-so.
6.12.2008 5:10pm
George Weiss (mail) (www):
Jeremiah-

my mistake your right congress can remove appellate jurisdiction from the supreme court-and this was an appeal

but the statute took away the federal courts right to hear habues-not the federal courts right to hear whether taking away habeas was constitutional.

btw-was for the case where congress takes away origonal jurisdiction from lower courts and appellate jurisdiction from the supreme court-we would be left with original jurisdiction in the supreme court would we not?
6.12.2008 5:24pm
k.mccabe:
"Congress could suspend the writ as it applies to Guantanamo Bay..." wouldn't Guantanamo's geographic presence make this more ridiculous? I mean, Cuba wasn't "invaded"(using that term loosely to mean the same as attacked) on 9-11 - and there certainly isn't an invasion of Cuba or the base at Guantanamo going on - (not that there is one going in NYC now either) - but at least one did go on there for a short time.

Times of rebellion applies to neither.

I mean, to me the argument would make more sense to transfer all detainees in Cuba to a floating airline brig above NYC where at least an attack occured (seven long years ago) and then suspend Habeus and then get rejected by the Sup Ct as being completely stupid. John Yoo said that if they are floating above 8,000 feet, they aren't technically "ON" U.S. soil and we can burn and eat them as we see fit. No rules apply in make believe land. Brown people are still bad and must be feared though.

Oh, and in a pre-emptive move - let me just state for the record- i hate the u.s. and love turrists.
6.12.2008 5:26pm
Jeremiah:
George Weiss -

for the case where congress takes away origonal jurisdiction from lower courts and appellate jurisdiction from the supreme court-we would be left with original jurisdiction in the supreme court would we not?

The Supreme Court would retain its original jurisdiction over the matters the Constitution specifically grants it, namely only:

cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party (Article III)

There are very few cases (perhaps one per year), that fall under the Supreme Court's original jurisdiction. Congress may neither truncate nor expand this jurisdiction.

The subject matter over which the inferior courts presently have original jurisdiction, if such jurisdiction is removed from them, does not then fall under the original jurisdiction of the Supreme Court. There would simply cease to be federal judicial jurisdiction in the matter.
6.12.2008 5:37pm
George Weiss (mail) (www):
ok whatever

fact remains that the statue did not strip courts of ability to determine constitutionality-they only stripped them of the right to hear habeus
6.12.2008 5:42pm
George Weiss (mail) (www):
that is-they tried to-and now their statue is invalid
6.12.2008 5:43pm
Chris Bell (mail) (www):
Orin:
To be clear, I'm not recommending [suspending the writ]; and I think it's extremely unlikely that it would happen for political reason.
I think your co-blogger disagrees.

Ilya said:
With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA.
6.12.2008 5:46pm
Anderson (mail):
Let's be serious here - these are political decisions on the courts part, not legal ones.

Did you even read the first part of Scalia's dissent, sir?

Was anything ever more political and less legal?
6.12.2008 5:47pm
J. Aldridge:


As ACT to suspend the privilege of the Writ of Habeas Corpus in certain cases.

Whereas the Constitution of the Confederate States of America provides, in article first, section nine, paragraph three, that " the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion, the public safety may require it; "and whereas, the poser of suspending the privilege of said writ, as recognized in said article first, is vested solely in the Congress, which is the exclusive judge of the necessity of such suspension; and whereas, in the opinion of the Congress, the public safety requires the suspension of said writ in the existing case of the invasion of these states by the armies of the United States; and whereas, the President has asked for the suspension of the writ of habeas corpus, and informed Congress of conditions of public danger which render the suspension of the writ a measure proper for the public defense, against invasion and insurrection: now, therefore,
The Congress of the Confederate States of America do enact, that, during the present invasion of the Confederate States, the privilege of the writ of habeas corpus be, and the same is hereby, suspended; but such suspension shall apply only to the cases of persons arrested or detained by order of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Military Department, by the authority and under the control of the President. It is hereby declared that the purpose of Congress, in the passage of this act, is to provide more effectually for the public safety, by suspending the writ of habeas corpus in the following cases, and no others:

First. Of treason, or treasonable efforts or combinations to subvert the government of the Confederate States.
Second. Of conspiracies to overthrow the government, or conspiracies to resist the lawful authorities of the Confederate States.

Third. Of combining to assist the enemy, or of communicating intelligence to the enemy, or giving him aid and comfort. Fourth. Of conspiracies, preparations, and attempts to incite servile insurrection.

Fifth. Of desertions, or encouraging desertions, of harboring deserters, and of attempts to avoid military service : Provided, that in cases of palpable wrong and oppression by any subordinate officer, upon any party who does not legally owe military service, his superior officer shall grant prompt relief to the oppressed party, and the subordinate shall be dismissed from office.

Sixth. Of spies and other emissaries of the enemy.

Seventh. Of holding correspondence or intercourse with the enemy, without necessity, and without the permission of the Confederate States.

Eighth. Of unlawful trading with the enemy, and other offences against the laws of the Confederate States, enacted to promote their success in the war.

Ninth. Of conspiracies, or attempts to liberate prisoners of war held by the Confederate States.

Tenth. Of conspiracies, or attempts or preparations to aid the enemy.

Eleventh. Of persons advising or inciting others to abandon the Confederate cause, or to resist the Confederate States, or to adhere to the enemy.

Twelfth. Of unlawfully burning, destroying, or injuring, or attempting to burn, destroy, or injure, any bridge, or railroad, or telegraphic line of communication, or other property, with the intent of aiding the enemy.

Thirteenth. 'Of treasonable designs to impair the military power of the government, by destroying, or attempting to destroy, the vessels, or arms, or munitions of war, or arsenals, foundries, workshops, or other property of the Confederate States.

Sec. 2d. The President shall cause proper officers to investigate the cases of all persons so arrested or detained, in order that they may be discharged, if improperly detained, unless they can be speedily tried in the due course of law. Sec. 3d. That, during the suspension aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to appear in person, or to return the body of any person or persons detained by him by the authority of the President, Secretary of War, or the general officer commanding the Trans-Mississippi Department: but upon the certificate under oath of the officer, having charge of any one so detained, that such person is detained by him as a prisoner, for any of the causes hereinbefore specified, under the authority aforesaid, further proceedings under the writ of habeas corpus shall immediately cease, and remain suspended so long as this act shall continue in force. Sec. 4th. This act shall continue in force for ninety days after the next meeting of Congress, and no longer.
6.12.2008 5:59pm
Impeach Kennedy (mail):
Did you even read the first part of Scalia's dissent, sir?

Yes. And it was on-point.
6.12.2008 5:59pm
Seamus (mail):
Oh, and in a pre-emptive move - let me just state for the record- i hate the u.s. and love turrists.

Well, here in D.C., we acknowledge the importance of tourists to the local economy, but I wouldn't say we "love" them.
6.12.2008 6:02pm
Another vote to impeach Kennedy (mail):
Love the name, Impeach Kennedy!
6.12.2008 6:14pm
D Palmer (mail):
Since most of the detainees were not captured on American soil, isn't it hard to argue that they are 'invadees'?

Personally, I am not in favor of granting Habeas to enemy combatants captured in other countries simply because they have been transfered to Guantanamo. However, anybody arrested in the US should at least have the right to challenge their detention.
6.12.2008 6:15pm
Jeremiah:
The whole debate over what constitutes invasion or rebellion demonstrates how neat a trick this judgment is. Plainly, no territory of the United States faces invasion or rebellion under any normal meaning of those terms. If we have the debate along those lines, Congress may never constitutionally suspend habeas corpus for alien military detainees of any sort in any foreign conflict. The United States may not suspend habeas for detainees inside the country, because the United States does not, in a largely foreign conflict, suffer from rebellion or invasion. But habeas now extends to every outpost where the US exercises de facto sovereignty. And habeas may not be suspended there either, because no invasion or rebellion at home justifies it, and because military outposts over which the US exercises de facto sovereignty are inherently immune to rebellion, and because the term "invasion" can only reasonably apply to territories where the US has de jure sovereignty.

In short, there is a constitutional mechanism for suspending habeas corpus for US citizens and for doing so within the sovereign territory of the United States. But there is no constitutional mechamism for suspending habeas corpus for enemy aliens captured in foreign conflicts. None. Period. Full stop.

If that sounds like an absurd outcome, it is. It is for the simple reason that the "invasion or rebellion" clause presumes a mandatory application of the writ limited to the actual sovereign territory of the United States. Congress may, of course, extend the reach of habeas by statute, but the suspension clause of the Constitution by its very terms presumes a limited territorial reach.

So here's the trick: the Court has now converted the very language in the Constitution that presumes a limited territorial reach for mandatory habeas into a constitutional bar on legislative suspension of habeas outside that territorial reach.

I am thoroughly disgusted.
6.12.2008 6:17pm
CharleyCarp (mail):
It's kind of interesting how many people think it ought to be perfectly ok for the government to detain someone who claims to be a civilian non-combatant for life in prison without charge or trial.
6.12.2008 6:23pm
DJ (mail):
The Suspension Clause does not require the writ of habeas corpus. But Article III does. "The judicial power" as understood by the framers included the power to issue the Great Writ (along with the other common law writs).

Discuss.
6.12.2008 6:26pm
Jacob Berlove:
Professor Kerr,

My personal belief is that it should be justiciable, for otherwise the protection, which is supposed to operate as a constraint against a majoritarian Congress, would not effectively constrain it, since the majoritarian Congress would get to decide its terms. Nonetheless, Justices Scalia and Stevens in Hamdi certainly believed that the clause was not justiciable, as did Clarence Thomas in his concurrence.
6.12.2008 6:26pm
Oren:
conventional dictionary meanings are consistent with what al qaeda did on 911
This is the looniest thing yet . . .
6.12.2008 6:28pm
cboldt (mail):
-- This is the worst SCOTUS decision in the history of the United States. --
.
I'd put Wickard, Casey, and Kelo as worse for a society that aims to value individual freedom and the transparent and accountable exertion of the power that flows from the barrel of a gun.
.
What if Congress and the President worked in cahoots, and established GTMO as a black hole for detention? Is there no room for SCOTUS intervention?
.
Just saying, at some point any reasonable person would call for the Court to step in - e.g. if Congress and the President agreed that per se being at GTMO means guilt and the guilty have no right of rebuttal.
.
Give the miscreants a fair and transparent process, then execute or detain the guilty.
.
And so, the devil is hanging out there in the details, as to whether or not the Court saw a sufficiently fair and transparent process. 5 out of 9 claim they didn't.
6.12.2008 6:31pm
ReaderY:
I think that if one studies the language carefully, one notices a foundation laid for a potential future reversal of Roe v. Wade. Not only in details like the very careful attention to the word "application" as being limited to judicial jurisdiction and not representing a judicial of the nature of foreigners, but also in the view of past territorial cases under which rights are based on potential for citizenship and increase with its likelihood, so that territories which are regarded as potential states are subject to greater rights than territories which are not.

Such a view may well presage a view in which jurisdictiion over potential life increase with its likelihood of becoming actualized in a way that may well represent a more conservative view of abortion (although not an absolute one) then the present Roe v. Wade regime. Under this view, the government may some right to regulate even when the potential is relatively far from actualization, just as it retains it in territories that the U.S. doesn't intend to make states and whose inhabitants it doesn't intend to make citizens.
6.12.2008 6:31pm
J. Aldridge:
Jeremiah said: "But there is no constitutional mechamism for suspending habeas corpus for enemy aliens captured in foreign conflicts. None. Period. Full stop."

Bush should pull a Jackson or Lincoln and just ignore the court, which I have been doing for a while now. The court is more interested in advancing great society rhetoric than sitting in judgement.
6.12.2008 6:33pm
ReaderY:
There is no right to judicial review over abortion. Under the view that Guantanamo is not actually U.S. territory and personhood has no extraterritorial application (except for U.S. citizens abroad, since citizens are automatically persons), exterritorials would have no more basis for complaining about their fate than prenatals.

The case basically hinged on the question of whether Guantanomo bay was or was not U.S. territory; the Court took a de facto rather than a de jure definition. But the U.S. could simply move the prisoners to detention camps unequivocally outside U.S. territory and there would be no basis for complaint.
6.12.2008 6:39pm
cboldt (mail):
-- But there is no constitutional mechamism for suspending habeas corpus for enemy aliens captured in foreign conflicts. None. Period. Full stop. --
.

You are misconstruing the scope and effect of the ruling. If it was as you describe, I'd be hyperventilating along with you.

.

SCOTUS left room for Congress to legislate a MCA that lies at some indefinite place between what it did put out, and access to "all the rights of a US accused criminal defendant." It permits the military to hold POWs without recourse to courts.

.

But THIS MCA, ruled the Court, is not an adequate substitute for access to an independent Court. And for the folks who have been detained for 6 years, more or less, well, come on in to Court and see how you fare.

.

Honestly, if the government has the evidence, the miscreants have short reviews and are then disposed of.
6.12.2008 6:44pm
Public_Defender (mail):

Of course German saboteurs who landed on US soil in WWII were given a quick military tribunal and then shot.


How do we know that everyone in Gitmo is the equivalent of a German sabateur? As far as we know, a lot of them could easily be someone whose neighbor lied to get a US Government reward or out of some personal vindictiveness. We really only have Bush's word that the people at Gitmo really are enemy combatants at all.

Under Bush's theory, he could pick up any person anywhere, declare that person a terrorist, and have the unreviewable authority to detain that person forever or kill him.ubl
6.12.2008 6:47pm
whit:

Plainly, no territory of the United States faces invasion or rebellion under any normal meaning of those terms


rubbish.

al qaeda has declared war on us

they have installed cells and agents in the US (including those that committed 911)

they have even taken responsibility for 911 (only a truther nut doubts they did it)

that's an invasion by any reasonable definition. certainly by the dictionary one.

it's not like they are going to invade like a CONVENTIONAL army, with a bunch of troops in uniform. the whole reason we are having this discussion (UNLAWFUL enemy combatants) is that they do not WEAR uniforms, or follow the conventional rules/restrictions of war.

so, we should reward them for that?
6.12.2008 6:48pm
jukeboxgrad (mail):
public: "We really only have Bush's word that the people at Gitmo really are enemy combatants at all."

Many of the people in Gitmo appear to be innocent bystanders. That's explained here:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).
6.12.2008 6:55pm
DangerMouse:
I think that if one studies the language carefully, one notices a foundation laid for a potential future reversal of Roe v. Wade.

You shouldn't take the majority's opinion seriously as if it were annunciating any legal theory here. This is just power politics. Although an effort to try to find any mechanism of overturning Roe v. Wade is to be appreciated, it won't happen by taking THIS majority seriously. This decision is clearly a political decision, as was Roe. There is no legal theory advanced at all. It just asserts that Courts must have a say in things, which is to be expected from a power-hungry Court. Moreover, since Roe was a political decision also having no foundation in the actual Constitution, the means of overturning it must depend on ousting from the Court those corrupt judges who determine the law based on their own personal preferences.

The correct response to this decision is to impeach the majority. Unfortunately, since the Democrats are in power, that won't happen. In a just society ruled by competent politicians, it would. It's an indication of how debased our political culture has become that the current Congressional majority is happily a slave to the Court's aggrandization of power. If I were President Bush, I'd also tell the court to go to Hell, at least to see the reaction of Justice Kennedy's face. It requires an Executive Branch to enforce the law.
6.12.2008 6:55pm
cboldt (mail):
-- that's an invasion by any reasonable definition --
.
Except the effect of "We're being invaded, man the battery!" is conflicted with "Keep shopping, go about your business."
.
Not that you can't draw the definition of "invasion" anywhere you want to. Understood, you hold that the US is presently under invasion. Oh, that that anybody who thinks otherwise is unreasonable.
6.12.2008 6:57pm
Jeremiah:
cboldt -
My comment went only to the text of the Constitution and the reach of habeas, not to the content of what the detainees' trial process will or must be.

I think this judgment makes it more likely that we will release people we shouldn't, or that we will harmfully compromise our intelligence assets, but I am certain of neither.

I am certain, however, that the Court has left no constitutional mechanism for suspending habeas corpus for enemy aliens captured in foreign conflicts - no, none whatsoever - and that it has done so by ignoring the Constitution's implicit territorial limitation of habeas when it wanted to grant the right to the detainees, but by standing upon that territorial limitation to the last punctilio where it wants to review any potential justifications for suspending habeas.

That is adequate cause for disgust.
6.12.2008 7:02pm
Brett Bellmore:

It is for the simple reason that the "invasion or rebellion" clause presumes a mandatory application of the writ limited to the actual sovereign territory of the United States.


Yes, the Constitution fails to contemplate that we would be going around the world capturing people outside our sovereign territory, in order to perpetually hold them without any legal recourse, despite having a fully functional legal system at the time, and no particular logistic difficulties in the way of giving them a chance to establish that we have no basis for holding them. It's funny that way.
6.12.2008 7:06pm
Elliot Reed (mail):
It's kind of interesting how many people think it ought to be perfectly ok for the government to detain someone who claims to be a civilian non-combatant for life in prison without charge or trial.
They're lying. We know they're actually terrorists, because the government says they are, and the government is always right. Q.E.D.

I will never cease to be amazed at how people who mistrust government in so many other arenas are so eager to take its word at face value on this point.
6.12.2008 7:06pm
DangerMouse:
That is adequate cause for disgust.

Many people in America hate the Supreme Court for many reasons. Abortion, Bush v. Gore, etc. It is increasingly apparent that the Court is just another political branch. I suspect that while they and many lawyers view their power as greater than ever (and it is, on one level), the people will increasingly treat the Court with disgust and with the contempt it deserves. Power is usually supreme when the rot begins to creep in. If this keeps happening, expect the Court to be ignored or its justices to be impeached. I just hope it happens soon enough before the Court does permenant damage to our country. If the Court, for instance, upholds the DC gun ban, then I think the people will really begin to rebel against it.
6.12.2008 7:10pm
cboldt (mail):
-- I am certain, however, that the Court has left no constitutional mechanism for suspending habeas corpus for enemy aliens captured in foreign conflicts --

.

Be certain means no argument or rationale will be persuasive to you. And so. "Ok"

.

But, FWIW, I'm not hyperventilating along with you.
6.12.2008 7:13pm
Jeremiah:
cboldt -
I'd love to be persuaded out of my certainty. How do you see such a suspension as possible after this decision?
6.12.2008 7:17pm
Elliot Reed (mail):
I could believe that had Congress acted to suspend habeas on September 12, 2001, the attacks on the WTC and the Pentagon would have constituted an "invasion." But I find it very hard to believe that a single set of attacks on one day seven years ago constitutes a current invasion, or that a few people allegedly planning future attacks constitutes an invasion. If a small number of foreign terrorist wannabes with grandiose but completely ludicrous dreams of overthrowing the

(Also to the people who are quibbling about dictionaries: despite judges' bizarre interest in relying on them, dictionaries do not provide actual word meanings. They provide is somewhat random lists of quasi-synonyms, not anything remotely resembling necessary and sufficient conditions. But of course for the purpose of legal analysis they are relevant because judges are completely ignorant of even the most basic linguistics.)
6.12.2008 7:19pm
PC:
2) the 911 hijackers were foreign nationals, many here illegally


whit, you might want to check that dictionary for the definition of "many."

Fifteen of the 19 hijackers obtained their U.S. travel visas in Saudi Arabia.
6.12.2008 7:21pm
Elliot Reed (mail):
Accidentally hit 'post' there, that sentence should read:

If a small number of foreign terrorist wannabes with grandiose but completely ludicrous dreams of overthrowing the government constitute an "invasion", the U.S. will be under perpetual invasion, even if none of them ever attack anything.
6.12.2008 7:22pm
whit:

If a small number of foreign terrorist wannabes with grandiose but completely ludicrous dreams of overthrowing the government


you leave out the fact that al qaeda had already declared war on us, is well organized (if well decentralized into cells), etc.

you can call them foreign terrorist wannabes all you want. sounds like minimizing to me. we have been continually breaking up cells, before and after 911. we have been intercepting attempts (including here in WA state) etc.

an organization (not a nation in the case of al qaeda) declares war on us, sends agents over here to train and commit terrorist acts, etc. and it's NOT an invasion?

riiiiiiight
6.12.2008 7:31pm
Elliot Reed (mail):
Many people in America hate the Supreme Court for many reasons. Abortion, Bush v. Gore, etc. It is increasingly apparent that the Court is just another political branch. I suspect that while they and many lawyers view their power as greater than ever (and it is, on one level), the people will increasingly treat the Court with disgust and with the contempt it deserves. Power is usually supreme when the rot begins to creep in. If this keeps happening, expect the Court to be ignored or its justices to be impeached. I just hope it happens soon enough before the Court does permenant damage to our country. If the Court, for instance, upholds the DC gun ban, then I think the people will really begin to rebel against it.
Actually, despite the common complaints about Bush v. Gore, Roe v. Wade, Kelo v. New London et al., the Supreme Court's approval ratings have been quite high for a long time. They've long been much higher than Congress's (consistently low) ratings and I think they're usually higher than the President's. As for the D.C. gun ban, I think you are dramatically overestimating the number of people for whom this is their top issue. Most people, no matter where they stand on gun rights, care a lot more about things like the economy, gas prices, taxes, and the war. They certainly don't have time to care a lot about the rights of gun owners in D.C.
6.12.2008 7:40pm
Aaron Denney (mail):

(terrorist = using violence to achieve political goals)


You might want to refine that definition a little. As stated, it covers wars.
6.12.2008 7:44pm
Humble Law Student (mail):
I have a simple question.

Under the court's reasoning how did the hundreds of thousands of German POWs detained on US soil during WW2 presumably not have the right of habeas?

From my read of the opinion, it appears that the writ, as a constitutional matter, would have extended to German POWs detained on US soil. Can someone disabuse me of this notion?
6.12.2008 7:48pm
Elliot Reed (mail):
you can call them foreign terrorist wannabes all you want. sounds like minimizing to me. we have been continually breaking up cells, before and after 911. we have been intercepting attempts (including here in WA state) etc.

an organization (not a nation in the case of al qaeda) declares war on us, sends agents over here to train and commit terrorist acts, etc. and it's NOT an invasion?
I call them wannabes because they seem to be rather slim on the commission of actual attacks. Or, for that matter, on members in the U.S. Really, your definition of invasion is calculated to keep us in a state of perpetual "invasion," which I take as transparently absurd.
6.12.2008 7:51pm
Oren:
an organization (not a nation in the case of al qaeda) declares war on us, sends agents over here to train and commit terrorist acts, etc. and it's NOT an invasion?
Unless they have the actual ability to invade and overthrow the government, no.

By the way, for the record, myself and my roommate are declaring war on Canada, we've visited there a few times and flagrantly violated their laws and we intend to invade and overthrow their government. By whit's definition, Canada appears to be under a bona-fide threat of invasion and can suspend the common-law writ (or whatever they have there).
6.12.2008 7:56pm
DangerMouse:
Actually, despite the common complaints about Bush v. Gore, Roe v. Wade, Kelo v. New London et al., the Supreme Court's approval ratings have been quite high for a long time. They've long been much higher than Congress's (consistently low) ratings and I think they're usually higher than the President's. As for the D.C. gun ban, I think you are dramatically overestimating the number of people for whom this is their top issue. Most people, no matter where they stand on gun rights, care a lot more about things like the economy, gas prices, taxes, and the war. They certainly don't have time to care a lot about the rights of gun owners in D.C.

Elliot, did you read the link you provided? The article says if you ask a different question, you find that the number of people who have "a great deal" or "quite a lot" of confidence in the Court is at its lowest point EVER.

Besides, I didn't say that gun ownership would be the issue that would tip the scales in leading a backlash, I merely said that if that case goes the incorrect way, then certain people might openly rebel against the Court. There is no way that the Court can credibly find a right to butcher an unborn baby in the Constitution, yet fail to read the 2nd Amendment as granting the right to own a gun. It stains credulity, and as each person finds that an issue they care about is being read politically by a Court, the number of people realizing just what a sham the Court is will increase. Be it guns, abortion, the war, private property, drugs, or something else - people know when they're being scammed and when the Court is acting politically.

I wouldn't underestimate the effect of this case either. It is a sham decision and clearly political, and it will infuriate many people who support the war on terror.

At this point, I wonder if a policy of "the worse the better" is the approach to take. How do you fight against clear injustices from a quasi-Judicial branch (quasi because they're clearly not doing any real judging here). What's going on in Canada with its Human Rights Commissions may be instructive. It might be that we should goad the Court into really overstepping its bounds, so Congress and the President put some real limits on it by impeaching the corrupt judges, or limiting the size and jurisdiction, or abolishing a lot of the district and appellate courts, or de-funding everything but their salaries (which are never raised), etc.
6.12.2008 8:00pm
MarkField (mail):

Under the court's reasoning how did the hundreds of thousands of German POWs detained on US soil during WW2 presumably not have the right of habeas?

From my read of the opinion, it appears that the writ, as a constitutional matter, would have extended to German POWs detained on US soil. Can someone disabuse me of this notion?


I'm suspect the Court would say that habeas does not apply to POWs. Even if it said that habeas did apply, it would hardly matter because Germans captured in uniform by American troops were not likely to have any case on the merits.
6.12.2008 8:05pm
Humble Law Student (mail):
Mark,

I don't see how the writ couldn't apply under Boumediene (forgive the double negative). Assuming a POW wants to challenge that he was in fact a POW, this opinion seems to allow it.

The merits is somewhat beside the point, because the incredible burden would still be there for proving that the particular POWs were in fact enemy soldiers.
6.12.2008 8:13pm
Andrew J. Lazarus (mail):
You know, Bush might have gotten away with it, if it weren't so obvious that the Gitmo show trials are kangaroo courts. The idea of suspending habeas only in cases of Invasion and Rebellion is that those emergencies can make it practically impossible for ordinary courts to function (see Milligan on this). By those standards, there is just no way 9/11 is an invasion, even for the Bush Remnant.

If you wanted to avoid outcomes like this, you should have insured Geneva-correct treatment for the prisoners. Bush and Cheney have tried to mix-and-match laws and jurisdictions with the one constant of maximizing executive power and removing any sort of oversight (their claims in Padilla amounted to nothing less than the introduction of lettres-cachet to America). Five justices are tired of this nonsense.

No small amount of sometimes-dubious SCOTUS decisions came from its determination, in the 1960s, to enforce the outcome of the Civil War of the 1860s. Who knows how much more the Court will have to do against George the Lesser to enforce the outcome of our war against George III?
6.12.2008 8:16pm
Cornellian (mail):
It might be that we should goad the Court into really overstepping its bounds, so Congress and the President put some real limits on it by impeaching the corrupt judges, or limiting the size and jurisdiction, or abolishing a lot of the district and appellate courts

Dare I suggest simply appointing different judges? I know it's not as sexy as demanding impeachment, but that's how the system works.
6.12.2008 8:19pm
whit:

Unless they have the actual ability to invade and overthrow the government, no.


except that's not what is required. it says "INVASION". it does not say "invasion with the actual ability to overthrow the government"

iow, you change the text/move the goalposts to suit your political agenda.

invasion is a simple word. try looking it up.




By the way, for the record, myself and my roommate are declaring war on Canada, we've visited there a few times and flagrantly violated their laws and we intend to invade and overthrow their government. By whit's definition, Canada appears to be under a bona-fide threat of invasion and can suspend the common-law writ (or whatever they have there).



no, that's not by my definition. are you part of an internationally recognized international terrorist organization, such as al qaeda? i thought not

stop protesting your political agenda and try using logic, and use words for what they actually mean, not to suit your agenda.
6.12.2008 8:25pm
DangerMouse:
Dare I suggest simply appointing different judges? I know it's not as sexy as demanding impeachment, but that's how the system works.

It's not good enough that better judges are appointed, because the institution as a whole has too much power and that power can corrupt even the best of men. No, those who are corrupt must be punished. A bad politician is voted out of office, or at least made to answer for himself in the next election. Bad judges are unaccountable and do incredible long-term damage. The system was not designed for numerous corrupt judges who maximize their power at the expense of other branches. The other branches have to fight back. There is no "balance of power" if they allow the Court to walk all over them.
6.12.2008 8:27pm
omarbradley:
For all the hullaballoo over this case, nothing really changed all that much as far as what will happen.

Most of these detainees will remain in prison for the next 6 months, while their cases are argued and appealed ad nauseum in the district and circuit courts.

when the new President takes over, if it's Obama, I suspect most will be released and the rest given normal civilian trials a la Moussaoui and Ramzi Youssef. If McCain wins, the same thing will happen unless McCain gets to replace one of the liberals, at which point today's case will be overruled, and the MCA reinstated, the commissions carried out, and most of the detainees executed. but all that is a few years in the future.

for the forseeable future, these detainees will remain in prison in Gitmo, and then be moved to prison stateside under the new administration.

this was purely political. Kennedy concedes as much when he says the case could have gone either way but the majority chose to invalidate it, even though no less than Alezander Hamilton and James Madison clearly said that they should have done the opposite and affirmed.

Kennedy disappointed me today. I thought based on the oral argument there was a chance he'd go the other way and when I saw that Stevens wasn't writing this, that strengthened. Oh well. Can't win them all. Kennedy has been pretty good lately, though. From Carhart II, FEC v WRTL, Hein, Parents Involved, Baze, Crawford, Medellin, Ledbetter, Williams and a few others, he's mostly been with the conservatives.

Hopefully he's with them in Heller and Kennedy and the term can end on a good note.

In the long run, a conservative win in Heller will be way more important and consequential than this case is. Kennedy will be largely forgiven if he's part of a majority in Heller that finally after 200+ years affirms the 2nd amendment as part of the constitution.
6.12.2008 8:29pm
whit:

I call them wannabes because they seem to be rather slim on the commission of actual attacks. Or, for that matter, on members in the U.S. Really, your definition of invasion is calculated to keep us in a state of perpetual "invasion," which I take as transparently absurd.



the reason, to some extent they are rather slim is that we keep breaking up cells and intercepting attempts. like here in WA as i mentioned, by an alert customs agent.

you create a catch -22 . we have to suck at intercepting attempts and breaking up cells. how many 911's would qualify as "not slim?".

do you want us to do a BAD job at fighting terrorism so that it doesn't seem "slim?"

it's not MY definition of invasion. it's called a dictionary . try one. this is a non-uniformed non-conventional enemy. so, were not going to see subs off our coast and hordes of uniforms streaming into our country.

i'm not interested in keeping us in a state of invasion, nor did i say we should use this "invasion" exception. but i said, by the letter of the law, what al qaeda has done meets the definition of invasion.
6.12.2008 8:30pm
Tyrant King Porn Dragon (mail):

I am certain, however, that the Court has left no constitutional mechanism for suspending habeas corpus for enemy aliens captured in foreign conflicts - no, none whatsoever - and that it has done so by ignoring the Constitution's implicit territorial limitation of habeas when it wanted to grant the right to the detainees, but by standing upon that territorial limitation to the last punctilio where it wants to review any potential justifications for suspending habeas.

But you are certainly, however, wrong. This decision relies on the relatively unique conditions at Gitmo, which is de facto, but not de jure, American soil (due to the absolute United States control over what is technically Cuban land, etc). If it is so terribly, terribly vital for detainees to be held indefinitely without trial, the United States can do so in one of its many hidden prisons in Afghanistan and Iraq and Eastern Europe, or, perhaps, in one of the prison ships floating in international waters. One might wonder why it was so terribly important to make so many prisoners disappear, and to guard so thoroughly against inquiry by seditious organizations like the Red Cross... but then, if one did not believe that foreign nationals were nonpersons with no inherent rights, one would not be a libertarian/conservative :)
6.12.2008 8:30pm
Tyrant King Porn Dragon (mail):

this is a non-uniformed non-conventional enemy

Last I checked, we called those 'criminals'. We didn't need to suspend habeas corpus to catch Timmy McVeigh.
6.12.2008 8:32pm
Mark Buehner (mail):
Is that correct? If so, and if the president simply had the detainees herded onto navy ships, what would happen?

I guess my biggest question is how this decision affects prisoners of war in a conventional setting. If we capture tens of thousands of enemy soldiers and hold them at make shift POW camps as we have in times past, is this decision relevant to them or is it more narrowly tailored?
6.12.2008 8:37pm
cboldt (mail):
-- but i said, by the letter of the law, what al qaeda has done meets the definition of invasion. --
.
Yeah. Sure. But by some other letter of law, your declaration is worth as much as James Burnham's - and he beat you to the punch by a few years.
.
I declare, by the letter of the law, that we've been invaded by Democrats.
6.12.2008 8:38pm
SG:
Last I checked, we called those 'criminals'. We didn't need to suspend habeas corpus to catch Timmy McVeigh.

We called them criminal before 9/11. Then Congress went and passed a law saying that Al Qaeda was no longer considered criminal, but was instead considered a legitimate target of warfare. After the series of Al Qaeda attacks on US interests throughout the '90s, this was a very conscious and deliberate (and near-unanimous) act on the part of Congress to not treat Al Qaeda as criminals any longer.

This may have been poor policy, but it was the decision that was made. If you don't like it, agitate for Congress to rescind the war authority they granted to the President in this matter.

But don't blur the lines between war and criminal conduct. That won't work out to anyone's benefit on either side of the line.
6.12.2008 8:44pm
LHD:
Just for the record, David Barron made this same point over on Slate's Convictions blog at 11:35 A.M.

First Thoughts on Boumediene.
6.12.2008 8:45pm
Mark Buehner (mail):
How about this- if war were to break out in Korea and NK prisoners were being held at US military bases (occupied perpetually by US forces for over 50 years), would the POWs be entitled to habeas?
6.12.2008 8:48pm
Oren:
no, that's not by my definition. are you part of an internationally recognized international terrorist organization, such as al qaeda? i thought not
So int'l recognition changes a motley bunch of incompetent religious buffoons into a credible force capable of invading the US?

Whatever you confiscated and are now smoking, pass it this way.
6.12.2008 8:51pm
Jeremiah:
TKPD -
Your riposte does not lay out a constitutional method for suspending habeas corpus for enemy aliens captured in foreign conflicts. Hiding detainees from the courts in secret prisons, besides being impractical in the long term (as well as probably immoral) is not a suspension of habeas corpus. I stand by my point.
6.12.2008 8:51pm
whit:

Last I checked, we called those 'criminals'. We didn't need to suspend habeas corpus to catch Timmy McVeigh.


whatever you can say about mcveigh, he was not part of an invasion. he was not beholden to a foreign power, he was a US citizen (born here fwiw), he was not part of an internationally recognized terrorist organization that has foreign roots, etc.

again, i am surprised you have such trouble with a simple word. was mcveigh a terrorist? undoubtedly. was his terrorist act part of an invasion? no.

invasion necessarily implies a foreign entity. that is true in medicine, in war, etc.

a knife can invade my body. my gallbladder can't. both can cause life threatening problems. but the latter cannot INVADE my body, cause it's part of my body.

if that's too difficult i don't know what more to say.

and there is another point that another made, that needs to be repeated. there are crime issues, and there are war issues. al qaeda is not a crime thing. it's a war thing.

the problem that many people have is that their vision of war involves people in uniform in foreign countries. that's why i said al qaeda is unconventional.

but warfare needs to be distinguished from criminal acts.
6.12.2008 8:55pm
Mark Buehner (mail):

So int'l recognition changes a motley bunch of incompetent religious buffoons into a credible force capable of invading the US?

Show of hands, anyone who think the Founders were thinking of Barbary Pirates being held Corsica when the Suspension Clause was penned.

The idea would never have crossed their minds, and if it did it would have been hysterical.

You can argue this is a just extension of Constitutional protections certainly. I dont think you can rationally argue this was the Founder intent.
6.12.2008 8:56pm
whit:

So int'l recognition changes a motley bunch of incompetent religious buffoons into a credible force capable of invading the US?

Whatever you confiscated and are now smoking, pass it this way.



oren, this "incompetent religious buffoon" meme gets old. it was old years ago, but it's still going strong in the radical left.

al qaeda is far from incompetent. but again, you create a catch-22. if we work hard to intercept attempts (as we have done) and break up cells (as we have done), then they are - by definition - incompetent, because they didn't succeed. but if we let them succeed, we would be committing treason - letting our enemies win, just so you could feel confident they aren't incompetent.

you are using the tired minimization meme. it doesn't fool anybody, but probably plays big among the moonbats.

prior to 911, few would believe some "incompetent buffoons" could have done the damage they did with some flight training, and some box cutters.
6.12.2008 9:00pm
omarbradley:
Anyone who knows anything about Kennedy and how important his summers in Salzburg are, knows why he went with the liberals here.

If he went with the conservatives, he'd have been persona non grata for the rest of his life.

Those summers and the time he spends with all his european buddies are the high points of his calendar.

Now, when he returns to Austria he'll be greeted as the conquering hero, with applause and flowers.

pretty sad that he's insecure in that way, but that's how it is.

hopefully McCain wins, gets to replace one of the liberals, and Kennedy becomes irrelevant on the court.
6.12.2008 9:18pm
Oren:
but again, you create a catch-22. if we work hard to intercept attempts (as we have done) and break up cells (as we have done), then they are - by definition - incompetent, because they didn't succeed. but if we let them succeed, we would be committing treason - letting our enemies win, just so you could feel confident they aren't incompetent.
I'm not saying we don't have to go after AQ -- we certainly should, but we should go after them in proportion to their actual ability to cause serious harm to this country, which is a lot more limited than we generally seem to acknowledge.

I could just as well harp against the AQ "maximization meme" that trots out the specter of nuclear bombs going off in American cities as anything more than an idle fantasy in OBL's mind.

prior to 911, few would believe some "incompetent buffoons" could have done the damage they did with some flight training, and some box cutters.
You are profoundly misguided if you think that 9-11 was made possible because the hijackers had box cutters (hint: how many unarmed men does it take to tackle a few guys with knives in an enclosed space?). The damage they did was not due to the box-cutters, it was an exploitation of our mindset that advised cooperation and negotiation with hostage-takers. In a sense, they exploited a glitch in the thought process of the passengers and tricked them into thinking they were hostages instead of fodder.
6.12.2008 9:30pm
whit:

I could just as well harp against the AQ "maximization meme" that trots out the specter of nuclear bombs going off in American cities as anything more than an idle fantasy in OBL's mind.



you could, except i didn't bring up that meme. you did bring up that silly "incompetent buffoons" meme.



You are profoundly misguided if you think that 9-11 was made possible because the hijackers had box cutters (hint: how many unarmed men does it take to tackle a few guys with knives in an enclosed space?). The damage they did was not due to the box-cutters, it was an exploitation of our mindset that advised cooperation and negotiation with hostage-takers. In a sense, they exploited a glitch in the thought process of the passengers and tricked them into thinking they were hostages instead of fodder.


which doesn't dispute my point

prior to 911, you would have said it was ridiculous that a few guys with box cutters, some flight training, and a plan would have been able to do what they did.

and of course, just like now, you would be wrong.

i am the first to admit that (among other things) airport security was a JOKE prior to 911. i've carried my gun legally on airplanes pre and post-911 and pre, it was ABSURD how easy it was to walk on a plane with a gun. i flashed my badge, said i was on extradition, and that's it.

you are correct that the reason the box cutter thang wouldn't work now is, partially, because the mindset has changed.

another part of our mindset changing, which goes back to the original point is that we treat this as a WAR thing, NOT as a crime thing. that's the point.

again, it is a tired left-wing minimization meme to claim that al qaeda (specifically al qaeda in the USA) are just a bunch of incompetent buffoons.
6.12.2008 9:45pm
jukeboxgrad (mail):
whit: "prior to 911, you would have said it was ridiculous that a few guys with box cutters, some flight training, and a plan would have been able to do what they did."

Prior to 911, I would have said it was ridiculous that a president would see a memo called "Bin Ladin Determined To Strike in US" and decide to spend the rest of the month clearing brush.

Speaking of ridiculous, this was Bush's idea of fighting terrorism, pre-9/11: promote SDI. That's why on 9/9/01, Rummy argued that SDI was more important than counterterrorism.

"it is a tired left-wing minimization meme to claim that al qaeda (specifically al qaeda in the USA) are just a bunch of incompetent buffoons."

Calling AQ in the US a bunch of incompetent buffoons is a response to the fact that 'plots' that have been uncovered have mostly been incompetent buffoonery. That's the proper description, for example, for a plot to dismantle the Brooklyn Bridge with a blowtorch.

By the way, it seems that the only evidence indicating the use of box-cutters was one phone call by one passenger on one plane. It's interesting to notice how this has been enough to convince almost everyone that we know for a fact that box-cutters were used on all the planes.
6.12.2008 10:19pm
MQuinn:
whit said:


it is a tired left-wing minimization meme to claim that al qaeda (specifically al qaeda in the USA) are just a bunch of incompetent buffoons



I am fascinated by how committed some commenters on this blog are to preceding tired cliches with terms such as "left-wing," "leftist," "lefty," "radical," etc...

I frequently listen to "lefty" radio (and conservative radio, too) and read "left-wing" blogs (and conservative blogs, too). I can honestly say that I have never heard/read any "lefty" make the argument that whit attributes to those "radical leftists." Not that it has never happened, as I am sure there is some wacko commenter on some blog that has said as much. However, I am equally sure that it is far from common. I am also sure that the sentiment that whit expresses is the product of a "right-wing" echo chamber.

Wow, it is really, really, really, easy to utilize meaningless cliches!!
6.12.2008 10:24pm
MarkField (mail):

I don't see how the writ couldn't apply under Boumediene (forgive the double negative). Assuming a POW wants to challenge that he was in fact a POW, this opinion seems to allow it.

The merits is somewhat beside the point, because the incredible burden would still be there for proving that the particular POWs were in fact enemy soldiers.


It might very well apply, though I could see a Court holding that it does not when formal POW status is given. My real point is that while you do raise a potentially problematic point, it's really not very likely to cause any disruption in the real world. The courts are going to accept the records of US troops concerning uniformed soldiers captured on the battlefield.

The problem here was created by the Bush Administration's pathological need to exalt executive power and it's overreaching towards the captives. As I mentioned in another post, the Brits allow habeas petitions by their captives and it just isn't a problem.
6.12.2008 10:27pm
Jeremiah:
Humble Law Student's point about habeas rights for German POW's brings up an important contrast. Fundamentally, habeas fights are fights over procedure: was the proper procedure followed? - is the procedure legally and constitutionally valid? I think that, even had the United States recognized a habeas right for German POW's held on US soil in WWII, the spirit of the time would have led the courts simply to pronounce the military's standard procedure valid. Any habeas petitions would then have been quickly disposed of by a showing that the military had followed its own procedures (reasonable tolerance being given to the exigencies of combat).

The spirit of the courts today is different. And there's the rub. Granting the detainees access to habeas would not be potentially pernicious if we could be certain that the courts would give deference to procedures established by statute. There are no clear constitutional bars preventing Congress and the President from defining by law the procedural privileges that the US will accord persons captured abroad as enemy alien combatants. Yet, we can be certain that the courts will not be content to uphold the present procedure. So the question of what the procedure shall be is no longer in the hands of the elected branches: it is in the hands of the courts.

The only means the courts have of circumventing statutory law is by reference to constitutional right. The constitutional rights the courts will find ready at hand are primarily those of criminal procedure. But domestic criminal procedure does not take into account military needs such as intelligence gathering, intelligence protection, and the hurly-burly of combat operations. It is unclear which rights of criminal procedure will apply to the detainees, how they can be applied while giving due deference to the national security needs, what prerogatives the detainees will enjoy (e.g. of discovery), etc. All of these questions will now be determined by the courts - and the answers will be handed down as imperatives of the Constitution of the United States.

The courts are not best placed to balance the competing interests involved and, being accustomed to civil and criminal procedure, will, when they err, tend to err against the interests of national security. The potential for decisions pernicious to the public safety and the national interest is very great indeed.

In a different age, granting the detainees habeas rights would only have meant, practically speaking, that they could ask the courts whether the United States had followed the procedure required by the laws it had on the books. Now habeas means that the courts will themselves the define the proper procedures, pronouncing the supposed mandate of the Constitution, regardless of the laws Congress enacts.

Alas for representative government.
6.12.2008 10:34pm
SG:
The courts are going to accept the records of US troops concerning uniformed soldiers captured on the battlefield.

So why on earth would any enemy wear a uniform? Wear a uniform and you're summarily detained without recourse. Shed your uniform and blend in with non-combatants, then you get (ever-expanding) recourse in our civilian courts.

That's the incentive structure you want?

I'd much prefer that our system encourage the behavior we want and punish the behavior we don't want. Enemy combatants violating the rules of war should, under any rational system, have less rights than a legal combatant.

Will there be cases of injustice? Undoubtedly. But assuming good faith (as assumption I recognize many do not grant the Bush Administration) moral culpability for any injustice falls on Al Qaeda - they are the ones who have willfully erased the combatant/non-combatant distinction.
6.12.2008 10:49pm
Soronel Haetir (mail):
McVeigh may not have been an example of invasion, but he would probablyqualify as a revolutionary.
6.12.2008 10:51pm
PLR:
So why on earth would any enemy wear a uniform?

Isn't it painfully obvious? A uniform or insignia helps to prevent you from being killed by your own side.

And I'm not even a veteran.
6.12.2008 11:02pm
SG:
Isn't it painfully obvious? A uniform or insignia helps to prevent you from being killed by your own side.

Nope, all that's necessary to avoid friendly fire (in a visual identification scenario) is that the enemy be wearing a uniform.

Which our military is considerate enough to do.
6.12.2008 11:05pm
George Weiss (mail) (www):
Humble Law Student:

i agree with you...only 1 problem

when your cuaght wearing a uniform and holding a gun-your probably not going to prevail in your habeus claim-even if you have a right to bring one.

why bring a claim that your not a Nazi soldier and hence your detention is illegal when you were found in that manor-you will loose-not becuase you don't have the right to argue that (now under Boumediene you do) but becuase the argument is frivolous

contrast that with the Guantanamo people-who are not wearing uniforms and many of which have complex intellegnece based evidence against them (if they have any evidence against them at all)...once you give them the right to argue they are innocent (in a meaningful way which complies with due process-notably a lawyer and a chance to review evidence-or even allegations-against them) many of them will demonstrate they are there by mistake
6.12.2008 11:06pm
SG:
why bring a claim that your not a Nazi soldier and hence your detention is illegal when you were found in that manor-you will loose-not becuase you don't have the right to argue that (now under Boumediene you do) but becuase the argument is frivolous

Because you consider yourself at war with the detaining power and bringing the claim enables you to harass and annoy the enemy - something the US Military Code of Conduct requires US POWs to do ("If I am captured I will continue to resist by all means available."). Imagine 100,000 Nazis all asserting their right to judicial review...they could easily grind the US judicial system to a halt. And what if they had the right to face their accusers? How many soldiers could they temporarily remove from the battlefield to appear in court.

I think the burden of proof is on you. Why wouldn't they assert every right offered to them? If nothing else, they might get lucky.
6.12.2008 11:24pm
jukeboxgrad (mail):
sg: "I'd much prefer that our system encourage the behavior we want and punish the behavior we don't want."

Good point. That's why it's important for our system to punish leaders who act like they are above the law.
6.12.2008 11:29pm
George Weiss (mail) (www):
SG:

there aare easily more than 100k pro se nuisance suits brought evry year by prisoners-and they dont bring the system to a halt-they are handled and dismissed by pro se clerks becuase they either have no legal basis or they dont plead any facts that could reasonably be gained from discovery.

and nobody said there is full confrontation rights-im only insisting on full access to the facts the gov has on you

and if 'getting lucky' means finding the one guy who actually wasn't a german soldier and was actually a civilian forced along for some reason-then i say good for them for asserting it.

on the other hand-maybe wwIi is different for precisely this reason and thats why the pow;s need no habeus-i.e. theres no doubt about guilt in 99% of cases-however in the invisable war on terror-there is much more margin for error-so more due process is required
6.12.2008 11:37pm
Elliot Reed (mail):
Because you consider yourself at war with the detaining power and bringing the claim enables you to harass and annoy the enemy - something the US Military Code of Conduct requires US POWs to do ("If I am captured I will continue to resist by all means available."). Imagine 100,000 Nazis all asserting their right to judicial review...they could easily grind the US judicial system to a halt. And what if they had the right to face their accusers? How many soldiers could they temporarily remove from the battlefield to appear in court.
Easily distinguished. No such circumstances indicating infeasibility are present in this case.
6.12.2008 11:41pm
CharleyCarp (mail):
You know, Congress can provide an alternative that meets the requirements for habeas -- and if the 100,000 Nazis hypothetical ever arises, I'm sure they will. The DTA was deeply flawed, and anyone surprised by this result wasn't paying attention.
6.12.2008 11:46pm
Jmaie (mail):
and it's NOT an invasion?

Unless they have the actual ability to invade and overthrow the government, no.


You haven't seen "The Mouse That Roared" :)
6.12.2008 11:54pm
SG:
I have no doubt that Congress can distinguish between the 100,000 Nazi hypo and what's happening at Gitmo; I question whether the logic underlying this decision can distinguish the two cases.
6.13.2008 12:10am
ReaderY:
Under Bush's theory, he could pick up any person anywhere, declare that person a terrorist, and have the unreviewable authority to detain that person forever or kill him.ubl

He doesn't have to declare the person a terrorist -- there's no issue of guilt or having done bad things. Such ideas imply a concept of personhood, but the word "person" simply lacks extraterritorial application. As in abortion, it's simply a question of whether or not the individual is wanted. There is simply no bar to safe, effective, and legal termination. Congress doesn't have to have a reason for declaring a war. War does not imply in any way that the other side has done anything wrong. We may simply not like them, and the reason why we don't have to tell. So with war's execution. There may be a question of whether Congress or the Executive has authority in "gray war" cases, but here Congress has acted and is in agreement with the President, so there is no authority question. If Guantanamo were not U.S. territory, or these individuals were taken to another location outside U.S. territory, there would be no personhood and hence no problem.
6.13.2008 12:21am
Oren:
Calling AQ in the US a bunch of incompetent buffoons is a response to the fact that 'plots' that have been uncovered have mostly been incompetent buffoonery. That's the proper description, for example, for a plot to dismantle the Brooklyn Bridge with a blowtorch.
I was more impressed with the theory that blowing up one fuel tank at JFK would somehow cascade down the pipelines of fuel and destroy the whole airport. Alas, that theory was invented by an FBI agent, not a member of AQ.
6.13.2008 1:19am
Oren:
I have no doubt that Congress can distinguish between the 100,000 Nazi hypo and what's happening at Gitmo; I question whether the logic underlying this decision can distinguish the two cases.
Of course it can't. If a procedure is insufficient to pass muster for one man, it's insufficient for 100,000. Only Congress can get itself out of this mess by writing up a new MCA with serious procedural protections and meaningful oversight.
6.13.2008 1:25am
Mark Buehner (mail):

when your cuaght wearing a uniform and holding a gun-your probably not going to prevail in your habeus claim


Except that someone has to claim you are wearing a uniform, or holding a gun, and that someone will be representatives from the executive branch. So we again have a problem. This entire issue does seem to be the courts nosing deeply into executive (if not legislative) business at its strongest point- prosecuting a declared war. Once the court states that the executive doesnt have absolute authority over prisoners in a time of war... whereever they are detained (specifically not on soveriegn US soil) where does that take us? Uniforms, weapons, military status... the executive has absolute authority over these. Congress isnt likly to be sending a blue ribbon panel into Afghanistan to establish whether the SEAL team is on the up and up, much less the Court.
6.13.2008 1:32am
LM (mail):
DangerMouse,

It's not good enough that better judges are appointed, because the institution as a whole has too much power and that power can corrupt even the best of men. No, those who are corrupt must be punished.

I suspect that the judges (Justices) you consider exemplary (e.g., Scalia) would find your view, as applied to the likes of Kennedy, ridiculous at best.
6.13.2008 1:43am
Tyrant King Porn Dragon (mail):

Your riposte does not lay out a constitutional method for suspending habeas corpus for enemy aliens captured in foreign conflicts.

Er. A habeas corpus claim exists for two classes of people:
1) all American citizens held in American custody, anywhere
2) all persons, citizens or no, held on American soil

The courts decreed that Gitmo is close enough to American soil to count for (2). Neither (1) nor (2) apply to secret prisons outside the United States, prison ships, etc. It follows that 'enemy aliens' in such situations still, despite the recent ruling, have no right of habeas corpus to suspend.

So why on earth would any enemy wear a uniform? Wear a uniform and you're summarily detained without recourse. Shed your uniform and blend in with non-combatants, then you get (ever-expanding) recourse in our civilian courts.

That's the incentive structure you want?

A prisoner of war has certain benefits - he cannot be tried or punished for legitimate acts of war, he cannot be tortured for information, he must be released after the end of hostilities. Those benefits were considered too dangerous to grant to detainees. As I understand it, at least some of the people in Gitmo *were* taken in uniform (or as uniformed as Afghanis get). Bush then made the claim that the Taliban didn't count as a government, and so none of its soldiers would be treated as prisoners of war with the rights thereof. That policy seems to have the same problem with incentives, wouldn't you say?

On the other hand, your argument (that foreign civilians have no habeas corpus rights and no prisoner of war rights), taken to its logical conclusion, would deny any and all legal protections to any 'enemy' civilian population; American troops and contractors could kill, rape, rob, and brutalize them without penalty. ... oh, wait, that's been American policy in Iraq for years. Never mind.
6.13.2008 1:54am
Andrew J. Lazarus (mail):
Shed your uniform and blend in with non-combatants, then you get (ever-expanding) recourse in our civilian courts.
Except in that case, you can be executed as a murderer of US troops. Or sentenced to life in prison, even if every Islamic terrorist group in the world surrenders tomorrow. As a legitimate POW, you are exempt from prosecution for the violence you committed in uniform, and you can expect repatriation when the war is over.

The idea that terrorists would prefer non-combatant status is ridiculous—it just happens to be the semi-official argument for un-American claims to unlimited executive authority. However, goatherds who got sold out to us for a bounty, for them, non-combatant status and a trial looks like the only way out.

Bush could have treated all of the prisoners as lawful POWs or held courts-martial years ago to identify terrorists. That wasn't his style—he's always been much more interested in unbridled power than finding Osama bin Laden. The purpose of Gitmo was to create a law-free zone for the Boy King, something of a judicial equivalent of the Congo before King Leopold was forced to make it a Belgian colony instead of a personal fief.
6.13.2008 2:32am
jukeboxgrad (mail):
oren: "I was more impressed with the theory that blowing up one fuel tank at JFK would somehow cascade down the pipelines of fuel and destroy the whole airport."

You're absolutely right. That's a better example and I forgot about it.

"Alas, that theory was invented by an FBI agent, not a member of AQ."

I should have mentioned that too. Yes, in many of the 'plots' we found, it turns out the inept plotters needed an impressive amount of government assistance to even get as far as they did.
6.13.2008 7:58am
jukeboxgrad (mail):
mark: "Once the court states that the executive doesnt have absolute authority over prisoners in a time of war... where does that take us?"

Once the executive states that we are in a new kind of permanent war, unbounded by any limit of time or space, and that he therefore has the power to detain anyone, anywhere, for as long as he likes, without any judicial review, where does that take us?
6.13.2008 7:59am
Mark Buehner (mail):

Once the executive states that we are in a new kind of permanent war, unbounded by any limit of time or space, and that he therefore has the power to detain anyone, anywhere, for as long as he likes, without any judicial review, where does that take us?

I believe the War Powers act took us down that road about 40 years ago.

More to the point:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Authorization for Use of Military Force
6.13.2008 9:29am
jukeboxgrad (mail):
The War Powers Act and the AUMF do not give the president the power to detain anyone, anywhere, for as long as he likes, without any judicial review. Keep trying.
6.13.2008 10:16am
Mark Buehner (mail):

The War Powers Act and the AUMF do not give the president the power to detain anyone, anywhere, for as long as he likes, without any judicial review. Keep trying.


The president doesnt have the power to detain anyone, anywhere, for as long as he likes, without any judicial review. I think this case nicely illustrates that.

Keep building straw men.

On the other hand, if you actually want to talk specifics, this president has taken into custody a number of enemy combatants that congress specifically sanctioned him to go to war with, and the supreme court has now ruled they have habeas rights because they were warehoused on a US military base. That is a disturbing challenge to a united legislature/executive policy.

We will see how the courts sift through 100,000 cases if we ever go to war with NK or China. I expect enemy soldiers will be issued law books instead excape kits.
6.13.2008 1:31pm
jukeboxgrad (mail):
mark: "Keep building straw men."

It's not a straw man, because Bush has indeed tried to claim he has the power to detain anyone, anywhere, for as long as he likes, without any judicial review.

"I think this case nicely illustrates that."

What this case nicely illustrates is that Bush tried to go to far, and he got stopped. That doesn't mean he didn't try.

"We will see how the courts sift through 100,000 cases"

That red herring has been addressed in the various threads here. Look around.
6.13.2008 2:14pm
Mark Buehner (mail):

It's not a straw man, because Bush has indeed tried to claim he has the power to detain anyone, anywhere, for as long as he likes, without any judicial review.

Link?


What this case nicely illustrates is that Bush tried to go to far, and he got stopped. That doesn't mean he didn't try.

By your definition, Bush wouldnt acknowledge judicial review. And yet he has accepted the courts decision. Reexamine your premise.


That red herring has been addressed in the various threads here. Look around.

No, its been dismissed because no-one has a good answer. The 'best' suggestion i've heard so far is that the courts could simply treat them as nuissance cases and ignore them. Not exactly a stunning victory for due process and justice. But quite fitting since this entire affair has been an excercise is starting with a conclusion and working backwards to a justification. I guess that would work just as well when the chickens come home to roost on this ruling.
6.13.2008 2:38pm
jukeboxgrad (mail):
mark: "Link?"

You are asking me to prove my assertion, that Bush has tried to claim he has the power to detain anyone, anywhere, for as long as he likes, without any judicial review. You seem to not know about the Padilla case. Bush locked him up for three-and-a-half years, without access to civilian courts, even though he is a US citizen, and was arrested on US soil. Did you really not know that?

"By your definition, Bush wouldnt acknowledge judicial review. And yet he has accepted the courts decision."

Bush tried to get away with breaking the law, multiple times, and didn't stop until SCOTUS told him he had to, multiple times. You seem to be impressed that Bush didn't declare martial law and disband SCOTUS, kind of like Musharraf did. Needless to say, your standards are too low.

"The 'best' suggestion i've heard so far is that the courts could simply treat them as nuissance cases and ignore them."

There are a variety of answers. If you are serious about your objections to them, you should find them and post a response in the appropriate thread.
6.14.2008 8:05am