Supreme Court Decision on Enemy Combatants Held at Guantanamo - Legal Discussion

United States Supreme Court ^ | June 28, 2004 | United States Supreme Court Justices

[zip]

ping

[oceanview]

indeed.

I don't see why prisoners at any US military base, anywhere in the world (even inside a soverign country), can't now be subject to the federal courts. even inside a foreign country, a US prison is "under the control of the US", just like Gitmo is.

This decision is madness, and apparently there is nothing that can be done about it. I wonder if something could be done through Congress.

[oceanview]

too late for Saddam and those guys - they are being transferred to the now soverign iraq as we speak.

[Southack]

The liberals on the Supreme Court are attempting to force the Bush Administration to throw out the distinctions of the Geneva Convention...because those liberals want all battlefield captures to be labeled as POW's even if they are illegal combatants.

And those liberals will likely win this battle, sadly.

To combat this decision, the natural response is to declare all detainees as official POW's.

Of course, that throws the distinctions of the Geneva Conventions out the window. Now we aren't detaining spies, sabotuers, and illegal combatants (if we make this adjustment). Instead, everybody is a POW.

POW's don't get attorneys. POW's don't have trials. Charges aren't automatically brought up against POW's, and they remain detained as long as we like.

But such a change means that we can't shoot on sight spies and sabotuers any longer (post-capture).

So watch...my money says that we begin classifying all battlefield captures as POW's instead of as illegal combatants. It's the natural response to this SUpreme Court decision.

[gdani]

Actually not quite, it was based on the earlier ruling, but only by contrast with it....

I was talking about Braden, not Eisentrager.

[BenLurkin]

You don't suppose this is part of the reason for the early transfer?

[El Gato]

What "Constitutional" protection? The Court gave them *statutory* protection

You are probably correct, although the decision says:

Habeas corpus is, however, “a writ antecedent to stat-ute, . . . throwing its root deep into the genius of our com-mon law.” Williams v. Kaiser, 323 U. S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ ap-peared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privi-lege of the Writ of Habeas Corpus . . . unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.

Hmm, the clear intent of the constitutional language is that the writ not apply to the invaders, that is those attacking us. So these terrorists gt more protection than internal rebels would. Like I said, Jolly. Congress needs to get on the stick and formally suspend the writ for foreign nationals captured on the battlefield by US or friendly forces. I'd even extend that to US citizens caputed on the battlefield, here or abroad.

[Dog Gone]

The bottom line is that the Court felt sorry for the terrorists at Guantanamo and decided to reverse established law regarding habeas corpus in order to get them into our judicial system. Either that, or they wanted to stick it to President Bush and make the War on Terrorism a law enforcement issue like John Kerry advocates. Everything else they said was just excuses.

Where was the discussion of what effect this ruling would have as a practical matter on the War on Terrorism? Only Scalia brought up that issue in his dissent.

This is why this upcoming election is so important. There will be vacancies on the Supreme Court during the next term and it's critical that President Bush fill those vacancies instead of John Kerry.

[Sandy]

Lotta reading to do. No comments til later tonight.

BTW, the Court granted cert in Raich v Ashcroft. Click.

[Pinetop]

In order to otain a writ of habeas, one generally has to show that one is being held in violation of a provision of the Constitution. In fact, that portion of the Eisentrager holding is still valid.

The use of "non-resident alien" was not meant in the immigration law sense, but in the sense that these are aliens, i.e., foreign nationals, not present in the U.S. But, they are in military custody.

[Timmy]

Bush should ignore this decision, and explain to the American people why. Jefferson ignored Marbury v. Madison, and Lincoln ignored a number of decisions of the Taney Court. Congress should immediately pass a bill clarifying the power of the Executive to hold these terrorists on non-U.S. soil and put a clause in the bill that prohibits review by the Supreme Court, something the Constitution clearly allows for.

[oceanview]

I think we will try and go with the "foreign soil" prisons first - you won't see anyone else going to Gitmo.

Until the SCOTUS rules that the prison at the Bagram airport in Afghanistan is under their control also.

Bush needs to make this case directly to the people, but he may have to sidestep it for the next few months because of the election - but something has to give here, the SCOTUS is out of control.

[oceanview]

I don't think so, but you never know.

[Pinetop]

I think a legislative remedy is needed, but good luck getting that in this climate. They need to draft a statute that reiterates the Eisentrager factors but expands the definition of the enemy so that s/he does not have to be a national from a country with whom we are at war.

[oceanview]

the media would go insane, it would play into the Dems hands regarding Bush as an "tyrant" (and some freepers too). He can't play that card 4 months before the election.

The Congressional action is the best bet, let the Dems block it in the Senate of they want leading up to the election. That would be good.

[Pinetop]

Dog--you are so right. How would you like to see Hillary as Chief Justice of the United States?

[AuH2ORepublican]

"In order to otain a writ of habeas, one generally has to show that one is being held in violation of a provision of the Constitution."

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Yeah, but the opinion was not couched on constitutional grounds; it was merely statutory interpretation. If Congress amends the federal habeas statute (as I hope they will), the Court would need to find another excuse for handcuffing President Bush during the War on Terror.

[Dog Gone]

Congress should immediately pass a bill clarifying the power of the Executive to hold these terrorists on non-U.S. soil and put a clause in the bill that prohibits review by the Supreme Court, something the Constitution clearly allows for.

That's exactly how I'd fix this problem. And it wouldn't take long.

[Dog Gone]

How would you like to see Hillary as Chief Justice of the United States?

I'd rather clean every toilet in Grand Central Station with my tongue than to see that.

[sr4402]

On Gitmo, the U.S. Military will probably tell the U.S. Supreme Court to take a hike. It is about time someone stands up the court and I pray that they do. In this case, freeing enemy combatants on our soil crosses the line and that is what the libs are trying to do here.