Habeas Dangerous

FrontPageMagazine.com ^ | July 20, 2004 | Henry Mark Holzer

[AndyJackson]

The problem is that you are bloviating without having read the decision. In Gulf War 1, the army set up tribunals to establish the status of prisoners of war before categorizing them as POWs illegal combattants, etc. In Afghanistan and GWII the goverment kind of skipped this step, sent a bunch of folks off to Guantanimo and left some to rot, without any sort of tribunal to classify them as such.

Said tribunal is required even in US Army regs, believe it or not. It is how business is done.

As to the status of POW's in Iraq, it is somewhat OBE, now that the Iraq government has sovereignty and as they have been turned over to the Iraqi government.

[jwalsh07]

The Geneva Conventions allow for the holding of unlawful combatants "incommunicado" for the duration of the war at the judgement of the holding country.

[AndyJackson]

I suggest, instead of reading Scalia's dissent you read the majority opinion.

[jim macomber]

"Even under the Geneva Convention - and even in Army regs - an illegal combattant must be given a hearing at a tribunal to establish his status as an illegal combattant."

Precisely. And that was happening already. I stand by my criticism of the court's consistency and reasoning. And a bad decision that reaches a result you happen to agree with is still a bad decision.
But they're getting their hearings, aren't they. It's called debriefing. Or even interrogation. There are people being released all the time. So apparently, the issue is the format.
And if the fear is of locking people up and throwing away the key without a hearing, then the question is, who is it that's going do that? All Americans? The military? The unwashed masses? Everybody but you?
The thing is, they'll be given a hearing and a lot of other rights - more than some deserve and sometimes against our own interest. Why? Because we are a decent people and warts and scars and scabs and all, we generally do the right thing - or try to. Not, because we have to. Because we just do.

[AndyJackson]

After a tribunal to establish their status.

[AndyJackson]

And that was happening already.

No it wasn't. The government started doing that right after the decision was handed down.

[jwalsh07]

The problem is that you are bloviating without having read the decision

This is the same nonsense you pulled out of your rabbit hole the last time I pointed out the errors in your understanding of Rasul v Bush. Some things never change.

[AndyJackson]

No you didn't. Once I asked you quote specifically from the decision where you thought the court was wrong and what was wrong about it you shut up pretty quick.

The problem is that you would like to slander the court about words you would like to have put in their mouths, rather than fault them for the things that they actually wrote in words on paper.

[jwalsh07]

I suggest, instead of reading Scalia's dissent you read the majority opinion.

I have read the majority and dissenting opinions several times. Its rather obvious to me that you stopped reading after Justice Stevens ignored precedent, stare decisis, common sense and the separation of powers.

[jwalsh07]

No you didn't. Once I asked you quote specifically from the decision where you thought the court was wrong and what was wrong about it you shut up pretty quick.

LOL, you're not man enough to shut me up. Now I won't call you a liar before I give you a chance to back those words up. Here's your chance.

The problem is that you would like to slander the court about words you would like to have put in their mouths, rather than fault them for the things that they actually wrote in words on paper.

Quote the slander or retract the statement.

[AndyJackson]

Per the Geneva Convention:

Article 5

The present Convention shall apply to the persons referred to in Article 4 [categorizing those who are considered prisoners of war under the convention] from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

[AndyJackson]

But they're getting their hearings, aren't they. It's called debriefing. Or even interrogation

BS. It is called a military tribunal and it is held in a manner established by the laws of the United States under duly constituted judge commissioned by the Commander in Chief. It has the authority to subpoena witness and take testimony under oaths and the presiding judge and officers are supposed to be impartial to the matter before them. It isn't a kangaroon court held with rubber hoses.

[AndyJackson]

A basic flaw in the decisions is that the court grants illegal combatants rights that legal combatants would not have

Which right is that?

[jwalsh07]

Yeah so?

That certainly doesn't contradict the fact that the same conventions allow for the indefinite holding of saboteurs incommunicado. Nor does it require a military tribunal. It simply says that the terrorists will be treated as POWS until and unless a military tribunal is convened and the mooks are found to be unlawful combatants which was the policy of this administration.

Where is the justification for the majority to ignore stare decisis, precedent and the laws as written by the United States Congress?

You're going to have to do better than that crap Jackson.

[jwalsh07]

Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation’s conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges’ habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute,7 instead of by today’s clumsy, countertextual reinterpretation that confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish–and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent. Justice Scalia's Dissent, Rasul v Bush

Now why don't you point out where Scalia is wrong here Jackson. I figure if I post enough excerpts from his dissent, joined by Rehnquist and Thomas, you will have read it in its enitrety by the time we are done here.

[jwalsh07]

See number 35. Justice Scalia agrees with your take.

[jim macomber]

"It isn't a kangaroon court held with rubber hoses."

Whew! Obviously I have more confidence in and respect for the present custodians than you do.
But at the risk of being accused of trying to keep this on a civil level, I note you directed someone to read the majority opinion as well as Scalia's dissent. I suggest, in addition to Hamdi and Padilla, you also read Eisentrager, and Ahrens and In Re Quirin and the rest of the long history of this issue and then go read Braden. The very idea that such a reach was attempted to attain such a contrivance not only does harm in itself to the system but gives a fair indication that something that wasn't broken didn't need fixin'.

[AndyJackson]

I suppose that you and I will just have to disagree over how much faith and credit to put in Scalia. While Scalia tells us he is a strict constuctionalist, the fact is that in granting unchecked powers to the government he is often much more of an authoritarian. He scares me.

In this particular case he tries very hard to stand on stare decisis in order to avoid the habeas clause of the constitution, which even Scalia seems unable to find with both hands, stare decisis notwithstanding. In fact, however, he tries very hard to keep his stare decisis blinders on regarding the habeas statute, completely ignoring international law and precedent regarding the handling of combattants, lawful and unlawful. The stare decisis in the case of illegal combattants and their habeas corpus rights was ex parte Quirin which denied the issuance of a writ of habeas corpus because they had had due process -in the form of a military tribunal. In this case, there was none - and it was that singular and seminal failing on the part of the government that gave rise to even the possiblity of this decision - which is clearly stated in the Kennedy concurrence.

Also, I think that there is a lot going on behind the scenes, as well. Scalia did ask in argument about when the government was going to get around to holding hearings. I think he disented knowing that how the decision would go, and trying to keep it close in sending a clear message from the court to the government and others - set up tribunals like the law requires and this is as far as it goes.

[AndyJackson]

Don't know much about military law do you?

What do you have against sending a military judge around to hold hearings and declare that the individual in question really is an unlawful combattant. It isn't hard. The army did it in Gulf War I.

[AndyJackson]

You're going to have to do better than that crap Jackson.

Which crap - you mean this crap - "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

And let me give you two clues - one - it is stare decisis that habeas corpus is not a right of the individula - it is a limit on the power of the government.

And let me giver you clue number two - habeas corpus has not been suspended in the present emergency.