Posted on 04/20/2009 5:49:59 AM PDT by Kaslin
Recently, a federal court issued a decision that may be the next Supreme Court case in the War on Terror. The court ruled that terrorists held by the U.S. military in Afghanistan are entitled to the writ of habeas corpus, extending a panoply of rights to these detainees. This ruling could have a stunning impact on this and future wars, and bears out just how wrong last year’s major Supreme Court habeas case was.
Judge John D. Bates is a Bush appointee on the U.S. District Court for the District of Columbia. Judge Bates held that terrorist detainees that are held at the Bagram Air Force Base are entitled to habeas corpus, claiming that the Supreme Court’s 2008 decision in Boumediene v. Bush demands this result.
The writ of habeas corpus is powerful. Where habeas applies, it requires that any person held in confinement must either be promptly given a civilian trial with all the protections that the Bill of Rights gives American citizens, or that the person must be released. Before the Boumediene case, it had never been applied in a wartime context on foreign soil in the history of the United States.
No country extends more protections for individual liberty than the United States. Our nation has amazingly broad protections for free speech, religious liberty and political expression. People have the right to own property, have the means to defend themselves and their families, and be informed by a free press. If the government wants to convict them, they are presumed innocent, entitled to a prompt jury trial with the help of a lawyer, and cannot be tortured or given unreasonable fines.
Yet before last year, the courts always recognized the enormous difference between prosecuting criminals and fighting a war. Habeas corpus applies to American citizens or people on American soil as part of domestic policy. When invoked, it requires the government to apply all of those rights listed above. It’s a civilian process deliberately biased in favor of defendants that is focused on our courts under Article III of the Constitution.
War, on the other hand, is a military matter. It’s part of foreign policy under the president’s commander-in-chief power in Article II of the Constitution. It’s deliberately biased in favor of American power, intended to protect American lives and our national security.
Then Boumediene v. Bush came along, striking down the military commission system in Guantanamo Bay, Cuba (Gitmo). For the first time, with a 5-4 split decision, the Article III branch chose to override the Article I Congress that created the military commission system and the Article II president who was fighting a war. The four conservative justices that dissented in that case warned that America would regret the majority’s decision.
Today may be the beginning of that regret. Habeas here means everyone captured on battlefields is presumed innocent and gets taxpayer-funded defense lawyers and every right of Americans. That includes making the soldiers involved to be flown back to the U.S. for the terrorist’s trial, where they’ll have to testify and defend themselves. The soldiers will have to provide evidence to prove their allegations about the terrorist defendant. If they can’t prove every part of what they say, the terrorist will go free.
What’s surprising about this decision is that it wasn’t necessary. Judge Bates wrote that habeas had to apply in Afghanistan because Bagram Air Force Base could not be distinguished from Gitmo.
That’s just not so. In Johnson v. Eisentrager in 1950, the Court held that habeas did not apply to the U.S. military bases in Germany. In Boumediene, the Court bent over backwards to explain why Gitmo was different from Germany, saying that Gitmo was a century-long lease from Cuba that amounted to complete and permanent U.S. control. Therefore, Boumediene held, Gitmo was de facto sovereign American soil, and that’s why habeas applies.
U.S. bases in Afghanistan are more like those in Germany than Cuba. Bagram Air Force Base is just like the bases in Germany after World War II. If habeas didn’t apply to Germany in the Eisentrager case, then it shouldn’t apply in Afghanistan.
Judge Bates is considered a conservative judge with an excellent reputation. It could be that he felt compelled by the Boumediene case, which he must follow even if he disagrees with it. But this decision seems to go further than the case required, and will now be appealed to the D.C. Circuit. This case could go all the way to the Supreme Court, and change the way America conducts wars forever.
“There is a difference between defending ourselves and holding people for years on end w/o trial.”
These terrorists are prisoners of war. They didn’t get captured on the way to a peace march, ya know.
Germans and Italian prisoners were released at the conclusion of WW II. We took very few Japanese prisoners. No WW II judge was whining about their habeas corpus rights.
I think some of the problem is if you hold them until the conclusion of the war on terror, when will that be? Holder has said that a person can be considered a prisoner of war in this war even if they are captured no where near either Iraq or Afghanistan. It is tricky tricky ground either way you go.
Wrong. They are SEPARATE but EQUAL, neither has the Authority to overrule the other.
>>“There is a difference between defending ourselves and holding people for years on end w/o trial.”
>
>These terrorists are prisoners of war. They didn’t get captured on the way to a peace march, ya know.
Actually we wouldn’t be facing these problems if they WERE considered POWs, unfortunately they are not. I think it was a stupid ruling on the judiciary’s part.
Wrong. They are SEPARATE but EQUAL, neither has the Authority to overrule the other.
OK - Thanks for the clarification!
Yes, but only in their venue and jurisdiction. The Judicial Branch ONLY Decides Constitutional issues for the JUDICIAL Branch. The Executive branch and the Legislative can decide for themselves what is permitted under the Constitution. Read some history and you will find countless examples of the Executive and Legislative branches telling the USSC of Despots to go pound Watermelons. Try Andrew Jackson with regards to revoking the Charter of the Central Bank (biddle). USSC said he couldn’t do it, he did it anyway, and told the public that the USSC can only decide for themselves what was constitutional.
The legislative Branch does however have the power under the Constitution to ELIMINATE any Judicial Revue of the lwas they pass, they have done it before but very rarely.
Are you saying that, by design, the individual branches are responsible for policing their own actions?
Granted, the obama administration has exercised rights it does not have, but that’s exactly why we need to bring back the Constitution as the working framework it ws meant to be. The judicial branch does have the authority to declare laws unconstitutional, thereby checking the power of the other two branches and creating a balance among them.
It seems like Jackson was the only one who really went out of his way to disregard the SC on constitutional issues. I guess there are others?
Do you really want to live in a country where Obama gets to decide the limits of his power? Or any President of any political persuasion? That could be a scary place in a hurry.
There are countless examples all the way up to the turn of the century, thats when the ninnies began to come into power. prohibition,incometax.......now the Legislative branch has the Absolute Authority to Stop Sambo in his tracks, there is nothing the Executive Branch can do about it (they have the money and the power to impeach Sambo as well as the USSC of Despots).
People must learn the English Language for what it is not what they wish it is. Separate But Equal means just that.
If people would actually read the Constitution for what it says and not what 9 scumbag lawyers says it is, we would be much better off.
I’m confused. Are prohibition and the income tax supposed to be examples of the other branches ignoring the SC? The income tax was struck down originally as unconstitutional and an amendment had to be passed. Seems like the SC was followed there. I’m not aware of prohibition coming before the SC before the amendment passed.
Judicial Review is such firmly settled precedent at this point that people would be mightily upset at the thought of taking it away.
So you see the legislative branch as able to lay checks on the executive and the judicial branches. Who checks their power then?
“Judge John D. Bates is a Bush appointee “
Thanks George. Nice going.
NO MORE BUSHES!!!!!!!!!!!!!!!!!!!
we the people, that is why Congress is up every 2 years.
Our Constitution is written for a Moral and Religious people, it will serve no other. The sooner we eliminate Judicial Precedent the better. Also the USSC of Despots ruled that the 16th amendment provided NO NEW TAXING AUTHORITY. They also ruled the the Legal Definition of Income is CORPORATE PROFITS, They also ruled that money earned solely because of the existence of Government was Income (lawyers,police,politicians.....)
seems to me The Congress and Executive Branch has been ignoring the USSC since 1913, hell the USSC even ignores itself with regards to precedent, especially with regards to Income.
are you a Corporation or an Individual
By precedent I’m guessing you mean stare decisis. Do you really think it is a good plan for a 100% roll of the dice everytime someone goes to court? It sounds inefficient and unstable to me.
I haven’t looked into the income tax cases too much, but it appears that since the amendment they have pretty much held up the constitutionality of the income tax on citizens. If not I would imagine the normal people would have much more success in not paying taxes.
When one considers the way the English has been so Bastardized, and that new meanings to words are made up routinely. We should go back to the way it was
JOHN JAY our first SC Justice held JURY trials to determine Constitutionality. The US Constitution was written in PLAIN ENGLISH for a common people and the PEOPLE were to Decide what was Constitutional at the Supreme Court Level via JURY TRIAL.
ps there are thousands of people who have beat the IRS on constitutional grounds, but it isn’t widely publicized. There was a case about 10 yrs ago a guy won when he refused to hand over the Documents requested by the IRS, the Law stated he was required to bring them to court, but there was no law requiring him to turn them over, that has since been changed
Could you provide a link about the Supreme Court making use of juries?
The only cases that have express requirement for juries that I see in Art. III are criminal cases.
Sorry tet68, but OUR rights do not extend beyond OUR borders! To extend to enemy combat troops OUR rights leaves EVERY SINGLE MILITARY PERSON WHO SHOOTS THE ENEMY DEAD LIABLE: to the dead troop’s family for civil lawsuits, for prosecution of wrongful death or even murder - this is asinine!
We don’t have enough clogged courts that we now need to import lawsuits?
I say, “Kill ‘em all and let God sort ‘em out!”
If you have ever been in combat, you will realize that typically that IS the treatment you get from the enemy!
Thanks for the ping to revisit the thread and see other points being made. Time will tell. The war will not be interrupted, completed or won in any court on the planet.
Kill them on the spot.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.