Guantamano detainees to be tried under the Obama administration

by: Jay Stevens

Mon Nov 10, 2008 at 14:35:24 PM MST

President-elect Obama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice.

The "controversial new system" of justice is talk of a court designed specifically to hear cases involving "sensitive national security cases." Presumably they would in part resemble the FISA court, where procedings are secret and presided over by a panel of judges.

Spencer Ackerman, who dislikes the idea of the new system of justice, that probably will involve some sort of military tribunal:

So we'll wait to see what proposal actually emerges. But consider not only that this is one of the first initiatives that Obama is pursuing -- it's one of the first that he's leaking, as well. This is as clear a signal as can be sent that the Bush era isn't just over, it will be actively rolled back. How far it actually gets rolled back we'll have to wait and see. And pressure.

This particular black eye against our national reputation, this affront to hundreds of years of legal tradition, this inhumane and unjust system of detention is going to end.

Ahhh...it's like a breath of clean air...

Displaying a decent respect to the opinions of mankind

by: Jay Stevens

Tue Jul 08, 2008 at 12:51:46 PM MST

The words are GO's, the links are mine:

"The Hunting of the Snark"

by: Jay Stevens

Tue Jul 01, 2008 at 12:29:15 PM MST

In the first case to review the government's secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims.

With some derision for the Bush administration's arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem "The Hunting of the Snark": "I have said it thrice: What I tell you three times is true."

"This comes perilously close to suggesting that whatever the government says must be treated as true," said the panel of the Court of Appeals for the District of Columbia Circuit.

And now you know why the administration was so dead-set against giving detainees hearings on their incarceration.

At this point, it seems the only reason to oppose habeas corpus for detained foreign nationals is to avoid embarrassing the Bush administration and its supporters.

In short, the rationale for the unitary executive and the extreme national security powers given it are unraveling before our eyes. The question is, will these new powers go unchallenged, even as they're shown to be arbitrary and capricious?

Update: As usual, I don't know what the h*ll I'm talking about. CharleyCarp explains in the comments:

Parhat isn't a habeas corpus case, it's review under the Detainee Treatment Act.  That is, this is the thing that the Bush Administration had Congress set up, thinking it couldn't lose.  Although the opinion was written by Judge Garland, it's worth noting that Chief Judge Sentelle and Judge Griffith also sat on the case, and neither dissented from either the result or the reasoning.  Griffith, as folks might recall, was one of the judges in the Gang of 14 Compromise.  Sentelle is a very reliable conservative.  That this is too much for them is really saying something.

We need leaders who know what "habeas corpus" means

by: Jay Stevens

Fri Jun 13, 2008 at 19:34:37 PM MST

And my friends there are some bad people down there. There are some bad people. So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases.

Er...Senator? Here's what habeas corpus means:

Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person, or, if not, the person should be released from custody.

Habeas corpus is an ancient foundation of our system of law, and one of the safeguards of liberty in the United States. But - and hat tip goes to Radley Balko for pointing it out -- it's apparent John McCain doesn't know what habeas corpus is.

Yes, Senator, we do need to go ahead and adjudicate these cases.

SCOTUS upholds habeas corpus -- by a single vote

by: Jay Stevens

Thu Jun 12, 2008 at 10:59:27 AM MST

Justice Kennedy:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

That wasn't so hard, was it?

Apparently it was for the dissenters, the usual gang of executive-privilege fanboys: Scalia, Roberts, Alito, and Thomas. Roberts' dissent implies that the judiciary has no business in interpreting the law; Scalia plays the GOP political canard of fear:

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today....

[Today's decision] breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

Seriously, who believes Scalia is an independent justice anymore? Certainly not when he's cutting and pasting official Republican rhetoric into the Supreme Court's decision, regardless of whether that rhetoric has any basis within the law.

Anti-liberty left divides Democrats

by: Jay Stevens

Thu Aug 30, 2007 at 06:21:33 AM MST

"The most controversial matters are the ones that people use to form their opinions on their members of Congress," said Rep. Lincoln Davis (D-Tenn.), who voted for the administration's bill. "I do know within our caucus, and justifiably so, there are members who have a real distaste for some of the things the president has done. But to let that be the driving force for our actions to block the surveillance of someone and perhaps stop another attack like 9/11 would be unwise"...

"People say to me, 'Well, what about the 30-second spots?' " said Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, referring to attack ads. He is pushing a bill to restore habeas corpus.

Repeat after me: this isn't about politics. This is about principle. All Congressional representatives - Republican, Democratic, and independent - should be concerned with preserving our civil liberties. The administration is perfectly capable of stopping terror attacks using the legal tools at its disposal, they do not need to violate civil liberties to guard our security. We cannot have separate laws for separate people. We cannot relax our vigilance against the executive branch's encroachments on our rights, no matter who populates the office.

Protect our country from enemies, foreign and domestic. That is your job.

As for the political fallout? As said at the Sideshow, "Tell, them it's their job to defend their position against all that spin." Not only that, but Democrats can make their own 30-second ads. To paraphrase...Grant?...Democrats need to stop worrying about what those people will do, and start making them worry about what we're going to do.

Here's a good example:

"We can do this, but you have to keep in mind Republicans care more about catching Democrats than catching terrorists," said Rep. Rahm Emanuel, chairman of the House Democratic Caucus. "They have spent years taking Roosevelt's notion that we have nothing to fear but fear itself and given us nothing but fear."

Some have been criticizing the Netroots for attacking members of the Democratic party who stray from the fold. But it ain't about politics! You can vote with the GOP on farm subsidies, or taxation, or whatever. But civil liberties are not an option. It's your job to preserve our democracy.

Baucus supports the restoration of habeas corpus

by: Jay Stevens

Mon Jul 16, 2007 at 17:53:30 PM MST

Hopefully, Bob Geiger will be updating his post to let folks know that this bill is supported by Montana's Senators...

A loud shout-out goes to Sens. Baucus and Tester. You're doing the right thing.

Tester supports the restoration of habeas corpus

by: Jay Stevens

Mon Jul 16, 2007 at 16:45:40 PM MST

Jon Tester and Max Baucus are not sponsors of the bill.

According to Geiger, it's not enough to simply support the bill, or to vote for it, sponsorship is vital:

Does it matter if they sign on as cosponsors to the Habeas Corpus Restoration Act of 2007? Yes, it does. For one, it tells us what our running vote count is and gives us some sense of who's going to ultimately vote for it. While the Senators listed above may very well intend on voting for the bill's passage, we don't know that at the moment -- and for something this fundamental to American values, they need to stand up and be counted. Cosponsoring the bill also demonstrates leadership on this vital issue and that's what we want to see.

I don't happen to agree. As long as it passes, I don't care who sponsors it.

That said, Jon Tester supports S.185 and intends to vote for it, according to his office.

No word from Max yet. (Which is my fault, not Max'. I just got off my inquiry now.)

A Couple Legal Thoughts

by: Matt Singer

Sun Jul 08, 2007 at 14:48:30 PM MST