Lamborn: Habeas corpus “simply unnecessary” for Gitmo Detainees

( – promoted by Colorado Pols)

Update by DavidThi808 (ThillyRabbit – feel free to change): This article describes the type of people held at Gitmo. By and large, not major terrorists. Some were allies before we locked them up.

Astonishing.

A day after the U.S. Supreme Court ruled that Guantanamo Bay prisoners can ask a federal judge to rule on their detention, Rep. Doug Lamborn toured the military base. He left after a six-hour visit with what he saw as confirmation that the nation’s top court was wrong.

“They are treated better from a medical standpoint, from a dietary standpoint, from a recreational standpoint, than people are at SuperMax,” Lamborn said, referring to the federal prison in Florence. “They get better medical care than most Americans, including members of Congress.

I trust that next, Lamborn will stage another episode of Naked Chef with Duncan Hunter.

“Especially considering these are not U.S. citizens, they are not on U.S. soil, their rights are being met currently,” Lamborn said.

Actually, that’s the opposite of the truth. The Supreme Court said so.

Would some of the folks from the pro-torture, anti-liberty crowd care to explain the apparent lack of Constitutional knowledge on Lamborn’s part?

Habeas corpus is:

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74 Community Comments, Facebook Comments

  1. NEWSMAN says:

    Holding enemy combatants without granting them the rights our Constitution recognises for citizens accused of braking a criminal law IS part of our 220 year old Constitutional Legal tradition.

    But don’t take my word for it.  Read what the Yale school of Law has to say.

    http://www.law.yale.edu/news/3

    • Aristotle says:

      You like citing them, as though they carry the same weight as articles.

      • ThillyWabbit says:

        the piece (not by Yale Law but by one professor there) was written in 2001. And it doesn’t say anything about holding someone forever without charges, which is what Bush asserts he has the power to do.

        It’s already been established that most of these people were not, in fact, picked up “on the battlefield,” but were randomly turned in by corrupt warlords looking for checks from the US government–farmers, peasants, and other ordinary non-combatants who were tortured into false confessions and then brought to Gitmo. That’s why over 400 of them have already been released after spending years in captivity (but only after international pressure).

        Never mind the fact that the Supreme Court of the United States says this professor is flat wrong.

      • BlueCat says:

        but to non-citizens under our jurisdiction as well.   We can’t, for instance, just throw foreign tourists in prison and keep them there without charging them or allowing them to know what they are accused of and affording them their day in court. Upholding this central foundational right was a no-brainer decision on the part of the five Justices who prevailed.  

        Many of the people at Gitmo are dangerous and guilty as hell but many were in the wrong place at the wrong time, were turned over for a bounty or other nefarious reason. Justice, over 600 years of established law and the central place of the writ of habeas corpus in our constitution all support their right to the opportunity to protest their innocence before a court of law.

        If the Scalia wing had their way, we would no longer have any right to criticize any suppressive regime that subjects citizens and non-citizens to arbitrary imprisonment and torture.   We’d have no grounds for protesting such treatment of an American in a foreign country.  We’d have no guarantee that the very same thing couldn’t happen to any one of us right here in our own country either.  

        Nobody is secure from arbitrary arrest, torture and indefinite imprisonment unless everybody is.  That means those we suspect are guilty as well as those we consider innocent.

  2. jericho says:

    They are not privy to constitutional protection for the following reasons.

    1) They have violated the Geneva convention (targeting civilians, refusing to wear uniforms) thus they are not privy to the rights of the Geneva convention.

    2) They are not privy to rights of the constitution because they are not citizens of the United States. Much like you or I would not be subject to the French Consitution, or the Chinese Constitution, so are they not subject to ours. The Constitution provides rights to its own citizens, not to every person who ever walked upon the earth.

    3) It’s not a matter or habeas corpus that keeps detainees from civilan courts, its the fact that:

    A) opening these cases to criminal courts would render public gobs and gobs of classified military information. Information that is classified because it needs to be to keep American soldiers and civilians safe [revealing the methods, locations and guidelines of active military is broadcasting our weaknesses and tendencies to the enemy]

    B) serving illegal combants with the benefits of our legal system would mean that we would naturally have to serve LEGAL combatants (POW’s, which in the Persian Gulf wars would number in the tens to hundreds of thousands) with the same rights. Which is not so much a matter of fairness, as it is a matter of extreme cost to the taxpayer to provide legal representation in the way of attourneys as opposed to military counsel to these people.

    I understand the desire of all people in this land to have those who might be unfairly detained freed. And by all means, we should have in place a system to free those who are not our enemies (keep in mind that the ACLU has a permanent representative in Gitmo).

    However, remember, that our enemy (and for those of you who don’t believe we actually have an enemy outside of George Bush, suppose it for one second, please, that we do) does not respect our right to life, liberty, and the pursuit of happiness, and that all of these measures are done in response to attacks that were foisted upon us, both on US soil and in the Middle East.

    • Aristotle says:

      but I do know that, whatever justice system we have for dealing with such miscreants, it ought to have dealt with them long ago. It ought to have passed judgment on each detainee and punished the guilty and freed the not guilty. The fact that they haven’t done this, except for a handful detainees, raises troubling questions. Because when I try to suss out what this says about the system and the administration, I can only conclude:

      a) the military tribunal system is completely inept to have failed to bring justice; or

      b) the administration has either ulterior motives for holding these people, or they simply don’t know what to do.

      I think option b is more likely, and it disturbs and shames me as an American because  further reflection on the matter makes me conclude that the administration is knowingly flouting US and international law, and that they don’t believe their own justifications for it; their excuses are meant to placate the public, but aren’t sincere. They want to hold these people indefinitely and keeping them out of any legal system ensures that they can. But what possible value are they to us, now that some of them have been there 5 or 6 years?

    • ThillyWabbit says:

      They’re nothing. That’s the heart of the issue. Bush won’t even convene tribunals to determine their status, let alone try them on the evidence.

      And most of them aren’t even combatants at all. Just unsuspecting locals that the warlords threw under the bus in exchange for government bounties.

    • Danny the Red (hair) says:

      1.  The executive branch does not have the authority to make a determination of status on its own.  That is what a legal justice structure is for.  The term illegal combatant is made upin the military commissions act, the one the court rejected in the decision.  The executive is not allowed to define out of existence the judicial branch.

      2.  The constitution gives rights to foriegners.  Some rights are reserved for citizens, but judicial rights are extended to foriegners.  Even the Bush administration recognizes this, that is why a prison camp built on Gitmo, to create an extra-legal limbo where they could hold prisoners without legal oversight.  They were sucessful until this decision.  Its why the administration is holding prisoners aboard ships right now, out of sight of any monitoring.

      3.  as to access to civilian courts

      A. The classified info is important, but we have tried spies in this country in civilian courts.  There are plenty of ways to protect sensitive information.  This is a fig leaf and a non issue.

      B. As I said, the concept of illegal combatant is a manufactured construct, but I will attempt to answer the heart of the question.  Under Geneva 3 even some irregular/guerrilla forces are covered by POW laws.  For Those not covered by the POW status, they are supposed to be covered by the detaining countries civilian legal system because the fundamental argument for POW denial is that they are civilian not military.

      You are correct that the POW status is a privilege and to use your term of legal combatant, they already have rights supperior to those within the juctice system (otherwise most POW could be charged with murder).  In the persian gulf most were released  immediately after the end of the gulf war, However, if they had been detained indefinitely after the end of hostilities, they could challenge their status in court.

      As to money–justice has no price (in theory) and at the very least it shouldn’t be thrown away on the cheap.

      We do have enemies, but no terrorist can destroy this nation.  On the other hand we will, if out of fear we destroy the constitutional protections that protect us all.  Have the courage to live by our princiles, do not let fear make us compromise our most deeply held values.

    • Precinct854 says:

      1. Did they actually violate the Geneva conventions? I mean at the most basic level are these men being held guilty of what they are accused of? I have read that a majority of the prisoners were not even picked up by US forces but brought in on bounties offered by the government and so there are real questions about if they were fighters or just someone turned in for the reward. Official statistics shows that only 5 per cent of prisoners at Guantanamo were captured by US forces.

      2. If we do not give rights to foreigners then how can we expect to get what we want from the rest of the world? Rounding up foreigners and keeping them captive without trial only adds to the US reputation as a rogue threat to the safety of the rest of the world. It diminishes our influence and our economic reach.

    • parsingreality says:

      Based on your Silly Point #2.

      Back to #1, they can’t honor the Geneva convention because they are not part of a nation’s military.

      The Constitution follows the flag.  No exceptions.  Nothing about military secrets (riiiight…), cost to taxpayers, or any thing else.  It is sacrosanct and even our Supreme Court said so.  

    • Gilpin Guy says:

      is why Republicans so hate the America that has stood for all that is good the world.  Welcome to the Soviet Union legal system courtesy of Doug Lamborn and Republicans from El Paso county.

    • Our enemy uses terror because it serves their purpose.  Terror is used to incite a reaction – to paralyze us, as FDR said, from needed efforts to convert retreat into advance.  While we continue to subvert our most cherished and touted system of laws and smash our economic strength against the reef of the wrong war in the wrong place, we are acting to the benefit of the very people we claim to be fighting.

      We gain nothing by not respecting the rights of those who do not respect our own rights.  We give mass murderers and terrorists on our own soil a full measure of rights; we hold lawful trials for spies.  No accident of location or event should change our ability to hold to those principles which we used to hold up to the world as an example of true justice.

      • Barron X says:

        .

        there are enemies of the USA, posing threats to our security;

        and there are enemies of the Bush Administration who pose a threat to their world view.

        …………………

        ASYMMETRIC warfare:

        When a foreign occupation force of overwhelming numbers and firepower takes over your country,

        all you have left to resist is what may be called “terrorist” tactics.  

        They are the tactics of the nearly powerless,  

        employed by those desperate to protect their families and tribes, and defend their honor.

        Our Congress is Constitutionally charged with responsibility to raise an army to defend the nation.

        Employing them to conquer new colonies isn’t just wrong,

        its unconstitutional.

        and I question how anyone who loves what America stands for can possibly support a war of aggression.

        .  

    • BlueCat says:

      does not cite the exceptions you put forward.  The only time Habeas Corpus can be suspended is in time of rebellion or invasion and neither circumstance applies here.  Even then it is to be restored ASAP.  Even if you consider 9/11 an invasion, it’s over.

      The Supreme Court ruled correctly and now that it has, these arguments are moot.  A future Supreme Court might over-turn the decision, especially if we elect a president who will appoint more activist justices like the four who dissented from supporting clear cut constitutional law to support and protect Bush and his administration.  

      For now, it’s a done deal that can’t be changed via legislation.  Habeas Corpus is restored.   Get used to it.

  3. DavidThi808 says:

    Then by definition he would accept the ruling of the Supreme Court as the final decision as to if the people held a Gitmo have these rights.

    He can say he respectflly disagrees, but if he follows his oath of office to uphold the constitution of this country, then he cannot claim their needs are being met if the Supreme Court has found they are not.

    In addition, we are in a war of ideas more than anything else. If we are no different, no better, than our opponents – we lose. We win from being a wonderful example, not from taking one more maybe terrorist off the field.

    For that reason, Gitmo helps Al Queada much more than it helps us. So from a purely “military” point of view, we need to shut it down.

    So if Congressman Lamborn supports our troops and wants to win the GWOT, he would be in favor of shutting down Gitmo regardless of if it is legal.

    On the flip side, if Lamborn is not very smart, then Gitmo sure sounds like a good idea…

    • NEWSMAN says:

      What Our Congressman did was state his opinion.  I think Elected officials are still allowed to do that regardless of how 5 out of 9 Court Justices see it.

      I see nowhere he was advocating ignoring or disregarding a Supreme Court Ruling.

      I thought you guys were the ones that said dissent was the highest form of patriotism. 🙂

      NEWSMAN

      • RedGreen says:

        That’s an entirely reasonable response, Newsman. I don’t think anyone’s seriously demanding Lamborn turn on a dime and discard his beliefs.

        The Bush Administration, however, has made a habit of confronting Supreme Court rulings on detainees by constructing some elaborate end-run to subvert the rulings’ intention, find another way to deny detainees the strictly limited rights found by the court. (See Danny’s mention above about the new, improved Gitmo on the high seas.)

        Dissent may be among the highest forms of patriotism, but the government usually at least makes an effort to live within the universe created by Supreme Court rulings. (Even Nixon conceded the gig was up when the Supreme Court laid down its ruling on the tapes. His was an almost quaint attitude toward the rules, unrecognizable in the Bush-Cheney universe.)

        If Lamborn isn’t “advocating ignoring or disregarding a Supreme Court Ruling,” the question becomes, does Lamborn see any rationale for keeping Gitmo open? Its sole purpose has been to keep detainees off our shores, lest the rights found in this ruling become effective.

        It’s clear Gitmo’s days are numbered, whether Obama or McCain wins the election. And, as others have pointed out, closing Gitmo would make a great statement worldwide about what America is and what we’re fighting for. So why delay it? Why leave that symbol out there for terrorists to use as a recruiting tool when the Supreme Court has removed its reason for existence?

        Does Rep. Lamborn advocate keeping Gitmo up and running, which is effectively ignoring this Supreme Court ruling, or does he want to shut it down as soon as possible?  

      • DavidThi808 says:

        My issue was with:

        their rights are being met currently

        He did not say “in his opinion, their rights are being met currently”, he stated it flaghtly that they are being met. But the Supreme Court has ruled that their rights are not presently being met.

        If he elaborates to state that he disagrees with the Supreme Court, but accepts that the law of the land now is that their rights are not being met – no problem.

        But if he sticks to saying that their rights are presently being met – then I think he needs to re-read his oath of office.

        Al Gore did it very best when the Supreme Court ended his challenges for the presidency when he said (this is from memory) “I disagree with the decision of the Court, but I will abide with it and end my challenge.”

        • Aristotle says:

          Lamborn was making a statement of fact, not opinion, at least as he phrased it. He can come out and clarify it, but given that he represents a district comprised of people who feel the same way he won’t have to.

        • NEWSMAN says:

          http://www.gazette.com/article

          I have no issue with his expression of concerns.

          I think he is correct that “their rights” as detainees are being met there, and they have it better there now, than if transferred to Super Max under 23 hour lock down. (Though 23 hour lock down maximum security is not a violation of citizens “rights” according to the court.)

          I have taught classes in the Colorado Prison system, and have toured our State version of Super Max. Club Gitmo is literally a paradise compared to the Federal SuperMax.

          • RedGreen says:

            Could you answer my question one up from David’s?

            • NEWSMAN says:

              Does Rep. Lamborn advocate keeping Gitmo up and running, which is effectively ignoring this Supreme Court ruling, or does he want to shut it down as soon as possible?  

              Yes I think he does for the reasons he stated in his article. (I haven’t spoken to him about it and don’t work for the campaign, but am reaching that conclusion by reading his responses to the media.)

              Keeping Club Gitmo open does not seem to be addressed by the court in what I read, they made no ruling one way or the other about where a person could be held.  They did set standards for legal representation and access to the federal courts.  You can have that from an American base off shore as far as I know.

          • DavidThi808 says:

            Wishing they don’t go to SuperMax is very understandable, especially as a a rep.

            All I saw on the ruling was:

            In lock step with the administration, Lamborn said he’s also worried about Thursday’s Supreme Court decision. He said the 5-4 ruling could hamper antiterrorism efforts.

            “We’re going to give rights to detainees who are unlawful combatants,” he said.

            Which on the “hamper” statement does not object to the ruling, just states that he thinks it will make our efforts more difficult. I disagree as I think it will help but it’s an opinion about a consequence – very valid.

            His last sentence is a statement of fact. Again very legit.

            But where did this come from:

            Especially considering these are not U.S. citizens, they are not on U.S. soil, their rights are being met currently,” Lamborn said.

            That was supposedly a quote by Lamborn in the initial diary. It’s not in the article and the text around this quote could make a big difference.

      • Gilpin Guy says:

        the ones who said that dissent is intolerable and traitorous to our country.  So does this make Doug Lamborn a traitor to Republicans or will they be their usual hypocrites and state that “It is OK if you are a Republican” (ISOKIYAR).

        The irony for right wing extremists is that when the Supreme Court rules in their favor like Gore vs Bush well that is absolute immutable law and everyone must abide by the decision.  If Roe v Wade ever gets overturned by the Supreme Court then you will hear nothing but how almighty and immutable the Supreme Court is.  But is the decision goes against them then it is bad law done by liberal activist judges and the ruling is illegal because it isn’t right according to them.  Legal precedence means nothing.  Can you say hypocrites?

        • NEWSMAN says:

          They think Roe vs Wade is set in stone as Constitutional bedrock, when in fact it deals with a subject that is not covered in the text of the constitution, and Conservative Evangelicals think the Law is akin to another famous Supreme Court Compromise, The Dred Scott decision.

          If you think about, by Constitutional standards, precedence is nowhere to be found.  It was the Supreme court itself that gave itself its current power starting with Marbury vs Madison, and continuing to build from there.  The Dred Scott decision was a precedence setting decision, but was rightly overturned when a later court saw the error of their ways.

          Remember Republicans were the ones speaking against Dred Scott, Democrats supported it.  

              • dwyer says:

                Look, just don’t respond to my posts. the question was meant for NEWMAN…..you boulder boy ..go play with your video equipment. I would really prefer that you not stick your nose into postings I am making. …thanks.

                NEWMAN: You wrote:

                “The Dred Scott decision was a precedence setting decision, but was rightly overturned when a later court saw the error of their ways.”

                Your statement is historically wrong.  A later court never saw the error of their ways.  After the Civil War, the 13th, 14th and 15th Amendments established that   African-Americans were persons, not property,  and entitled to all civil rights as citizens of the United STates.  The Supreme Court never revisited Dred Scott. …no later court ever saw the “error of their ways.”….didn’t happen.

                You are entitled to your own opinion, you are not entitled to your own facts.

                 

          • Gilpin Guy says:

            progressives were for dissenting about this boutique war that George Bush got us into.  Dissent was equivalent to treason to the Kool-Aid drinkers.

            I’m just pointing out that Republicans think dissent and Supreme Court decisions are fine when it is their favor but is terrible if anyone else practices the same.  Filibusters is another example of Republican hypocrisy.  When they held the majority they were screaming about what obstructionists Democrats were and how horrible it was that the obstructionists were thwarting the will of the majority and how they had to use the Nuclear Option.  Now when they are a dwindling minority, 60 votes is the minimum on every issue.  Now they aren’t obstructionists but defenders of the rights of minorities.  What I like about Harry Reid is he doesn’t try to bully or threaten anyone about it.  He plays by the rules instead of trying to rig the rules so that Democrats can have a permanent majority.  This is the great shame of the Republican Party.  From Abramoff to Bush all they want is power to destroy our public institutions.

          • Aristotle says:

            Although the 13th and 14th Amendments addressed the findings of Dred Scott, the case itself was overturned in the ruling of the so-called Slaughter-house cases. (Your answer, dwyer – see Wikipedia for details.)

            • DavidThi808 says:

              But I appreciate the info – thank you

            • dwyer says:

              Thank you, Aristotle

            • dwyer says:

              I read the whole case and I believe my interpretation is correct.  The Majority Opinion held: “The 13th Amendment overturns the Dred Scott decision.”  The citations for the decision are consistently the 13th, 14th and 15th amendment.  

              The Supreme Court did not revisit Dred Scott and see “the error of their ways” The Court confirmed that the 13th Amendment overturned the Dred Scott decision.

              Still, it is a beautiful opinion because it addresses the definition of US citizenship and the issue of state v. federal government…issues that are being debated even now, even here on this blog…

              I would recommend everyone read it.  I am no good at doing the hyperlinks.  Perhaps, our boulder boy could provide that link; highlighting the section in the decision where the Supreme Court described how the Civil War victory was not enough to secure citizenship for slaves…

              • Aristotle says:

                From wikipedia’s entry on Dred Scott case:

                Dred Scott was indirectly overruled in the Slaughter-house cases, which noted that Dred Scott’s holding was superseded by the passage of the Thirteenth Amendment to the United States Constitution in 1865, which abolished slavery, and the Fourteenth Amendment in 1868, which guaranteed full rights and citizenship regardless of race. Though it is sometimes said that Dred Scott was never officially overruled, the Slaughter-house cases in fact explicitly overrule it:

                   “The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States.”

                This entry has the link to the Slaughter-House Cases article for those who are interested.

                • dwyer says:

                  I read the whole decision, not the summary.  In the decision is the statement that the “13th Amendment overturns Dred Scott.”…perhaps it depends on what your decision of “it” is….

                  I think the decision itself makes it clear that the court is referring over and over again to the 13th, and then the 14th and 15th amendment…

                  However, the statement made by NEWSMAN, way back that the court “revisited” Dred Scott and saw the error of their ways” is not substantiated by the Slaughter House decisions..The Court confirmed that  the 13th, 14th, and 15th amendments overturned Dred Scott. The Court did not independently overturn Dred Scott, by recognizing the “error” of its ways.

                  As opposed to what the Warren Court did in Brown v. Topeka, in which the Court did revisit Fergerson and overturn that decision by finding that “separate but equal” was not constitutional.

                  The discussion is important in light of the controvery over Roe and how a new McCain Supreme Court might revisit that decision, absent a Human Life Amendment.  If an HLA were to pass (impossible, I grant) then the HLA would be to Roe as the 13th, 14th and 15th were to Dred Scott.

                  • Aristotle says:

                    Newsie was factually correct but contextually incorrect, which is typical of someone who argues talking points on topics they are ignorant of.

                    Yes, Slaughter-House explicitly overturned Dred Scott but it’s improbable that there was any way that could have happened without those Amendments which came after that case. There was no “seeing the error of their ways” – that would mean that they had overturned the earlier decision based on the same Constitution and legal code that had existed in 1857.

                  • Aristotle says:

                    you’re welcome.

                    • NEWSMAN says:

                      the court in overturning Dred Scott did not mention that (they) had seen the error of their (or prior court members) ways specificaly.

                      But my point is the same.  

                      I assume they may have (on a personal level) if they counted the cost, but your right, they sighted the obvious, that a specific amendment(s) had made Dred Scott moot.

                      SO what were we talking about?

                    • NEWSMAN says:

                      HABEAS CORPUS SUSPENDED IN THE DISTRICT OF COLUMBIA.

                      On the 23rd, the President instructed the Marshal for the District of Columbia not to serve writs on the Provost Marshal, but return them to the Court with the explanation that the President has, for the present, suspended the privilege of the writ of habeas corpus in cases relating to the military for reasons of public necessity.

                      http://www.sonofthesouth.net/l

                      NEWSMAN knows all the news, even if its a few years old. 😉

                    • dwyer says:

                      But, remember I am the old fart…and entitled to short term memory loss.

                    • dwyer says:

                      I did read that Lincoln suspended Habeas Corpus in the District of Colombia. And your point is?

  4. One Queer Dude says:

    And he has the audacity to call himself a libertarian!  Does he even know what the word means?

  5. Lamborn’s response shows either an incredible depth of ignorance of the Constitution, or a complete and total submission to the Bush Administration’s Big Lie.  My guess is the latter, though “both” comes in a close second.

    I do have to agree with him on one thing, though: I don’t want these people on American soil either.  Our deportation laws are bad enough, and some of the “evidence” collected against these detainees is inadmissible enough that one or more real terrorists could be let loose on our streets as a result of such a move.

    As for the innocent, what we did to them in the name of the United States is unforgivable.  The next time a high government official suggests bribing local warlords for turning in “terrorists”, I hope someone else in the Cabinet has the sense to knock that person upside the head.

  6. NEWSMAN says:

    that Japanese or German prisoners of war, held for the duration of hostilities, should have been subject to civilian Habeas Corpus ?

    You are confusing 2 separate issues.

    Lamborn is correct, and on solid ground if precedence is your yardstick.

    • You are the one who’s confused.  Habeas corpus is merely the right to challenge the reason for detention.

      POWs have their own set of rights under Geneva, including the right to challenge their designation as POWs.  Once that determination is made (by a court), POWs may legally be held for the duration of hostilities under international law.

      Many of the people held in Guantanamo and in other US-run prisons overseas have not been charged, nor have they been allowed to question their designation as “unlawful combatants”.  The Bush Administration tried to make them extra-legal by calling them something outside of defined law and by placing them somewhere outside of a well-defined jurisdiction; such an extra-legal system is something this country should NEVER represent.

      • NEWSMAN says:

        suspended Habeas corpus doesn’t square with the record. 65 Senators(including Democrats)voted to pass the MCA that was recently struck down in part by the Court.

        On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any person determined to be an “unlawful enemy combatant” engaged in hostilities or having supported hostilities against the United States”[4][5] by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48-51.[6]) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006. The declaration of a person as an “unlawful enemy combatant” is at the discretion of the US executive branch of the administration, and there is no right of appeal, with the result that this potentially suspends habeas corpus for any non-citizen.

        With the MCA’s passage, the law altered the language from “alien detained … at GuantГЎnamo Bay”:

        “Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” В§1005(e)(1), 119 Stat. 2742.

        • Aristotle says:

          Sure, a few Dems voted for it – does that make it bipartisan?

          Sure, Congress passed it – does that mean it’s not all the GOP’s responsibility?

        • I was commenting on the actions that got us to the place where it was decided we needed the MCA to cover up the gross incompetence of earlier actions.

          Passage of the MCA, like authorization for the Iraq War, is not something for any Senator or Representative to be proud of.  Its passage justifies nothing.

      • BlueCat says:

        The right seems to be arguing that habeas corpus means these people have to be released.  It means no such thing.  Just that they have the right to go to court and say “hey, you have the wrong guy”. It doesn’t mean the court has to take the person’s word for it and release them.  It just guarantees the opportunity to defend oneself and to due process.  

        As for the argument that those who don’t obey the Geneva conventions themselves don’t deserve any rights in our system, that’s just like saying that those who break the law don’t deserve rights, such as the right to a fair trial, either.  Rights are for everyone or for no one.  Guilt and innocence are to be sorted out through due process to which everyone is entitled.  

    • DavidThi808 says:

      You want to compare enemy soldiers captured in WWII with the people in Gitmo. A couple of differences:

      1) We declared war on Japan & Germany. We haven’t declared war against anyone in this present fight.

      2) Those were soldiers captured in battle. The present detainees are people turned in as “bad guys.”

      3) WWII had a clear endpoint at which time all POWs were free’ed. Where’s the endpoint in this fight?

      4) Holding POWs helped us win WWII. Holding random people in Gitmo hurts us in the GWOT.

      • ThillyWabbit says:

        The Bush Administration claims those at Gitmo are not POW’s under Geneva, therefore Geneva protections don’t apply. We did, however, hold thousands of American citizens in their own Gitmos for years without charge (including here in Colorado) and that was one of the most shameful episodes in our country’s history. So WWII is not an apt comparison in terms of foreign POWs, but it is instructive when considering the need for Habeas protections.

        Just how do we define the end of hostilities in this conflict? Was it when the Taliban fell? When elections took place? When they took place again? When we capture or kill Osama bin Laden? Or will it be in 50 or 100 years?

        If I were in charge, it would have been when elections took place, with all military trials for those accused of crimes against the coalition forces on Afghan soil having taken place one year after that date, and all those accused of masterminding or assisting in 9/11 (a crime on U.S. soil) extradited to the U.S. for trial in the federal court system. I would have used the opportunity to show the Afghans and the rest of the region what swift but fair justice looks like in a democracy, as well as to show Americans that we’re actually interested in pursuing justice for the victims of 9/11.

        • Aristotle says:

          Newsie, why doesn’t the indefinite holding of these people disturb you? You don’t know the FACTS of any of their cases, so don’t say it’s because they’re terrorist. Some are, some aren’t. What’s wrong with putting them through some kind of trial or tribunal? That’s the heart of the habeas corpus issue.

          • NEWSMAN says:

            What’s wrong with putting them through some kind of trial or tribunal?

            And I have never seen or heard where Doug Lamborn has said otherwise.

            I have never said anything along those lines either.

            • Aristotle says:

              I have never said anything along those lines either.

              Any argument against habeas corpus means just that. If you don’t think it applies, then you don’t think they have a right to due process (a trial by jury or by tribunal) either, because there is no due process without habeas corpus.

              Remember: as long as we’re holding them without status (and they’re neither POW’s nor criminals as long as they’re without status) we’re not following due process.

      • ThillyWabbit says:

        Prisoners of war are not presumed to be guilty of committing any crime–other than being on the other side–and they are let go when the war is over (or before if they agree not to be combatants again, a fairly typical arrangement for a prisoner swap).

        But again, these are not prisoners of war. If they were, it would be illegal under the Third Geneva Convention to try them in Federal court. They would be tried by military tribunals under the same law that governs members of the U.S. military. And the trials would have happened already, because the Third Geneva Convention guarantees the right to a speedy trial.

      • NEWSMAN says:

        Prisoners of war are not presumed to be guilty of committing any crime–other than being on the other side–and they are let go when the war is over

        The war is not over.

        • RedGreen says:

          Because a war has not been declared, something that doesn’t formally exist cannot formally end. Can you envision a scenario where this “war” will ever be over? When we’ve killed them all?

          Besides, no one’s agitating to release al Qaida terrorists. The point is to hold the administration accountable when it sweeps up cab drivers and victims of clannish feuds. Without habeas corpus, the innocents rot in prison until the “war” is over. You really think that helps the cause?

        • Danny the Red (hair) says:

          You can not move the ball for your convenience.

          • NEWSMAN says:

            They are un-uniformed prisoners taken on the battlefield while they were violating the Geneva conventions among other things.  

            Now since they as a group or individually did not sign or agree to abide by the convention, they likewise are not protected by them while violating them.

            That’s why they are called unlawful enemy combatants.

            But neither are they foreign tourists or American citizens subject to US law and the civil rights protections thereof.  For one thing, they were not on US territory, and the US courts lack jurisdiction over them in most cases.

            I say get them out of our Military base and turn them over to the countries government they were captured in, or their home government if that is more convenient.  Whatever protects our interest and prevents them from being a threat to American forces.

            I wish I knew how many hundreds or thousands of these “combatants” have been paroled or released.  I know some have, because they have been captured again fighting against us after we let them go and they promised not to take up arms against us. I suspect some went home and have kept their promise too, I just have no idea how many of each there are.

              • NEWSMAN says:

                For purposes of discussion, here it is in text.

                My point is that both Bush and Lamborn are on sound constitutional ground saying these guys are not subject to the same protections afforded foreign tourists and citizens.

                In Re Yamashita, 327 U.S. 1 (1946)

                Habeas corpus

                During World War II, General Yamashita was a commander of Japanese forces. After the war, Yamashita was tried for war crimes by a U.S. Military Commission established by General Douglas MacArthur. During the trial, Yamashita unsuccessfully argued that he never ordered his troops to commit these atrocities and should not be held responsible for their unofficial actions. The Commission found Yamashita guilty and sentenced him to death, holding that he was responsible for controlling the actions of his troops. Yamashita asked the U.S. Supreme Court for a writ of habeas corpus, stating that the U.S. Military Commission did not follow the procedural protections of the U.S. Constitution. In a 7-2 decision, the Court denied his petition, holding that an enemy from another country who is accused of war crimes is not entitled to the procedural protections of the Constitution.

                Johnson v. Eisentrager, 339 U.S. 763 (1950)

                Habeas corpus

                Twenty-one German nationals living in China at the end of World War II were tried and convicted of war crimes by a U.S. military tribunal and sent to Germany to serve their sentences. In prison, Eisentrager (no first name given), one of the nationals, and others filed for a writ of habeas corpus, arguing that their procedural due process rights as guaranteed by the U.S. Constitution were violated by the U.S. military tribunal.  

                The Supreme Court disagreed and stated that (1) foreign nationals (2) who never lived in the United States, (3) who are captured and (4) tried for war crimes (5) that were committed abroad, and (6) who are serving their sentences abroad were not entitled to habeas relief in U.S. courts.  

                • Aristotle says:

                  is that, do all these conditions listed in these cases apply to the prisoners at Gitmo and elsewhere? Has any of that been established?

                • The Germans tried under these procedings received prompt and fair trials; their request for habeas relief was denied because they were properly tried under war crimes law.

                  You keep ignoring the same fact, over and over: the Guantanamo inmates have been held for years without charges and without the ability to petition for review of their status.  None of the cases you cite above reference that issue, which is why the current SCOTUS ruling doesn’t incorporate those opinions.

            • Aristotle says:

              An opinion I can respect, even if I disagree with it, and one that addresses a concern I raise elsewhere on this thread.

              Coming as I do from a philosophical perspective, my big issue with this is that the action of holding these guys forever contradicts our image as the great republic where rights are guaranteed. You’ll disagree but I believe that our stature as a great nation and a leader of the free world is damaged when we don’t practice what we preach. These people we’re holding, a group which doubtless includes some of the worst examples of humanity imaginable, presented America with an opportunity to show the world (who were all on our side for a while after 9/11, with a few exceptions) what we’re made of, and we really screwed that up with Gitmo, Abu Ghraib, and all the other things we’ve done with these prisoners.

              Would it be better to send them to their home nations? I don’t think so – how good are their justice systems? Not very, in most cases. They should have been designated either as POWs or as criminals and treated as such until international law could come up with some way to deal with terrorists and non-uniformed combatants. That way we could have processed them and not held them in limbo, costing us our position in the international community and free world as it has.

              • NEWSMAN says:

                Would it be better to send them to their home nations? I don’t think so – how good are their justice systems? Not very, in most cases.

                Too Bad. We are left with little choice. Our justice system is no place for enemy combatants.  It was designed for citizens.

                You forget many were processed and released from custody.  What remains are the more difficult cases.

                I find no reason NOT to return them to the country they were captured in, or their home country.  Let their own system deal with them.  We no longer can if 220 years of constitutional tradition are now subject to the whims of 5 justices to make it up as they go along.  There is no precedence for SCOTUS latest decision, and plenty to uphold the executive branch.

                After 8 years of McCain, IF he really appoints and gets confirmed the Justices he says he wants to confirm, this will be a moot point, and will be overturned and returned to its original intent. But that assumes McCain can and will deliver, and that is never a safe thing for conservatives to rely on.

                By the way, McCain is way closer to your point of view than mine on this subject.

  7. RedGreen says:

    Including apologists like Newsman.

    But this has been a Bush administration operation from the start. In addition to thumbing its nose at the Constitution and the legal foundations of the Constitution, the Bush crew has demonstrated its usual stunning incompetence executing its plan to lock ’em up and throw away the key: In many cases, they got the wrong guys. No wonder they don’t want to be held accountable to anyone but themselves.

    Newsman probably won’t even bother with it, because it conflicts with his world view, but McClatchy is  publishing a series starting today examining the system of offshore prisons.

    An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar [portrayed earlier iin the story] was one of dozens of men – and, according to several officials, perhaps hundreds – whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.



    The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

    Prisoner mistreatment became a regular feature in cellblocks and interrogation rooms at Bagram and Kandahar air bases, the two main way stations in Afghanistan en route to Guantanamo.



    The McClatchy reporting also documented how U.S. detention policies fueled support for extremist Islamist groups. For some detainees who went home far more militant than when they arrived, Guantanamo became a school for jihad, or Islamic holy war

    .

    The Bush national security team has mangled everything it’s touched, so it should come as no surprise its “worst of the worst” prison system is riddled with mistakes, bungling and that familiar adamant refusal of accountability.

    It continues to amaze me how Newsman and his buddies wouldn’t trust the federal government as far as they can throw it, except when it feeds their Jack Bauer fantasies about getting the bad guys. Well, the Bush crew managed to get lots of folks who weren’t bad guys, and knew it from the start. Again, is it any wonder they’ve fought tooth and claw to keep detainee imprisonment accountable only to themselves?

    The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren’t “the worst of the worst.” From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn’t belong there.

    Of course, that assessment comes from a source Newsman likely considers untrustworthy. What would the Secretary of the Army know about fighting a war? Let’s check with an Afghan security official who was in the thick of things:

    “There were Afghans being sent to Guantanamo because of bad intelligence,” said Helaluddin Helal, Afghanistan’s deputy interior minister for security from 2002 to early 2004. “In the beginning, everyone was trying to give intelligence to the Americans … the Americans were taking action without checking this information.”

    That’s all habeas corpus is — a requirement the Federal Government check and justify its information on anyone it wants to imprison indefinitely.

    Maybe Newsman will believe someone who more closely resembles Jack Bauer:

    Army Spc. Eric Barclais, who was a military intelligence interrogator at Bagram Air Base in Afghanistan from September 2002 through January 2003, told military investigators in sworn testimony that “We recommended lots of folks be released from (Bagram), but they were not. I believe some people ended up at (Guantanamo) that had no business being sent there.”

    “You have to understand some folks were detained because they got turned in by neighbors or family members who were feuding with them,” Barclais said. “Yes, they had weapons. Everyone had weapons. Some were Soviet-era and could not even be fired.”

    The policy lands squarely at the foot of George Bush and his minions:

    Rather than taking a closer look at whom they were holding, a group of five White House, Justice Department and Pentagon lawyers who called themselves the “War Council” devised a legal framework that enabled the administration to detain suspected “enemy combatants” indefinitely with few legal rights.

    The threat of new terrorist attacks, the War Council argued, allowed President Bush to disregard or rewrite American law, international treaties and the Uniform Code of Military Justice to permit unlimited detentions and harsh interrogations.

    The group further argued that detainees had no legal right to defend themselves, and that American soldiers – along with the War Council members, their bosses and Bush – should be shielded from prosecution for actions that many experts argue are war crimes.

    It’s all about lifting accountability in the face of fear. How can anyone argue that’s the appropriate time to do away with accountability for civil servants?

  8. dwyer says:

    Did that language remain in the final version of the law which the Supreme Court found unconstitutional? If so, wasn’t there concern that the Executive could declare an American Citizen an enemy combatant, and that was the real death of habeas corpus?  Now, if I am way off base, never mind.  I do not want to interrupt this really good discussion….

    The last few years are a bit vague for me, but 1870 is coming in loud and clear.  

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