Point - Counterpoint On Habeas Corpus

John McCain bashes the Supreme Court decision on habeas corpus rights for Gitmo prisoners; this is the McCain statement by way of Michael Scherer of TIME:

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn't torture any prisoners, that we didn't mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won't go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. 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. By the way, 30 of the people who have already been released from Guantanamo Bay have already tried to attack America again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that.

Barack Obama addressed the question of habeas corpus suits related to prisoner accommodation in his Senate statement opposing the Military Commissions Act of 2006:

Let me respond to a couple of points that have been made on the other side...

You are also going to hear a lot about how lawyers are going to file all kinds of frivolous lawsuits on behalf of detainees if habeas corpus is in place. This is a cynical argument because I think we could get overwhelming support in this Chamber right now for a measure that would restrict habeas to a one-shot appeal that would be limited solely to whether someone was legally detained or not. I am not interested in allowing folks at Guantanamo to complain about whether their cell is too small or whether the food they get is sufficiently edible or to their tastes. That is not what this is about. We can craft a habeas bill that says the only question before the court is whether there is sufficient evidence to find that this person is truly an unlawful enemy combatant and belongs in this detention center. We can restrict it to that. And although I have seen some of those amendments floating around, those were not amendments that were admitted during this debate. It is a problem that is easily addressed. It is not a reason for us to wholesale eliminate habeas corpus.

Obama is a lawyer, so one would hope he is accurate on this point; I am not a lawyer and don't know whether Congress could have restricted the habeas right to the one topic of reasonable detainment, but I am pretty sure that Senators Lieberman and Graham have extensive legal training.  Well, as president Obama will have a chance to reach across the aisle and settle this.  As if.

Comments

[kim]

Obama thinks he can create varieties of habeas suits? I am not a lawyer but that smells like cowdung to me.
=============

[Danube of Thought]

My un-researched opinion is that both men are wrong, but Obama is closer to the mark. Unless my memory is flawed--a distinct possibility--a habeas petition is already limited in the way Obama is describing. I think the only issue in such a petition is whether or not the petitioner is properly in custody.

I hope someone with more experience, or with the inclination to research the matter, will weigh in on this.

[clarice]

Congress can, it appears, vote to suspend habeas corpus , claiming 9/11 was "an invasion" and that it appears would be a non-justiciable issue.

http://www.volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213327606

[Topsecretk9]

Drudge

NBC's Tim Russert died today after suffering an apparent heart attack, according to TV industry sources.
THIS IS A DEVELOPING STORY. PLEASE REFRESH FOR UPDATES.

[MayBee]

MSNBC hasn't said anything.

[clarice]

Oh dear, he was rather young to die of a heart attack.

I was going to post this for PUK--something that should be underway at the time the referendum is ignored:
"A United Nations report says Britain should abolish its monarchy. The UN Human Rights Council said the UK must ''consider holding a referendum on the desirability or otherwise of a written constitution, preferably republican''. The council has 29 members including Saudi Arabia, Cuba and Sri Lanka. It was the Sri Lankan envoy who raised concerns over the British monarchy. The resulting report said Britain should have a referendum on the monarchy and the need for a written constitution with a bill of rights."
UN to UK: Dump the queen

[Topsecretk9]

Drudge line says he ways vacationing with his family in Italy, just flew for taping in DC and collapsed.

[MayBee]

that just has me really, unexpectedly sad.

[Porchlight]

What a sad shock. On vacation with his family, how awful for them.

[Jane]

Actually Fox said that he'd just come from BC - and if it was graduation I feel badly for the kids.

[Lesley]

Very sad.

On another note, its unfortunate from us Plamiacs that Tim Russert will never write an autobiography to tell his side of the story wrt to Libby.

[vnjagvet]

According to CNN and Fox News, he had a heart attack at work and could not be revived. It may have been the first indication that he had heart disease.

His son just graduated from Boston College.

It is great that he had the pleasure of seeing that.

May God bless and keep his family in their great loss.

Politics, even presidential politics, seem so infinitesimally petty at a time like this.

[Topsecretk9]

ugh

Chris Wallace just FUBAR'd Russerts role in the Scooter Libby trial.

[Neo]

Now Libby will never get justice.

[MayBee]

I don't think Libby would trade places with him, Neo.

[bad]

My heart goes out to the Russert family. May God grant them comfort and peace.

[Patrick R. Sullivan]

From Scalia's dissent:

At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.... Some have been captured or killed. ....

But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. ....Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers.

....Still another murdered an Afghan judge. ....It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. ....

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.

Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would be no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information.

Now, let's see what Obama was complaining about in his speech to the Senate during the debate:

Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence.

I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. I know that every time I think about my two little girls and worry for their safety--when I wonder if I really can tuck them in at night and know that they are safe from harm. I have as big of a stake as anybody on the other side of the aisle and anybody in this administration in capturing terrorists and incapacitating them. I would gladly take up arms myself against any terrorist threat to make sure my family is protected.

But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there.

Not terribly prescient, it seems, and someone else's little girls paid the price.

[bad]

Liz trotta of NBC just said Russert had an obvious liberal bias as do most journalists.

[centralcal]

My sincere sympathies to the Russert family. I did, however, lose some (not all) respect for him during the Libby case.

Looking beyond this weekend's and next weeks many tributes and memorials, one has to wonder how NBC will fill his seat at MTP.

[MayBee]

He was but a man, centralcal. Imperfect.

I have to say, watching Andrea Mitchell and David Gregory discuss their personal closeness to the man, I've no doubt they would have closed ranks to protect each other.
I don't know if that's what happened, but you can tell they loved Tim Russert.

[Patrick R. Sullivan]

When we've got the bad guys locked up in Gitmo, this can't happen:

Taleban militants have attacked a jail in the Afghan city of Kandahar and set hundreds of inmates free, reports say.

There have been a number of casualties among security forces, they say. A lorry bomb blew open the main gates of the jail and 40 Taleban stormed inside.

....An eyewitness told the BBC that the force of the initial blast was enough to blow out windows up to 3km (1.7 miles) from the prison.

And, at Gitmo they're better treated:

Last month inmates at Kandahar jail ended a week-long hunger strike after a parliamentary delegation promised to address their demands.

Almost 400 prisoners said they had been denied access to fair trials and some also complained of torture.

[vnjagvet]

Karl Rove has just delivered a personal eulogy for Russert on Cavuto's show.

Very classy and heartfelt.

[Topsecretk9]

Jane Hamsher seems to think that the internet killed him

Dave Winer said that "the Internet destabilizes every hierarchy it contacts." Russert stood as a symbol of an institutional journalistic hierarchy for many of us, and bloggers right and left railed against him mightily. He took arrows on behalf of many who practiced the journalism of his era, and stood his ground.

or as usual takes herself and her miniscule importance way too seriously

I know JOM gave Russert a bit of a hard time during the Libby trial, but I am unaware of any JOM'ers who started "Open letter to Tim Russert" blogs and endless "pumpkinhead" references.

[clarice]

NBC is in big trouble without him. Andrea is one face lift away from becoming a skull and Gregory is too obnoxious to be long endured. Only Russert's warm, folksy style kept that show on the road.

[Danube of Thought]

This is a winning issue for Obama. The nation in general has no more idea what is actually at stake than does David Souter. Obama can sound high-minded and prescient, linking McCain to Bush in the bargain, whereas McCain sounds pretty much incoherent.

What an unmitigated disaster. Both the decision and the Republican candidate.

[anon]

The Court was clear that it can't be a "one shot" writ, because evidence may surface after the determination. Further, a decision to hold a combatant because he is considered dangerous would need to be revisited, and under the Court's view, that determination might be reviewed by the courts. The Court did not reach the merits on the availability of the writ for conditions and treatment, but if the detainees have constitutional rights, why would they not have a right to bring a challenge for those? Obama can't give a reason, because there isn't one.
So whatever Obama's position in 2006, the Court has clearly spoken and Congress no longer has the power that Obama suggested.

[Thomas Jackson]

Its sad that we live under an imperial judicary, where five unelected individuals can make up the law whenever they please.

Apparently the five idiots who made this decision believe the Constitution is a suicide pact. Try as I might I can find not one iota to support their contentions. Did captured British troops appear before tribunals during the Revolution; captured Germans, Japanese, and Italians in WWII?

I hope the individual trooper will exercise his rights as granted to him under Atcile IV of the Geneva Convention when dealing with terrorists. As for the Supreme Cout I long for the day when we get another Andrew Jackson who said to the court you made your decision now enforce it. But our presidents today are merely plastic imitations of men with metrosexual wardrobes and characters.

[PaulL]

Yes, Thomas Jackson, it would be great if the President and Congress told the Supreme Court to stuff it. Unfortunately, it's now like God has spoken, as I believe Nancy Pelosi put it.

Power grabs are supposed to be countered by one or both of the other branches, but that's all in the past now.

[clarice]

Congress should suspend the writ..it has the power to do so..it can declare the 9/11 attack an invasion within th meaning of the Constitution , declare also that this is an emergency and then continue per the legislation they enacted.

[Soylent Red]

Congress should suspend the writ

Good luck with that. It would require the Copperheads to admit that

a. Guantanamo housed people who were not victims of the evil Bush Regime

b. There are, in fact, people who want to kill us for reasons unrelated to who is President

[clarice]

Still, If I were a Rep I'd start pushing for it. Congress voted overwhelmingly for the legislation the SCOTUS just said was inadequate, suspend the Writ and enforce the legislation. (If the copperheads don't vote for it, let them explain why.Let the them include the blue dogs already running from Obama and who the party needs to make up the majority)

[Sara]

I was out playing with the little ones and came in to get a soda, when I heard the news alert come over the TV, broadcasting to an empty room. Tim Russert dead of a heart attack at age 58. My knees buckled from the shock of it. I immediately felt guilty for all the terrible things I said about him during the Scooter Libby trial and then I remembered the last month of my Mother’s life and how Tim Russert played a role. His book, Big Russ and Me, had just been published. Even though it is about a son and his father, the main theme of the book is all about the values that Big Russ imparted to his son. I bought the book and sat with my Mom and read it to her. She had lost most of her eyesight due to a stroke, but her mind was still sharp as ever. As I was reading, I looked up and discovered tears streaming down my Mother’s face and when she realized I was looking at her, she tried to smile and said, “those times are gone, I’m afraid.” I asked, which “times” do you mean, and she said, “a time when people treated each other with respect as a matter of courtesy, a time when people were more important than things.” She then began to talk about my own father and how much Big Russ reminded her of him. I was only 13 when my father died, I have some very vivid memories of him, but only the memories of a child. I learned that afternoon about my Father the man, a man very much like Big Russ, even though they came from very different backgrounds and with very different politics. So even though Tim Russert made me want to throw something on more than one occasion, especially as he became more negative about the war, I’ll always have a special soft place in my heart, because he was the vehicle that helped make my Daddy come back to life for me in his own portrait of his father. A gift that goes far beyond the day’s headlines and political infighting. We shared a birthday and we shared memories of an era and our parents who survived the Depression and WWII to become the “greatest generation.”

[Danube of Thought]

"The Court was clear that it can't be a 'one shot' writ, because evidence may surface after the determination."

Not sure I understand. If the "determination" is that he is improperly held, that's the end of it. If it goes the other way, what's the vehicle for surfacing the evidence?

It would probably help if I read the whole opinion (an unlikely event), but based on the excerpts I've seen the Court only reached the habeas issue, and didn't address such matters as the fourth, fifth and sixth amendment rights.

When Obama spoke in 2006, he was clearly operating on the assumption that the detainees had no habeas rights under the constitution, and if that were the case congress could have granted such a right with whatever limitations it chose to impose. No longer the case.

There is simply no way that the present congress (let alone the one we'll have a year from now) will ever declare that there has been an invasion for the purposes of suspending habeas. This matter is pretty much closed for the foreseeable future. Neither the Court nor the congress--nor, I believe, a majority of the electorate--really believes that we are at war, other than in Afghanistan and Iraq. The nation has reached a consensus that Al Qaeda's explicit declaration of war against the US can simply be wished away or ignored.

[Danube of Thought]

Clarice, I devoutly hope that the GOP in the Senate tries to do exactly what you propose. However, my guess is that if they do it'll never make it out of the Judiciary Committee, never get to the floor.

[Tom]

When we've got the bad guys locked up in Gitmo, this can't happen:

Taleban militants have attacked a jail in the Afghan city of Kandahar and set hundreds of inmates free, reports say.
There have been a number of casualties among security forces, they say. A lorry bomb blew open the main gates of the jail and 40 Taleban stormed inside.

....An eyewitness told the BBC that the force of the initial blast was enough to blow out windows up to 3km (1.7 miles) from the prison.

You are deulsional. One has nothing to do with the other, except in the minds of frightened cry babies. Please grow a spine.

So you are so scared of the due process that you would throw away what America stands for? How on earth can it be so bad to merely process these SUSPECTS - that is all they are at this point (SUSPECTS) - so we only punish the convicted ones? It appears America is stronger, braver, and more patriotic than you will ever be. We have a country of laws, and your idiot king does not make laws - that's Congress's job. If you can find someone in your family who can read - and I highly doubt that (go home schooling!) please ask them to read our Constitution and Bill of Rights. Those documents are fo your protection too.

You really believe the government should be able to take an American citizen off the street and put them away forever? For no reason? With no evidence? Please leave America now. She does not need you and those like you.

[Sara]

Have you all seen Andy McCarthy's piece Treachery?

Most of it we know here at JOM, but this is a fantastic source that puts it all in one place. I am highly recommending everyone read this.

[Patrick R. Sullivan]

High quality argument, Tom!

When did we ever offer 'due process' to enemies captured in war?

Did you notice that the Gang of Five nullified Congress's duly enacted law? I.e. Congress did their job.

[Soylent Red]

You really believe the government should be able to take an American citizen off the street and put them away forever? For no reason? With no evidence? Please leave America now. She does not need you and those like you.

They are not citizens.

They are not innocent.

They have made it to Gitmo because of a preponderance of evidence.

If you don't know, or don't believe these facts, you probably deserve the fate they have in mind for you.

Just don't stand next to me, because I don't.

[Soylent Red]

In fact, go stand in France, because my country doesn't deserve what they have in mind for us either.

[Sara]

Why is it so hard for some people to understand that these are not criminals but illegal enemy combatants, terrorists, whose sole reason for being is to kill anyone who disagrees with their psychopathic view of America and the world outside Islamic extremism.

[Rick Ballard]

If the five Supreme Asses do something similiar interpreting the 2nd Amendment case then McCain's election will be assured.

What tiresome cretins these progs are.

[Danube of Thought]

"How on earth can it be so bad to merely process these SUSPECTS - that is all they are at this point (SUSPECTS)."

You seem to think that a war is a crime wave. Why didn't we grant habeas corpus rights to any of the 400,000 German prisoners held on US soil at the end of WWII? The Court just granted these men rights that those Germans never had, merely because, unlike the Germans, they violated the laws of war by not wearing uniforms.

And for God's sake get your facts right. None of these people is an American citizen, and none was captured in the US. Each and every one of them has had a hearing before a congressionally-established tribunal which determined that he was, in fact, an unlawful enemy combatant. Each of them has had the right to appeal that determination to the D.C. Circuit Court of Appeal.

Other than that, you make a hell of a case for whatever your position is.

[MarkJ]

Funny thing, the "Gang of Five"--in all their loony, robed majesty--still don't realize they've inadvertently imposed death sentences on lots of Taliban and Al Qaeda.

(*Military officers talking in 'wide-eyed innocence'*) Gee whiz, counselor, we REALLLLLLY wanted to capture those Taliban dudes alive, but, shucks, they just kept shooting or trying to escape. We REALLLLLLY did our best to aim low and just wound them, but, whoa, it's hard to do that when rounds are zipping right past your head. On top of that, we didn't have our morning cup of joe--and you know how twitchy people can get when THAT happens. Y'know what I mean? Yeah it's a bitch, and we're REALLLLLY sorry, but we'll REALLLLY try to do better in the future. Honest Injun!"

[Soylent Red]

MarkJ:

Look for a resurgence in Rule 303.

I'm pretty sure it's not in the statutes, but it covers a lot of gray areas.

[clarice]

This is the downside of success..We had every reason to believe that the attacks would continue and used every means to see ythat they didn't. Because those means proved successful, hardly anyone acknowledges the continuing threat. FEH

[Ann]

Soylent,

I don't know how you endure the carp coming out of Congress and the Supreme Court and the idiots like Tom.

Hope you know we all stand next to you and are proud of it!!

[Soylent Red]

Ann:

Were you the one who offered to put me up for a night when I crossed country?

I might need to rent a 8x5 space of your floor for a night before long.

And Clarice, get your i-Pod money ready.

I'll know next week.

[clarice]

Will you need a place to stay in D.C.? If so whistle.

[Ann]

8x5 space, Rent???

Soylent, you are welcome to have the whole house free and I'll stock the bar with your favorites. If you give me enough notice I'll order Allen Brothers steaks and have the Girl Scouts parade in your honor. Smooches

[hit and run]

I'll mud wrestle everyone for the right to have Soylent sleep with me.

Oh wait. That came out wrong.

I mean he can sleep at my house.

In another room.