Victory for the Constitution!

[keith]

Originally Posted by Inquartata

It's not a matter of 'disclaiming sovereignty'. It's a matter of the obvious impossibility of exercising sovereignty over the soil of a sovereign foreign nation. We lease Guantanamo from Cuba. We do not own it. If I lease an apartment, does that mean I can make my own rules as to its use? Or must I comply with the wishes of the owner, as expressed in the lease? Who, in other words, is "sovereign" there, my landlord or me?

So are you arguing that Habeas Corpus does not extend to Guantanamo on the basis that the Cubans could close it if they wanted to?

Perhaps you could explain the difference between a 'lease in perpetuity' and owning something? Other than it is a handy way of claiming that one ain't a colonial power like those 'orrid europeans.

[Inquartata]

I am not a lawyer. However, I should think that there IS a difference discernible and important TO lawyers. Otherwise there would not be a distinction made in the first place.

[Neinteen]

Originally Posted by Inquartata

I am not a lawyer.

People, stop reading from there if you actually starting reading one of his posts.

[keith]

Originally Posted by Inquartata

I am not a lawyer. However, I should think that there IS a difference discernible and important TO lawyers.

.. but I thought the constitution was an agreement between the people and their government.

Originally Posted by Inquartata

Otherwise there would not be a distinction made in the first place.

I suspect you are confusing a political nicety performed by gunboat and a legal arguement. While one may derive from the other they shouldn't be confused.

[jessicasimpson]

Originally Posted by Inquartata

So, a "drug kingpin" who sells a lot of weed can be sentenced to death, but not a guy who rapes children.

This is also confusing because it is not possible to die from weed overdose. I guess they assume you must kill sombody because you sell weed

[mrbiggs]

Originally Posted by Philistine

The first part of the Court's opinion in Boumediene held that Guantanamo, for purposes of habeas, constituted territory subject to US jurisdiction. Given the history of Guantanamo, IMHO, this was clearly the correct decision. The sole purpose of housing the prisoners at Guantanamo was to insulate their detention from judicial review--while still maintaining them in a place that was completely and utterly subject to US control.

Cropped for length, but I'm responding to the issue in general.

The problems I have with not granting prisoners in Guantanamo habeus corpus are twofold. First, the U.S. government is (obviously) not treating them like citizens, but they're also not considered to be P.O.W.s. It hasn't been in the news lately, but over the past few years I've become worried that the government is able to treat prisoners however they want simply by giving them different names. This allows them to disregard both national and international, and therefore nearly all, laws, treaties, or rules involving prisoners. While I appreciate that the threat of terrorism is high, and that some of the prisoners in Guantanamo are very dangerous to our country, our soldiers, and their fellow countrymen, I get worried whenever the government gets unrestricted power, even if they promise to use it appropriately.

And secondly, habeus corpus doesn't just give rights to terrorists, as some people have been claiming. Rather, it simply forces our government to establish, using evidence, that these people are in fact terrorists. I think that this is actually a good thing for Guantanamo because it increases the legitimacy of the prison both in the eyes of opponents of the prison and the international community. The rumors of innocent people in Guantanamo who were at the wrong place at the wrong time are extremely damaging to our reputation, and I think it limits our power there. For example, I'm very opposed to waterboarding whoever happens to be in Guantanamo with no way to get out or prove their innocent, but I'd be less opposed if the prisoners were established to be actual terrosits.

So I really think that granting these people habeus corpus is a win all around, even if it means that we might have to set several people free. However, I think that if we can't come up with any convincing evidence that the person has committed the crimes they are accused of, they should be free to go.

[Grimaldi]

Originally Posted by mrbiggs

The problems I have with not granting prisoners in Guantanamo habeus corpus are twofold. First, the U.S. government is (obviously) not treating them like citizens, but they're also not considered to be P.O.W.s. It hasn't been in the news lately, but over the past few years I've become worried that the government is able to treat prisoners however they want simply by giving them different names.

While some of the name changing is obviously for legal purposes, the real reason this problem exists is because it's a new problem that doesn't mesh well with currently established laws and treaties. The people being captured aren't part of an organized, national military, so they aren't really EPWs (POWs), but they aren't common criminals caught by law enforcement agencies in conjunction with host nation police forces. When else has the US (or anyone) run into a similar situation recently?

Originally Posted by mrbiggs

So I really think that granting these people habeus corpus is a win all around, even if it means that we might have to set several people free. However, I think that if we can't come up with any convincing evidence that the person has committed the crimes they are accused of, they should be free to go.

This problem, too, relates to the same issues above. In a regular war, we hold EPWs until the end of the conflict and then release them back to their government (for the most part). In joint law enforcement actions, a plan is in place to gather evidence and either extradite the suspect to the US or apprehend and try in the host nation.

In our current operations, though, neither of these situations really apply. There are several "bad guys" of different stripes (Al Qaeda, Taliban, local nationals trying to make some money, foreign fighters, spin-off terror groups, militias), but none of them have a definite end of hosilities date to indicate when to release detainees. Most of these guys are nabbed in kinetic actions by combat troops, so evidence gathering isn't really done, preventing meaningful legal prosecution.

Guantanamo is a bit out of my scope, but I can speak to Iraq, which has the same basic situation. Here, they've managed to prosecute and execute Saddam, but what other major regime heads have they worked with? People like "Chemical Ali" are known bad guys, who did horrible things, but the Iraqi legal situation is so screwed up he's still in "detainee" custody. If the Iraqi government can't get those "slam dunk" cases done in a timely manner, what about the tons of minor guys picked up off the street? Leaders of foreign terrorist groups discovered in Iraq? You know they're bad, based off of secret/top secret intel from sources that may not be admisable in court, so you don't want to let them go, but you can't do anything with them through normal legal channels. What do you do?

[mrbiggs]

Originally Posted by Grimaldi

While some of the name changing is obviously for legal purposes, the real reason this problem exists is because it's a new problem that doesn't mesh well with currently established laws and treaties. The people being captured aren't part of an organized, national military, so they aren't really EPWs (POWs), but they aren't common criminals caught by law enforcement agencies in conjunction with host nation police forces. When else has the US (or anyone) run into a similar situation recently?

A country invading another and meeting loosely organized resistance from the locals is a fairly standard occurrence. I'm not an expert in international law, but I don't buy that this is the first time something of this sort has happened.

Also, I really don't care what they're called, as long as the government is limited in their actions. That does not currently appear to be the case.

Originally Posted by Grimaldi

Guantanamo is a bit out of my scope, but I can speak to Iraq, which has the same basic situation. Here, they've managed to prosecute and execute Saddam, but what other major regime heads have they worked with? People like "Chemical Ali" are known bad guys, who did horrible things, but the Iraqi legal situation is so screwed up he's still in "detainee" custody. If the Iraqi government can't get those "slam dunk" cases done in a timely manner, what about the tons of minor guys picked up off the street? Leaders of foreign terrorist groups discovered in Iraq? You know they're bad, based off of secret/top secret intel from sources that may not be admisable in court, so you don't want to let them go, but you can't do anything with them through normal legal channels. What do you do?

I don't know. But the answer is not "imprison them indefinitely without any chance for trial or contact with the outside world." If you know they're bad, there should be no problem proving it in court. If you don't know that, they should be set free. If the sources aren't admissible in court, then they're not usable. The rules we have for court cases are set for a reason. There are people who everyone knows are really bad released from prison due to lack of evidence every day. However, that's a sacrifice we make for having a free society.

[Inquartata]

Originally Posted by keith

.. but I thought the constitution was an agreement between the people and their government.

And the source of your confusion is the fact that the judicial system is not a branch of government? Or is it that lawyers are not citizens?

[Philistine]

Originally Posted by Inquartata

{snip} If I lease an apartment, does that mean I can make my own rules as to its use? Or must I comply with the wishes of the owner, as expressed in the lease?
{snip}

Well, that depends.

If the lease says the tenant has "complete jurisdiction and control" over the apartment, and the lease forbids the landlord from taking any actions to contravene that contol, and cannot be changed unless the tenant either agrees to the change or abandons the apartment--then yes, I'd say the tenant can make his own rules as to the apartment's use.

--Philistine

[Philistine]

Originally Posted by Grimaldi

{snip} The people being captured aren't part of an organized, national military, so they aren't really EPWs (POWs), but they aren't common criminals caught by law enforcement agencies in conjunction with host nation police forces. When else has the US (or anyone) run into a similar situation recently?

The US in Vietnam with Viet-cong guerillas. France in Algeria. The British in Northern Ireland, and any number of other situations. It's not like the existence of an international terrorist organization, or armed opposition to occupation came out of the blue.

In our current operations, though, neither of these situations really apply. There are several "bad guys" of different stripes (Al Qaeda, Taliban, local nationals trying to make some money, foreign fighters, spin-off terror groups, militias), but none of them have a definite end of hosilities date to indicate when to release detainees.
{snip}

But that's part of the problem--the Government seems to want to be able to hold people without charges or giving them an opportunity to defend themselves until the "war on terror" is over.

{snip}People like "Chemical Ali" are known bad guys, who did horrible things, but the Iraqi legal situation is so screwed up he's still in "detainee" custody. If the Iraqi government can't get those "slam dunk" cases done in a timely manner, what about the tons of minor guys picked up off the street? {snip}

Chemical Ali has already been convicted and sentenced to death in one case. He (along with a number of others) are currently in trial in another case.

--Philistine

[Epee_Pox]

How come the overburdened U.S. court system has to get involved with people captured while engaging in armed combat against the United States? Since when do the domestic courts have jurisdiction over such people? Domestic criminal law and civil law simply do not apply.

I have no problem with the military engaging in quick-and-simple hearings, just to make sure that someone taken prisoner wasn't an innocent person accidentally caught up.

I have a real problem with extending treaty rights to those who are not parties to the treaty, unless the obligations of the same treaty are also extended and enforced. You can't have one without the other.

Combat prisoners who are not subject to the obligations of a treaty extending rights to prisoners, are not entitled to the protections of such treaties. Frankly, they should be glad they're still breathing. Everything else they've got is either pure charity, or granted for a strategic purpose.

So the treatment of a prisoner who is not protected by a treaty should be debated based not on how such treatment comports with anyone's law, but rather based on how well it serves the larger strategic goals of the nation.

[Philistine]

Originally Posted by Epee_Pox

How come the overburdened U.S. court system has to get involved with people captured while engaging in armed combat against the United States?

Because the US wants to hold them--and in some cases put them to death.

{snip} Domestic criminal law and civil law simply do not apply.

Why not?

I have a real problem with extending treaty rights to those who are not parties to the treaty, unless the obligations of the same treaty are also extended and enforced. You can't have one without the other.{snip}

What treaty are you talking about? The present case had nothing to do with a treaty. The Supreme Court has already held (in a previous case) that (at the least) Common Article 3 of the Geneva Conventions applied to all detainees--but that wasn't at issue in the present case.

--Philistine

[keith]

Originally Posted by Epee_Pox

How come the overburdened U.S. court system has to get involved with people captured while engaging in armed combat against the United States? Since when do the domestic courts have jurisdiction over such people? Domestic criminal law and civil law simply do not apply.

It would be rather more surprising if the US legal system was not interested in how 'criminals' were being tried, convicted & punished. Are you arguing that the executive branch should be free to set up a parallel judicial branch as and when it sees fit?

[mrbiggs]

Originally Posted by Epee_Pox

Domestic criminal law and civil law simply do not apply.

Then what law does apply?

[Epee_Pox]

Originally Posted by mrbiggs

Then what law does apply?

None.

Originally Posted by keith

It would be rather more surprising if the US legal system was not interested in how 'criminals' were being tried, convicted & punished. Are you arguing that the executive branch should be free to set up a parallel judicial branch as and when it sees fit?

I'm not talking about criminals. I'm talked about people captured in combat.

I'm not talking about setting up any judicial branch, or giving the executive more powers. I merely suggested that it would be appropriate if the military decided to try to figure out whether any of its captives were captured by mistake.

Why domestic courts should be involved in such determinations is beyond me.

[Philistine]

Originally Posted by Epee_Pox

I'm not talking about criminals. I'm talked about people captured in combat.

The majority of those shipped to Guantanemo were not captured by US forces in combat, but instead were handed in by Afghans, often for a bounty.

I'm not talking about setting up any judicial branch, or giving the executive more powers. I merely suggested that it would be appropriate if the military decided to try to figure out whether any of its captives were captured by mistake.

They generally do this in Combat Status Review Tribunals (CSRT's). These are similar to the procedure that has long been used to sort out those captured.

Why domestic courts should be involved in such determinations is beyond me.

Because the Court held that the provisions of the CSRT's were insufficient.

Where a person actually is captured in combat against US forces, the process is trivial--as that, in and of itself, is enough to hold them for the duration of the hostilities (not the war on terror--but instead while hostilities continue in Afghanistan). The issue is, what is required where the issue is not "was the person captured fighting against the US", but instead is "is this person a terrorist", or something similar.

--Philistine