Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”     Samuel Adams

February 20, 2007

The Death Of Habeas Corpus

by Doug Mataconis

The D.C. Circuit Court of Appeals has upheld a law passed by Congress last year which effectively eliminates the right of foreign nationals, or even United States citizens, to have their day in Court if they are held by the American military outside of the United States:

A federal appeals court ruled yesterday that hundreds of detainees in U.S. custody at Guantanamo Bay, Cuba, do not have the right to challenge their imprisonment in federal courts, a victory for the Bush administration that could lead to the Supreme Court again addressing the issue.

In its 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld one of the central components of the Military Commissions Act, the law enacted last year by a then-Republican-controlled Congress that stripped Guantanamo detainees of their right to such habeas corpus petitions. Lawyers have filed the petitions on behalf of virtually all of the nearly 400 detainees still at Guantanamo, challenging President Bush’s right to hold them indefinitely without charges. Yesterday’s ruling effectively dismisses the cases.

Essentially, the Court held that the protections granted by the Writ of Habeas Corpus do not apply when a person is being held outside the terroritorial jurisdiction of the United States, even if they are being held by American forces.

Effectively, today’s ruling means that the government can hold someone in a prison outside the United States indefinately without trial and without any review by a Judge. Even if that prison is on a military base that has been controlled by the United States for more than a century.

This post sums up the problem with the Court’s ruling quite well:

The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:

Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo’s new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.

Especially when, as is clearly the case here, the prisoners were taken to GTMO with the specific intent of keeping them out of the reach, and beyond the review, of the Judicial Branch.

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26 Comments

  1. i cant even fathom this. the military has the power to keep fathers from children and wives for years on a )$(*@ whim. this is ludacris. our neo-conservative democracy is disgusting. i want to move to Canada. and hope i stay healthy. but besides the point. the U.S. is becoming a truely hated country because of what we think is helping the world. LET IRAQ FIGHT THEIR CIVIL WAR AND DECLARE WHEN ENOUGH KILLING HAS HAPPENED. the brits didnt barge into our civil war and we turned out fine.

    Comment by john — February 21, 2007 @ 12:20 am
  2. This is exactly what one of our enemies(N. Korea, Iran) would do. I though we were supposed to be above that. I though Habeas Corpus was something that we really believed in as a part of the justice system.

    Comment by Mike — February 21, 2007 @ 12:31 am
  3. I’m not following, a United States naval base is not actually American territory if it is located overseas? I assume this applies to U.S. embassies as well? Well, Fidel and Raul Castro should be glad to hear that. If I recall correctly, the lease on Gitmo is a 99 year lease and that lease has expired. I wonder what Bush would do if the Castros decided to send the Cuban army to remove this alien presence on Cuban territory, since after all, the Bush Administration says Gitmo actually belongs to Cuba.

    I understand detaining people that were picked up on the battlefields of Afghanistan indefinitely and giving them status of prisoner of war or something similar. I can even understand denying battlefield pickups trials or tribunals (if I recall correctly, it’s illegal under the Geneva Conventions to try prisoners of war during wartime.)

    However, not everyone at Gitmo is a battlefield pickup and so if there are criminal charges, the U.S. government must follow Constitutional procedures with these people.

    Comment by Kevin — February 21, 2007 @ 1:08 am
  4. Correction:

    I was wrong about the 99 year lease, it’s a permanent lease; but my example still stands.

    Comment by Kevin — February 21, 2007 @ 1:21 am
  5. These folks are and should be treated ONLY as prisoners of war under the Geneva Conventions. There is virtually no reason why they should ever have access to any kind of court or tribunal, except an international war crimes tribunal convened AFTER hostilities have ended. The administration unfortunately, has made an awful legal quagmire of the situation in its rejection of the advice of its own military legal staff and acceptance of the bad legal advice of the Attorney General and the NeoCons. I am Attorney at Law, specializing in international and criminal prosecution.

    Comment by Doug — February 21, 2007 @ 1:40 am
  6. Why is it still called as Land of the free ??

    Comment by Observer — February 21, 2007 @ 1:41 am
  7. And the Americans ask themselves why does the world hate them so much. The land of freedom… Why don’t you free yourselves of your government first.

    Comment by Dude — February 21, 2007 @ 1:42 am
  8. If the court had ruled that a foreign combatant or terrorist detainee should be able to challenge his detainment in U.S. courts, would that mean that we provide U.S. lawyers to combatants that we capture right off the battlefield? Our military could not function. I clearly see the rationale of the court. In the case of terrorism, just what is a battlefield? It could be a building in a large city. Traditional ways of defining a battlefield, for example, are no longer applicable.

    What I think we have here is well meaning people trying to superimpose civilian citizen rights on enemy combatants…it just doesn’t work that way, or else we would still be on the Normandy coast hearing appeals from German soldiers. Great for lawyers, but not so great in winning a war.

    Now add in the fact that in this case, we are not fighting a foreign national, but a terrorist group who has no uniforms or flags or nation or Geneva Convention signature, and you can see this is a whole different ballgame than our previous wars….its complicated, and unfortunately, as our children and grandchildren will see, will remain so.

    Comment by Tim — February 21, 2007 @ 1:49 am
  9. Hi Kevin (and others), Just for clarification, US embassies and consulates are indeed considered sovereign US territory abroad, whereas US military bases are actually under the sovereignty of the nation in which it is located; its control by US forces is secured through treaty or contract. With that host government. But this is merely clarification of a point that is, in fact, beside the point!
    This court’s decision is the summit of hypocrisy. How can the US fail to uphold basic human rights enshrined in the Magna Carta several centuries ago, yet purport to be the liberators of Iraq and the deliverer of democracy to that country and to the Middle East? The rule of law is considered the foundation of any civilized, and I am appalled by how this administration has even the judiciary within its sphere of power and coercion. This is precisely what our nation’s founding fathers tried so hard to prevent. I am ashamed … and angered. You can be sure this buffoon in the White House and my congressmen and women will hear from me about this.

    Comment by Stephen — February 21, 2007 @ 1:52 am
  10. Stephen, I hate to tell you this, but the ruling which we are discussing was not by this administration, or coerced by this administration. It actually was made by a federal appeals court. And as you know, courts are a seperate branch of government here.

    Comment by Tim — February 21, 2007 @ 1:55 am
  11. Sorry, but I forgot the word “society” in one line in my above post. This line should read:

    “The rule of law is conidered the foundation of any civilized society …”

    Thanks, and next time I’ll try not to hit the “submit” button so quickly!

    Comment by Stephen — February 21, 2007 @ 1:56 am
  12. Dear Tim (and others),

    While I agree with you that offering the writ of (habeas corpus) to all detainees in a time of war is impractical, we must nevertheless uphold this right when we (the US gov’t) insist on holding such detainees for unreasonably lengthy periods of time (years in this case) without so much as a charge or hearing. If we have reason to hold them, then let’s hear it. Charge them, question them, schedule a hearing in a timely manner so that we can get to the point of why they are being detained. This is necessary both for the detainees (who have a right to know why they are being detained and to know that there is at least some kind of process that will come to an end at some point) and for their captors (to prevent the corruption and self-serving selective application of a basic human right so as to uphold and maintain the captors moral authority in that situation, in its own eyes and in the eyes of the community of nations. But to let it drag on and on for years with no end in sight and without so much as an indication of why they are being held is inexcusable. This is what I contest, and their detention is being perpetrated with the intent of holding them there specifically to preclude their right to habeas corpus. This is demeaning, and undermines what little moral authority we think we have as a nation. Is this distinction clear?

    Comment by Stephen — February 21, 2007 @ 2:10 am
  13. Hi Tim, point noted. They indeed should be separate branches, but I wouldn’t necessarily assume that such influence cannot occur. At the same time, I will concede that to claim outright that the administration has (or has not) influenced, pressured or coerced such a ruling would require further investigation.

    Comment by Stephen — February 21, 2007 @ 2:15 am
  14. Stephen, yes the distinction is clear, at least in a traditional war that has ended. And I don’t entirely disagree with your point. It’s just that when I see a knee-jerk reaction of blaming the administration for something like a federal court ruling, the rest of their comments seem automatically biased. As another example, look at Bill Clinton’s interpretation of intelligence relating to Iraq….it was an exact carbon copy of Bush’s…yet Clinton is deified while Bush is the devil.

    Comment by Tim — February 21, 2007 @ 2:22 am
  15. Hi Tim, I, too, am allergic to such knee-jerk reactions, but this is not such a reaction (and here I speak for myself), I assure you. Moreover, I am not necessarily a Clinton supporter, much less one who deifies the man … hardly. I have my issues with his administration, but that’s another kettle of fish.

    Rather, this is a concern for me and others precisely because of its selective non-application, as well as the Bush administration’s intentional efforts to avoid its application. This is downright insulting to the spirit of habeas corpus both in its inception in the Magna Carta as well as in its inclusion in our constitution. That is what concerns me.

    Lastly, as an addition to the point above about possible an administrations influence in the Judicial branch: after all, supreme court justices are appointed by a president with the intent of placing justices who are friendly to an administrations policy and ideology. It is indeed possible that such influence can also work through other levels of the highest courts in the US, though again, to make such a claim would require more investigation.

    I must go now, so I wish you all fervent discussion of the above points.

    Comment by Stephen — February 21, 2007 @ 2:35 am
  16. The GTMO detainees actually can challenge in U.S. courts that they are not an enemy combatant. (Yasir Hamdi did, and he was subsequently released.) And…the enemy combatants actually DO have hearings, but they are in military tribunals, not civilian U.S. courts. (I know a U.S. lawyer would be against that, that’s a given.) I just wouldn’t treat an ongoing war against terrorism in exactly the same way as I would treat a U.S. citizen inside our country…it’s just not practical. We are facing something much more complicated than our previous military actions…mainly because its a war that will never end against an enemy not associated with any nation-state.

    Comment by Tim — February 21, 2007 @ 2:39 am
  17. One last comment … true, we are engaged in a war unlike previous ones, but I would argue that since 9/11, we have steadily added fuel to our enemies’ cause, and for this reason, it may indeed never end (not that Islamic jihadists need much reason to attack anybody … but at the same time, we needn’t actually offer them legitimate reasons to do so). Nevertheless, in our fight against terrorism both in the US and abroad, I would not like us to usurp the very pillars and principles of our democracy, of our society, indeed of the spirit of Americanism in this pursuit. I believe we can meet the needs and adjust to this new form of conflict while still maintaining the values we stand for. I just think that in recent years, we have undermined so much of what we stand for, not only in our own eyes as a nation, but in the eyes of the world, that I feel we have poorly executed our prerogative to self-defense. One of the casualties of this poorly-executed strategy is, in my opinion, the denial of habeas corpus to detainess in Gitmo who have been and remain held for excessively lengthy periods without sufficient due process. I find this frightfully hypocritical, and of grave concern to our American values.

    Thanks for the discussion. I appreciate it, especially with you, Tim, and I hope it continues. Bye now.

    Comment by Stephen — February 21, 2007 @ 3:00 am
  18. Tim,

    Sorry but you are drinking the kool-aid.

    “We are facing something much more complicated than our previous military actions…mainly because its a war that will never end against an enemy not associated with any nation-state.” Is this real??? Did you forget the war on Drugs, with many many more American casualties than the War on Terrorism? The war on poverty? The war on steroids? Why not suspend the rule of law in these “wars.”

    Maybe because wars are against countries or groups and not abstract noun?.

    I would like to give you something to thing about.

    My wife is from China. China is exploding in economic size and power. China is a civilization that was contemporary with the ancient Egyptians and they are still around. They invented the printing press 500 years before we did and did not use it to print a “National Enquirer” with it. They invented gunpower and did not make weapons with it. China is awake from a 200 year nap and they are remaking Asia.

    Question, What happens when you ,Tim, write in a blog something derogatory against China. China ‘defines” you as a terrorist. Guilt is not the issues (remember that more than 1/2 of GITMO detainees have been released because they were not involved in any action against the US, i.e., innocent), kidnaps you and takes you somewhere for detention. When this happens, what credibility will the US have to defend your rights? To release you from China’s detention.

    None. IN fact we set the precedent for this.

    Let’s see, we lose ca. 5000 Americans in the last 50 years to Terrorism and we should give up basic freedoms to fight this “terrible thing” not to mention flushing 650 billion US$ down a toilet.

    We lose 13000 a YEAR to gun violence but should not give up our right to guns?
    We lose 50000 a YEAR in Auto accidents but don’t take away the right to drive 80 MPH? Etc, etc,
    What if we had spent 650 B US$ on Cancer research?

    You’re right about ONE thing Tim. Our children will judge us. They will use posts like yours as evidence against us. IF we do not stand against this then we’re guilty as hell.

    Comment by Kirk — February 21, 2007 @ 6:36 am
  19. Yes,
    The court has it right. These are our enimies, you idiots!You bleeding heart liberals would let them free to kill AMERICAN SOLDIERS AGAIN.SO move to FRANCE or CANADA if you don’t like it .

    Comment by stan — February 21, 2007 @ 7:30 am
  20. … because, Stan, moving to Canada or France wouldn’t solve the problem. And frankly, this “Our way or the highway” attitude is dangerous not only to our own country’s well-being, but to the world at large, for if left unchecked, it would lead to the US becoming a public danger in the world on the order of Iran or North Korea (which, incidentally, some could reasonably argue, has already occurred). No one here is suggesting that we let known terrorists free to combat US forces in the future. You miss the point, Stan, of Habeas Corpus: it is the idea that the King, or in a modern sense, a government, has no right to detain , hold or imprison others without cause. Many detainees remain (and have been for years) in US custody in Gitmo without ever having been charged, much less found guilty. THIS is what must be determined in a reasonably timely manner. You certainly wouldn’t want to be detained for years by a foreign army, and be held outside their country at a naval base with little to no legal recourse, would you? How would your wife, parents, children or girlfriend feel about it? This is about the Rule of Law, Stan, and its honorable application even in difficult situations. Not about sympathizing with the enemy. In fact, Stan, those you call enemies there in Guantanamo Bay may, in fact, not be enemies at all … or they could be. Wouldn’t you like to find out, rather than hold them there indefinitely … at taxpayer expense? Give it some thought, Stan, before you succumb to any knee-jerk reactions against those ” bleeding heart liberals”. That’s all anyone can ask.

    Comment by Joe — February 21, 2007 @ 10:09 am
  21. I find the accusation of “bleeding heart liberal” rather amusing. In fact, it is likely that under the Rule of Law that we propose, true terrorists would be dealt with much more harshly than they are now. On the other hand, those who can’t be shown to be terrorists would be free to go, as they should be.

    A bleeding heart liberal, Stan, is not one that advocates the equal application of the Rule of Law to all people. That equal application includes the concept that differences of social or financial position, ethnicity, national origin, religion, etc. play no part in determining how the law should be applied. The term you used originated from the group of “liberals” who advocate the intervention of the government on behalf of those who have been determined to be in some fashion disadvantaged by their position within society. Not one person who writes here advocates such a thing. Nor do the majority of our commenters.

    If you’re going to insult us, at least be accurate in what terms you use to do so. I’m sure the true “bleeding heart liberals” would feel insulted that you had called us that!

    As far as your like it or leave it attitude, maybe you need to take a look at how that compares with the attitudes of citizens of Germany and Italy in the 1930′s.

    Comment by Adam Selene — February 21, 2007 @ 10:24 am
  22. Thank God, we finally had a sensible court decision re the incarcerated enemy combatants. These folk do not qualify as POWs because they cannot be classified as soldiers or POW under the Geneva Convention or under our military rules because they did not wear a uniform with insignia, rank etc or wear dog tags identifying them as soldiers.
    They are essentially terrorists like the partisans in past European uprisings that were summarily executed in days gone by. Or like the 6 German spies in civvies beached by a sub in WWII who were spotted by patriotic Americans (currently an endangered American species). They got no habeas corpus protection and were justly shot a few days later.
    Or like Major Andre, a turncoat officer who was court martialed by G Washington’s staff and hanged 3 days later after he was caught with maps of West Point in his boots. But his buddy, traitor Benedict Arnold, regrettably escaped to England.
    But current unnamed US turncoats fighting for the Taliban and ElQaida were not treated similarly and regrettably are still enjoying the freedoms they wanted to destroy.
    Folk, we are at war, possibly more serious and threatening to the US and indeed Western civilization than WWII or any other war in our history.
    It’s time to wake up and pull our collective liberal heads out the sand and stop coddling our sworn enemies by granting them rights created for the protection of our citizens not our enemies.
    HR, proud and patriotic naturalized US citizen.

    Comment by Herman Rutner — February 21, 2007 @ 5:58 pm
  23. If habeas corpus is a right that detainees have then do they also have the right to freedom of speech, the press, and assembly? How about the right to keep and bear arms?This is part of the logic that the court is using.
    Congress can suspend habeas corpus and for the sake of the detainees as Guantanamo there is little doubt that they have done so. That is pretty much what this opinion is about.

    Comment by tkc — February 21, 2007 @ 6:20 pm
  24. Bush has taken an identical step which Hitler took on his path to achieving dictatorship just before he proposed the “Final Solution”. Research history and you will confirm this statement and find it to be true.

    Comment by CitizenCane — February 21, 2007 @ 7:30 pm
  25. That’s right CitizenCane, Bush is Hitler and the Circuit Court of Appeals is really controlled by Bush. Gosh, why are we fighting terrorists anyway? They are really the good guys, and its those dastardly HitlerAmericans we should be afraid of. We should actually be helping the terrorists, not detaining them! What are we thinking??

    And Kirk, in your reference to my drinking Kool-Aid, perhaps your wife has fed you some Chinese Kool-Aid…you are equating a military war on foreign terrorists to the “War on Drugs”, a mere slogan? Seriously? Really? And you are equating some Chinese dude defining me as a terrorist from blogging, to people who are actually real terrorists who behead and homicide-bomb innocents? Jeez, have another drink of Chinese Kool-Aid my friend, good to see your wife has “indoctrinated” you properly.

    And Stephen, you make good points that are actually logical…those certainly make me think, but since these GTMO detainees ARE getting hearings (just not in U.S. civialian courts), I support the law passed by Congress and upheld by this Court of Appeals. But if our court system overturns this law as unconstitutional, I would approve of that too. Its how our system works…not by polling whether we are popular or unpopular among foreign populations. (I’m sure if we had polled Japanese civilians in Dec of 1945, they would have shown intensed hatred for us forcing democracy on them.)

    Comment by Tim — February 21, 2007 @ 11:34 pm
  26. keno odds…

    baazipay uocav…

    Trackback by video keno — March 9, 2007 @ 11:10 am

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