Habeas Corpus and Constitutional Protections?

Under the current status of the law, the administration has not suspended the writ, nor do they continue to maintain that Gitmo is outside of the reach of Constitutional protection and responsibility. Indeed, since the Scrt's opinion in Hamdi v. Rumsfield, the administration has been surprisingly compliant with the letter of the law. The problem -- of course -- is that directly following the smack-down delivered by the aforementioned scrt case, the law was being penned by a (R. controlled) Congress that strongly supported the overall goals of the administration ... that is to detain, interrogate, evaluate, and sentence within the spirit, though not necessarily the letter, of the Geneva Convention. Recall that after the scrt handed down Hamdi and another case...Rasul, i think, the elected representatives of the people legislated who would have the first crack at trying those detained at Gitmo and they said that first crack went to military tribunals in Cuba. The elected representatives of the people legislated to only allow the DC Circuit to review the procedures of the military tribunals thereby removing the appellate powers of the scrt as to these defendants. So, at the end of the day, it is the fault of the people who elected those representatives. Now, realizing that, some folks woke up and changed their elected representatives, but the new folks in DC have done nothing to fix that nasty piece of legislature.

In light of the fact that we have legislature in place allowing for removal of appellate jurisdiction to the Scrt, strictly defining the DC Cir as the avenue of appeal following trial before the military tribunal, it seems to me that consistent with Ex Parte McCardle acted within the law. Congress has strictly confined the avenue for seeking the writ, vesting the military tribunals (those are Art. III courts, right?) with orig. jurisdiction on the questions detainees may present, and appellate jurisdiction to the DC Cir, removing appellate jurisdiction from the Scrt. That is completely consistent with established law, though there is some question as to whether there are Due Process issues that even the current law will not allow. I think the due process concerns recently granted cert by the Scrt may be address your 5th and 6th amendment issues, but honestly, i think the Scrt court was correct in originally denying cert., preferring to wait and see how the first round of trials and appelas before the DC Circuit went. It was not until the trial judges found fault with how the govt was trying to present the cases ... even with a gift of a statute to support their questionable goals ... that the scrt saw the problem was going to take another 6 years if they did not step in sooner rather than later.

The Supreme Court overruled the argument that the constitution or rights of habeas corpus do not apply in Rasul v. Bush.

Civil rights however, may be suspended in time of war, and Habeas corpus relates to criminal proceedings and not to "enemy combatants," who may be detained for the duration of "the war" See Padilla. Al Mari was not an enemy combatant because he was caught in the US and never actually fought. In Al Mari v. Wright The court held that

"Because Congress has not empowered the President to subject civilian alien terrorists within the United States to indefinite military detention... we need not, and do not, determine whether such a grant of authority would violate the Constitution. Rather, we simply hold that the Constitution does not provide the President acting alone with this authority".

The law now provides adequate relief for detainees and until all provisions for judicial review are exhausted, the controversy is not ripe for Supreme Court review. But see Justices Stevens and Kennedy's dissent in Boumedienne.

Interesting issue, I'll have to study it more later.

The US is allowed to take some actions outside it's own borders, isn't it? And it is expected to follow laws and policies when it does, so right? For isntance, there's a ban on assassination (enacted by Reagan, oddly enough) that the CIA supposedly abides by when not in the US, indeed, by law, the CIA is only supposed to opperate outside the US... If that law is meaningless outside the US, how can the CIA be banned from assassination?

Aren't, say, American gaurds at Guantanamo still protected by the Constitution (in as much as any member of the military is)?

It would seem to me that the question is the status of the detainees, more than where they happen to be. The constituion obviously protects amercian citizens, and also aplies to anyone on American soil. The detainees are neither. They're on Cuban soil (leased to the US), and they're not citizens - they're also supposedly not POWs.

Governmental loop-holes and jargon has taken over this country so the rights of the people do not matter. It's the government's way of chipping away at our personal freedoms. Hitler had homeland security and look what a wonderful thing that was- not. Guantanamo bay should never be allowed if a person is a trader you deal with them openly and in public. Justice needs to swift an humane and not linger on for months at a time. The U.S. government could care less about what laws they choose to enforce and ignore. The constitution is just a historical afterthought and rights are really a joke anymore.

During war, it's a totally different ball game. If we were buddy-buddy with the world it would be different, but the fact is (whether people think it is right or choose to acknowledge it) we are at war right now, and as such there are new rules. Lincoln suspended habeas corpus during the Civil War. F.D.R. put Japanese Americans away during WWII. The fact of the matter is you can't afford to kiss up to civil rights activists when lives are at stake. If suspending my rights for a little while will save others' lives, then so be it.

Are we even claiming to enforce our laws, or are we just flatly detaining them at our leisure as enemy combatants and spies? Don't get me wrong, I'm not a fan of the trouncing of the Constitution either, but I haven't actually heard anyone say that the detainees in Guantanamo are actually being held by our law. They haven't been charged with anything that I'm aware of, just an extremely extended "held for questioning".

Habeas corpus "a request for a court action to review an individual's detention by the government or a wtitten court order requiring that the accused be brought to court to determine the legality of custody and confinement".I not sure on the second question but read 'The Bills of right, or the Amendment from 1 to10."Maybe you can find your answers.

wait, I was under the impression( albeit "possibly" false) that "occupied territories" fell under "constitutional protection" It has always been my understanding that international or diplomatic holdings of the United States...ie; bases, consular, and consular holdings (housing of support personnal) were subject to the rights and laws of the governing entity.Therefore,Gitmo personnel and subsequently...its "other" "residents" would fall under "constitutional" protections. this is yet a further extention of the "resolved" question contained within the "Bloodless Coup" question posed by the querer( Coragryph)

Coragryph, the illogic really is quite amazing, isn't it? I am far from a Constitutional lawyer, and even I can see it doesn't make a lot of sense. I may be wrong, but it seems to me Lincoln's suspension of habeas corpus was eventually overturned by the Supreme Court, but by the time they did it the war was over. If I am remembering correctly, then Lincoln's suspension of it cannot be used by the goose steppers to justify Bush's suspension of it.

Perhaps you might care to elaborate on this aspect of it? I wouldn't know where to begin looking for it. Good question!

Easy. Today, in modern times, the laws from the Geneva Convention should protect other countries from situations like that, especially in times of warfare. However, Bush mostly disregards it, because the Geneva Convention is toothless and there is little chance of Iraq and other terrorist-harboring countries going to war against the U.S. as a whole (plus a lot of Americans just don't care like they did for Vietnam). If Bush were to go to war against Iran or Venezuela, he'd probably abide by Geneva a lot more for them.

Also, Bush can suspend Habeas Corpus in the event of war. Lincoln did in the Civil War.

However, just because Bush can do these things doesn't mean he should. Why? One, because it leaves us in a moral and ethical quagmire, two, because it shows we have the reasoning and idea of fairness of a medieval dunce, and three because it gives a hypocritical element to America that other countries scorn us for.

Edited to answer showtunes:

Actually, a lot of law relies on precedence. That's one of the reason people become outraged at recently decided court case on an iffy issues (like post-partum psychosis). Precedence alone can help a future defendant establish a similar case using similar circumstances. In fact, one case where precedence was extremely important was the case of a slave woman in Pre-Revolution America who successfully argued for her freedom. Her case was used as a basis to free other slaves for years to come.

Also, I don't think it's right for Bust to waive habeas corpus. The circumstances that led Bush and Lincoln to waive habeas corpus were radically different. Lincoln waived habeas corpus one, because many judges were fighting in the war, and two, because it made it easier to hold people when there's little time to work on those issues.