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Humans Have Rights, Not Just Americans

I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.  If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

The Court stressed that it was not ruling that the detainees are entitled to be released — that is, entitled to have writs issued to end their confinement. That issue, it said, is left to the District Court judges who will be hearing the challenges. The Court also said that “we do not address whether the President has authority to detain” individuals during the war on terrorism, and hold them at the U.S. Naval base in Cuba; that, too, it said, is to be considered first by the District judges.

The Court also declared that detainees do not have to go through the special civilian court review process that Congress created in 2005, since that is not an adequate substitute for habeas rights.

During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded.  There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process.  I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce.  If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.

Update:  Powerline writes:

Justice Scalia characterizes the decision this way:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.

I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?  One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well.  As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant.  I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.

Update #2, via the Onion 9/11 issue:

Bush is acting with the full support of Congress, which on Sept. 14 authorized him to use any necessary force against the undetermined attackers. According to House Speaker Dennis Hastert (R-IL), the congressional move enables the president to declare war, "to the extent that war can realistically be declared on, like, maybe three or four Egyptian guys, an Algerian, and this other guy who kind of looks Lebanese but could be Syrian. Or whoever else it might have been. Because it might not have been them."...

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war veterans, tried to steel the nation for the possibility of a long and confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know the nature of 21st-century warfare. We do not yet know how to fight this sort of fight. And I'll be damned if one of us has an inkling who we will be fighting against. With any luck, they've got uniforms of some sort."...

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven sneak attack from an aggressor with the decency to attack military targets, use their own damn planes, and clearly mark those planes with their national insignia so that we knew who they were," Rumsfeld said. "Since the 21st-century breed of coward is not affording us any such luxury, we are forced to fritter away time searching hither and yon for him in the manner of a global easter-egg hunt."

Posted on June 13, 2008 at 08:28 AM | Permalink

Comments

A large majority in Congress, guided by previous Supreme Court decisions, enacted a procedure for enemy combatants held in Gitmo to appeal their detention through appropriate tribunals. The president signed the bill.

Those held at Gitmo chose not to avail themselves of this procedure. So the Supreme Court decided to give the detainees unprecedented rights.

Warren thinks this is great news. Perhaps he has an incomplete understanding of the facts?

The Supreme Court's decision aggregates for itself war fighting powers which properly belong to the executive and legislative branches. For more, see Beldar's posts of 6/12, 6/14, and 6/15 http://beldar.blogs.com/beldarblog/

Note that the majority opinion even admits that they are making up a right never found in the Constitution before. As the dissent notes, there is a case precisely on point which they ignore.

Beldar's post of yesterday (6/14) specifically addresses the error in Warren's understanding of the facts and law.

Posted by: stan | Jun 15, 2008 10:12:10 AM

Members of the United States armed forces have no right of habeas corpus under the UCMJ. They are not subject to civil courts, they are under the jurisdiction of military tribunals (courts martial). This ruling has granted enemy combatants (unlawful combatants, at that) more rights than U.S. soldiers.

Square that circle.

Posted by: Chris | Jun 16, 2008 5:39:19 AM

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