US Supreme Court Restores Habeas Corpus for Gitmo
June 12th 2008 23:35
US Supreme Court Restores Habeas Corpus for Gitmo
In a decision of 5 to 4 the US Supreme court has decided that it is unconstitutional for prisoners at Guantanamo Bay. This is a direct rebuke of the Bush Administrations Military Tribunal Process who had been holding some prisoners without trail for over 6 years. The writ of Habeas Corpus which was denied to prisoners at Gitmo, including Australia’s David Hicks and Habib, allows detainees to appeal to the court system to test the legality of their detention.
After making the decision Justice Anthony Kennedy said: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
It was also argued that whilst Gitmo is technically not US soil it had been acting as if it was and therefore came under the same protections.
President Bush is reported to be not very happy with decision when he spoke from his visit to Rome saying, "We'll abide by the court's decision. That doesn't mean I have to agree with it,”
How this decision pans out further in the courts is anyone’s guess. However it is starting to look as if the problem of Gitmo will be a problem of his successor to sort out. (Most of whom prefer that the place is shut.)
Editorial Comment:
The writ of Habeas Corpus is a fundamental key to the Western Legal system dating back to the Magna Carta. It was designed to prevent the arrest of people without any access to a legal system where everyone is equal before the law and the presumption of innocence is at its foundation. A legal system that only offers equality before the law to people we like is a farcical attack upon the concept of justice. It ceases to be legal justice and instead become no better than show trials where the case is decided already.
Detainees at Gitmo now fall within the reach of the US legal System.
In a decision of 5 to 4 the US Supreme court has decided that it is unconstitutional for prisoners at Guantanamo Bay. This is a direct rebuke of the Bush Administrations Military Tribunal Process who had been holding some prisoners without trail for over 6 years. The writ of Habeas Corpus which was denied to prisoners at Gitmo, including Australia’s David Hicks and Habib, allows detainees to appeal to the court system to test the legality of their detention.
After making the decision Justice Anthony Kennedy said: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
It was also argued that whilst Gitmo is technically not US soil it had been acting as if it was and therefore came under the same protections.
President Bush is reported to be not very happy with decision when he spoke from his visit to Rome saying, "We'll abide by the court's decision. That doesn't mean I have to agree with it,”
How this decision pans out further in the courts is anyone’s guess. However it is starting to look as if the problem of Gitmo will be a problem of his successor to sort out. (Most of whom prefer that the place is shut.)
Camp Statistics:
-775 detainees have been held in Guantanamo, about 420 of whom have been released without charge
-David Hicks, an Australian, is the only one to have been sentenced at Guantanamo after pleading guilty in a deal that allowed him to serve out the remaining nine months of his sentence at home
-The US has reported more than 40 suicide attempts among prisoners since the camp opened, with 23 attempting suicide in one ten-day period in 2003
-In May the Pentagon claimed that 36 former inmates were “confirmed or suspected of having returned to terrorism"
Sources: Times database; BBC
-775 detainees have been held in Guantanamo, about 420 of whom have been released without charge
-The US has reported more than 40 suicide attempts among prisoners since the camp opened, with 23 attempting suicide in one ten-day period in 2003
-In May the Pentagon claimed that 36 former inmates were “confirmed or suspected of having returned to terrorism"
Sources: Times database; BBC
Editorial Comment:
The writ of Habeas Corpus is a fundamental key to the Western Legal system dating back to the Magna Carta. It was designed to prevent the arrest of people without any access to a legal system where everyone is equal before the law and the presumption of innocence is at its foundation. A legal system that only offers equality before the law to people we like is a farcical attack upon the concept of justice. It ceases to be legal justice and instead become no better than show trials where the case is decided already.
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Comment by S. L. Bradish
Comment by Anonymous
No doubt his handlers will find a way for their frontier 'justice' to prevail.
Comment by Damo
For the Sake of Argument
My Apologetics
Thanks for you comments.
Regardless of what a defendant says before the trial it still needs to be tested in their day in court.
Since I am no stranger to the direct effects of terrorism I think I can speak without any naivety about the matter.
My personal opinion is that the legal system requires basic foundations or it can becomes a farce that will consume the innocent with same ferocity as a fire consumes paper.
Nothing personal I just think an independent judicial system is paramount to any nation that believes in justice for all.
In my mind either they are POW's or Criminal suspects.
Comment by Damo
For the Sake of Argument
My Apologetics
Thanks for your comments.
This is just another step along the way so I do expect there to be a lot spin generated in the media and else where.
Comment by Johnny Come Lately
Jack's Back
Comment by tlcorbin
Coffee Quip
Comment by KylieW
Celebrity Obsession
How George W can live with hypocrisy of letting a place like Gitmo exist while claiming to fight for democracy and the war on terror, i don't know
Comment by Damo
For the Sake of Argument
My Apologetics
Thanks for your comments.
I think that Gitmo has damaged the USA's ability to make condemnations of dictators without the dictator flinging this back in their faces.
Raven
Thanks for your comprehensive comments.
Comment by Damo
For the Sake of Argument
My Apologetics
Yep I am of a similar opinion.
It has kept the legal system we have in tact for generations. Mess with it at your own peril.
I also find it farcical that the only person found guilty did so under a plea bargain for a minor crime.
Without a fair trial system we may never know who is actually guilty of anything or who are just innocent scapegoats.
Comment by Anna Kovacevic
So who are you anyway?
You speak of having direct experience with the effects of terrorism - were you in Bali during one of the attacks there? A friend of mine died in the first attack.
Comment by Damo
For the Sake of Argument
My Apologetics
Thanks for your comments.
I am sorry to hear about your friend in Bali.
No not Bali, my connection is with Sri Lanka for the last 20 years.
This is just a small step and there are many more to be made before the whole thing is fixed. So watch this space and I will bring more news from time to time.
Comment by Anna Kovacevic
So who are you anyway?
Andrea was a lovely person. Never got to say sorry for throwing up in her bathroom at the party she threw where my glass of champagne was constantly being filled...
Perhaps David Hicks could receive a new trial under the new decision.
We'll wait and see.
Comment by Damo
For the Sake of Argument
My Apologetics
Travel alert huh?
Does anyone really pay attention to those?
These terrorism issues rarely effect people who deserve it. So you just have to wonder what the people who planned were hoping as a result. To be thanked? Anyway it always better to remember the good times.
I heard Hick's father being interviewed today. The bottom line is that this decision still has a long way to go in the courts before he can make an appeal. Also he said that David is just not up to the task of going to court at this moment.
Certainly a case of wait and see. History is being written as we watch.
Comment by Jim Stillman
Political Certainty
Sorry
Comment by Jim Stillman
Political Certainty
There were and are fascinating and complex legal and constitutional issues involved, none of which can be treated properly in a 15 second sound bite. The commentators are apt to base their statements without reading the opinions.
Although the case deals with the interpretation of a number of statutes, the scope and basis of the ruling is that it is simply wrong for the United States to imprison individuals forever, that’s right, forever, without explaining why this is being done, without explaining the exact charges alleged to be applicable to a specific prisoner and without having an impartial review of the confinement at some point.
Traditionally, enemy combatants may be held until the war is over. Our conflict with terrorists, and I do not question that such a conflict exists, will not end with a formal peace treaty; the terrorist threat will always be with us. Does this mean that we should hold alleged terrorists forever? As noted in the concurring opinion, many of the petitioners had been confined for over six years without any real explanation.
A basic principle involved in denying an individual freedom and imprisoning him or her is that the action should not be totally arbitrary, it should be based on some sort of evidence of wrongdoing, not necessarily conclusive evidence, but something. A related principle is that the decision to imprison someone is that, someday and somewhere, an independent review of the decision is important. We simply do not have the decision to be made and the review of that decision made by the same people!
By the way, nothing in the Court’s decision mandates or even suggests (except in the paranoid vision of the dissent) that review of the cause of detention would result in the prisoner’s release and freedom; why should we be afraid of a review unless the imprisonment was totally without reason.
I respectfully urge those making comment on the Supreme Court’s decision read it.
Comment by Damo
For the Sake of Argument
My Apologetics
Thanks for you comments
Sorry but the link you gave goes to dead end,
I was always concerned that the status quo could be applied to any non USA person but not to Americans.
This is just plain wrong.
The other issue was that we still have no idea who is guilty of what.
Like the man in the iron mask the punishment becomes incomprehensible and needlessly unjust.
I always maintained that if they are criminals then try them as such rather than create soviet style gulags and show trials. Those are the things that cause terrorism to flourish.
Comment by tlcorbin
Coffee Quip
UNITED STATES, ET AL.
Above is the link to the case, me, I'm not going to comment further than to say, I align with the Scalia, Roberts,Thomas and Alito crew.
Comment by Jim Stillman
Political Certainty
Whatever your feelings as to the consequences of the decision (I think the consequences will be positive in that the ancient Writ is explained and affirmed; you feel otherwise), you have a right to them.
The bulk of the decision is a historical study of the Writ. The words of the Writ itself are pure and glorious: "TO: (person detaining another): YOU ARE COMMANDED, all reasons and excuses set aside, to bring the person of ____ before a Judge of this Court on ____ at ____ and state the duration and reason for the detention"
The beauty of that which is known as the Glorious Writ is that no person may be just thrown into jail at the direction of the Executive authority without Judicial review. To disallow that review and to give exclusive and absolute power to the Executive was a result that is simply unacceptable.
Comment by tlcorbin
Coffee Quip
Non combatants; they should receive access to a court system.
Of the detainees released from gitmo, 30 are known to have returned to the battle field to kill innocents and troops again. I side strongly with Scalia.
This action was a poorly disguised slap to the face of a setting us president and we're the poorer for it.
Comment by Jim Stillman
Political Certainty
Non combatants; they should receive access to a court system.
There is the catch. Who will make that determination and where and when will it be made? In another case involving President Nixon the Court said, and I am paraphrasing, that no one, even the President is above the law and even the President can be wrong -- and if he is, who will tell him so?
What the Writ will accomplish is that, if the person detained is an enemy combatant, then let the United States show that. But holding individuals for up to six years with no showing that the person is or was a combatant is not appropriate for a nation that claims we are better than the terrorists. The Writ causes the release of no one; it demands that there be a reason for the detention.
Why would anyone object to that?
Comment by Damo
For the Sake of Argument
My Apologetics
I have to pull you up on one point
Who are you quoting on that and what evidence is there to support the claim. You will have to forgive skepticism but so far I have many reasons to doubt the word of the Government on face value.
Comment by Damo
For the Sake of Argument
My Apologetics
I am not so concerned about the 100 or so page explanation of the matter. That is a lawyers picnic. My concern is with the principle of a fair trail and equality before the law.
The Gitmo system can be applied to me but cannot be applied the US nationals.
What stops other nations setting up similar camps to arrest American's and keep the beyond the reach of the courts?
Comment by S. L. Bradish
Does anyone else notice a slight difference in treatment here? Some say that if we're nicer to their people, they'll be nicer to ours. I haven't seen any signs of it yet, have you?
On Fox News Channel tonight, there was mention of one particular detainee that was deemed fit to go home. He returned to Iraq, put on a vest and blew himself up along with several Iraqi civilians. Boy, those judges sure know their stuff, huh?
Comment by Damo
For the Sake of Argument
My Apologetics
There is an old saying about a gilded cage still being cage. The problem is that you cannot leave.
There is also a saying about our brutality is much more humane than the enemies brutality. Black sites, rendition & waterboarding are hardly signs of civilized behavior.
Such things work this way: the justice you apply to others must be applied to yourself.
Why can an Australian be subjected to Gitmo and no American?
How is the veracity of the accusation objectively proven?
How do we know that anyone in Gitmo is guilty of anything?
Unless these claims are tested in open and equitable courts you might as well dispense with the charade and jail every one who disagrees with the government.
The example of a suicide bomber is tragic but what did he do before he was put into Gitmo?
It does seem to me that prisoner reform program was not working too well in his case.
Then again what about the other 420 who were?
What were their crimes and how do we know (not assume) that they are guilty of anything?
Should we round them all up again just incase?
Comment by Jim Stillman
Political Certainty
The “old” Senator McCain stated that the people held had the right not to be detained indefinitely.
No one suggests that every detainee be released at once, notwithstanding SL’s familiar “strawman” tactic. But each deserved to be told the specific charges against him. Each deserves an independent review. They are not conventional Prisoners of War and held until hostilities are terminated because that will likely not happen for a generation or more.
I will not dignify the argument that other nations or groups are inhumane and, therefore, we can be, too. We are supposed to be better. We used to be better. John McCain used to think we were and should be better.
Comment by Damo
For the Sake of Argument
My Apologetics
I am trying to avoid the electioneering that is going on so I will reserve anything that looks like an endorsement. (Alien vs Predator thing)
Yet he is correct to state that people should not be held indefinitely and without trial.
Whether they were picked up as prisoners or not they do fall under a a number of treaties that the US signed and helped write.
The question of what to do with terror suspects is not new and has been going on even when Guy Fawks was caught packing the British parliament with gun powder. Treat them as something other than criminals (or war criminals) and they become a legend.
Comment by S.L.
The Political Brief
By all means, press definite charges against them. Give them trials. Make their names into household words. Grant them all the fame and glory they were seeking when they became terrorists in the first place. Make sure that a few are found "Not Guilty" and released.
Then Jim can crow about what a great idea it was and how mean we were to those poor guys. I'm sure no one will even notice when some of the former detainees attack again. After all, people like JIm consider them nothing more than "straw men."
Comment by Damo
For the Sake of Argument
My Apologetics
With all due respect.
How do you know any of the prisoners are guilty of anything?
As I said I am no stranger to this subject and nor are some of the other readers.
420 people released without charge is an indication of a lack of evidence for more than half the 775 prisoners.
I am of the opinion when it comes to justice there are some lines that should not be crossed.
Why can't the same rules be applied to yourself?
Comment by S.L.
The Political Brief
I'm sure JIm will continue his accusations of "straw man" arguments. I'm equally certain that those died as a result of that one released detainee didn't consider him a "straw man."
Comment by Damo
For the Sake of Argument
My Apologetics
How we know even 1% are actual terrorists.
How do we even know if it is not 0%
That is what the legal system is mean to determine.
I fail to see how a judges upholding a law that goes back to the Magna Carta can be called activist. if anything they are being conservative.
The man who went off and killed himself. What was his crimes before then? Were they serious or was he in fact radicalized by being in Gitmo? There is always that possibility. It is just as possible that desire to kill was implanted by being in Gitmo. Not that we will be able to find out now that he is dead.
You can take up the straw man issue with Jim as he raised it. Perhaps you could asking him to explain what he meant.
My issue is always with the process of justice being done and being seen to be done. One maniac does not justify collective punishment because that is one of the principles of law that has existed before America was discovered.
Comment by S.L.
The Political Brief
Comment by Damo
For the Sake of Argument
My Apologetics
Enemy combatants?
Either they are Prisoners of War facing a war crimes trial.
or
They are Criminals facing a criminal court.
Either way there were existing legal frameworks to deal with such people.
You seem to be arguing that it is okay to arrest people on suspicion alone and keep them for as long as you want.
What evidence do we have that any are guilty of actually doing something wrong?
How was the evidence tested?
And if these are the worst of the worst why does it take 7 years build a case?
Why can no American National be subjected to the same process?
After 7 years why has only one person been convicted on a plea bargain and is now living in Australia?
Comment by S. L. Bradish
Comment by Damo
For the Sake of Argument
My Apologetics
The fact that you don't have answers is worrying.
It is very worrying if we promote a system the jails people for what they might do rather than what they have done.
How are the accusations being tested in a legal frame work that is designed to eliminate punishing innocent people?
Comment by S. L. Bradish
Comment by Damo
For the Sake of Argument
My Apologetics
The President, whom your people have elected, is not answerable to those that put him in power?
Gitmo is a legal loop hole specifically designed to avoid the Geneva Convention.
The Geneva Convention does not leave any question about how to treat prisoners. Have you actually read the passages in the Geneva Convention? It may be enlightening.
Regarding the Prisoners:
What are their alleged crimes?
Who has brought those charges?
What evidence is their to support the accusations?
How is this evidence being tested?
Those are just the basics required of any equatable justice system.
Further more:
How many have been charged with any crime?
How many have been convicted?
Of the 30 that have allegedly returned to Terrorist Activities how has this claim been proven?
These are the questions that do matter because it would be tragic if all this effort has been counterproductive toward ending a terrorist threat.
Comment by S. L. Bradish
I can't say that I approve of innocent people being jailed. But I also can't get behind letting guilty people go.
Comment by Damo
For the Sake of Argument
My Apologetics
Nowhere in the Geneva Convention does the term Unlawful Combatant exist.
There are only Prisoners of War or Criminal Suspects.
Either way there are rules that need to be applied.
On POW's
Article 17
Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
and later:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
Now if I draw your attention to image at the top of this post, you will see prisoners being held a Gitmo.
Those prisoner are blindfolded, and wearing ear muffs. They are also being forced to sit in Stress Positions.
This is a direct violation of Article 17 Geneva Convention.
Regardless of whether you may think they deserve this treatment the Geneva Convention which your Government signed up to says otherwise.
Comment by S. L. Bradish
This is the first war of its kind. The enemy doesn't wear a proper uniform. They don't have insignias that identify them. During any other war in history, every single one of the detainees would have been executed for spying! That used to be the law for people who waged war without wearing the proper uniform! You really can't tell a terrorist from an innocent civilian these days, until the real terrorist stands up and kills you (or blows up!).
Comment by Damo
For the Sake of Argument
My Apologetics
I think the ticking bomb scenario has been thoroughly discredited of a millennia.
No one has been able to prove a single case where this has worked.
Most people will say anything that stops the punishment.
Wrong information and misleading information is just as likely if not more likely than accurate information. People will say what the torturers want to hear.
Regardless of which the Geneva Convention, which your government signed up to, clearly states that is no justification.
Whether someone is in a "proper uniform" or not does not negate the responsibilities of nations towards their prisoners.
During the war they would have all been executed?
Actually that is Historically inaccurate. German soldiers in civilian clothes were not always executed. Civilian militia in Germany fighting the allies were not executed either.
Not being able to tell the difference civilian and terrorists goes to very heart of the problem.
How do we know whether any of these people are guilty of anything?
Do you think that it is just that innocent people should treated harshly just because you are not sure?
If so why can't the same rule be applied to you?
Comment by tlcorbin
Coffee Quip
a. detainees aren't captured in a combat zone,
b. when al qaeda abides by the geneva convention.
When a person is detained he should be informed whether or not we deem him/her to be an enemy combatant, sympathizer, supporter or member of a terrorist group.
And then go from there; but my tendency would be to up the body count.
Comment by Damo
For the Sake of Argument
My Apologetics
Everybody has reasons to be interested in this subject.
a: No all were capture in the combat zone.
Many were handed over as part of a bounty hunt. Many were also picked up in Pakistan and handed over the Musharraf regime. I believe this was the case Habib who was taken from a Pakistani Hotel. 5 years later he was released with no charges laid. There are also cases of taxi drivers being taken and returned years later.
b: This is a very poor argument because the Japanese did not sign the Geneva Convention in WW2 but the allies still had to apply the same rules to them. You either agree with convention unilaterally or you do not. There is no picking and choosing.
When a person is picked up there is a lot that should happen but did not. Habib was sent Egypt to be tortured before ending up in Gitmo. Medical examination after he arrived in Australia showed deep bruising around the kidneys and passing of blood in the urine. There are other injuries consistent with physical abuse.
MY point is not just one of quick tactics and instantaneous revenge. My point is also one of effectiveness in the long term. My view is that Gitmo is ineffective at stopping terrorism and is in fact making the situation worse.
Terrorists need only to point to Gitmo as a recruitment poster for angry people. Terrorists who might have been tempted to surrender now are motivated to fight to last breath to avoid capture.
Comment by tlcorbin
Coffee Quip
Further if not gitmo, where Damo? Where are people trying to harm soldiers supposed to kept? The world knows about gitmo and that was allowed to be made public. Don't ask a man under combat conditions to care what happens to other combatants guised as civilians on the battlefield that are trying to harm them-and dam sure will they were to be captured.
The Japanese were a sovereign nation fighting a declared war and in uniform, huge difference. Lets not pick shit with the chickens over who is or isn't an enemy combatant. My earlier statement is clear Damo, I am the worst person to comment about the matter of combatants. Men armed and shooting in the direction or vicinity of friendly troops on the battle field aren't noncombatants. And are fortunate that in a free fire zone, they weren't killed.
However, I am equally clear that other peripheral battlefield participants could be innocents caught up by the fluid circumstances of battle. They're being held because someone would rather be safe than sorry.
And, mistakes are made. The supreme court justices over stepped their bounds in this case.
Anyway, that's my two cents worth of comment. I am still reading the decision.
Comment by Damo
For the Sake of Argument
My Apologetics
The problem with Gitmo is that it was set up to avoid being on USA soil and thereby avoid legal ramifications of ignoring the Geneva Convention and other treaties. In short it was set up as a wishful legal loop hole. Now that wishful thinking is coming to an end due to a number of Supreme Court decisions.
Had the prison been on the US mainland there would have been no question about Habeas Corpus.
The statement you made about people shooting does not prove what each individual was doing when they were captured.
Are they prisoners of war or criminals?
Picking shit, as you eloquently put it ,goes to the heart of the justice system where everyone is innocent until proven guilty.
Afghanistan was as sovereign nation also despite being a nasty one.
The bottom line is that no American National can be subjected to the same legal conditions as imposed at Gitmo.
My statement also stands that Gitmo is counter productive to any effort to combat terrorism. Terrorism thrives on any evidence of injustice and Gitmo is the second most obvious recruitment poster.