JREGrassroots > Gitmo Detainess Are Still Stuck Down There

Full Version: Gitmo Detainess Are Still Stuck Down There

JREGrassroots > General Politics > Human Rights

ncMindy

May 6 2007, 12:50 PM

QUOTE

REGISTRATION-FREE

Gitmo Detainess Are Still Stuck Down There

Once again, lower courts have denied habeas rights to Gitmo detainees. When will Congress or the Supreme Court intervene?

By Herman Schwartz
Legal Times
May 7, 2007

The Bush administration this February won a court victory denying habeas corpus to alien detainees. Now, it is trying to deny the detainees the effective assistance of counsel.

None of this should come as a surprise. Ever since President George W. Bush declared his “war on terror” in the wake of the Sept. 11, 2001, terrorist attacks, he has claimed unlimited and unlimitable power under the commander-in-chief provisions of Article II of the Constitution. Since then, government lawyers have persisted in trying to prevent any judicial scrutiny of the president’s actions in conducting this “war.”

Until recently, these efforts had mostly failed. In February, however, a 2-1 panel of the U.S. Court of Appeals for the D.C. Circuit ruled in Boumediene v. Bush that the Military Commissions Act of 2006 provision that denies the courts any meaningful supervision over the aliens detained as “enemy combatants” by the military at the U.S. Naval Base at Guantánamo Bay, Cuba, and elsewhere was not an unconstitutional suspension of the writ of habeas corpus.

With the Supreme Court’s denial of certiorari on April 2, the government strategy has apparently succeeded, at least for the moment.

Complete at Legal Times LINK

judykratochvil

May 10 2007, 09:11 AM

All this denial means is the Court is waiting for the detainees to exhaust all remedies provided them by the Military Commissions Act.

It also is not illegal or unconstitutional to not grant military detainees habeas corpus. Ex Parte Quirin and Johnson v Eisentrager actually support the administration's argument that "enemy combatant" detainees who are non-citizen aliens do not have a right to civilian courts. The Geneva Convention allows for the use of military law and therefore military commissions in disposing of cases involving non-citizen aliens. Quirin did not reach quiestions regarding actual citizenshhip of detainees but rested on the fact that they attempted to enter the country surruptiously aboard a German submarine leaving from occupied France. Eisentrager more clearly deals with this issue of foriegn nationals detained in military facilities and said that they do not have a right to the writ of habeas corpus. Therefore the block on Habeas petitions in the Military Commissiosns Act is completely within the law and the constitution.

However, if we are not conducting the military commissions are not being conducted in a way that is cognizant of the military law and the Geneva Convention there need to be changes made. The principles of Article 3 of the Geneva Convention are enshrined in the War Crimes Act and the UCMJ makes it a serious crime to violate the treaty.

suswah

May 10 2007, 11:52 AM

Just seems that all of this has to do with "damage-control." If these detainees are released they could do some serious harm to the Bush administration (if any more harm is possible).

Making the talk show rounds and talking about the early days in Gitmo...

judykratochvil

May 10 2007, 12:54 PM

QUOTE(suswah @ May 10 2007, 12:52 PM) [snapback]98156[/snapback]

It may very well. The precedent allows them to be held and tried, but not merely held. It is damaging.

ncMindy

May 18 2007, 02:53 PM

QUOTE

Regardless of how one views these reasons, there may be an extrajudicial factor underlying the two justices’ decision: Bills to repeal the habeas corpus provisions of the Military Commissions Act and Detainee Treatment Act have been introduced. Although their prospects are uncertain, a Senate bill to strike the habeas corpus provisions from the Military Commissions Act failed last year by only a 51-48 margin, and the 2006 election switched six seats to the Democrats. Passage of a similar bill would resolve the issue and avoid a major confrontation between the Supreme Court and the other two branches of government.

The Stevens-Kennedy statement ended with the conventional “denial of certiorari does not constitute an expression of any opinion on the merits.” But instead of the usual boilerplate citation, the justices added a cryptic “See Rasul v. Bush, 542 U.S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).” The cited pages explain why the majority and Kennedy concluded that Guantánamo is what the latter called “in every practical respect a United States territory . . . a place that belongs to the United States.”

This may be a signal from the two justices that, despite their reluctance to hear the case now, five members of the Court still believe that habeas corpus should be available to the Guantánamo detainees and — underscoring their earlier warning — that they will scrutinize subsequent proceedings closely.

As if to defy this admonition, the government is again trying to shield its activities against outside scrutiny, this time by going after the detainees’ lawyers. In mid-April, government lawyers asked the D.C. Circuit to impose tight limits on the Guantánamo detainees’ counsel: Lawyers who already have clients would be able to consult with them only three times; lawyers willing to represent detainees could have just one visit with a prospective client; lawyer-client mail could be read by government officials not involved in the case; and government officials could deny detainee lawyers access to the evidence on which the government based its claim that a detainee was an enemy combatant.
And apparently emboldened by the denial of certiorari in Boumediene, the government still refuses to accept the Supreme Court’s ruling in Rasul. In its April filing, the government is again insisting that Guantánamo is just another “secure military base in a foreign country.”

Guantánamo may not yet be the legal black hole that the government wants to make it. But the Bush administration hasn’t given up trying.

JMO but it seems to involve US presence in Cuba...Guantanamo itself.

QUOTE

The petitioners in the Boumediene case argued that because the Military Commissions Act abolished habeas corpus review without providing an adequate substitute, Congress had unconstitutionally suspended the writ.

According to Randolph, however, in Immigration and Naturalization Service v. St. Cyr (2001) the Supreme Court had declared that the suspension clause protecting habeas corpus protects the writ only “as it existed in 1789.” Randolph found no support in the 18th and 19th century authorities cited by the petitioners for allowing the writ to pertain to aliens “outside the sovereign’s territory.” He then concluded that because Cuba retains ultimate sovereignty over Guantánamo, regardless of whether the United States had total control of the base, habeas corpus would not have been available in 1789 to any detainees confined there. The Supreme Court’s Rasul decision he read as applicable only to 28 U.S.C. §2241, the current federal habeas corpus statute, which the Military Commissions Act had made unavailable to alien detainees.

As Judge Judith Rogers pointed out in dissent, every element of this reasoning conflicts with the Supreme Court’s ruling and language in Rasul. In St. Cyr the Court did not say that habeas corpus is limited to its scope in 1789 but only that this was “the absolute minimum” protected by the clause. Moreover, the Court in Rasul had concluded that even in 1789 “application of the habeas statute to persons detained at the [Guantánamo] base is consistent with the historical reach of the writ of habeas corpus,” citing some of the same authorities dismissed by Randolph.

And though Rasul was indeed a statutory case, the Supreme Court in Hamdan had based its decision on the complete jurisdiction and control, potentially permanent, that the United States exercised over the base.

Interesting...who has sovereignty over Guantanamo, the US or Cuba!?!

judykratochvil

May 23 2007, 07:47 AM

It may very well be that the justices believe that the detainees should have wider appeal rights.

This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.