It Is Still Alive
Bill Mears, CNN Supreme Court Producer writes on the latest Supreme Court decision: Gitmo detainees can challenge detention in U.S. courts
WASHINGTON (CNN) — Suspected terrorists and foreign fighters held by the U.S. military at Guantanamo Bay, Cuba, have the right to challenge their detention in federal court, the Supreme Court ruled Thursday.
The decision marks another legal blow to the Bush administration’s war on terrorism policies.
The 5-4 vote reflects the divide over how much legal autonomy the U.S. military should have to prosecute about 270 prisoners, some of whom have been held for more than six years without charges. Fourteen of them are alleged to be top al Qaeda figures.
Writing for the majority, Justice Anthony Kennedy said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system reconciled within the framework of the law.”
Kennedy, the court’s swing vote, was supported by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — generally considered the liberal contingent.
At issue was the rights of detainees to contest their imprisonment and challenge the rules set up to try them.
A congressional law passed in 2006 would limit court jurisdiction to hear so-called habeas corpus challenges to detention. It is a legal question the justices have tackled three times since 2004, including Thursday’s ruling.
Each time, the justices have ruled against the government’s claim that it has the authority to hold people it considers “enemy combatants.”
Ex parte Milligan, 71 U.S. 2 (1866) is still the precedent for the suspension of habeas corpus, and it says if there are courts available and functioning, they have to be used for criminal prosecutions.
Oh, yeah, Mr. Mears, they are called “writs of habeas corpus”, and they require the government to show cause for detaining people. They aren’t normally required because the normal procedure is to bring those arrested before a court as soon as possible after an arrest for a bail hearing, not throw them in a dungeon for years while “putting them to the question” – civilized countries gave that up a few centuries ago.
7 comments
it is still alive
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and it isn’t improving.
[combination of the two post titles, one at the top of the my screen, the other at the bottom]
on the whole though, one small piece of good news. finally. i’m sure it was the kittens wearing orange on jan 11 on my blog that swung this issue. 😈
seriously, i’m still agog that the vote was so close. supreme court justices can be impeached too, thank god/dess/e/s, but we will have to wait till bush is out of office [and hope that we don’t get stuck with mccain].
Unfortunately being an ideologue and jerk isn’t an impeachable offense.
The only way you can justify suspension of habeas corpus is by throwing out centuries of judicial thinking, but Scalia doesn’t have a problem with that apparently.
“Unfortunately being an ideologue and jerk isn’t an impeachable offense.”
Actually, as Ken Starr cheerfully pointed out in one of his arguments years before he became a porn publisher, it could be; indeed, an impeachable offense is anything Congress says it is. In the founders’ era, “high Crimes and Misdemeanors” was a legal term of art meaning something akin to dereliction of duty. If being an ideologue and a jerk could be credibly argued to be a serious breach of a president’s constitutional obligations to the United States, s/he could be impeached for it.
Besides, it would be such fun to hear the charges read…
Given the lack of action when there are thousands of dead as part of the evidence, I have little hope of seeing Congress do anything.
Only Democrats get impeached – IOKIYAR
Did you see what Scalia wrote in his dissent?
He also claimed that 30 detainees who had been voluntarily released from Guantánamo by order of the Bush administration had returned to “the battlefield,” which means that in his mind even people deemed innocent in the administration’s mind are actually guilty.
More at KIKO’s HOUSE here:
The Great Writ Survives As Liberty & Security Are Reconciled In the Age of Bush
If anyone should be impeached, it should definitely be Scalia. But of course, that won’t happen.
I’m writing a post on the dissenters and plan on taking them to task. You do not dispense with the “Great Writ” simply because it is inconvenient.
[…] the same CNN article I linked to in my post on the recent decision on habeas corpus we have: Four justices agreed. In a sharp dissent, read in […]