Make HuffPost Your HomePage
Get Email Alerts
After Six Years, Accountability at Guantanamo
Six and a half years ago, we at the Center for Constitutional Rights brought the first case in federal court on behalf of detainees held at Guantanamo. At first, the administration successfully argued that the detainees were in a legal black hole, without any right of access to the federal courts to challenge whether they were lawfully held. Two years later, the Supreme Court ruled that our clients' cases could go forward, but Congress attempted to overturn the decision with a pair of statutes, the Detainee Treatment Act and the Military Commissions Act.
Today, the Supreme Court ruled that the part of the Military Commissions Act that attempted to block the federal courts from hearing the claims of our clients at Guantánamo was unconstitutional.
Justice Kennedy, the opinion's author, has a reputation for pragmatism, and it shows in today's opinion, which is rooted in a sound practical sense. The decision today allows courts to do what they do best: to decide whether the government has the right to hold someone in detention, sorting out claims of factual innocence by weighing the evidence.
What will the next steps be? We hope that the lower courts will quickly move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Of the roughly 770 men held at Guantánamo since the base opened, over 500 have been released; under 20 have been charged. The military says it will only charge up to 80 with offenses to be tried by military commission. That leaves almost 200 men who the government has no intention of ever charging; without today's decision they might have remained in detention forever without ever having a real chance to argue for their release before an impartial court. With habeas you never would have had these men - so many of whom have been officially cleared for release by the military - locked up and abused because no court was watching. We believe the majority of them will be released once the executive is forced to show up in front of a federal judge and justify their detention with hard evidence.
What will the implications be for the pending military commissions cases? I suspect the impact will be minimal. It is likely those trials will continue to progress at their current halting pace. Today's opinion only means that the defendants in those commissions proceedings - the handful of men charged so far - may commence parallel proceedings arguing that they shouldn't have ever been detained in the first place.
Other significant issues may be litigated as well: most detainees are being held in solitary confinement, including dozens who are cleared for release; most are losing their minds as a result. In habeas we should be able to argue for more humane conditions of confinement. Many detainees are cleared for release to countries where they may face torture; these men are basically in the position of refugees and countries that can offer them asylum will have to be found before they can be released. They may also be able to stop the government from transferring them to places that torture by raising appropriate legal claims through the vehicle of habeas.
Major General Jay Hood, commander at Guantanamo, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system." The federal courts are supposed to be that muscle. Today's decision ensures that they will be.
Ultimately, the administration's strategy with Guantanamo was to run out the clock and leave its mess - much like the war in Iraq - to the next president to clean up. Today's decision - a historic victory for executive accountability to the courts - will, we hope, prevent this administration from doing so.
--June 12, 2008
Want to reply to a comment? Hint: Click "Reply" at the bottom of the comment; after being approved your comment will appear directly underneath the comment you replied to
Major General Jay Hood, commander at Guantanamo, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks,"
We must wake up to the very unpleasant truth exposed by this statement.
For practical reasons of focus and space this article by Kadidal does not go far enough. These wars and the associated issues are undeniably a reflection of the nature of Americans and less so of the so-called enemy. Kadidal has perceptively picked out an important statement. The smug acceptance of the pain inflicted on others at Guantanamo as indicated by Hood's homely 'folks' so reminiscent of G.W. Bush exposes yet again the sadomasochistic underbelly of American culture, meaning that besides the matter of legality the issue is strong evidence of extensive integral insanity in American society. This huge nation has taken a very queer turn.
Americans need to look at their neighbours. A massive campaign of education and therapy is desperately required. America has too many nuts and they cannot be tolerated.
Madmen are lost in their own minds so the key point is for Americans to stop teaching the world and start learning from it. The world is not only western and Christian or monotheist and once this is recognised the world would turn out to be America's greatest asset.
I congratulate all those who have worked so hard to protect our Constitution. Our country will be judged not on how we treat those with power, but on how we treat those without. If someone is guilty of a crime, then let"s not be afraid to try that person in the light of day, in a court of law. Many of the Gitmo prisoners are not guilty of anything but bad timing, bad judgment or bad luck. This has been demonstrated repeatedly and I would point any skeptic to the excellent book "The Guantanamo Files" as a simple start.
I do not know when our country became so incredibly fearful as to fear the truth in a fair and impartial hearing, but if we can take away basic human rights from one group then we can take them away from all. The "Domino Effect" we heard so much about pre-Vietnam and the same sort of logic used pre-Iraq wasn"t so much about countries falling prey to communism or terrorism, but our rights falling prey to fear as one after another after another is toppled under the guise of patriotism. Nothing could be less patriotic, so thank you to all who continue, in spite of the criticism, in spite of the threat, to criticize, to scrutinize and to support our Constitution and the foundational values of our country.
It's simple really.
Prisoners of war ARE entitled to Geneva and Hague convention protection.
Prisoners of war are NOT entitled to Constitutional protections like habeas and Miranda.
What's next: traffic court for Al Qaeda?
Bush declared war on terrorism. Terrorism is a idea, not a place or a people. When you disregard the fundamental principle of what a war is you lose the objectivity to which a war is supposed to be conducted (ever hear of the rules of engagement). Even in war there are rules. The US has violated those rules. The people in Gitmo, if proved to be enemy combatants, should be held accountable for their actions. The war on terrorism has turned into a war on people with different color skin, nation of origin, and religion. None of these are valid reasons for detaining people and time has proven this, look only to the US interment camps for the Japanese. When you disregard fundamental principles that the Constitution affords (ALL men are created equal, not just Americans) you debase the principles that we should stand for. Protections of the Constitution are meant to protect the rights of individuals in times of great conflict, not to be suspended at will. "We have nothing to fear but fear itself." You would do well to remember this. If any of the detainees could be PROVEN guilty then they would and we wouldn't be having this conversation, problem is their detention w/o cause, no plans for trial or release, and the basic assumption that they MUST be guilty if our government (who is never, ever wrong...cough bullsh*t) picked them up.
It's simple, really.
If these people are prisoners of war, they are entitled to Geneva and Hague convention protection. Which they are not receiving, because our administration has decided they are "enemy combatants," a term which has no legal meaning.
If they are NOT prisoners of war, then they ARE entitled to our Constitutional protections, which they are also not receiving, because our administration has decided that they are "enemy combatants," a term which has no legal meaning.
They must be either one or the other. They cannot be left indefinitely in legal limbo, and the Court has finally decided that it's time to do the right thing.
Incidentally, totally aside from the fact that there's no reason to believe that any or all of these prisoners are members of Al-Qaeda, you DO realize that even if they were, that is not illegal? You can stand on a street corner or take out a full page ad in the local paper announcing your membership, and you haven't broken any laws. Membership in an organization is not a crime in this country. Oh, wait, none of these prisoners were IN this country. We went to THEIR country and kidnapped them to bring them to Cuba.
1. I agree that Bush administration should've declared them POWs AND given them protection under the international conventions. Then Gitmo POWs could've been held indefinitely and interrogated ( without torture).
2. MOST of the Gitmo prisoners were NOT Afghanis. Majority were from Saudi Arabia, Yemen, Jordan Egypt, Morocco, Russia U.K. etc.
They were in Afghanistan for one purpose, to fight the infidel on behalf of Al Qaeda.
They were not 'standing around on a corner." This is a silly analogy. They were funneled into A-stan by Jihadists enablers to fight-- no other reason. Thus they deserve POW status
3. Afghanis hate and despise the Arab fanatic foreign Jihadists who cause endless troubles for A-stan.!!!! Afghanis willingly tracked them down and passed them to Americans for a fee.
I suggest you study up on that.
3. "Membership in an organization is not a crime in this country."
Nonsense: membership in Al Qaeda IS a federal crime in U.S.
Think, learn, educate yourself and then we can continue this discussion.
"If these people are prisoners of war, they are entitled to Geneva and Hague convention protection".
Wrong, Wrong, Wrong. The Geneva convention protections are afforded to UNIFORMED
enemy combatants. The slimeballs rotting in Gitmo were not in military uniform. As such we would need a program to tell them apart. Mindsets such as yours is the reason this country is fast going down the tubes. You probably think we should make nice nice with the guys that cut off Nick Bergmans head and then posted the video. I wonder what you would think if it were your neck being hacked on?? Hmmm?
I Am sorry but, there needs to be justification,that the detainees are covered by the constitution. Just because some lawyer wants to put his name in lights is no reason to give rights to enemys of the state. If Hitler had a good lawyer would that make him any more or less guilty? Shakespeare was right by the way. In America we have rights given to our citizens, by the Constitution, it makes no mention of god given rights world wide. Ask those who died in 911 ! the lawyers should be tried for treason against the United States, as the judges who decided the constitution is a world wide thing.
Just as we shirked our responsibilities as occupiers of Iraq when we invaded and allowed looting and anarchy to reign for years, so we dismissed our responsibilities as law bringers when we incarcerated, tortured, and abandoned these hundreds of mostly innocent human beings in a horrific prison setting for years on end. Anyone who disagrees is placing undue trust in this administrations ability to make a sound decision concerning international affairs. The invasion was illeagle, which makes us the criminals is a more real sence than most of the detainees in Gitmo.
Are you f**king serious? Are you aware that as the law now stands anybody -you too!!- can be yanked off the streets and sent where ever if your fraudulent government decides that you.re a terrorist orpercieved as something like one. Maybe you were seen giving a terrorist fist bump.
1. If a anyone is in U.S.custody they have the same right to habeus corpus as a citizen. Habeus corpus is fundamental to civil society. Certainly, a democratic form of government cannot exist long without it.
2. Ask those who died in 911? Better ask those who at the time thought that terrrrism was so Clinton and were found asleep at the switch . Yes, that would be Bush, Cheney, Rice, Ashcroft, Rumsfeld, Feith, Wolfowitz, Powell , et al., the authors of this travesty.
3. 911 WAS NOT AN EXISTENTAIL EVENT IN THE HISTORY OF THE UNITED STATES. THE BUSH PRESIDENCY COULD BE.
Hitler didn't need a lawyer, the proof was all around, not to mention he was dead before a trial could have been held. I am so sick of ridiculous analogies with no bearing in reality or even the situation at hand. Bush is the Hitler of our time, playing on the fears of the people to manipulate and distort reality for his own personal ambitions at the cost of many with utter disregard for human life. You want an analogy, here's one: Jews thrown into detention camps and tortured, experimented on, and killed in the name of preserving the Reich. Sound familiar.
"On 28 January 2008, ORB published an update based on additional work carried out in rural areas of Iraq. Some 600 additional interviews were undertaken and as a result of this the death estimate was revised to 1,033,000 with a given range of 946,000 to 1,120,000."
"...it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country." Hermann Goering
Look at Johnson V. Eisentrager from 1950 for "binding precedent" of a similar case involving enemy combatants. That court found (unanimously) that habeas corpus did not apply to enemy combatants.
It citied that in no place where the writ of habeas corpus exists (globally) had it applied to enemy combatants.
This Supreme Court just created a right that does not exist in our Constitution, and disregarded precedent that emphasized that fact.
Liberal justices often cite precedent in refusing to re-hear roe v. wade, but when precedent doesn't support their desired end, they disregard it utterly.
Shameful. Shameful. Shameful.
The Supreme Court did NOT create a right here. Nor did it intend to.
It merely said that making up the rules as you go along and ignoring international treaties, such as the Vienna Convention, which the U.S. ratified in 1969, is not acceptable in a decent society.
It essentially said that it recognized that Americans WANT a decent society, Bush's tantrums and some really scary colleagues on the bench notwithstanding.
There is nothing in the constitution, however, that defines what a decent society is. It is not the function of the judiciary to define or carry out any popular opinion on this subject matter. And for good reason: If you asked 100 different citizens what constitutes a decent society you would get essentially 100 different answers. What is being created here is that we are allowing 5-9 people to define it for us. Since you agree with this particular decision you are probably ok with that. But you liberals are always up in arms about more conservative or constructionist decisions all the time here.
My mindset is strict constructionist.....if it is not addressed in the constitution you cannot make it up. You people talk at length about abiding by the constitution and in fact some of the things Bush has done may have at least some questionable foundation in the constitution but we abandoned the constitution long ago. Most if not all of FDR's new deal programs are unconstitutional, The social war on poverty programs created in the 1960's are unconstitutional. Subsidies to people, businesses and special interests in general are unconstitutional. You cannot base these on the general welfare clause because even though you provide "welfare" to some citizens you had to take it away from other citizens in order to provide the benefit. There is nothing fair about a majority voting to take something away from one citizen and giving it to another.
What is decent about having your head cut off? Americans may want a decent society, but the Islamic radicals want a DEAD American society. Do you think the terrorists give a crap about the Vienna Convention?
I am not a lawyer so I do not understand how anyone who is not an American citizen can have "constitutional rights". I guess that is because I have common sense, sense that tells me that I should not let people captured while trying to kill me should be allowed to use our own courts to justify their actions.
I remember Nikita Kruschev saying that Russia was going to defeat us from within. Karl Marx said that when we hang the last American it be with ropes they have provided us. With decisions such as this they are looking more and more like they knew what they were talking about.
Read Justice's Kennedy's extensive explanation at p. 30-34 about why Eisentrager is not binding precedent (not that any precedent is binding to begin with):
"Third, if the Government"s reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases" (and
later Reid"s) functional approach to questions of extrater ritoriality. We cannot accept the Government"s view. Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin ing the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism."
Actually there is a concept called stare decisis "to stand by things decided" or otherwise known as precedent. But liberal judges have a tendency to rely on precedent when they need it (roe v. wade) and blow by precedent when they don't.
Kennedy's opinion is an artful avoidance of the application of Eisentrager. Especially the part about disregarding the fact that the base at guantanamo bay is actually sovereign Cuban Territory, leased to the United States. But never mind that little detail, we'll just call it "in essence" american territory so that Eisentrager won't apply. Clever, but wrong.
I guess it comes down to whether you agree with Judicial Restraint or Judicial Activism.
the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism."
That is a dangerous attitude when deciding constitutional cases. Objective factors, not formalism? Thats a pretty slippery slope, isn't it? Especially in a Constitutional law case?
Now another court can say, well, we don't need to rely on what the document actually says. Not saying its going to happen, but formalism regarding the Constitution is pretty important, wouldn't you say?
For example, I know the Consittuion says Freedom of Speech, BUT these practical concerns really override what the actually document says.
Unbelievably shameful. Now every detainee can demand a jury trial in almost ant district of the USA, and the gov't will pay for the lawyers. You can be sure the lawyers will charge a lot of your dollars. What is wrong in America. Can you imagine if the courts applied this to all the POW sfrom WW2. One possible item is that since the detainees are not in the US, there may be somme issue to drag the cas out for many years...costing lots of money, but that is the liberal way. I wonder if any captured Americans would be afforded the same treatment?
What is wrong in America.
Answer: the fact that it took so long to bring justice to the Gitmo detainees.
I wonder if any captured Americans would be afforded the same treatment?
Answer: not while we refuse set the example of proper behavior. The cost to our nation by letting those men rot in prison is obviously beyond your crude ability to reason.
Ratso,
You talk about the govt paying for the lawyers.... I doubt that we will pay for all of their lawyers, that is nonsense. However, what isn't nonsense is the fact that the taxpayers are paying MILLIONS to keep them in limbo. We have a detainee incarcerated in the continental US that is costing us 1.4 million dollars a year.
Ratso -- WRT your concern over the cost of Habeas Corpus hearings -- I think you are over-looking the various immense costs of holding innocent men. You get several replies here to fit within the 250 word limit.
The manpower and construction costs at Guantanamo have been immense. Guantanamo has tied down almost a whole brigade of troops when the USA has been forced to extend the terms of reservists, at great cost to the civilian economy. Plus VPOTUS Cheney's old cronies have been paid hundreds of millions of dollars to construct those prisons down there. Conservatively -- this has cost billions of dollars. That is billions -- with nine zeroes.
Ratso, and then there is the immense cost of the inexcusable failure to perform meaningful sanity checking of the allegations used to justify the captives' detention. Lieutenant Colonel Stephen Abraham's affidavits document some of the shocking and unprofessional amateurish on the part of the interrogators and intelligence analysts serving at Guantanamo. Do you remember the laughable color-coded warning system that Secretaries Ridge and Ashcroft kept squabbling over -- and the travel advisories and other security measures they kept announcing? These were worthless, expensive, and totally avoidable. The USA has been the victim of hysterical over-reactions to warnings wrung from men, under torture at Guantanamo, and in the CIA's black sites.
When these men might be totally innocent victims of mistaken identity these hysterical over-reactions have been immensely costly.
Ratso, back before Pope John Paul 2's recent reforms, when a candidate was being considered for Sainthood, a kind of court was convened, where someone was authorized to serve as "the Devil's Advocate", and do his best to challenge all the justifications for the candidates sainthood. It was a form of sanity-checking. And it was very unfortunate that the allegations against the captives apprehended in the GWOT was ever subjected to meaningful sanity-checking.
The US civil court system, and the US military justice system are adversarial processes. The evidence to justify criminal charges is challenged. It is a form of sanity-checking. And its lack in Guantanamo has been very costly. Read the transcripts for yourself and you will find Kafkaesque exchanges. Abdul Matin faced the allegation that he had been a Taliban intelligence chief. He replied that he had been a refugee in Pakistan for the entire Taliban regime. Further, he testified he could prove it. He had spent the seven years prior to his capture working as a high school science teacher -- and he had to sign his time-sheets every day for those last seven years -- documenting his presence in Pakistan.
This was a trivially easy alibi to refute or confirm. American intelligence analysts did not make the effort to refute or confirm his alibi. What did his 2004 CSR Tribunal tell him? They said: "You could have served as the intelligence chief during your summer vacation".
Except that the factual situation in Eisentrager doesn't match the factual situation of the Gitmo detainees, which means that Eisentrager is not precedent.
The Supreme Court didn't "create a right that doesn't exist in our Constitution." They rightfully determined that Eisentrager is NOT precedent in this case.
Not much of a constitutional scholar, are you? The fact that one side or the other cites a case as precedent does not make it so.
Less likey they will end up POW's- think about it.
If we had a President and/or a Congress that had any honor and upheld their oaths of office to uphold the Constitution this case would not have been necessary ( several times no less ). Most members of Congress don't deserve their seats. A few are brave enough to propose impeachment of the president.
I have posted this open letter to congress all over and faxed it to my reps, to Kucinich, Wexler and Pelosi as well at to AP, UPI and several other prominent news papers.
http://www.jacksonville.com/community/cc/pkruger/stories/061308/061308122348.shtml
Click and read my open letter to Congress to impeach so these constitutional violations are not permitted to be re-kindled over and over.
Of those "detainees" that you are so worried about, 6 have gone on to commit acts of terrorism in Europe. 2 with carbombs, the 3 with BODY BOMBS, and the 6th with poison. Also, as some of them are NOT citizens of the United States, the Constittution does not COVER them.
This is dead on.
Bottom line: More innocent people will be killed by the release of terrorists as a result of the Court's opinion.
The families of these inevitable victims will be able to draw a direct causal line back to these five justices.
Wait, how does a detainee having the ability to challenge his detention in court lead to murder? If he was a terrorist, wouldn't his challenge fail?
What about all those being held who are not terrorists, the majority of the detainees at Guantanamo? Should we keep them imprisoned, should we torture them, without the right to challenge their detention? Should we keep innocents locked up for years, torture them, drive them insane, scar them for life, without the right to challenge their detention?
If that's your idea of America, then please leave.
Wouldn't a legitimate terrorist's challenge fail to garner his release?
It makes me sad to see so many people citing things they have no clue about, especially about our own Constitution. I know now why our education system is one of the poorest in the world. No one is teaching students about even the basics of law in this country.
The Constitution excludes NO ONE. If you are on US soil or in any way subject to US law you are protected by the US Constitution. You do not need to be a citizen or even a resident of the US as long as you are under any form of US jurisdiction or control you are protected by the Constitution. Why?
Because the Constitution does not grant rights at all, it limits the power of the federal government. It says what the government can't do.
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
And even then only with consent of Congress.
Millions died to protect this constitution. It is the document that is supposed to set up apart from others. Please study the Constitution. It should be your duty as an American to at least read it once.
Actually I think YOU are the one that needs to take a reading course about the Constitution because YOU have no clue. To claim that the constitution grants no rights is absolutely absurd. I suppose you have never heard of the "Bill of Rights". Not the "Bill of What the Government Can't Do". I suppose you have never read any of the amendments to the constitution that guarantee RIGHTS. Try reading the Preamble to the Constitution. It SPECIFICALLY tells you who it is for. It states that is for the people of the UNITED STATES. It mentions NOTHING about foreign territories. It mentions NOTHING about foreigners having U.S. constitutional rights OUTSIDE of the U.S. If that were the case then it would mean that Americans would be protected by the U.S. constitution no matter what country they go to and that simply is NOT true. In habeas corpus it mentions REBELLION and PUBLIC SAFETY. It does NOT state that the rebellion must be on U.S. soil. And it does NOT state that threats to public safety have to be on U.S. soil. So maybe you need to go read it again and stop putting in things that are NOT there.
You should try reading the document and the body of case law about this. At no time does US law apply to non-citizens on non-us soil.
On US soil, yes, you have rights, although not the same rights as citizens or legal immigrants.
These were enemy combatants, taken prisoner fighting and killing americans on foreign soil.
The writ of habeas corpus did not apply to them, until now.
And FYI, Congress enacted specific legislation to address the detainees at gitmo. The supreme court (5 people) elected to overrule the legislation enected by elected representatves, and ignore or circumvent precious court decisions, and do what THEY wanted to do.
Tell me where that part is in the Constitution?
The Constitution does apply to non-citizens. Read the decision. This is Civics 101.
The Constitution does not allow a person not convicted of any crime from being held in prison for their entire life because they might, at some time, commit a crime in the future. Under this logic, every and any citizen could be imprisoned for life for no reason.
Again, Civics 101.
You would fail a U.S. citizenship test if you ever had to take one.
The point is that Gitmo is not a black hole covered by no law at all. If US law does not apply to the prisoners there, then would you say Cuban law does? If a non-citized commits a crime in this country, they go through our court system. Gitmo is not considered part of
Cuba, but is entirely under US authority. Also, how can anyone be arrested for life without learning who accused them or being allowed to show that they are not the person saught or were not even where they were supposed to have been by presenting evidence? We are better than that. Finally, If 6 out of 500 released prisoners went on to commit terrorist acts, that means 494 did not. If I had to choose, I would have to say better to let 6 terrorists go than to falsely imprison 494 innocents.
Bzzzt. Thanks for playing. I think you will find that only one former captive can be documented to have been involved in a bombing -- Abdullah Al Ajmi in Mosul, on April 26th 2008.
Bush Presidency spokesmen have made various claims about captives "returning to the battlefield" Prior to May 2007 claims of the number of captives claimed to have "returned to the battlefield" kept growing. But only three names had been made public, "Maulvi Abdul Ghaffar", "Abdullah Mehsud", and "Mullah Shahzada".
The first difficulty with this claim was that on May 15th, 2006, when the DoD was forced to release its list of prisoners -- and none of the these three men were listed there.
The official list contained two other guys named Abdul Ghaffar. But they were still in custody long after the DoD claimed he had been KIA. The official list contained a name "Haji Shahzada". Like Maulvi Abdul Ghaffar" he was still in custody long after the DoD had claimed "Mullah Shahzada" was KIA.
Abdullah Mehsud's death has been reported three times. His name was not on the official list.
Oliver North claimed that "Mullah Shahzada" was one of the illiterate boys released from Camp Iguana on January 29th 2004 -- after the DoD had already claimed he had been KIA -- and even though "Mullah" is an honorific, meaning "educated man" -- not an honorific one would apply to an illiterate 14-year-old boy.
I have read the entire Supreme Court decision this a.m. Here is perhaps the most important excerpt:
"Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another."
If you can't understand this passage, you would not pass a U.S. citizenship test.
ANd I would argue the most important is this, from Scalia's dissent:
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.....The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires.
A new right, created by 5 unelected americans, and contrary to BINDING Precedent of Johnson V. Eisentrager (1950), and contrary to a law properly enacted by the congress and the president.
I think the 5 justices might be able to pass a citizenship test, but would like fail Constitutional Law in law school.
I love Scalia. He is witty and one of few originalists on the court.
Scalia sounded like he has been watching too many episodes of the series 24. I mean, he is a justice. He is not head of the CIA or in some fictional movie. He is supposed to interpret the law, not be some oracle of impending disaster.
"Of the roughly 770 men held at Guantánamo since the base opened, over 500 have been released; under 20 have been charged."
This has more to do with utter incompetence of Bush administrations than the guilt of those arrested.
Some of those released have been caught committing terrorist acts in Russia, W. Europe and parts of Asia. Some were killed fighting the "infidels" of various types.
The question is are those caught on a field of battle prisoners of war or criminal arrestees?
It would be insane to declare ,say, an Algerian caught in Iraq planing IED a criminal arrestee who should stand a jury trial in U.S. This is the height of idiocy.
And the Jihadists and terrorists everywhere are laughing with glee at the Western petty bourgeois lameness.
They know that a quick beheading or a suicide bomb with rusty nails bearings is the way to go.
You're absolutely right, an Algerian caught in Iraq is not a criminal arrrestee who should stand trial in front of a US jury. His trial should have occurred in Iraq. (Although it's highly unlikely that you could justify imprisoning someone for "planning" to build a bomb.) Assuming he actually built the IED, though, it would be a criminal offense, not an act of war. We're not at war with either Algeria or Iraq, remember?
Mho1 made a similar claim to yours, that the captives were "caught on a field of battle". And, as I told Mho1, the DoD was forced to publish the allegations used to justify the continued detention of the last 572 captives to be held in Guantanamo. You can read them for yourself. You will find that the allegations simply do not at all support the claim that the captives were "caught on a battlefield".
Yes, some dozens of the hundreds of captives faced allegations that they were captured on a battlefield. But I suggest a fair reading of those allegations would suggest that those captives weren't combatants, that they were just unlucky enough to be NEAR a battlefield.
You want to know what aspect of the US incompetence the Taliban finds most hilarious? It is the US bounty program.
The big mystery in late 2001 and early 2002 was how did Osama bin Laden, Mullah Omar and their senior lieutenants escape capture, when the USA had offered big bounties for their capture? Well, the USA also offered a $5000 bounty for any foreigner denounced to the USA or any Afghan denounced to the USA.
Just like WWII, when prisoners get treated favorably, the GI grunts do the right thing, kill the prisoners. I am referring to the massacre at Malmedy and the fact that intelligence could not get a prisoner for interrogation for weeks, they even offered up to two weeks liberty to anyone that brought a German prisoner to the rear. I think they finally debriefed a cook.
Possum squads on the Pacific Islands!...what's next? Supreme Court involvement in target acquisition?
You must be joking. Would you also like it if foreign countries, say China, summarily executed U.S. soldiers? Didn't think so. Grow up.
YEAH, WAR CRIMES, WOOO!
The inane rulings coming from American judges are a continuous source of wonderment--but never surprise. Most of them must have learned to shave in the dark, because they surely can't stand to look at themselves in the mirror.
Of the 500 already released, how many have returned to fight against the US? It is a disgrace to give these guys access to our federal courts.
No, It is not a disgrace at all.
It is showing that America is true to it's word, that America can be trusted to live by law and not by the whim of a rogue president. It is one of the things soldiers fight and die to protect.
It IS a shame that it took this long to decide to live up to and abide by our own constitution. Or that we even allowed ourselves to be tricked into looking the other way for so long, or that we had to be forced by our courts to obey the law of the land.
Even at home criminals some times go free when police and prosecutors screw up a case. But it has to be that way or we have nothing left to defend and we dishonor those who already died defending these basic rights.
If we become like "them" then we have no right to complain about they way "they" are.
How to create a "terrorist": imprison and torture someone for years without letting them prove their innocence, so that they develop a rage and desire for payback.
I believe one has returned to fight against the United States. Besides that is not even a good indicator, if a country held you without evidence for years and you were innocent, perhaps you would then have some hostilities against them yourself.
Your question is based on several misconceptions.
First, only a handful of the captives were captured by GIs. Most were turned over by bounty hunters. Of the remainder, who were were captured by GIs, they were captured in their homes, based on a denunciation.
The procedures for determining which captives actually had an association with terrorism are deeply flawed. So Guantanamo continues to contain many captive who never had any association with terrorism, and never engaged in hostilities. Providing these men with an opportunity to challenge the allegations used to justify their detention is absolutely not a disgrace.
Some captives have returned to the conflict. I named three above. Others were innocent victims of mistaken identity when they were sent to Guantanamo, and were radicalized there by their brutal and unjust treatment. I mentioned Abdullah Al Ajmi. I believe he is an example of this second group. But the numbers the Bush Presidency claims have acted as enemies after their release are much greater than what the evidence supports.
The innocent Britons who cooperated in the production of the documentary "The Road to Guantanamo"? The Bush Presidency claims them among those who returned to the battlefield.
Classifying the Russians captives are "returning to the battlefield" is also highly intellectually dishonest. The Russians went to Afghanistan as human rights refugees in the first place. The USA returned them to Russia, where they became human rights victims again. The Russian allegations against them aren't crediblle.
Bush is like the Austrian man Josef Fritzl who locked his daughter in a secret cellar and raped her for 24 years, and now he says he can explain. If people are captured during war they are POWs and entitled by law to certain rights including shelter, food, medical, and freedom from torture, all monitored by international human rights agencies. Bush says the people captured in this war are not POWs. He can explain. Just like Josef can.
So Bush says they're criminals. But what law did they break? He's kidnapped people in other countries, drug them in hoods across many continents and held, tortured, in some cases murdered them. But the one thing he's never done is to have them charged with a crime, have public trials, present evidence, allow a jury to decide the claims. How can you bring witnesses from Afghanistan to a secret prison to testify on the prisoner's behalf? Isn't this just like any secret police state, if a citizen testifies for the prisoner they will be killed too. And their kids.
There will never be free, fair, open trials because there is no evidence, no criminal charges, nothing but kidnapping, torture, and in some cases murder. I'm shocked that Congress has supported this barbaric criminal conduct by our own government. I'm not shocked that the Bush Regime would try to kill all the people they have tortured so there will be no witnesses left alive to testify against them at international war crimes tribunals.
Will this keep us safe? If we had some of these "rules" during WWII we would have lost
GeorgiaR: we did indeed have some, if not all, of these "rules" during WWII. Because, during WWII, we still by and large respected our Constitution and our international agreements. And, as you see, they most assuredly did keep us safe; and we did win that war. The law is not your enemy. Try to remember that.
No one we did not. Name one German that was tried in U.S. federal court following WORLD War II. We did not hold trials for all of the prisoners of war. And the last time I checked the fighting in Iraq and Afghanistan was sill going on. Name for me ONE trial that took place DURING World War II. Name ONE prisoner of war that faced a day in federal court DURING World War II? You don't know what you're talking about.
What good it is to keep some taxi drivers and shoe shine boys stored in Guantanamo?
Loading comments…
American International Group is preparing to pay millions of...
I'm pleased to announce the launch today of two new HuffPost...
After a three-night stay in Moscow, the Obamas touched down in Rome on Wednesday so Papa President...
How would you like to live in the White House? Take the HuffPost Poll of World Leaders' Residences...
UPDATE: Paris Jackson also spoke. Watch her moving...
I was sorry to watch, live on CNN, Edward R. Murrow and Emmy Award-winning broadcaster and...
The following post...
It was with interest that I read Dr. Soram Khalsa's post on The Huffington Post...
Below are photos from Michael Jackson's memorial, with Mariah Carey, Lionel Richie, Smokey Robinson,...
OH NOES! What happened on Fox and Friends today, people?
Yesterday evening, Greg Sargent reported on The Plum Line that one of Alaska Gov. Sarah Palin's key reasons...
It's been a rocky year for Letterman and Palin. He joked...
I'm liveblogging the latest Iran election fallout. Email me with any news or thoughts, or follow me...
MADISON, Wis. (AP) -- Oscar G. Mayer, retired chairman of the Wisconsin-based meat processing company that bears his name,...
It's summer, the time for weddings! A few of my friends are getting married this summer and fall, so lately...
SYDNEY — Residents of a rural Australian town hoping to protect the earth and their wallets...
I get many letters like this from readers...
Posted June 12, 2008 | 06:33 PM (EST)