wonderwench

The Supreme Court rules today that the prisoners at Gitmo may challenge their capitivity in U.S. courts, thus affording them the same protections as U.S. citizens under The Consitution. It also upheld the ability of the Bush Administration to hold citizens without charging them, although they can challenge their detention in court.

I find these two rulings to be contradictory.

Enemy Combatants Win Right to U.S. Courts

The U.S. Supreme Court ruled Monday that prisoners seized as potential terrorists and held for more than two years at a U.S. military prison camp in Cuba may challenge their captivity in American courts, a defeat for President Bush in one of the first major high court cases arising from the Sept. 11 attacks.

The 6 to 3 ruling passes no judgment on the guilt or innocence of the approximately 600 foreign-born men held in the Navy-run prison camp at Guantanamo Bay, Cuba. The justices also did not address the broad issues of human rights and civil liberties surrounding the prisoners' seizure and detention without trial or guaranteed access to a lawyer.

For now, the high court said only that the men can take the first legal step in contesting U.S. authority to hold them.

The men can now presumably take their complaints to a U.S. federal judge, even though they are physically held beyond U.S. borders.

And.....

Bush Can Hold Citizens Without Charges

The Supreme Court ruled narrowly Monday that Congress gave President Bush the power to hold an American citizen without charges or trial, but said the detainee can challenge his treatment in court.

The 6-3 ruling sided with the administration on an important legal point raised in the war on terrorism. At the same time, it left unanswered other hard questions raised by the case of Yaser Esam Hamdi, who has been detained more than two years and who was only recently allowed to see a lawyer.

The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit.

"We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote for the court.

O'Connor said that Hamdi "unquestionably has the right to access to counsel."

The court threw out a lower court ruling that supported the government's position fully, and Hamdi's case now returns to a lower court.

The careful opinion seemed deferential to the White House, but did not give the president everything he wanted.

The ruling is the largest test so far of executive power in the post-Sept. 11 assault on terrorism.

The court has yet to rule in the similar case of American-born detainee Jose Padilla and in another case testing the legal rights of detainees held as enemy combatants at a U.S. military prison facility at Guantanamo Bay, Cuba.

O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

She was joined by Chief Justice William H. Rehnquist and justices Stephen Breyer and Anthony Kennedy in her view that Congress had authorized detentions such as Hamdi's in what she called very limited circumstances.

Congress voted shortly after the Sept. 11 attacks to give the president significant authority to pursue terrorists, but Hamdi's lawyers said that authority did not extend to the indefinite detention of an American citizen without charges or trial.

Two other justices, David H. Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper. Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court.

Hamdi and Padilla are in military custody at a Navy brig in South Carolina. They have been interrogated repeatedly without lawyers present.

The Bush administration contends that as "enemy combatants," the men are not entitled to the usual rights of prisoners of war set out in the Geneva Conventions. Enemy combatants are also outside the constitutional protections for ordinary criminal suspects, the government has claimed.

The administration argued that the president alone has authority to order their detention, and that courts have no business second-guessing that decision.

The case has additional resonance because of recent revelations that U.S. soldiers abused Iraqi prisoners and used harsh interrogation methods at a prison outside Baghdad. For some critics of the administration's security measures, the pictures of abuse at Abu Ghraib prison illustrated what might go wrong if the military and White House have unchecked authority over prisoners.

At oral arguments in the Padilla case in April, an administration lawyer assured the court that Americans abide by international treaties against torture, and that the president or the military would not allow even mild torture as a means to get information.

Zeld2.0

It feels sort of like the Supreme Court is in the "we kind of support you, but we think you're wrong" mode.

They're not sure it seems to they just rule in the middle as they did in their last few cases.

I think one quote stuck out though: O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Ouch.

tecoyah

well....they did after all, give him the presidency.

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wonderwench

I am really tired of that bit of historical fiction. The Supreme Court prevented the FL Supreme Court from giving the election to Sore Loserman.

Back to the topic. The unintended, or perhaps it is intended, consequence of this decision will most likely be that the U.S. will not take legal custody of enemy combantants, but will guard them on behalf of whatever country we are engaged in liberating or assisting in other ways.

Most of these countries will have far lower standards of prisoner care than we do in Gitmo.

tecoyah

* shows incredible restraint*

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Holding onto anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned. - Buddha

Scipio

ditto

And now, back to the topic...

I think it's great that the Bush administration is no longer able to suspend the constitution and corrode democracy itself by imprisoning people arbitrarily. Sometimes democratic principles are just so hard to live under; no wonder we're trying to give them away to Iraq. (Edit: Zing! so much for incredible restraint; I suppose I just have the regular kind...)

Before this ruling, it's been possible to hold someone, and not let them:

a. hear the charges against them
b. question the validity of those charges
c. talk to an attorney

Even detainees who were US citizens were only reluctantly given access to the courts. Bad guy or not, everyone gets to plead their case, and hear the charges. It's called "progressive, modern democracy."

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wonderwench

What I find strange is that the rulings seem to be more favorable for enemy combattants than they are for citizens. Padilla should not be held without being charged - yet his recourse is only to put forth a challenge in court.

Scipio

The detained foreign nationals get more out of this ruling than the citizens do; they were given virtually no legal rights whatsoever before this case, and they are now able to go before a judge. Still, their rights are quite limited compared to what you or I enjoy. Government evidence might be assumed to be accurate, hearsay evidence might be allowed, etc.

There are times when habeas corpus can and should be suspended; this isn't one of them.

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ARTelevision

I'd say it's time to ship non-citizen prisoners of the terror war to imprisonment in Saudi Arabia - they owe us bigtime and they know exactly how to deal with people like this. We don't.

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apeman

uh, Art are you really suggesting that the US outsources the torture of prisoners to another country where they can do it better and cheaper?

if so, interesting idea ...

EDIT: ok 'torture' is a bit extreme for what is implied in your post, but i guess you don't want them to have a nice holiday over there?

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Sun Tzu

Thats been one of the best ideas Ive heard in awhile.

If a prisoner has been deemed to have given the most intel as possible; transfer them.

It solves many complex issues, and the world will see how this chapter ends in an area where it began.

It would also serve as a test to show those that agree or disagree that the Saudi's are committed to fighting terrorism.

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ARTelevision

apeman, we do this sort of thing already - selected prisoners are held for various time periods in allied countries where interrogation methods are more in accord with martial necessities than they are with ever-more-broadly defined "humane" treatment.

The U.S. is not equipped legally or psychologically to manage or even accept this type of situation.

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choskins

"The U.S. Supreme Court ruled Monday that prisoners seized as potential terrorists and held for more than two years"

Held more than two years? I read that and immediately think the Supreme Court decision meant nothing whatsoever. It gives the liberals the right to say they got a victory, while accomplishing absolutely nothing.

If they can't gather whatever intelligence, etc., they need in 2 years, they need to let them go anyways.

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apeman

well, i suppose it's a logical consequence of the free market principle ...

this is one reason why a base in Cuba is used?

morally speaking, mightn't you as well do it yourselves as send them off to where you are certain it will be done to them?

just asking - i am in a state of suspension of judgement on this at the moment... i'm not sure i'll agree with you but your opinion is worth hearing as always

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roachboy

the suspension of habeas corpus is a de facto declaration of a state of emergency. i do not think that anyone wants to actually live under a state of emergency with george w bush at the helm.

that the supreme court failed to overturn this suspension outright is not a good thing (the combination of the two main decisions yesterday appears to have indicated an unease with the legal black hole of guantanamo and elsewhere with a concession of the state of emergency logic).

the assumption at work behind this sort of thing appears to be either (a) in paranoid times, it is best to sweep with a broad brush, without having to care about guilt or innocence--ruining lives is secondary to creating the illusion of action on the part of the state or (b) the Law is drawn to the guilty. the second is the more alarming--over and over again in talking with various conservatives, i have encountered a version of this attitude, which is somewhere between kafka and inquisition. and i have wondered how reasonable people can come to believe this. it still mystifies me----how is it that suspicion of "dangerous activities" comes to function as proof of them? i suppose that if you see things through the hysterical lens of bushworld, that "We" are in a war of survival with an ill-defined, omnipotent yet invisible Other over the american way of life in itself, then it might make some sense---but that rationale is itself a significant part of the problem.
the "intel" justification seems to be bullshit---i agree with choskins on this--and the kind of information being gathered and acted on seems nuts as well---not to mention racist:

friends of mine who happen to be egyptian american have been visited by the fbi several times because they have a photography darkroom in their basement--this of course requires chemicals to develop the photographs--because they are egyptian american, the interest in photography in hysterical times links to small streams of "intelligence" flowing around and suspicions being raised. but these are decent folk with whom no-one but the most racist would have any problem---had they not co-operated with the fbi investigating their darkroom and hobby practices, they could well have been arrested, and arrested under the same kind of ridiculous non-legal umbrella--obviously because they happen to fall under the racist category of the moment, having the bad form to be muslim etc.---and if that had happened, they would have found themselves without recourse to habeas corpus--what the hell is that? even supporters of bushworld should recognize that with the vague definitions of the "enemy" at play, there are going to be lots and lots of errors here---the only protection one has to the unlimited extension of state power is (not a gun) but the right to trial....

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it make you sick.

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Clark

We have three branches of government all with equal authority. Congress seems to be finally waking up to this idea. The court is taking a bit longer. But if Kerry wins I am shore that both Congress and the court will suddenly and forcefully exert there constitutional powers and make shore the executive is put in its place

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ARTelevision

apeman, as stated, I do not believe we are legally or psychologically equipped to execute martial exigencies in this arena. Our entrenched traditions of liberal human values, while valued above all things by some, are not the the type of values that are conducive to doing what is necessary in this uniquely dangerous historical situation.

We see evidence of the reasons for this everywhere in our society in normative times. These are not normative times and still we get more excited about protecting the "rights" of people accused than we do about destroying and/or incapacitating avowed enemies.

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roachboy

was thinking a little more--one of the core principles shared by conservatives that i know is the suspicion of state authority---they do not trust the state to function rationally---how does this principle (which one may or may not agree with--this is not the point) square with a support for the patriot act and the suspension of habeas corpus?

maybe it is a matter of viewpoint---if your immediate community does not include muslim folk, you might be more amenable to buying the rationales proffered---but if your community does include lots of people who are muslim, then things look very very differently. since 911, the families of some of my muslim students (for example ) and the students themselves have endured harrassment--sometimes physical violence--at the hand of various yahoos---for a long time, some of these folk--particularly the older ones who live in the suburbs--- were afraid to go out---with time, the threat of physical violence in good ole vendetta form carried out by cretins who were simply following the logic of bushworld shifted to a pattern of legal harrassment---it is obvious if you have seen any of this kind of thing in action that the quality of information being acted upon is suspect at best in many many cases---however, even this many of these people might have been able to excuse as the result of disquieting times had basic legal protections remained in place--but in combination with the administration's creation of the legal black hole---no.

there is a funny correlate to this---many of these same people voted for bush on social conservative grounds--you will not find that happening again. and this is not a small community.

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

roachboy

art--your position seems to come back to a matter of "trusting the government" as you talked about in a earlier thread--in this situation, as i have been trying to argue, experience is showing that the quality of information--coming from idiot things like the tips lines--is dubious at best----in which case basic legal protections are absolutely required, are the only recourse in the face of what amounts to the racist-inspired abuse of state power.

as for outsourcing torture, and your argument concerning "avowed enemies"--the first i would reject out of hand. the second is entwined with the problems i mentioned above--shitty information, hysterical times, a committment to a notion of total war against an invisible enemy--problems arise at every step.

and no, i do not trust this. i do not trust the bush administration. ia m not sure if i woudl trust any administration enough to watch it set basic legal rights on fire.

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

apeman

my premises:
1) with minimal legal process, innocent people will get punished
2) with traditional legal process, guilty people will escape

i think roachboy and i are putting more weight on the first and art is putting more on the latter... is this why we're disagreeing? just exploring the possibilty of a synthesis, what do you reckon?

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ARTelevision

Personally, I do not see a synthesis of these positions - or of any of the other currently polarized political positions - until millions of Free World citizens are slaughtered by the enemy whose nature many of us refuse to comprehend. At that point we will pull together and do what is necessary. Until that point, we will continue these theoretical exercises.

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roachboy

art--there is nothing theoretical about my position here--what i base my objections on are things that have happened and happen in my immediate life-world....the problem comes down to the vagueness still operative in the bushworld definition of "enemy"---a problem you can see all over the place even in the context of posts to this board--and this despite what bush had tried (ineffectually) to do immediately after 911 when his own logic appeared to legitimate anti-muslim violence around the country--this in tandem with the problems mentioned above.

maybe in your world this is theoretical--and maybe that is itself a source of disgreement here--i cant be sure. maybe there is a correlation between support for this legal and political situation and functioning in a kind of monoculture--again, i dont know--but for me this is **not** a theoretical question.

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

apeman

hmmm... i can see where Art is coming from here...

what if you create more terrorists by acting in a way that is perceived as being an act of war by many islamic people?

do you think there a parallel with the situation with the Israelis and Palestinians?

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ARTelevision

OK roachboy. I take your point, no problem. We'll talk in terms of "realities." I suppose the disagreement is over the relative significance of eroding the "rights" of individuals as compared to the decimation of vast sectors of our population by terroristic acts. There is evidently a disconnect in the ways we consider such realities.

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wonderwench

I suspect that this option is being seriously considered. There is no upside for the U.S. to maintain legal custody.

wonderwench

Almost correct. The suspicion is for unfettered government power. The state is trusted to act reasonable when the structure and code of law encourage and proscribe it.

There is a great deal of disinformation regarding the Patriot Act, the central tenant of which is the ability of law enforcement and intelligence agencies to share information. At the time it was originally passes, I predicted that Congress would move to reign in the unacceptable portions. The SAFE Act is a good step in that direction - and a strong example of the soundness of a tri-partite government.

I am very troubled about the suspension of habeas corpus for U.S. citizens and residents. The Supreme Court made a wrong call on this one.

wonderwench

Rights don't mean much is one has been slaughtered by terrorists are forced to live under Sharia Law.

Despite roachboy's assertion that the enemy is vague, it is not. The enemy has declared war and is targetting the destruction of Western Civilization in order to replace it with Wahhabisim.

roachboy

i have wondered about this, actually--the extent to which my opposition to bush in principle has been hardened by the kind of abuses i have seen happening to people close to me...how the evaporation of basic legal protections has effected them--watching what is looks like from up close to find people from a wide wide range of political positions being lumped together on the basis of religion and ethnicity into a single category--muslim/enemy---and to watch that category slip around. this has real effects on real people. this is not a game.

if you think about it, the problems are the following:
1. the direct experience of arbitrary information, of arbitrary power in this situation---why do you imagine that the administration is really so reluctant to allow people to actually go to trial? could it be that they understand much of their information is crap, would never withstand scrutiny, and that they are trading away the lives of potentially innocent people so they can appear to be resolute?
in which case the realilty of the situation has nothing necessarily to do with preventing any more actions like 911, and everything to do with the politics of appearing coherent and in control in the wake of actions like 911. these are radically different things.

2. racism both at the level of the category enemy in this case, and in the justifications floated about that category. many of my extended network of friends--some very close--who are muslim are probably as conservative as you are, art, yet they find themselves cast as potential enemies by the idiotic way in which the administration has responded to 911. how does that sit with you?

if i understand this correctly--and let me know if i am wrong---it looks like you are willing to trade away basic legal protections so long as you are not yourself either implicated, or do not know anyone who is. you do this as a function not so much of "terrorism" but rather as a function of your thinking about the present conflict through the ideological lens afforded by the bush administration. everything makes sense so long as it is distant, so long as you can watch it happening--well not quite, because in the refusal to allow people to come to trial, the administration never has to expose exactly what it is doing--it does not have to release lists of who is being held or where, it does not have to engage in any transparency about what the motivations are behind any particular detention, it does not even allow people held the chance to protest their situation by letting them have access to counsel. how exactly is this countering the dangers posed by an external enemy, real or imagined? what it looks like to me is that the administration is turning itself into a mirror image of what it is claiming to fight. how does this help anything?

__________________
a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

wonderwench

There is another way to look at this:

We are engaged in a war with an enemy which has a pan-global, distributed organization. We know neither the extent nor the resources of this organization. We have no treaties or agreements with them which enable us to trust that their behavior can be anticipated. We cannot even trust then to act rationally to preserve their own lives.

Because of the unknown nature, it is prudent to not allow our intelligence efforts to be revealed during court proceedings. Given the nature of trials in the U.S. these days, it is quite understandable why the government would wish to delay having a defense attorney expose critical covert activities.

I reject the racism accusation. The enemy is a fringe element in a different culture - not the entire culture.

roachboy

you clearly have not been reading what my posts have been saying--i have heard the qualifications lots of times, and see that it operates only as a reflex response when the reality of racism surfaces too obviously. and the people i am referring to as are american as you are, wonderwench--in many cases quite militantly so--your own logic betrays what you say.

and as for the prudence argument, i simply say bullshit. you only maintain that position because you do not feel implicated.

__________________
a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

wonderwench

Thanks for playing. You don't know me - you have no idea how I think or feel. I take offense at being called a racist and having my motives questioned.

Like it or not, junior, we are engaged in a war for survival. That makes me neither a racist nor a self-absorbed person who only cares about the impact upon myself.

tecoyah

The first part....I am sorry, I simply do not understand, please elaborate.

As for the second, you say the enemy is not vague, yet in your follow-up post you pretty much claim we have no Idea who they are......which is it.

*edit* and please refrain from the degrading "Junior" sarcasm....it really serves no purpose.

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Holding onto anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned. - Buddha

roachboy

my apologies if what i write appears to go further than interpreting your words. i make inferences from what i read, and try not to go past that. i find that sometimes i get a bit impatient, and when that happens i can slip up this way. dont take it personally. but i will argue against the words you use. and you use many many problematic ones.

this is not to speak about your decision to refer to me as "junior" while complaining as you did in the last post.
anyway, onward to matters at hand.....

as for your line about a "war of survival"--well here we have the central justification for everything in bushworld. i think that justification is really dangerous--and while i would not argue that buying into it reflects any a priori disposition toward racism or self-absorption on your part personally (you are right, i do not know you), the effect of it is to structure political positions that are both. it is the word, and the frame of reference that it drags into play, that are the core of the problem.

again, the people i refer to above are as american as you are, wonderwench. period. you might not like it, but it is a fact. but the discourse enables you to seperate them arbitrarily into a "different culture" (fringe element or not). once you do that, then the problems i have been talking about are easy to justify. which is what you are doing. rather than engage with the problems the legal balck hole have created and create, and what these problems mean, you shift to another level and try to explain it all away. i dont buy it. try taking on the problems.

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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite

tecoyah

Did you even bother to "think" about this statement before typing it. You just admitted to that which you proclaim you are not, and justified it with a blanket statement of fear.


*shakes head and leaves*

__________________
Holding onto anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned. - Buddha

wonderwench

I am not advocating that U.S. citizens be denied due process under the law - the Padilla ruling was a wrong call.

My concern is about the handling of enemy combattants - but now that the Court has rules, I stick with my prediction that legal authority will be transferred to another nation's while the U.S. guards the prisoners for "security purposes."

tecoyah - I don't see the word "junior" as being more offensive than being called a racist.

As for the nature of the enemy, you are missing the point. We have visibility into portions of the enemies' network which have declared war upon us and engaged in massive acts of terror. They have shown a repeated disregard for the standards of civilized behavior as evidenced by the execution of innocent civilians. We do not know the full extent of their orginazation, resources etc. The lack of that knowledge is dangerous - and needs to be addressed.

wonderwench

Only if one disregards the declared intentions and fact pattern of the enemy.

ARTelevision

A good member is expected to ratchet down the level of personal diatribe when said member may feel attacked, rather than meet that perceived level with another so-called "equal" tactic.

This is the final time I am issuing general warnings in this thread. A round of official warnings will follow. Newer members need to get a drift of the level of dialog that moderators and administrators enforce here and not conduct themselves as if the way things work at other forums are the way they work here.

Cut it out. You have been warned nicely for the last time.

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apeman

*sigh*

i thought we were almost making progess for a minute there, or at least agreed on what we disagreed on eh?

so it goes ...

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