Community | January 10, 2010 | 19 comments

A horrendous decision on habeas corpus

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SleepDirt
The rule of law just took a beating the D.C. Circuit Court on Jan. 5, when three conservative judges limited the ability of Guantanamo detainees to challenge their detention.

The court, in the Al-Bihani case, said that detainees have a much flimsier set of rights than normal criminal defendants in our court system.

This decision represents a rare frontal attack on the prevailing Supreme Court doctrine, rendered in the Boumediene decision of 2008. In that decision, a majority
of the court, led by Justice Kennedy, said: “We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation of relevant law.’ ”

But the D.C. Circuit Court undercut that “meaningful opportunity” by ruling ruled that a detainee has to show by a “preponderance of evidence” that he is being wrongly held, instead of the usual “reasonable doubt.”

They also said it was OK to presume the accuracy of the government’s evidence, though the Supreme Court in Boumediene stressed “the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant.”

More...

http://www.progressive.org/wx010910.html
  1. groups:
    Community,   Law,   Orwellian Nightmare,   Civil Liberties,   1 more
  2. tags:
    Law,  Civil Liberties,  Court,  Habeas Corpus
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19 comments // A horrendous decision on habeas corpus

  • curtisreed
    • 0
      curtisreed  

    • “There's a reason why we sign these treaties: to protect my son in the military," Sen. Joseph Biden (D., Del.) hissed at the attorney general through his enormous teeth. "That's why we have these treaties, so when Americans are captured they are not tortured. That's the reason in case anybody forgets it."

      Well...sorta.

      The relevant reason we sign treaties like the Geneva Convention is so that other signatory nations do unto us as we would do unto them. That means we can't subject captured French soldiers to Caddyshack II, and France can't subject our boys to Jerry Lewis marathons.

      Okay, perhaps I'm making too much light of a serious thing — torture. But, then again, so is Biden. The Geneva Convention is a contract, like all treaties. And contracts obligate those who sign them to certain behavior.

      And that's why White House Counsel Alberto Gonzalez suggested in a 2002 memorandum that the Geneva Convention seemed "quaint" in the context of the war on terror.

      But that's all beside the point for the moment. Because regardless of whether it's "quaint" for prison guards to behave like Sgt. Schultz ("I see nothink!"), one thing is clear: The Geneva Convention does not require countries who haven't signed it to do anything at all.

      And guess what? Osama bin Laden has as much use for the Geneva Convention as he does for the new Lady Remington electric shaver.

      So yeah, Biden is correct in all of his pious glory that the Geneva Convention protects military personnel like his son from being tortured — but it protects them from torture by forces from other countries who have signed the Geneva Convention: and no one else.

    • 2 years ago
  • esserius
    • 0
      esserius  

    • Based on the ruling, sprinkles will now require a preponderance of topping before they are admitted onto your reasonably doubtful ice cream.

    • 2 years ago
  • csmonut
    • 0
      csmonut  

    • The Supreme Court ruling stands. A circuit court can say or do whatever they want, but since the Supreme Court already ruled, the circuit court decision has no teeth.

    • 2 years ago
  • blaino
  • curtisreed
    • 0
      curtisreed  
    • blaino:

      Or, more likely, our naivete and simplemindedness will result in many thousands of our citizens being murdered, all so we could be so proud that we didn't try our enemies in military tribunals.

      Maybe we'll get lucky and some of YOUR family members will be among the victims, and you'll have a chance to reflect upon how incredibly dangerous your naivete turned out to be.

    • 2 years ago
  • Kamilo
    • 0
      Kamilo  

    • Whatever, its a district court. The beauty of the American justice system is the wonderful thing called the appeal.

    • 2 years ago
  • courage
  • Varex_Sythe
    • 0
      Varex_Sythe  
    • courage:

      Because not all of them are killers. Quite a few of them were detained because they were nothing more than suspicious, and have never actually had their cases reviewed to determine if they actually were either terrorists or a threat.

    • 2 years ago
  • curtisreed
    • 0
      curtisreed  
    • courage:

      Varex_Sythe: what evidence do you have for that?

      This has been the supposition of human rights groups, and what we have found when we release many of the Gitmo detainees is that they do, in fact, return to terrorism.
      If they were just "innocent bystanders", how exactly do you explain that?

    • 2 years ago
  • curtisreed
    • 0
      curtisreed  
    • courage:

      that doesn't answer the question.

      the question is simple, don't change the subject:
      WHY SHOULD A FOREIGN AGENT OF A TERROR ORGANIZATION, CONSPIRING SECRETLY TO COMMIT SABOTAGE OR DESTRUCTION THAT WILL RESULT IN THE DEATHS OF CIVILIANS, BE AFFORDED THE SAME CIVIL RIGHTS AS A US CITIZEN?

    • 2 years ago
  • curtisreed
    • 0
      curtisreed  

    • they are enemy combatants, not civil defendents. in fact, most of them could probably be executed under geneva convention standards as "illegal combatants", so stop your whining.

    • 2 years ago
  • SleepDirt
    • 0
      SleepDirt  
    • curtisreed:

      Who's whining? Besides yourself, I mean?
      Of course, this applies to yourself as well, should someone in authority choose to designate you an 'enemy combatant', a phrase that is an invention Bush's lawyers pulled out of their collective ass which has nothing whatsoever to do with US or international law nor the US Constitution.
      Think Maher Arar. Innocent, renditioned and tortured and denied habeus corpus rights, any legal recourse or even so much as an an apology.

    • 2 years ago
  • curtisreed
    • 0
      curtisreed  
    • curtisreed:

      SleepDirt, "enemy combatant" is a Geneva Convention concept, not something invented by the Bush people.

      The primary problem is that the Geneva Convention, which Liberals want applied to the war on terror, was written to handle wars between states. The notion of a large, international, well funded terror organization waging war on a state was not even conceptualized back when it was written, by its very definition, we're WAY out of the box. Governments are struggling to fit a square peg in a round hole. Either the Geneva Conventions need to be updated, or the individual states need to update their military laws, which is what the USA has done.

      Bush et al. were correct that those combatants in Afghanistan who, for example, do not carry their arms openly, or who violate the laws and customs of war, do not qualify for POW status under the Geneva Conventions. Anyone trying to sneak bombs aboard a plane does NOT qualify for Geneva Conventions protection.

      Traditionally, saboteurs and spies found out of a uniform have been tried by military tribunals and many times were executed.

    • 2 years ago
  • lolitanimatronic
  • SleepDirt
  • dtringas
    • 0
      dtringas  

    • Horrendous decision in what what way? If we grant protection to them under American constitution then others would scream "Horrendous Decision" once again. Damned if you do or don't on this touchy subject to the our country who is having a perpetual panic attack. It doesn't seem unreasonable to give Gitmo priosners a chance to contest their detention. They aren't Americans, and there is a valid question as to whether or not these detainees are subject to all of the rights we are GUARANTEED not GRANTED by our constitution.

    • 2 years ago
  • soulhakr
    • 0
      soulhakr  
    • dtringas:

      Some detainees are American.
      http://www.defense.gov/news/newsarticle.aspx?id=44193

      The presumption of guilt without trial or recourse, being labelled and "enemy combatant" (or similar jargon) and summary execution of those considered politically inconvenient by those in power are generally agreed to be [firstly, Bad Things(tm) but also] the things the U.S. Constitution was intended to prevent. But this decision sets a precedent which could be used to violate the spirit of the Constitution by doing just so.

    • 2 years ago
  • SleepDirt
    • 0
      SleepDirt  

    • “There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

    • 2 years ago
  • ryan8566
    • 0
      ryan8566  
    • SleepDirt:

      i would not really expect anything different from the D.C. Circuit, not just because it is conservative, but has a history of not overturning decisions of the executive branch. if this were heard in the 1st or 9th districts, the outcome may have been different. now it is up to the parties to decide whether or not to go to the U.S. Supreme Court...but again i think we will have to live with the bush appointments for quite a while.

    • 2 years ago
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