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or if you are NAVY
Time to take the country back
Posted on 04/20/2009 5:49:59 AM PDT by Kaslin
Recently, a federal court issued a decision that may be the next Supreme Court case in the War on Terror. The court ruled that terrorists held by the U.S. military in Afghanistan are entitled to the writ of habeas corpus, extending a panoply of rights to these detainees. This ruling could have a stunning impact on this and future wars, and bears out just how wrong last year’s major Supreme Court habeas case was.
Judge John D. Bates is a Bush appointee on the U.S. District Court for the District of Columbia. Judge Bates held that terrorist detainees that are held at the Bagram Air Force Base are entitled to habeas corpus, claiming that the Supreme Court’s 2008 decision in Boumediene v. Bush demands this result.
The writ of habeas corpus is powerful. Where habeas applies, it requires that any person held in confinement must either be promptly given a civilian trial with all the protections that the Bill of Rights gives American citizens, or that the person must be released. Before the Boumediene case, it had never been applied in a wartime context on foreign soil in the history of the United States.
No country extends more protections for individual liberty than the United States. Our nation has amazingly broad protections for free speech, religious liberty and political expression. People have the right to own property, have the means to defend themselves and their families, and be informed by a free press. If the government wants to convict them, they are presumed innocent, entitled to a prompt jury trial with the help of a lawyer, and cannot be tortured or given unreasonable fines.
Yet before last year, the courts always recognized the enormous difference between prosecuting criminals and fighting a war. Habeas corpus applies to American citizens or people on American soil as part of domestic policy. When invoked, it requires the government to apply all of those rights listed above. It’s a civilian process deliberately biased in favor of defendants that is focused on our courts under Article III of the Constitution.
War, on the other hand, is a military matter. It’s part of foreign policy under the president’s commander-in-chief power in Article II of the Constitution. It’s deliberately biased in favor of American power, intended to protect American lives and our national security.
Then Boumediene v. Bush came along, striking down the military commission system in Guantanamo Bay, Cuba (Gitmo). For the first time, with a 5-4 split decision, the Article III branch chose to override the Article I Congress that created the military commission system and the Article II president who was fighting a war. The four conservative justices that dissented in that case warned that America would regret the majority’s decision.
Today may be the beginning of that regret. Habeas here means everyone captured on battlefields is presumed innocent and gets taxpayer-funded defense lawyers and every right of Americans. That includes making the soldiers involved to be flown back to the U.S. for the terrorist’s trial, where they’ll have to testify and defend themselves. The soldiers will have to provide evidence to prove their allegations about the terrorist defendant. If they can’t prove every part of what they say, the terrorist will go free.
What’s surprising about this decision is that it wasn’t necessary. Judge Bates wrote that habeas had to apply in Afghanistan because Bagram Air Force Base could not be distinguished from Gitmo.
That’s just not so. In Johnson v. Eisentrager in 1950, the Court held that habeas did not apply to the U.S. military bases in Germany. In Boumediene, the Court bent over backwards to explain why Gitmo was different from Germany, saying that Gitmo was a century-long lease from Cuba that amounted to complete and permanent U.S. control. Therefore, Boumediene held, Gitmo was de facto sovereign American soil, and that’s why habeas applies.
U.S. bases in Afghanistan are more like those in Germany than Cuba. Bagram Air Force Base is just like the bases in Germany after World War II. If habeas didn’t apply to Germany in the Eisentrager case, then it shouldn’t apply in Afghanistan.
Judge Bates is considered a conservative judge with an excellent reputation. It could be that he felt compelled by the Boumediene case, which he must follow even if he disagrees with it. But this decision seems to go further than the case required, and will now be appealed to the D.C. Circuit. This case could go all the way to the Supreme Court, and change the way America conducts wars forever.
Transfer ownership of the prison to the Afghan government with an agreement to “assist” them in running it.
Bookmark.
ALSO
or if you are NAVY
Time to take the country back
The goal of left wing lawyers has been to make it illegal to defend ourselves. Looks like they are succeeding.
Boumediene was decided without Roberts or Alito.
So what now? Shoot them all dead on the battlefield or just not fight the fight at all? I think we all know which way this administration wants to go.
That works also. The more that fly, the bigger the message.
You say that like it's a bad thing. Once we require soldiers to follow the Miranda Ruling before firing their weapons, and give Iran our nukes (they want nukes and we don't), those who oppose us in our overseas contingency operations will no longer feel threatened, and they will be nice and sing Kumbaya with us in perfect harmony.
Our nation has amazingly broad protections for free speech, religious liberty and political expression. People have the right to own property, have the means to defend themselves and their families, and be informed by a free press. If the government wants to convict them, they are presumed innocent, entitled to a prompt jury trial with the help of a lawyer, and cannot be tortured or given unreasonable fines.
At least that’s how it used to be.
I suppose the Afghans could just shoot any prisoner the judges wanted transferred to the US for trial ~ and if a judge demanded that the trial actually be held in Afghanistan, then the Afghans might well stick him or her in one of their prisons until rationality returns.
There are so many possibilities here.
McStain and company has severely limited the right to political speech. The congress and courts have severely limited religious speech and expression.
This is not the country it once was. Liberty is in retreat.
Take no prisoners. Either kill them on the battlefield or just let them go. Either way, we must keep them out of the hands of the scumbag lawyers who hate their own country more than our enemies do.
That sounds like the right answer to me.
The Supreme Court of Despots has NO AUTHORITY over The Actions of the Executive Branch or the Legislative Branch. They only have control of the Courts. there are countless examples of the Executive Branch telling the Despots to go pound Watermelons, however Sambo won’t go down that road. He will end up being the Terrorists best friend.
An American robed mullah speaks. Is this psycho judge related to Norman Bates? /sarcasm
I have mixed feelings here.
But, ultimately, as the bill of rights is supposedly a Bill of [human] rights {evidenced of the word “people” rather than “citizen”, though arguable} I don’t see anything wrong with this...
I think that our Government SHOULD be held to task for violating these rights, DOUBLY so when concerning its own citizens.
I can’t really blame the judge here. From what I know, he’s only doing what he’s supposed to do, following SCOTUS precedent in Boumediene v. Bush. Conservative judges don’t make up the law as they go, unlike some folks who see the bench as an opportunity to remake society as they see fit.
This is precisely why NO PRISONERS must be the policy of our military. Hands up or fighting, no matter. Kill them on the spot.
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