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.
I wonder if this decision is a natural outcome of our having “police actions” requested by the Executive Branch versus a formal declaration of war from Congress.
Killing them on the battlefield will have the same result, right? Endless court battles to defend the use of weapons. I don’t think we could be any clearer - our national policy is to not defend ourselves.
>The goal of left wing lawyers has been to make it illegal to defend ourselves. Looks like they are succeeding.
There is a difference between defending ourselves and holding people for years on end w/o trial. That prisoners seem to have more rights than citizens is deplorable... but we shouldn’t allow that to mean that the state should only recognize the rights which are an intersection of the two. (In that case, you would not have the right to reproduce w/o governmental sanction.)
Then by that token, American soldiers should expect the very same treatment from the enemy.
And time to give credit where credit is due. The Obama Justice Department is appealing this ruling. Oh and time to point out his hypocrisy when the Boumediene case was handed down. It is win win.
The Supreme Court of Despots has NO AUTHORITY over The Actions of the Executive Branch or the Legislative Branch.
There is a difference between defending ourselves and holding people for years on end w/o trial.
(In that case, you would not have the right to reproduce w/o governmental sanction.)
????? Our rights are outlined in the Constituion - they aren’t created by the Constitution. We aren’t limited to only those that are identified there. Am I missing your point?
That is exactly the treatment they would receive from THIS enemy. Well, not EXACTLY. First they'd be tortured (for real, not a fraternity hazing) then decapitated with a dull knife.
This is not a signator to the Geneva Convention we're dealing with.
Sounds great from the comfort of home, but there are downfalls to no quarter. First, you lose valuable intel when you can't question anyone. Second, the enemy will fight much more fiercely when they know its life or death anway.
Unfortunately, its real easy to mistake crazy for stupid. These people are fighting against the most powerful army in the world. They have small arms against heavy armor. They have word of mouth and little kids as spotters versus electronic warfare and unmanned aerial vehicles. And yet, they manage to kill us almost every day. I'm not trying to heroize the turds, I'm just emphasizing that no quarter does not work entirely to our benefit.
Point taken; and as a former squid I can't claim to have walked a mile in your boots.
Well, I think Abraham Lincoln suspended habeas corpus when he fought a war with a foreign nation, too... :-)
Of course, I think there were people not too happy with him, either...
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.
It could be that he wanted to force the issue back into the SC to clarify or moderate their opinion and return some sanity to this POW issue.
>Our rights are outlined in the Constituion - they aren’t created by the Constitution. We aren’t limited to only those that are identified there. Am I missing your point?
Actually that IS my point. I live in New Mexico, an open carry state, and just try walking around with a plastic sparring-sword. (Despite Amendment 2, Constitution OR Article 2, Sec 6 of the State Constitution.)
Marking
There were some habeus cases filed (believe it or not) on behalf of German or Italian POW's in WWII who were held in POW camps in the US but who had dual citizenship. I know the cases were dismissed, but I can't recall the reasons why (probably because there was no criminal charge, and/or because their 'citizenship' claim was not recognized).
The U.S. didn't recognize "dual citizenship" in those days (and should not now -- Israel and the lobby are to blame for that one), so that anyone who swore a military oath on enlistment in a foreign army (or the Knesset, in Rabbi Meir Kahane's case) became a foreign national and gave up U.S. citizenship. If my sister, born in Canada, had exercised the Canadian franchise or enlisted in the Canadian Forces before she voted in the U.S., she'd be a Canadian citizen today.
The Italians and Germans who claimed U.S. citizenship had no shot at getting a judge to sustain them.
To try and spread American judicial system to other countries smacks at the “Imperialism” that the left always accuses the US of doing.
Oh I forgot, its only Imperialism when a Republican does it not when a liberal does it....Just goes to show Bush made lots of mistakes in domestic policy..This judge sucks..
I agree with you and saganite, this is a conservative judge sticking it in the liberal Supremes' ears.
I hope Ruth Ginzburg and David Souter live at least 15 minutes longer than it takes to inaugurate the next GOP President.
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