"The Supremes Have Made Their Decision, Now Let Them Enforce It," Says Senate

[Boris Godunov]

Originally posted by Lefty Scaevola
Not also that in the constituion, that congress have the express power to suspend the specfic legal remedy of habeas corpus as it may please, leaving only direct appeals rather than collateral attacks available on the tribunals.

Really? I don't recall the words "as it may please" in the Constitution. Do cite. I can:

"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."

We're not in a rebellion, and we haven't been invaded (esp. not by Gitmo prisoners, since we invaded there).

[Drake Tungsten]

This should be good...

[Boris Godunov]

Originally posted by Drake Tungsten
This should be good...

Why not try to argue yourself instead of constantly being the imp on the shoulders of others?

[The Mad Monk]

Originally posted by KrazyHorse
Impeaching the supreme court, or packing it with new judges.

Both are rather difficult and extreme options for disagreement over a single point.

Consider the the options Congress has when the President strikes down a law, by vetoing it. They can send up a new law, or, if they have the votes, overide the veto.

Whet equivalent action can they take with the court, if you reject what they have done?

[Ramo]

They also have the power to set the territorial boundries of the various Circuit Courts and can cheerfully assing GTMO to one that they believe will not further expand the rights of prsioners there. Also since all appeals from one geographic area like GTMO will go only to one circuit court, and thus the issue can not back into SCOTUS jursidiction by the "conflict among the circuit courts" jursidiction

There are no territorial boundaries related to the law. The only boundary is the distinction of whether Rummy deems one an "enemy combatant."

From the law:
"(e) No court, justice, or judge shall have jurisdiction to consider -

(1) An application for a writ of habeas corpus based on policies established by the Secretary of Defense under Section 1071 (a) of the National Defense Authorization Act for Fiscal Year 2006 filed by an alien who is detained by the Secretary of Defense, or

(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.""

http://talkleft.com/grahamhabeas.pdf

Note that people arrested and detained in the US have been designated "enemy combatants."

Not also that in the constituion, that congress have the express power to suspend the specfic legal remedy of habeas corpus as it may please, leaving only direct appeals rather than collateral attacks available on the tribunals.

Certainly not as it may please.

"It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence.""
-Ex Parte Milligan

http://www.constitution.org/ussc/071-002a.htm

[Ramo]

Whet equivalent action can they take with the court, if you reject what they have done?

If they so strongly insist on rejecting our most basic liberties, that's why we have constitutional amendments.

[DinoDoc]

Originally posted by Ramo
Note that people arrested and detained in the US have been designated "enemy combatants."

Well those are the people that should have access to the courts. I was under the impression that this applied to those captured on the battlefield in Afghanistan.

[Ramo]

I just posted the law. Right above the sentence you quoted. Why would you possibly have that impression?

[DinoDoc]

Originally posted by Ramo
I just posted the law. Right above the sentence you quoted. Why would you possibly have that impression?

You corrected it. I got the impression from:
"For 200 years, ladies and gentlemen, in the law of armed conflict, no nation has given an enemy combatant, a terrorist, an al-Qaida member the ability to go into every federal court in this United States and sue the people that are fighting the war for us,"

The war isn't being fought here hence the reason for my misimpression of the situation. Cut a man some slack when he is admitting error to you along with the fact that you were the one that helped him see the light.

[Ramo]

Fair enough. It's hard to tell what you mean when you have that smartass smilie above your post.

[Dinner]

Originally posted by Ramo
Strictly speaking, Congress has authority suspend the right to a writ of habeas corpus, but that requires civilian courts to be inoperable (see Ex Parte Milligan). That's certainly not the case here.

Ramo, the ruling specifically states that unlawful combatants are not entitled to writ of habeas corpus and instead get one appeal to a specific civilian court where they can argue that they are not unlawful combatants.

[Dinner]

Originally posted by DinoDoc
Well those are the people that should have access to the courts. I was under the impression that this applied to those captured on the battlefield in Afghanistan.

Many of the people in the secret prison system were not captured on the battlefield and were captured in 3rd party states then handed over to the US who put them in the secret prisons. These people should have a very limited ability, but still the ability, to legally challenge their status. The SCotUS ruling gave them just that; one chance to argue their status but no habeas corpus.

[DinoDoc]

If you feel that way (one chance to argue their status but no habeas corpus), what's your problem with the law seeing as it does just that?

[Lefty Scaevola]

The law does provide for an appeal to the circuit court, which may or may not be a due process necessity, becasue the tribunals are not articleIII courts and also have somewhat limited process.

[Ramo]

Ramo, the ruling specifically states that unlawful combatants are not entitled to writ of habeas corpus

I don't dispute that (although I would argue that it was implicitly rather than explicitly stated), but only people who were convicted for specific offenses in a lawful tribunal, rather than by the SecDef's bald assertion. They also have to be incarcerated outside of US sovereignty (i.e., not Gitmo).

From Rasul:

"In reversing that determination, this Court summarized the six critical facts in the case:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a con-stitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that as-sumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military cus-tody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times im-prisoned outside the United States.” 339 U. S., at 777.

On this set of facts, the Court concluded, “no right to the writ of habeas corpus appears.” Id., at 781.
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression
against the United States; they have never been afforded access to any tribunal, much less charged with and con-victed of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

and instead get one appeal to a specific civilian court where they can argue that they are not unlawful combatants.

I never noticed anything about having only one appeal...