The Day Habeas Corpus Died

[lord of the mark]

Originally posted by Ramo

How can there be a "presumption of innocence"? We're not discussing a crime.

The gov't is detaining "enemy combatants" for hostile actions. You know, the actions that make someone any enemy combatant. Say, conspiring to committ an act of terror.



If the gov't calls you an indefinite combatant, and unless you can prove your innocence without the use of legal aid, without access to the evidence against you (which could very well could have been acquired through torture), it is the gov't's right to detain you. CSRT's are show trials, only nominally protecting rights. Detention doesn't become much more arbitrary than this.

did this part get taken out

"Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

`(a) Review by United States Court of Appeals for the District of Columbia Circuit- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

`(2) The United States Court of Appeals for the District of Columbia Circuit may not determine the final validity of a judgment of a military commission under this subsection until all other appeals from the judgment under this chapter have been waived or exhausted.

`(3)(A) An accused may seek a determination by the United States Court of Appeals for the District of Columbia Circuit of the final validity of the judgment of the military commission under this subsection only upon petition to the Court for such determination."

[lord of the mark]

Originally posted by Ramo

How can there be a "presumption of innocence"? We're not discussing a crime.

The gov't is detaining "enemy combatants" for hostile actions. You know, the actions that make someone any enemy combatant. Say, conspiring to committ an act of terror.



If the gov't calls you an indefinite combatant, and unless you can prove your innocence without the use of legal aid, without access to the evidence against you (which could very well could have been acquired through torture),

"(b) Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence the statement was made."

[Ramo]

I haven't read the bill yet, but I think that the military commissions may be different beasts from the CSRT's. I'm mostly going by the Senate testimony. From Feingold's speech:

Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.

CSRT's shouldn't be able to sentence detainees AFAIK.

[Ramo]

And I don't see how you appeal to the DC court if you don't even have counsel in the CSRT.

[lord of the mark]

Originally posted by Ramo
And I don't see how you appeal to the DC court if you don't even have counsel in the CSRT.

Ramo, the entire content of the bill is about the military tribunals, AFAICT. I didnt spend much time on it, and I am Not a Lawyer, but I didnt see any discussion of CSRTs. It would help if you would specify exactly which provisions are troubling.

Similarly, testimony gained from torture is excluded absolutely. Testimony from coercion is excluded, but may be included under circumstances that are spelled out in the legislation.

[Elok]

Specifically, if the coercion happened before 2005, right?

[Ramo]

Ramo, the entire content of the bill is about the military tribunals, AFAICT.

It's also about stripping enemy combatants of the right to apply for the great writ (again, see the Leahy and Specter Amendments). Without an avenue to challenge their detention in the civilian courts, all they have are the CSRT's which are little more than show trials, where they have no access to counsel or the evidence against them, and are subject to hearsay and coerced testimony . The Appeals Court in DC doesn't help them if they are never prosecuted by the military commission (where, according to Feingold, tortuire as admissable as long as it predated the McCain Amendment).

[chequita guevara]

Originally posted by lord of the mark
"(b) Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence the statement was made."

The President decides what is, and is not, torture. They do not consider waterboarding toture. The Khmer Rouge considered it their most effective form of torture.

There is a process for appeal, but you cannot appeal the facts of the case, only procedural matters. The much greater danger, however, is that now the Administration has no need to try you at all. They can detain you indefinately, because without habeas corpus, you cannot contest your being held by the government. The government merely has to designate you a terrorist, and your right is gone.

Lest you think this is an idle threat, consider that both Food Not Bombs and Workers World have been called terrorist groups. Neither is violent. In addition, the Administration has labeled many as coddlers of terrorism, and it isn't a jump from coddling to supporting it, which, under the new law, can get you in the exact same trouble.

[chequita guevara]

Originally posted by SpencerH
How can there be a "presumption of innocence"? We're not discussing a crime. One is not guilty of being an enemy combatant. One is, or one is not, an enemy combatant.

Many of the people in Gitmo were not captured on the battlefield, but sold to the U.S. for a bounty by Afgan and Pakistani warlords. There were quite a few Arabs in both countries who were not connected to al-Qaeda or the Taliban. But for a few thousand bucks, you were who ever the warlords said you were.

[Berzerker]

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. - U.S. Constitution, Art. I, Sec. 9

When has the US provided habeus corpus protections to prisoners of war? There is a reason why we find this exception in the Constitution, the Framers very well understood the logistical nightmare created by giving POWs trials. A war certainly qualifies as a time of crisis where the public safety may require suspending habeus corpus to the thousands of prisoners we've captured.

However, the nature of a war on terror is like a war on drugs - no president is going to inform Congress the war on terror has been won so they can now repeal all those laws. The rationale for suspending habeus corpus is the presumed inability of the courts to deal with so many prisoners. That argument becomes moot when we've stopped capturing alot of people and the legal system can deal with the prisoners we have in custody.

[chequita guevara]

What part of, this applies to anyone accused of being a terrorist including Americans don't you understand, Berz? Jebus!

[Fake Boris]

I still can't believe it.

[Ramo]

Dear Leader signed the law today.

Hopefully Kennedy doesn't flake or Scalia surprises us when the law is challenged (and of course, Stevens isn't dead)...

We are now free at the pleasure of the President, but clearly Foley is much more important...

[Elok]

Eh, I'd rather be at the president's pleasure than Foley's, if the stories are true...

[Dinner]

Originally posted by DinoDoc
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. - U.S. Constitution, Art. I, Sec. 9

Have you seen a rebellion or invasion? I haven't.