Fact-Free, Lazy Right-Wing Blogging on Gitmo Decision

Technorati Tags: Guantanamo detainees, habeas corpus, Supreme Court, ex parte Quirin, Harlan Stone

John Hawkins gives us the usual fact-free, amoral argument we always get from right-wing bloggers on the issue of detainees at Guantanamo being stripped of all legal rights.

Hawkins' post is a response to an editorial in today's New York Times called "American Liberty at the Precipice":

In another low moment for American justice, a federal appeals court ruled on Tuesday that detainees held at the prison camp at Guantánamo Bay, Cuba, do not have the right to be heard in court. The ruling relied on a shameful law that President Bush stampeded through Congress last fall that gives dangerously short shrift to the Constitution.

The right of prisoners to challenge their confinement — habeas corpus — is enshrined in the Constitution and is central to American liberty. Congress and the Supreme Court should act quickly and forcefully to undo the grievous damage that last fall’s law — and this week’s ruling — have done to this basic freedom.

The Supreme Court ruled last year on the jerry-built system of military tribunals that the Bush Administration established to try the Guantánamo detainees, finding it illegal. Mr. Bush responded by driving through Congress the Military Commissions Act, which presumed to deny the right of habeas corpus to any noncitizen designated as an “enemy combatant.” This frightening law raises insurmountable obstacles for prisoners to challenge their detentions. And it gives the government the power to take away habeas rights from any noncitizen living in the United States who is unfortunate enough to be labeled an enemy combatant.

Hawkins responds, in a post labeled "Foreign Terrorists Don't Deserve Habeas Corpus":

According to the New York Times, American Liberty (is) at the Precipice because foreigners who want to kill Americans aren't allowed to have a trial in an American court. ...
[...]
Guess what? In WW1, WW2, Korea, Vietnam, and for that matter, the Gulf War, enemy prisoners had no Habeas Corpus rights. They couldn't challenge their detention in an American court, nor should they have been able to do so.

You don't believe that? Well, look back to 1942 when 8 Nazi saboteurs were captured in the United States. They asked to be tried before a civilian court, it was denied, and then all 8 of them were tried before a military tribunal and then hung by the neck until dead. That should be a model for how we handle prisoners at Gitmo, especially the hanging by the neck until dead part. Every member of Al-Qaeda in our custody should eventually meet that fate.

As far as the impact of that on "American liberty" goes, it's nada at worst, because they're not Americans, and at best it's positive because keeping these people locked up is saving American citizens from attack.

Hawkins could not be bothered to identify the case he mentions, or provide a link to it, and I hadn't heard of it before, so I could not be sure his example was even real. However, I have something that John Hawkins lacks: a degree in paralegal studies. This degree -- plus the ability to type keywords into Google's search box -- enabled me to find the case Hawkins is talking about -- ex parte Quirin -- in roughly 30 seconds.

A couple of key differences between Quirin and Guantanamo: the Quirin defendants were all citizens of a country -- Germany -- that was at war with the United States at the time of the trial, and they were arrested inside the United States with explosives and other incendiary materials which they intended to use against targets in this country. They had not been swept up in mass operations in foreign countries (like Afghanistan); they had not been purchased by U.S. military forces from bounty hunters who were paid thousands of dollars for each scalp they turned in to the Americans. They had not been held without charges for up to five years without trial. They were not disputing the legitimacy of their arrest; they were not asking to see the evidence that would justify their detention; the facts of the case were not in question.

What they were demanding was trial by jury in a U.S. court where they would have the same protections under the Fifth and Sixth Amendments that U.S. citizens would have in a criminal trial.

Contrast that with Guantanamo detainees, who come from at least a dozen countries, in the Middle East, Asia, even Britain and Australia. The U.S. is not at war with any of the Gitmo detainees' home countries; some of them are allies.

Furthermore, Quirin was regarded as a somewhat tainted case even in its time as a result of serious procedural problems that were never resolved. Edward Lazarus writes about this at Findlaw; as I understand what he is saying, the Quirin court ruled that FDR had the right to try the German saboteurs by military tribunal without addressing the legal issues in the case. Harlan Stone, the Supreme Court Chief Justice at the time, had promised to write an opinion after the ruling, but by the time he did so, six of the saboteurs had been executed:

On July 29, with a potential constitutional crisis - in the form of a conflict between the Executive and the Supreme Court - brewing, and even though the Nazis' trial was still ongoing, Chief Justice Stone convened a special session of the Court to hear argument on the legality of the military tribunal and of the procedures called for in Roosevelt's authorizing proclamation.

Oral argument consumed almost nine hours divided over two days. It left the Justices unanimous in wanting to uphold the validity of the military proceedings, but uncertain about how to do so.

Rather than resolve every issue in detail, after two days of internal deliberation, Chief Justice Stone simply announced that the Court had concluded that the charges against the Nazis were susceptible to trial by a military court, and that this military court was lawfully constituted. In this summary fashion, the saboteurs' petitions for habeas corpus relief were denied.

Stone promised that a full opinion in support of this ruling would follow later. As it turned out, however, Stone (who assumed drafting responsibility for the opinion) found the task of justifying the Court's ruling rather more difficult than he had hoped. But there was no turning back; the result had already been announced. And more significantly, while Stone was fashioning his draft, the government executed six of the saboteurs.

The opinion was not one of which the Court should have been, or likely was, proud. Indeed, Justice Douglas commented when he looked back ruefully on Quirin that "[o]ur experience with [that case] indicated . . .to all of us that it is extremely undesirable to announce a decision on the merits without an opinion accompanying it. Because once the search for the grounds . . .is made, sometimes those grounds crumble."

I am not going to address here Hawkins's claims about enemy prisoners in World War I, the Gulf War, Korea, Vietnam, etc., not having habeas corpus rights. I'm not aware that there is even an issue, or ever was, about large numbers of Korean or Vietnamese, et al., prisoners demanding habeas corpus rights and being denied them. Here, too, Hawkins provides no specifics, no cites, no links -- and we are supposed to take him at his word. It took me several hours to write the above, because I had to do research (GASP!) and read material that was difficult (for me, not being an attorney) to understand. I made the effort because I care about being taken seriously when I write about important political and social issues. Hawkins clearly does not care about being taken seriously, and that's good -- because he isn't.