Wednesday, February 21, 2007

Federal Appeals Court Rules: Gitmo Detainees Have No Rights We Are Bound To Respect

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Yesterday, Pres. Bush made the following comments at a Presidents Day observance in Virginia:

"Today, we're fighting a new war to defend our liberty and our people and our way of life," said Bush, standing in front of Washington's home and above a mostly frozen Potomac River.

"And as we work to advance the cause of freedom around the world, we remember that the father of our country believed that the freedoms we secured in our revolution were not meant for Americans alone."

I emphasized the lines above so you can compare them with this statement of the Justice Department's official position on the legal rights of Guantanamo detainees, taken from an MSNBC article about today's decision by a federal appeals court that terrorism suspects being held at the Guantanamo Bay concentration camp in Cuba have no right to challenge their detention in U.S. courts:

U.S. citizens and foreigners being held inside the country normally have the right to contest their detention before a judge. The Justice Department said foreign enemy combatants are not protected by the Constitution.

"George Washington believed that the freedoms we secured in our revolution were not meant for Americans alone."

"Foreign enemy combatants are not protected by the Constitution."

Work that out, if you can.

Give up? Marty Lederman has the answer [emphasis is Marty's]:

The Court's constitutional holding ... is based on three propositions: (i) that the Constitution (the Suspension Clause, by implication) only protects the right of habeas corpus that was recognized at common law in 1789; (ii) that the common law in 1789 did not provide the right of habeas petitioning to aliens held by the government outside the sovereign's territory (and without property within that territory); and (iii) that GTMO is outside U.S. territory for constitutional purposes, notwithstanding that the U.S. has complete control over that facility.
... The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:

Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.

In true Orwell fashion, a Justice Department official today suggested that the court's ruling protects detainees' right to challenge their detention -- by preserving the system the Military Commissions Act set up for such challenges. What is that system? [Emphasis mine.]

“The decision reaffirms the validity of the framework that Congress established in the MCA permitting Guantanamo detainees to challenge their detention” through military hearings coordinated by the Defense Department,” said spokesman Erik Ablin.

Military hearings in which detainees are barred from seeing any of the evidence against them. No habeas corpus, remember?

This is how it works:

[The court's decision] upholds a key provision of the Military Commissions Act, which Bush pushed through Congress last year to set up a Defense Department system to prosecute terrorism suspects. Now, detainees must prove to three-officer military panels that they don't pose a terror threat.

One more time: Detainees must prove to three-officer military panels that they don't pose a terror threat, without having seen the evidence against them [my emphasis]. How do detainees prove that they don't pose a terror threat if they don't know what evidence the government is relying on to claim that they do pose a terror threat? How do you debunk evidence you haven't seen?

You don't, obviously. You can't. So it's sheer insanity to say detainees' rights are adequately protected. They're not protected. They don't exist. Hundreds of innocent people are being held ad infinitum and will be tried in kangaroo courts with no legal rights whatsoever.

But as Athenae says, "I dare anyone to say he or she is surprised by this. This is where we are. This is what we value. We have been heading for this at a thousand miles an hour since Sept. 12, 2001. Say you're surprised. I dare you."

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