5-4 Decision gives unprecedented rights to alien enemy combatants
"Today,
for the first time in our Nation’s history, the Court confers a
constitutional right to habeas corpus on alien enemies detained abroad
by our military forces in
the course of an ongoing war."
Justice Scalia in his Dissent
There are many things to consider here.
The fifth amendment to the U.S. Constitution reads (emphasis mine):
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
"
Also,
Article 1, Section 9, Clause 2 of the United States Constitution is known as the Suspension Clause. It states:
“ 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. ”
The case that that was used as precedent for the administration is
Johnson v. Eisentrager.
Wikipedia says it "was a major decision of the U.S. Supreme Court,
where it decided that U.S. courts had no jurisdiction over German war
criminals held in a U.S.-administered German prison. The prisoners had
at no time been on American sovereign territory."
Reading through the majority opinion, I was open-minded (it's easier to
be when you aren't as knowledgeable about the legal limbo). I will
admit that they had made some good points (although I thought others
such as the sovereignty question were silly). That is until I read
Robert's and Scalia's scathing dissents.
So to start,
Here is the AP story.
Here are the opinions and dissents.
There is 134 pages of opinions, so I hope to break it down to follow
it. The majority believes that since we kind of have sovereignty (but
not really) over Guantanamo Bay, Cuba the prisoners should have the
right to habeas corpus. They admit that we don't actually have the
final say when it comes to sovereignty.
Guantanamo Bay is not formally part of the United States.
And under the terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory while the United
States exercises “complete jurisdiction and control.” We therefore do
not question the Government’s position that Cuba, not the United
States, maintains sovereignty, in the legal and technical sense of the
term, over Guantanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the objective
degree of control the Nation asserts over foreign territory.
In his dissent Scalia notes the irony: "The Court admits that it cannot
determine whether the writ historically extended to aliens held abroad,
and it concedes (necessarily) that Guantanamo Bay lies outside the
sovereign territory of the United States"
The most important disagree is over the precedent (Johnson v.
Eisentrager). The Majority believes it was a different situation. They
note that because of being accountable by the allied powers in the
American zone of West Germany we did not then have sovereignty like
they say we do in Cuba. Scalia responds:
The category of prisoner comparable to these detainees are
not the Eisentrager criminal defendants, but the more than 400,000
prisoners of war detained in the United States alone during World War
II. Not a single one was accorded the right to have his detention
validated by a habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil.
The Majority writes about Habeas corpus proceedings:
"As to the third factor, we recognize, as the Court did in Eisentrager,
that there are costs to holding the Suspension Clause applicable in a
case of military detention abroad. Habeas corpus proceedings may
require expenditure of funds by the Government and may divert the
attention of military personnel from other pressing tasks. While we are
sensitive to these concerns, we do not find them dispositive."
Given
how long Brian Nichols trial is taking, you don't mind paying for the
many extensive trials it would take to finally execute Khalid Shaikh
Mohammed would you?
Chief Justice Roberts goes about his dissent much different that
Scalia. He contends that a habeas corpus proceeding is unnecessary,
because detainees can already appeal their status as enemy combatants
put upon them from the executive branch.
The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually granted aliens
captured by our Armed Forces overseas and found to be enemy combatants:
-The right to hear the bases of the charges against them, including a summary of any classified evidence.
-The ability to challenge the bases of their detention before military
tribunals modeled after Geneva Convention procedures. Some 38 detainees
have been released as a result of this process. Brief for
Federal Respondents 57, 60.
-The right, before the CSRT, to testify, introduce evidence, call
witnesses, question those the Government calls, and secure release, if
and when appropriate.
??The right to the aid of a personal representative in arranging and presenting their cases before a CSRT.
-Before the D. C. Circuit, the right to employ counsel, challenge the
factual record, contest the lower tribunal’s legal determinations,
ensure compliance with the Constitution and laws, and secure release,
if any errors below establish their entitlement to such relief.
In sum, the DTA satisfies the majority’s own criteria for assessing
adequacy. This statutory scheme provides the combatants held at
Guantanamo greater procedural protections than have ever been afforded
alleged enemy detainees—whether citizens or aliens—in our national
history.
I could go on and on, but I figure unless a discussion starts I can save my energy. I will end with some notes and questions.
-Why does the U.S. Constitution apply to foreign enemy combatants when it has never before?
-From
Hot Air
:"It seems absurd to apply criminal law to unlawful combatants captured
during hostilities abroad. Will they require a Miranda reading, too? Do
we have to bring the soldiers and Marines who captured them to the
trial? In our 232-year history, when have we ever allowed that kind of
access to enemy combatants not captured inside the US itself?"
-From the
Corner
Mark Levin wonders "whether all POWs will now have access to our
civilian courts? After all, you would think lawful enemy combatants
have a better claim in this regard than unlawful enemy combatants. And
if POWs have access to our civilian courts, how do our courts plan to
handle the thousands, if not tens of thousands of cases, that will be
brought to them in future conflicts?"
-Which state wants the prison with the terrorists?
The Supreme Court has yet again overruled the Congress and the
President to impose its unelected will onto the people. By doing so, it
has disregarded precedent and warped our constitution so that it covers
those who do not either reside or have citizenship in our country. They
are treating the terrorist threat to this country the way Bill Clinton
did in the 90s. This is WAR. We cannot keep treating the threat like
criminals that need law enforcement. It would be a safe assessment to
say that if more terrorists get into the U.S. civilian justice system
more of our troops will die overseas (from being released, as we have
seen before). I don't think Scalia is off-base with that claim
whatsoever. I do think it might have been misplaced to put in his
dissent though.