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Does the writ of habeas corpus apply to US detainees at Guantanamo?

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Does the writ of habeas corpus apply to US detainees at Guantanamo?

posted at 12/5/2007 10:41 PM EST

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Reed_Brody

First post: 8/6/2007
Last post: 2/3/2009
Total posts: 29

The US Supreme Court heard arguments on Wednesday on whether the more than 300 Guantanamo detainees held in US custody for nearly six years without charge should be allowed to contest their detention – via habeas – in US courts (http://www.washingtonpost.com/wp-dyn/content/article/2007/12/05/AR2007120500257.html). Lawyers for the detainees argued that their clients are entitled to the writ of habeas corpus, which allows a prisoner to seek independent court review of the basis for detention. However, the government contends that non-citizens are not entitled to this right, and that in any case, the limited court review of the Pentagon’s Combatant Status Review Tribunals – which determines whether or not detainees are “enemy combatants” – acts as an adequate alternative. Should Guantanamo detainees be allowed to bring habeas challenges in US courts?

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Does the writ of habeas corpus apply to US detainees at

posted at 12/6/2007 2:31 AM EST

sajidansari45

First post: 11/16/2007
Last post: 5/16/2008
Total posts: 65

Well, logically,first of all, the law by virtue of which US forces captured them and put them in confinement in Guantanamo Bay or any other country's prison, must be defined very clearly, by US forces/Pentagon, which the 'prisoners' have all the rights to know about.

If these "enemy combatants" were captured in fight against US forces/interests, then the question comes up as to why US forces keeping them in another country's prison and NOT in their own prisons in USA...?

If the US forces/Pentagon give the prisoners status of "enemy combatants" then the prisoners should be treated as POWs and these prisoners are entitled to be treated under "Geneva Convention" as US forces have been/are treating them as sub-human/animals.

Logically, the US forces MUST give these prisoners, not only of Guantanamo Bay but at other place/country where US forces are keeping/have kept such prisoners as well, some status otherwise it could be called as "State Terrorism of USA" and the prisoners have all the rights to be allowed to bring habeas challenges in US courts.

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These are UNLAWFUL enemy combatants

posted at 12/6/2007 11:55 AM EST

webrand

First post: 12/6/2007
Last post: 7/15/2009
Total posts: 11

The status of someone who committed the murder of an American soldier, when wearing the uniform of another country at war with the US is that of a lawful enemy combatant or prisoner of war. He cannot be charged with a crime for the intentional killing of an American unless he committed a war crime such as murdering the American Soldier after he had been captured.

He gets these protections because of the Geneva conventions, an agreement between and among signatory countries. An unlawful enemy combatant falls outside the protection of the Geneva conventions. They were never intended to receive the protections of a lawful enemy combatant.

The Constitution is a document which establishes the relationship between and among citizens of the United States and its government. It has protections for its citizens being mistreated by the government. It contains no protections for non-citizens enemy combatants who are trying to destroy the United States and to nullify the Constitution.

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GWOT is a fraud

posted at 12/7/2007 8:49 AM EST

jheath53

First post: 8/29/2007
Last post: 5/29/2009
Total posts: 4085

By labeling Islamist terrorists as enemy combatants, the Bush administration is trying to conflate a criminal organization into some sort nation state that represents a warlike threat to the United States. It's a fraud. These people are nothing more than a few thousand religious fanatics who are fugitives in their own countries. While their actions have had some spectacular success in bringing terror to our country, that doesn't equate to a threat to the sovereignty of the most powerful country in the world. They're criminals, not an opposing state. Other than for their murderous intent, these so-called "enemy combatants" are no different (and probably number fewer) than the Mafia or MS-13.

So, why does the Bush administration try to place us on a war footing? So that Americans will remain fearful and more willing to give up their constitutional rights. It also stimulates a nationalist fervor, which plays to the advantage of the politicians in power. If Al Qaeda is treated like another gang, there wouldn't be a so-called "Patriot Act" or a "Military commissions Act", both of which give license for federal agents to violate all sorts of rights, from wiretapping to torture.

The Bush administration exploited the fear engendered by the terrorists to undermine the freedomes guaranteed by the Constitution to the American people. We should recognize the real nature of the terrorist threat, and stop allowing our fears to drive public policy. It's time to dump the Patriot Act, the Military Commissions Act, and the GWOT.

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Habeus Corpus and Inhumane Treatment @ GITMO

posted at 12/7/2007 11:32 AM EST

uuman10174

First post: 12/7/2007
Last post: 12/7/2007
Total posts: 1

First of all I want to register my protest against this administration for the inhumane treatment prisoners at GITMO are receiving. They are forcibly fed, sometimes with procedures that are tantamount to torture. Why? Why do we as a nation standby and profess our faith and love in God(regardless of denomination)and at the same time turn a blind eye to what is going on at Guantanamo. Needless to say our state department would be registering all kinds of protests at the UN and the World Court if American soldiers were treated the same way we treat Guantanamo prisoners. This leads me to the Habeus Corpus issue. Habeus Corpus, in my opinion cannot be used for these prisoners unless they are U.S. citizens. The prisoners who are not citizens, should be given the right to a fair trial in a Federal court and sentenced or released accordingly. Internment should be no different than what American criminals receive. The NEO-CONS talk about the moral deterioration of this nation. Are they not showing this moral deterioration themselves?
uuman10174

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habeas corpus is an innate right of all people

posted at 12/7/2007 3:38 PM EST

sbjt

First post: 10/18/2007
Last post: 3/2/2009
Total posts: 10

Even before the Constitution, our country recognized that "...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." In the United States, the right to liberty is not granted by the Constitution or any government, it is innate to all people, citizen and non-citizens, in this country or in a foreign country. Since freedom includes the freedom from criminal activity, the detention of proven criminals is necessary and granted to governments by the people. However, incarceration requires proof and judgment by a third impartial party to protect the innocent from an over-aggressive, powerful government. Arrest and/or incarceration is not the same thing as guilt. Therefore, the right to habeas corpus is an innate right, born at the same time as liberty. They are not state given, but part of those "unalienable Rights", rights recognized by the 9th Amendment to the Constitution.

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Re: These are UNLAWFUL enemy combatants

posted at 12/7/2007 3:41 PM EST

sbjt

First post: 10/18/2007
Last post: 3/2/2009
Total posts: 10

It has protections for its citizens being mistreated by the government. It contains no protections for non-citizens enemy combatants who are trying to destroy the United States and to nullify the Constitution. Posted by webrand[/QUOTE]

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Re: These are UNLAWFUL enemy combatants

posted at 12/7/2007 4:07 PM EST

sbjt

First post: 10/18/2007
Last post: 3/2/2009
Total posts: 10

Replying to:

Posted by sbjt

The Constitution is a document that outlines those powers given to the government by the people and places specific limits on the powers of the government. The Constitution, nor any other document, can abridge those "unalienable Rights" that we, as a people, proclaimed to the world in the Declaration of Independence. By the 9th Amendment, we retain rights even when they are not enumerated in the Constitution. Everyone on earth is born with those rights, even though not everyone gets to enjoy them. The right to liberty is one of these rights, and the right to habeas corpus is the twin to liberty when incarceration is contemplated.
Unlawful enemy combatants. When two cultures collide in war, who is to determine unlawful? What can be agreed upon is that they are people. People have rights, whether you agree with them or not, whether they are enemies or not, whether they are combatants or not. We are strong enough to deal with these evil people in a fair and just way, recognizing their rights as human beings, and still provide the protection to our citizens that we need. We do not have to become a Nazi Germany to punish criminals and terrorists. We can be the United States of America, a beacon of freedom throughout the world, the most powerful country in the world, a just society, a society of laws, and still treat all humanely and with justice. We are better than the terrorist. They can never beat us unless we become like them.

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Reason

posted at 12/8/2007 7:59 AM EST

mobedda

First post: 9/6/2007
Last post: 6/13/2009
Total posts: 272

Unless we have come to believe that some pigs are more equal than others, we need to treat every prisoner the way we would be treated.

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An act of war

posted at 12/8/2007 1:07 PM EST

jjcrocket

First post: 12/8/2007
Last post: 1/30/2009
Total posts: 52

People seem to forget that an act of war occurred on Sept. 11th 2001. Not just the homeland attack as a whole, but the military attack on our military head-
quarters The Pentagon. Like criminals who lose their rights generally speaking for acts against citizens, acts of war create a loss of rights as well. If we believe that all rights are given with no prejudice,
then no one should be held for crimes or acts of war. Social rules must be establish, and some rights must be withheld to maintain order.
We have the right to withhold rights to these people who committed acts of war against our country until such conflict is ended. You may say these people were not found on a battlefield. Hitler was
never on a battlefield either. Osama has
hidden from the battle field. Does that mean he still maintains all his rights.
I certainly hope not.

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RE: An act of war

posted at 12/8/2007 3:52 PM EST

godofthunder1982

First post: 12/8/2007
Last post: 12/8/2007
Total posts: 1

The question here isn't whether criminals should have the full freedom and rights of non-criminals. The mere fact that we have a criminal justice system is a testament to the fact that if you are indeed a criminal, certain rights will be stripped from you. The question is, who is qualified to make the determination that a person is in fact a criminal? Does a single branch of the United States Government (remember, we're not even talking about the U.S. government as a whole here) have the legitimate authority to be prosecutor, baliff, judge, jury, and executioner? And can they do this outside of any preestablished legal framework?

And as for the war analogy, if an American citizen attacked the Pentagon, that wouldn't mean that we were in a state of civil war -- it would be a simple criminal act. War happens in the context of inter-state relations (even in a civil war, one party is claiming to be a legitimate state power). If an aggressor is not claiming to act on the authority of a state power, then it's simply not a matter of war. It's a simple criminal activity. A more proper model than taking POWs would be a straightforward criminal extradition. This whole unlawful combatants business reeks of government overreach.

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criminal conduct vs unlawful enemy combatant

posted at 12/8/2007 6:36 PM EST

bwana3

First post: 10/27/2007
Last post: 10/26/2009
Total posts: 43

I am struck by how many posters just miss what the issue is.

If a non-citizen were in the US and arrested, he/she would be entitled to all rights of due process and habeas corpus if held without being charged,etc.

So, habeas clearly applies to non-citizens.

The distinguishing issue here is whether the right applies to unlawful enemy combatants in Gitmo.

If a person were an enemy combatant (i.e. lawful) then on capture that person would be a prisoner of war. No criminal charge would apply unless for a war crime. However, I think that under the Geneva Conventions the person's status would have to be determined.

When we deal with an unlawful enemy combatant, the person is perforce not a prisoner of war, but this does not mean that the person's status does not have to be determined. If not, ANYONE could be locked up without any showing that they are a proper subject for lockup.

This is the ESSENCE of habeas. In the case of an unlawful enemy combatant, the issue is whether that person has access to the courts or whether some other process would suffice.

This is all complicated by the fact that there seems to be a quasi-criminal process involved as to some of these people - theoretically, if they are unlawful enemy combatants, they can be held for the duration of the hostilities.

So, that still begs the question - who determines whether they are unlawful enemy combatants and what rights does a person have to challenge that determination?

In my view, if these people were in a battlefield situation, a strong argument would be made that the Generals don't have to be distracted. However, when held at a remote prison-like facility, the equation seems to shift a bit - there is little reason to contend that some sort of showing of legitimacy will hurt the war effort.

I expect a practical resolution of this type from the Supremes.

However, there was an op-ed piece in the WSJ in recent days tracing some of the precedents in this area.

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Does the writ of habeas corpus apply to US detainees at Guantanamo?

posted at 12/9/2007 8:40 AM EST

rohitcuny

First post: 12/1/2007
Last post: 11/21/2009
Total posts: 176

YES!!
The detainees are human beings and the Declaration of Independence itself makes it clear that there are fundamental rights which human beings have AS human beings and not merely as US citizens. If this were not so, then in 1776 there WAS no US, and George Washington should have obeyed British laws. The American rebellion was justified on the basis of human rights and not on the basis of American rights, because America as a nation did not exist yet. We should do away with all these legal shenanigans, and respect human beings as human beings. That does not mean that we fail to protect ourselves from terrorists, but merely that the accusation that someone is a terrorist cannot be treated as if it is fact merely because the accused is not an American citizen.

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Re: These are UNLAWFUL enemy combatants

posted at 12/10/2007 2:48 PM EST

jheath53

First post: 8/29/2007
Last post: 5/29/2009
Total posts: 4085

Replying to:

Posted by sbjt

First, the US constitution does not limit its protection to US citizens. You won't find the term "citizen" in the Bill of Rights. The founders clearly believed these rights to be inalienable to all, not just those lucky enough to be US citizens.

Second, you are assuming that all the so-called "enemy combatants" being held at Guantanamo and other prisons are "trying to destroy the United States and to nullify the Constitution." In fact, many detainees have been discovered to be completely innocent of the allegations that got them detained in the first place. The question remains as to what method they have at their disposal to prove their innocence.

The whole point of habeas corpus and the other judicial rights that the Bush administration wants to take from these people is that all people accused of a crime should have a fair chance to prove they are innocent. The current policy of the Bush administration does not give these people that fair chance.

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Re: These are UNLAWFUL enemy combatants

posted at 12/10/2007 2:52 PM EST

jheath53

First post: 8/29/2007
Last post: 5/29/2009
Total posts: 4085

Replying to:

Wrong, wrong. The US Supreme Court has already ruled that so-called "enemy combatants" are protected by the Geneva Conventions. As for the Constitution, it is not a club charter, it is a governing document, and its provisions apply to all, not just US citizens. The Bill of Rights applies to all, not just to citizens.

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Re: An act of war

posted at 12/10/2007 2:58 PM EST

jheath53

First post: 8/29/2007
Last post: 5/29/2009
Total posts: 4085

Replying to:

You are advocating that all of us give up all our rights. If you can declare any place a battlefield, and give the government free license to declare anyone an enemy combatant and hold him or her without due process, then, the moment that somebody in that government decides he doesn't like you, he can have you arrested, declared an "enemy combatant" and put in prison indefinitely. Ask them to prove you're a bad person, they declare the information secret, and not allow you to even examine it. In other words, you're advocating the US become a Stalinist state. No thanks.

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If we can't do it to illegal aliens...

posted at 12/11/2007 5:46 PM EST

JamesPDBuchanan

First post: 10/3/2007
Last post: 2/7/2009
Total posts: 156

There are some aspects of the Patriot Act that scare the hell out of me.

The bottom line, the argument that non-citizens have no rights is blatantly false. Securing the southern border with Mexico would be an academic exercise in the expenditure of sufficient ammunition if illegal border crossers could have due process skipped straight to execution at the scene of the crime.

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Blame the Senate too

posted at 12/17/2007 1:53 PM EST

truthhurts

First post: 8/20/2007
Last post: 10/8/2009
Total posts: 350

Supreme Court handed down an order to the The Whitehouse to revise Military Tribunals to be in compliance with the Rule of Law. As usual, the Whitehouse handed off the task to Congress and Congress willingly tried to clean-up a Whitehouse mess.

Following the Supreme Court action and Legislation in progress, discovery revealed that the Pentagon adheres to standard rule of Law. Since Writ of Habeous Corpus is a standard traceable back to at least the 13th century, I was certainly amazed, dumbfounded and perplexed by the Senate's rejection of amendment to Military tribunal standards incorporating Writ. One Senator implied that overview was exclusive and limited to Military Law only, interesting.

Of course, during World War II, Japenese Americans were illegally incarcerated and future generations absorbed the cost of that particular folly. I suppose one could suggest that lack of knoweledge and wisdom to include foresight will tax future generations of Americans with these current day follies. However, not all Military Law advisors were so stupid up front, they vocally and continually objected to this implied SOP.

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It's a simple answer

posted at 12/28/2007 11:15 AM EST

stephenrhymer

First post: 10/5/2007
Last post: 11/14/2009
Total posts: 37

Yes.

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