Posting Towards Gomorrah

[taxwonk]

Originally posted by Spanky
I had never discussed the bill or Bush's action. I only said that foreign nationals being held at a foreign location by the United States should not have the right of Habeas Corpus to US courts. And as far as I know, the common law never extended the right of Habeas corpus to people outside of the jurisdiction of the court hearing a plea concerning such right. You asked me why I wanted to limit a comon law right that has been around since the seventeenth century, and as far as I know I have never suggested limiting the common law right. Am I wrong?

Yes, you are. Habeus corpus is a writ that directs the officer to present the matter to the Sovereign, and is actually designed for just this type of situation. The United States is holding someone outside of the US specifically in order to deny them rights they would have here within the jurisdiction. The writ requires these public officials to present in court the sole question of whether or not the individual is being lawfully detained. If the US is holding foreign nationals outside of US soil, a writ is appropriate to allow the court to determine, not whether the foreign national is innocent or guilty, but if our law allows the US government to hold someone without due process.

[taxwonk]

Originally posted by Hank Chinaski
Query: now that several, largely Islamic Countries have official condemmed the Pope, do you believe Catholics will start burning the Embassies of these countries?

Nah. They haven't tortured and killed and pillaged for about 300 years or so.

BTW, did you know the Italians killed Jesus?

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone Slothrop
President Bush asserts the constitutional authority to ignore the plain terms of that law. We thought we had the statutory right to be free of such wiretapping -- turns out no.

BTW, did they stop teaching Youngstown Sheet and Tube after I left law school?

[Tyrone Slothrop]

Originally posted by taxwonk
Actually, it is in the Constitution:



The only other time in history the writ has formally been suspended was during the Civil War. Incidentally, another presedent from the Civil War era seems apporpriate today. In Ex Parte Milligan, 71 US 2 (1866), the Court held that the only lawful circumstances in which civilians may be tried by miliitary tribunals is when civilian courts have been suspended by war or insurrection.

So, with all due respect, you are wrong.

I doubt the framers had any thoughts about the extent to which the government might seize and hold people outside the country. In 1789, it's not like the United States possessed territories much beyond the original colonies.

What's odd to me is that Spanky would just assume that the rights laid out in the Constitution are alienable -- somehow a privilege to which only Americans are entitled -- when we had just fought a war of independence based on quite different notions.

[taxwonk]

Originally posted by Mmmm, Burger (C.J.)
BTW, did they stop teaching Youngstown Sheet and Tube after I left law school?

Are you older than Attorney General Gonzales?

[Tyrone Slothrop]

Originally posted by taxwonk
That sounds a bit like waffling. If there is a universal moral code, then we should be following it everywhere, irrespective of what other nations do with their nationals.

Maybe Spanky's morals are centrist? I.e., they run to the median?

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
BTW, did they stop teaching Youngstown Sheet and Tube after I left law school?

9/11 changed everything. A constitutional separation of powers is a luxury we can't afford in wartime. This wartime, anyway.

[taxwonk]

Originally posted by Tyrone Slothrop
I doubt the framers had any thoughts about the extent to which the government might seize and hold people outside the country. In 1789, it's not like the United States possessed territories much beyond the original colonies.

What's odd to me is that Spanky would just assume that the rights laid out in the Constitution are alienable -- somehow a privilege to which only Americans are entitled -- when we had just fought a war of independence based on quite different notions.

I don't see the relevance of whether or not the framers thought of this particular issue. They clearly thought that it was important that the judiciary have the power to review the lawfulness of a detention by the executive branch. That is the issue in a writ of habeus corpus; the basis on which the petitioner claims the detention is unlawful shouldn't matter.

[SlaveNoMore]

Hank Chinaski
Query: now that several, largely Islamic Countries have official condemmed the Pope, do you believe Catholics will start burning the Embassies of these countries?

They took offence to Benedict's quote of historical Muslim violence, and then claimed (threatened?) it might lead to lots of Muslim violence.

While you guys twist in a knot about the habeas corpus rights of some hypothetical "innocent" Syrian pining anyway in some unnamed CIA cell in Turkey, you might want to take a peek through the curtains of your Ivory Tower and take a look at what's going on in the real world.

[Tyrone Slothrop]

Originally posted by taxwonk
I don't see the relevance of whether or not the framers thought of this particular issue. They clearly thought that it was important that the judiciary have the power to review the lawfulness of a detention by the executive branch. That is the issue in a writ of habeus corpus; the basis on which the petitioner claims the detention is unlawful shouldn't matter.

You pointed out that the Constitution says:

• "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." (Article One, section nine).

One could read that provision to say that the Constitution would allow foreigners to seek the writ to challenge confinement outside the country, even if Congress purports to restrict that ability. Whether that reading is plausible depends, perhaps, on whether the "Privilege" referenced in the Constitution includes being able to seek the writ outside the country, so I was addressing the framers' possible intent on that issue.

[Tyrone Slothrop]

Originally posted by SlaveNoMore
They took offence to Benedict's quote of historical Muslim violence, and then claimed (threatened?) it might lead to lots of Muslim violence.

While you guys twist in a knot about the habeas corpus rights of some hypothetical "innocent" Syrian pining anyway in some unnamed CIA cell in Turkey, you might want to take a peek through the curtains of your Ivory Tower and take a look at what's going on in the real world.

We can't continue to be a city on a hill if y'all drag us down to their level.

[SlaveNoMore]

Tyrone Slothrop
You pointed out that the Constitution says:

• "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." (Article One, section nine).

One could read that provision to say that the Constitution would allow foreigners to seek the writ to challenge confinement outside the country, even if Congress purports to restrict that ability. Whether that reading is plausible depends, perhaps, on whether the "Privilege" referenced in the Constitution includes being able to seek the writ outside the country, so I was addressing the framers' possible intent on that issue.

"Privilege" that can be suspended. And has been, historically.

Sound to me like an inalienable right? Not so much.

[SlaveNoMore]

Tyrone Slothrop
We can't continue to be a city on a hill if y'all drag us down to their level.

Yes. Their level. We bomb buildings. We encourage our children to murder innocent civilians to "martyr" themselves. We kill journalists who film documentaries. We threaten newspapers that print cartoons.

It's this American self-loathing that makes me ill.

[taxwonk]

Originally posted by SlaveNoMore
"Privilege" that can be suspended. And has been, historically.

Sound to me like an inalienable right? Not so much.

I'm sorry, which of the instances under which the right may be suspended are you referring to, Rebellion or Invasion?

[SlaveNoMore]

Here's an article from today's NYPost about our detainment of foreigners on foreign soil.

This is the reality - not some flawed law school hypo about some purported innocent pining away like the Count of Monte Cristo:

A DEADLY KINDNESS
By RICHARD MINITER

September 15, 2006 -- GUANTANAMO BAY, CUBA

ON the military plane back from America's most fa mous terrorist holding pen, the in-flight film was "V for Vendetta," a screed that tries to justify terrorism. It was a fitting end to a surreal, military-sponsored trip.

The Pentagon seemed to be hoping to disarm its critics by showing them how well it cares for captured terrorists. The trip was more alarming than disarming. I spent several hours with Rear Adm. Harry B. Harris Jr., who heads the joint task force that houses and interrogates the detainees. (The military isn't allowed to call them "prisoners.")

Harris, a distinguished Navy veteran who was born in Japan and educated at Annapolis and Harvard, is a serious man trying to do a politically impossible job. I spoke with him at length, and with a dozen other officers and guards, and visited three different detention blocks.

The high-minded critics who complain about torture are wrong. We are far too soft on these guys - and, as a result, aren't getting the valuable intelligence we need to save American lives.

The politically correct regulations are unbelievable. Detainees are entitled to a full eight hours sleep and can't be woken up for interrogations. They enjoy three meals and five prayers per day, without interruption. They are entitled to a minimum of two hours of outdoor recreation per day.

Interrogations are limited to four hours, usually running two - and (of course) are interrupted for prayers. One interrogator actually bakes cookies for detainees, while another serves them Subway or McDonald's sandwiches. Both are available on base. (Filet o' Fish is an al Qaeda favorite.)

Interrogations are not video or audio taped, perhaps to preserve detainee privacy.

Call it excessive compassion by a nation devoted to therapy, but it's dangerous. Adm. Harris admitted to me that a multi-cell al Qaeda network has developed in the camp. Military intelligence can't yet identify their leaders, but notes that they have cells for monitoring the movements and identities of guards and doctors, cells dedicated to training, others for making weapons and so on.

And they can make weapons from almost anything. Guards have been attacked with springs taken from inside faucets, broken fluorescent light bulbs and fan blades. Some are more elaborate. "These folks are MacGyvers," Harris said.

Other cells pass messages from leaders in one camp to followers in others. How? Detainees use the envelopes sent to them by their attorneys to pass messages. (Some 1,000 lawyers represent 440 prisoners, all on a pro bono basis, with more than 18,500 letters in and out of Gitmo in the past year.) Guards are not allowed to look inside these envelopes because of "attorney-client privilege" - even if they know the document inside is an Arabic-language note written by a prisoner to another prisoner and not a letter to or from a lawyer.

That's right: Accidentally or not, American lawyers are helping al Qaeda prisoners continue to plot.

There is little doubt what this note-passing and weapons-making is used for. The military recorded 3,232 incidents of detainee misconduct from July 2005 to August 2006 - an average of more than eight incidents per day. Some are nonviolent, but the tally includes coordinated attacks involving everything from throwing bodily fluids on guards (432 times) to 90 stabbings with homemade knives.

One detainee slashed a doctor who was trying to save his life; the doctors wear body armor to treat their patients.

The kinder we are to terrorists, the harsher we are to their potential victims.

Striking the balance between these two goods (humane treatment, foreknowledge of deadly attacks) is difficult, but the Bush administration seems to lean too far in the direction of the detainees. No expense spared for al Qaeda health care: Some 5,000 dental operations (including teeth cleanings) and 5,000 vaccinations on a total of 550 detainees have been performed since 2002 - all at taxpayer expense. Eyeglasses? 174 pairs handed out. Twenty two detainees have taxpayer-paid prosthetic limbs. And so on.

What if a detainee confesses a weakness (like fear of the dark) to a doctor that might be useful to interrogators, I asked the doctor in charge, would he share that information with them? "My job is not to make interrogations more efficient," he said firmly. He cited doctor-patient privacy. (He also asked that his name not be printed, citing the potential for al Qaeda retaliation.)

Food is strictly halal and averages 4,200 calories per day. (The guards eat the same chow as the detainees, unless they venture to one of the on-base fast-food joints.) Most prisoners have gained weight.

Much has been written about the elaborate and unprecedented appeal process. Detainees have their cases reviewed once a year and get rights roughly equivalent to criminals held in domestic prisons. I asked a military legal adviser: In what previous war were captured enemy combatants eligible for review before the war ended? None, he said.

America has never faced an enemy who has so ruthlessly broken all of the rules of war - yet never has an enemy been treated so well.

Of Gitmo's several camps, military records show that the one with the most lenient rules is the one with the most incidents and vice versa. There is a lesson in this: We should worry less about detainee safety and more about our own.

Some 20 current detainees have direct personal knowledge of the 9/11 attacks and nearly everyone of the current 440 say they would honored to attack America again. Let's take them at their word.

Richard Miniter (richardminiter.com) is a bestselling author and adjunct fellow at the Hudson Institute.

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