by James Oliphant
The Bush administration has outlined its arguments for the biggest Supreme Court case of the term: the upcoming battle over whether the prisoners held at Guantanamo Bay can challenge their detentions in federal court.
The case revolves around a pair of acts passed by Congress that sought to strip the detainees of right of habeas corpus (the means to challenge an unlawful detention) after the Supreme Court earlier held in Rasul v. Bush that the detainees possessed those rights even though they were foreign nationals, because the United States controls the Navy base at Guantanamo.
In a brief filed Tuesday in Boumediene v. Bush, the government again argues that as foreign nationals held outside of the sovereign territory of the U.S., the detainees simply don't have habeas rights. The argument is similar, although not a duplicate, to the losing argument the government made in Rasul. In addition, since that opinion was handed down in 2004, the court has added justices John Roberts and Samuel Alito. The departed Sandra Day O'Connor was a member of the 6-3 majority in that case.
The government goes on to argue that if the court decides the detainees do have some limited rights, the administrative procedures the Pentagon has put in place to review the basis for each prisoner's detention is sufficient to safeguard those rights. Those assessments are ultimately reviewable by the U.S. Court of Appeals in Washington. "Petitioners, along with the other enemy combatants being held at Guantanamo Bay, enjoy more procedural protections than any other captured enemy combatants in the history of warfare," the brief from Solicitor General Paul Clement states.
The administration also urged the court to refrain from ruling on the whether the petitioners in the case are being lawfully held, saying it was a determination that needed to be left to the Pentagon review process, not to the Supreme Court.
In an unrelated case, a federal judge in Washington has ruled that a Tunisian man held at Guantanamo fearing persecution and torture if returned to his home country should remain in U.S. custody until the Boumediene is decided. The decision, unsealed Tuesday, marks the first time a court has stepped in to block such a transfer.
In August, the Swamp detailed the petition of an Algerian national who made the same argument to the Supreme Court. But the court declined to intervene.
The date for oral arguments in Boumediene have yet to be set.
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Comments
"The administration also urged the court to refrain from ruling on the whether the petitioners in the case are being lawfully held, saying it was a determination that needed to be left to the Pentagon review process, not to the Supreme Court. "
Why doesn't the Bush Administration just get it over with and declare Martial law? Who needs Courts and a Constitution when you can just let the Military decide?
Posted by: Anonymous | October 10, 2007 1:43 PM
"The administration also urged the court to refrain from ruling on the whether the petitioners in the case are being lawfully held, saying it was a determination that needed to be left to the Pentagon review process, not to the Supreme Court."
I thought the Supreme Court got to decide which cases it hears... not the White House.
It doesn't really matter. If the supreme court says that detainees in Cuba have rights I'm sure the administration will just move them farther from view (perhaps a nice Black Site in Eastern Europe where you don't have to bother with civil rights).
Posted by: Carl L | October 10, 2007 1:43 PM
Maybe we should give them the same rights our POW's had in Japan and Vietnam. I guess it is how you look at it.
Posted by: Rob S | October 10, 2007 2:08 PM
Maybe we should give them the same rights our POW's had in Japan and Vietnam. I guess it is how you look at it.
Posted by: Rob S | October 10, 2007 2:08 PM
Rob, I thought we were supposed to be better than them?
Posted by: Anonymous | October 10, 2007 2:14 PM
I agree with Rob. Someone violated our rights in the past so we have every reason to violate the human rights of whoever we chose!
"Hey, he did it!"... What is this 2nd grade?
Posted by: Carl L | October 10, 2007 2:17 PM
So according to this administration, murder committed by contractors outside of the US cannot be prosecuted by the host country, or the US.
Any prisoners outside of US soil are not subject to US laws. And since they are under our control they are not subject to the laws of the country where they are being held.
Torture, committed by Americans, outside of US soil cannot be prosecuted by the host country, or the US.
So why did we prosecute Abu Graib? Why did we prosecute My Lai?
So at what point did all of the social conservatives throw out the moral equivalent of the end justifying the means?
Posted by: dogjudge | October 10, 2007 2:30 PM
Just what are our military people fighting for over there? We overthrew Saddam then became him.
And if these are indeed dangerous terrorists with American blood dripping out of their mouths, then fine. Try them, convict them, sentence them, and then jail them according to the law.
Posted by: DD | October 10, 2007 2:54 PM
Many of these people are innocent yet are not allowed to prove it. They were just in the wrong place at the wrong time.
How many of you who condone keeping these people indefinitely think it would be okay if another country arrested and kept your daughter or son or any other American under the same conditions? How does the thought of never seeing or hearing from them again feel to you?
You only gain respect if you give it. I was taught the golden rule...do unto others as you would have them do unto you.
Posted by: lochnessmonster | October 10, 2007 3:10 PM
So why did we prosecute Abu Graib? Why did we prosecute My Lai?
Posted by: dogjudge
Those were Military actions and subject to the Uniform Code of Military Justice.
You may have noticed that only the military personel at Abu Graib faced any sort of court even though most testimony points to abuses by "contractors".
This administration relies on Mercenaries to beat prisoners and kill civilians since they are NOT subject to the Military court.
Nice way to "Support the Troops" don't you think. Hold them liable and give every one else a "Get Out Of Jail Free" card.
p.s. "We" don't torture.
Posted by: Carl L | October 10, 2007 3:15 PM
Pretty telling when one of Murdock's rags weighs in against the U.S. position on detainment and torture:
http://blogs.usatoday.com/oped/2007/10/our-view-on-pri.html#more
Posted by: dt | October 10, 2007 3:31 PM
They should have all the rights the U.S., under Franklin D. Roosevelt, according Nazi POWs in World War II.
If we had allowed Nazi POWs in World War II to sue in federal courts, and if we had ACLU judges like we have today, we'd all be speaking German.
Posted by: bruce | October 10, 2007 3:43 PM
"Government Says No To Rights At Gitmo"
I think this where the GOoPer's on here raise their hands and volunteer to give up more of their Constitutional rights in the name of "Patriotism".
The Bushies don't even know who half of the people in Gitmo are yet they continue to call them "terrorists".
The Decider Guy has no credibility, none, zero, zip, nada!
"Impeach The Cheerleader, Save The World"
"Dick Cheney Before He Dicks You"
Posted by: John E | October 10, 2007 3:58 PM
Nice argument Bruce except the people being held in Gitmo aren't POWs. In fact the administration has gone to GREAT lengths to make that clear.
As POWs they would have rights.
The administration has intentionally classified these individuals as "enemy combatants" so they would fall between the cracks of US law and International Law.
And just to make sure... let's hold them in a foreign land.
Posted by: Carl L | October 10, 2007 4:00 PM
"They should have all the rights the U.S., under Franklin D. Roosevelt, according Nazi POWs in World War II."
Bruce, you do understand that Nazi POW's had more rights than we currently give detainees at Gitmo, right? Starting with the basic fact that they were classified as actual Prisoners of War.
Even the Nazi war criminals were tried in open international tribunals, not in secret military courts.
Treating them as we did the Nazi's would be fine, but it would be far different from how we are treating the Gitmo detainees.
Posted by: AJF | October 10, 2007 4:17 PM
Rob, I thought we were supposed to be better than them?
Posted by: Anonymous | October 10, 2007 2:14 PM
We are supposed to be better, but where has this gotten us? It can really make a person wonder about the nice guys finish. We have illegal immigrants walking in by the millions, but we are "better" so we do not crack down like we should. At some point, we may need to make a statement. We try to be better than that, but when push comes to shove, I think we need to shove sometimes.
And to Carl of
"I agree with Rob. Someone violated our rights in the past so we have every reason to violate the human rights of whoever we chose!
"Hey, he did it!"... What is this 2nd grade?
Posted by: Carl L | October 10, 2007 2:17 PM "
This article is not about "picking on whoever we chose." We are talking about a specific group of people in a specific situation. Maybe next year you'll make it to second grade... then again.
Posted by: Rob S | October 10, 2007 5:03 PM
Rob S-
"We are supposed to be better, but where has this gotten us?"
It's gotten us to be the strongest, richest country in the world. It has made us a free country, where the law rules and not man.
"We have illegal immigrants walking in by the millions, but we are "better" so we do not crack down like we should. At some point, we may need to make a statement."
How did illegal immigrants get into this? Are we going to lock them up in Gitmo to make a "statement" too?
Rob, without respect for human rights and liberty, the US is just another in a long line of oppressive imperial powers. What would be the point?
Posted by: Anonymous | October 10, 2007 5:18 PM
Rob
"I'm rubber and you're glue it bounces of off me and sticks to you"...
Thanks for helping me relive my playground days.
Posted by: Carl L | October 10, 2007 5:28 PM
TeamBush;
'The Knights who say nyet.'
Posted by: C.Morris | October 10, 2007 7:25 PM
America used to be a ethical superpower. We have lost our moral authority thanks to the Bush administration. Scary times we live in.
The terrorists have won.
Posted by: Alec Baldwin | October 11, 2007 3:43 AM
Keep "Gitmo" its working!
The only time it doesn't
work is when one of the
prisoners is released and
he returns to the battle to kill more innocents.
Posted by: Paul Jaeger | October 11, 2007 8:44 AM
Rob
"I'm rubber and you're glue it bounces of off me and sticks to you"...
Thanks for helping me relive my playground days.
Posted by: Carl L | October 10, 2007 5:28 PM
Oh boy, now I'm in trouble. Now I know all I need to know about the young master Carl.
Posted by: Rob S | October 11, 2007 12:09 PM
Bush and Cheney are the real terrorists! maybe we should send them to gitmo. These detainees are people too, they deserve the same rights as anyone else. We should try being nice to them, and maybe they'd be more forthcoming with any info they might have. Bush sucks!
Posted by: Anonymous | October 11, 2007 1:43 PM