The Great Writ, the Great What?
Even as the ink dries on the controversial Military Commissions Act, passed only a few months ago after rancorous debate, the judges have begun to apply it in cases brought by terror suspects. Yesterday, in the nation's capital, U.S District Judge James Robertson declared that the Act did not take away the right of the detainees to seek habeas corpus relief from federal judges but that it did largely take away the ability of judges to hear such claims. Go ahead. Read that sentence again. It's supposed to mean what it actually says. In the end, even a game Judge Robertson, had to concede that Congress' latest effort to strip the men of important due process rights had succeeded-- pending Supreme Court review.
Judge Robertson first ruled that the Miltary Commissions Act effectively limited the statutory jurisdiction of the courts to hear claims by the detainees. Then he ruled that the Act did not trump the constitutional right to habeas corpus that the detainees possess (the two rights being different). But then he ruled that Ahmed Hamdan, the guy the feds think was Osama bin Laden's driver, could not use that constitutional right to habeas corpus anyway because he is foreign national being held in a place, Guantanamo Bay, which is not on American soil (even though America controls that tiny piece of Cuba). Head spinning yet? It ought to be. The surgery was partially a success but the patient died anyway.
Judge Robertson's work, whatever you think of it, is just the first step in a post-Military Commissions Act journey that ultimately will land on the steps of the U.S. Supreme Court. If a newly-constituted Congress amends the Act-- a possibility made less real by yesterday's news about Sen. Tim Johnson (D-S.D.)-- surely the White House will appeal. And if the Congress stands pat, surely the Hamdan appeal, and others, will be pushed along toward the Justices. They alone will have the final say on whether the Congress had a legal right to block the detainees from bringing their claims into federal court. Judge Robertson knows this and so does everyone else watching the case.
By Andrew Cohen |
December 14, 2006; 9:15 AM ET
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Posted by: Paul | December 14, 2006 12:00 PM
The fact that the Military Commission Act limits itself to non-citizens should make me more comfortable with it, but it doesn't, for exactly the reason above. Also the fact that it comes from the anti-Miranda/defendant rights side of the political spectrum, the people who were fine with the third degree, chuckle when they hear the words "found in plain sight" and that DWB (driving while Black) is a fine reason to pull someone over, makes me want to start looking at houses in Vancouver.
It seems to me that if you want to spread American democracy around the world, you should apply its principals to the citizens of the world.
Posted by: capeman | December 15, 2006 07:30 AM
TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:
* * *
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
+ (40) To no one will we sell, to no one deny or delay right or justice.
* * *
* (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.
Magna Charta, 1215 A.D.
WE HAVE GONE BACK IN TIME... TO 1200...
WHERE ARE THE BARONS TO SAVE US?
Posted by: | December 19, 2006 10:04 AM
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When the Nazis came for the communists,
I remained silent;
I was not a communist.
When they locked up the social democrats,
I remained silent;
I was not a social democrat.
When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.
When they came for me,
there was no one left to speak out.
Pastor Martin Niemöller (1892-1984)