Finally, the Right Move on Gitmo

The best news of the week so far comes from icy, snowy Washington, where Senate Democrats yesterday introduced legislation that would correct some of the worst errors in last year's dreadful Military Commissions Act. The Washington Post's Josh White reports: "A group of Senate Democrats, led by Sen. Christopher Dodd (D-Conn.) introduced a bill yesterday that would restore habeas corpus rights to all detainees in U.S. custody and would narrowly define what it means to be an "enemy combatant" against the United States, a measure designed to challenge laws ushered in by the Republican-controlled Congress last year."

White reports that the legislation has bipartisan support. It will need it to overcome an expected veto from the White House, which likely would offer the same tired, lame and unconstitutional arguments about how the detainees down at Gitmo will be getting all the fairness and justice they deserve through the Commissions Act and about how resident aliens here in the States legally do not deserve the same legal protections the rest of us do. This is a good bill that deserves to become an important law.

By Andrew Cohen |  February 14, 2007; 8:57 AM ET
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This law appears to be carefully crafted to open up huge loopholes for the terrorists in the definition of an enemy combatant. For example, the requirement that they actively be involved either in a "zone of active combat" or in 9/11 would allow immunity say in the discharge of a dirty nuclear bomb in downtown DC, unless that is now a combat zone beyond the standard political infighting.

I am not even sure that Afghanistan before the U.S. invaision would qualify as an active war zone -- hence the inclusion of 9/11 particpants.

What about someone who ships the bomb in from Pakistan, is that logistical officer an enemy combatant? What about the guy who raises the money? As it requires active participation in a war zone, probably not. Would this cover someone who attempts to blow up a U.S. warship in an allied port? an Embassy in Africa?

Also, Josh White just throws out a statement that the bill has "bipartisan support" without listing the number and name of backing Republicans. We do know that one of the most balanced and critical Republican Senators, Lindsay Graham, is not on board.

The other point, that this "restores" habeas corpus to enemy combatants is somewhat deceptive as to my knowledge they never had it as they are being held outside the jurisdiction of the United States.

The use of coersion as opposed to torture as a term of interrogation is also questionable. Are threats coersion? What level of threats cross the line? I assume this is a legal term of art.

What this comes down to is that unless you are shooting at a U.S. Marine in Afghanistan or Iraq, you are NOT an enemy combatant. This bill should be renamed the "Terrorist Bill of Rights."

Posted by: Constitutionalist | February 14, 2007 01:52 PM

"Coersion" isn't a legal term of art. It also ins't English.

Posted by: tholland | February 14, 2007 04:38 PM

"they are being held outside the jurisdiction of the United States"? If Gitmo is outside of U.S., just how in the h*** are we holding them? It's a U.S. military base, run by the U.S., staffed by the U.S., on land leased by the U.S. and controlled by the U.S. If that's not U.S. jurisdiction, then what is?
A reminder - the applicable amendments to the Constitution, in the Bill of Rights, refer to "persons", not "citizens". And the relevant section of 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." The present situation is neither rebellion nor invasion. (And if you bring up Lincoln, first, that was rebellion, and second, in in ex parte Milligan (71 US 2 [1866]) the Supreme Court ruled that Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional.


Posted by: vklip | February 14, 2007 05:29 PM

Hilarious "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."
I rather doubt the framers imagined war against those flying wide body jets into sky scrapers or colluding to detonate nuclear weapons on American soil. You must be a strict constructionist over the Constitution.

Posted by: whocares | February 14, 2007 05:59 PM

Thank you for your kind comments, Mr. Cohen. We sincerely desire access to United States Courts for our followers. It has always been a useful tactic for us to utilize the enemy's own institutions to bring down his corrupt culture and to usher in a sharia and victory for the forces of Allah.

Posted by: Osama bin Laden | February 14, 2007 06:22 PM

This is a good bill that deserves to become an important law.God bless Sen. Dodd and all those that are trying to fix our justice system.Its inhuman to hold people without evidence or a trial.Its shameful and wrong.

Posted by: sharon | February 14, 2007 08:32 PM

So, if it passes, Uncle Sam will merely continue rendition, or else allow enemy combatants to be [captured] by other countries anyway -- right ???

Posted by: brucerealtor@gmail.com | February 15, 2007 01:01 AM

So, if it passes, Uncle Sam will merely continue rendition, or else allow enemy combatants to be [captured] by other countries anyway -- right ???

Posted by: brucerealtor@gmail.com | February 15, 2007 01:03 AM

So, if it passes, Uncle Sam will merely continue rendition, or else allow enemy combatants to be [captured] by other countries anyway -- right ???

Posted by: brucerealtor | February 15, 2007 01:03 AM

So, if it passes, Uncle Sam will merely continue rendition, or else allow enemy combatants to be [captured] by other countries anyway -- right ???...............................Hey, jerk off -- stop blocking my post !!!!!!!!!!

Posted by: brucerealtor | February 15, 2007 01:04 AM

So, if it passes, Uncle Sam will merely continue rendition, or else allow enemy combatants to be [captured] by other countries anyway -- right ???...............................Hey, jerk off -- stop blocking my post !!!!!!!!!!

Posted by: brucerealtor | February 15, 2007 01:08 AM

Why is the WaPo BLOCKING POSTS ... AGAIN

Posted by: its just me | February 15, 2007 01:10 AM

Gitmo is outside U.S. jurisdiction because it is on foreign, but leased soil, that is not a part of U.S territory and which does not enjoy the same protections and privileges extended to an embassy. Gitmo is a military base and like any such base, say in Iraq or Afghanistan or Germany for that matter, they are subject to the rules of war and other treaty obligations.

But, as with medieval English law, there are places where the established courts and national laws do not apply. For example, within the Rights of Clergy, there were places where "the King's writ runneth not." Such a place regarding American judicial jurisdiction is Gitmo, the writs may not runneth.

And, while we are not in open rebillion we have been attacked and there have been several attempts at invasion by the agressor enemy combatants, including the attempted organized assault on New Year's Day 2000.

And this does not call for the general and universal suspension of habeas corpus, but rather its extension to an uncovered group or at worst its targeted suspension for that identifiable group -- if they ever had it. The language of the suspension clause seems to interpretation, at least on that level.

Posted by: Constitutionalist | February 15, 2007 07:32 AM

This is very good news indeed that detainees in Guantanemo will have some degree of justice that all American citizens take for granted since it is their birthright.
The Congress is really moving forward on so many things that need to change in order for our country can restore its good name both at home and abroad.
Ruth Beazer

Posted by: Ruth Beazer | February 15, 2007 10:27 AM

Having lived for 5 years in Gitmo ( as a civilian, not a detainee)there was a strange legal limbo there. The military personnel were subject to military jurisdiction and could be disciplined in that venue. Civilian personnel were a little bit different. Since the Treaty reached with the Cuban Government in the 1930's (successor to the original treaty) recognized residual Cuban sovereign rights to the base, base legal authorities determined that US law did not apply. We could, however, be turned over to the Cuban authorities for prosecution. For political reasons that wasn't an option. So the worse that could be done to someone was removal from the base. During the time I was there were had no homicides, but there were several serious assaults and the usual drug violations. Thankfully we didn't have a surplus of legal talent during WW2, imagine with the number of Axis prisoners actually in camps on US soil, each clamoring for their right to habeas corpus. Gitmo wasn't picked accidentally, it was picked because it provided a way to keep in most cases very dangerous men in a place where they could do no further harm.

Posted by: Harry | February 16, 2007 11:07 AM

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