Wednesday, July 23, 2008

A trip down habeas corpus lane

Boys and girls, your ol' friend Spot has blogged more about habeas corpus that he remembered. But after posting A blot on our escutcheon yesterday, he had cause to take a look back. And you know, the posts have held up pretty well, if Spot does say so himself. Here are a few of them:

Here's a post describing the briefs in the Boumediene case, noting that even the iguanas on Guantanamo are protected by US law. You may recall, or maybe you won't, but one of the arguments made by the government is that Guantanamo is not US sovereign territory, so the Constitution doesn't apply. Justice Kennedy wrote that permitting the Executive to "switch the Constitution on and off" depending on where people were held was an invitation to oppression.

Here's one about how the Combatant Status Review Tribunal cannot be called a kangaroo court without insulting kangaroos. Here's a quote from Scott Horton in that post:

But [detaining a large group of men who were turned in by bounty hunters] led to a dilemma. If the person was really a civilian noncombatant, and he had been seized and held for years, subjected to torture and other illegal interrogation techniques, then the U.S. had a problem. Then, of course, what had been done was a criminal act. Indeed, a felony under American law. It was therefore essential to juryrig a system which would guarantee the result they needed to protect themselves from criminal liability.

But Spot's favorite is Where is Mr. Gibbons when we need him? Spot quotes: Professor Marty Lederman at length, describing prosecutors trying to start a trial against detainee Salim Hamdan without a finding by the CSRT:

[M]ost importantly (it actually comes first in the motion -- p.3), the government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:

Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detachment;

Hamdan "armed himself with a weapon";


Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."

That's it.

It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)

More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefully and materially supported hostilities against the United States."

Here's the simple question the motion for reconsideration conspicuously fails to answer: What, exactly, is it that Hamdan is alleged to have done that proves he "purposefully and materially supported hostilities against the United States or its co-belligerents"? I don't know whether Hamdan did or did not do so. But if this is the best the government can do to make that case . . .

It would be like trying to start a criminal trial without a complaint or indictment against the defendant. Unbelievable, really. Oh, and Hamdan had a weapon? Too bad he wasn't in the US; we'd give him a medal.

D'you see, boys and girls, why a real hearing for many of these detainees in a real court is such a nightmare for the White House, the Justice Department, and the Pentagon? You can see why they beat the shit out of people hoping they would confess to something.

Update: Here's a couple more.

Dissing the Great Writ

Dissing the Great Writ II

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