Gitmo Detainees Get Their Day in Court

by Ryan on June 12, 2008

in Culture,Election 2008,Judicial Watch,Politics,War on Terror

And the Constitution gets its day on the toilet paper roll!  The Supreme Court was about as off-base and dangerous today as as they were in Dred Scott.  POWs held at Gitmo will, for the first time in our history, be allowed to have access to civilian US courts during wartime.

These are five Supreme Court Justices that have seriously endangered the American people today:  John Paul Stevens, Stephen Breyer, David Souter, Anthony Kennedy, and Ruth “Biddy” Ginsberg.

These are four Supreme Court Justices still believe in the worth of the Executive and Legislative Branch to protect the American people during wartime:  Chief Justice John Roberts, Clarence Thomas, Antonin Scalia, and Samuel Alito.

Never in our 232 year history has the American government under either the Articles of Confederation or the Constitution has allowed foreign combatants held overseas access to civilian courts during wartime… until today.  It is not just a defeat of the Bush Administration, but also for Congress, national security and by extension the American people.

Why should habeas corpus apply to non-Americans during wartime on those who tried to kill Americans and were taken on the battlefield?  This is a horribly dangerous precedent – we didn’t even allow Nazis that privilege!!!  What if some of the evidence against the terrorists is classified or involved in ongoing intelligence operations?  Don’t the detainees have the right to have that evidence used or brought up in open court?  The slippery slope potential is uncanny and not in our best interest. 

President Bush is in a position to make a magnanimous gesture for the sake of posterity and NOT enforce this ruling under his watch.  Yet, he will abide and we will suffer in the long-run.  Congress passed and the President signed the current law into effect in 2006, clarifying the law as the Supreme Court asked them too.  This is an example of “legislation from the bench” if anything ever was.  In the words of Justice Scalia: “The Nation will regret what the Court has done today.”

AP photo.

{ 2 trackbacks }

SCOTUS: Child Rapists are Protected from the Death Penalty « Axis of Right
June 25, 2008 at 2:59 pm
Gitmo Conviction « Axis of Right
August 6, 2008 at 1:26 pm

{ 11 comments… read them below or add one }

mbjesq June 13, 2008 at 4:21 am

Do you have so little regard for our system of justice that you think it appropriate to have one standard for US citizens held by the US government and another for non-US citizens held by the US government?

Can you seriously suggest that the country is jepordized by allowing the courts to do what they were designed to do: pass judgement on guilt and innocence?

This is a great day for American constitutionalism. It is shocking, however, that four-ninths of the United States Supreme Court find compelling justification to imprison innocent men (i.e., those who might be exonerated at trial) for life without a constitutionally recognized judicial hearing.

My take on this case is posted here.


Matt June 13, 2008 at 7:27 am

Hey, I have an even better idea. Let’s not stop there. Let’s make sure these terrorists are tried by a jury of their peers. Let’s fly in 12 radical Islamist nutjobs and let them decide what we do with the terrorists we capture on the battlefield! That would show the world how fair and compassionate we are. Then maybe the terrorists wouldn’t hate us so much and we could all live in peace.

The U.S. court system is for criminals, not for people we’re at WAR with! Unbelievably stupid and naive!


Ryan June 13, 2008 at 8:25 am

I believe from getting lectures from judges on the five juries I’ve been on that the legal phrase is “not guilty” instead of “innocent”. Plus, all of these detainees were found on a battlefield trying to kill Americans in a time of war. They gave up their rights when they joined the War on Terror against us.

As Lindsey Graham said: won’t the American people be surprised to learn that al Qaeda has been given more rights than Nazis. There is no precedent for what the court has done.

Plus, American Constitutionalism got a smack in the face as the courts got involved in the legislative process, of which they expressly forbidden to do so under our system of government. Constitutionalism will get a boost if the legislative or executive branch ignore this ruling: the wartime checks and balances will be in tact and respected.

And when did the American Constitution suddenly apply to every person, from any country, under any circumstance? By your logic, we should let illegals vote in our elections because everyone should have the right to vote regardless of their status since the laws are unfair to the illegals.


rightonoz June 13, 2008 at 6:22 pm

Sorry, guys, but I’m on the side of the Supreme’s.

What everyone conveniently forgets is that, like it or not the Talliban were the govenment of Afghanistan at the time and there is plenty of precendent for foriegn supporters to fight for a governement in a civil war (which is where many of them started), and against an invader (the coalition). Forget that we thought we were in the right to invade (and in my view were right), there is plenty of international precendence that says anyone captured on the battlefield has the right to be treated as a prisoner of war.

The fact that GWB made a decision to attempt an end run around the Geneva Convention. Now that is a slippery slope – wait for the howls if a US soldier/citizen cops the same treatment from some tin-pot dictatorship.

If you want examples of US citizens being in a war when their country was not (and the opposing side could have decided to refuse to treat them as POW’s, look no further than: The international volunteers during the white/red civil war in Russia (ok no-one got treated as a POW by either side), The international brigades in Spain, US volunteers for Britain in WWII (Thank you to those brave guys!)In the latter case there were many in US government in the early days that supported the Nazi’s and wanted nothing to do with stopping them and considered the volunteers as almost traitors.

Also, it is a tenant of US and international justice that you have the right to confront your accusers and hear all the evidence against you and to defend against that evidence, rights that the ‘enemy combatants’ classification attempts to strip. Again, what would you say if a US citizen was treated thus by a foreign power?

I’m sorry but GWB and President Cheney et all have forgotten the very cornerstone of the US constitution and all that the great US friends I have live by – a nation founded on rule of law (ok I don’t like all your laws) and a system of justice that tries to protect everyone.

Now many of the detainees are as guilty as sin, but there are those that are no doubt innocent or in the case of our Hicks a deluded idiot who was not fighting against America as much as thinking he was defending his adopted religion. (my take on it) An open and fair trial based on the rules of evidence is what they are all entitled to, before we tie some of them to the back of a Toyota pick-up and drag them through the streets in a Talliban style execution (tongue in cheek)


rightonoz June 13, 2008 at 6:28 pm

Just an addendum,

I focussed on Afghanistan above, however the international law on Iraq is even stronger against us. There was no legal basis for the invasion in US or international law, hate Saddam or not, and anyone fighting there could legally, to this day claim to be fighting against an invader, our tame elected governmant not withstanding.

I don’t want to get into a long winded one on Iraq, however the US and it’s partners claim justification, many in the rest of the world, including respected jurists claim it was and remains illegal. Deciding we will set the rules, again a slippery slope that may well come back to bite us on the bum one day. Better to be seen to maintain the strictest legal protections and rights and always have the moral high ground. OK there are some risks involved, but…


Mike June 14, 2008 at 2:08 am

Given the late hour here in the US, my body requires me to be brief, but I’ll have more to offer probably tomorrow. Not surprisingly, I must disagree with our buddy Oz.

There absolutely was a legal justification for the Iraq war under US law. Our Congress authorized the use of force. Therefore, it was legal. Period.

As for international law, which as Ann Coulter explained only exists in law school classrooms, my thoughts will follow after much-needed sleep.


Mike June 15, 2008 at 6:21 pm

Now that I’m refreshed, I see that the issue before the Court was whether the U.S. Constitution requires Habeus hearings for non-citizens detained in a war being conducted overseas. Therefore, any opinion on non-existent international law would be irrelevant.

While we’re on the topic of “rule of law” however, I would point out that the rule of law requires Courts to apply the law, regardless of whether they approve of the policy behind that law. The fact is Oz, our Constitution does not require Habeus hearings for non-citizens. Moreover, detainees did have the right to challenge their detainment prior to this unconstitutional decision, just not in an Article III court. In fact, some were successful (they were in that small minority of the innocent to which you referred).

In this instance, the issue is not what the law should be for that is an issue for U.S. democratic institutions. The issue is what the law is. The Supremes got this one wrong.


rightonoz June 15, 2008 at 6:41 pm

Hi Mike,

Something to think on when you’ve causght up on the sleep.

International law exists based on treaties and precendence. Without it then we have no Geneva convention, all the protections that apply to passport, and while there are some in the US that pretend it does not exist when it suits, these very same poeple scream for it’s protection when it’s a US citizen in trouble.

The fact that the US Congress authorised the war does not make it legal. Hitler authorised the externmination fo the Jews, he was the recognised government of Germany at the time…. Did that make it legal? Milosovic authorised the various episodes in the Baulkans and he was the internationally recognised elected leader of Serbia, did that make it legal? Now I would not equate Iraq to either in any moment of stupidity, just making the most dramatic statement to point out that the passing of a law internally in any country does not make it legal outside of that countrie’s borders and in many cases, even the actions within it’s borders.

The US was very strident in demanding that Milosovic be tried for crimes against humanity. That is an international law, that the US demanded be applied (despite insisting it’s citizens are protected from it’s application)


Mike June 15, 2008 at 8:41 pm

Hi Oz:

You said that the war was illegal under US law. That is clearly false.

On the question of international law I was being facetious to a point, but there is a legitmate debate in legal, geopolitical, and ethical circles over the scope and even the existence of international law. Are there international treaties and agreements? Yes. Are there certain acts so barbaric that nations must band together and hold some sort of proceeding to hold immoral and evil actors accountable? Yes. Are there norms that are upheld? Yes. But is it really law?

There is no world body that has the consent of those who would be governed. There are no real enforcement mechanisms. In fact, international law can only exist to the extent that it is codified within a nation’s domestic law and on that front, it is the US Constitution that determines what is valid US law. Since you cited some extreme examples, I’ll cite one of my own. Our leaders do not have the authority to enter into a treaty to bypass our Constitutional prohibition on slavery. Sure, that would be immoral but under the rules you say exist, such a treaty would be legal.

Were the extreme Hitler and Milosevic examples you cite technically legal? Probably not (the world’s worst regimes often pay lip service to lofty ideals and offer protections that really do not exist at all), but frankly the world was right not to care. Some acts clearly violate a law higher than any law man can make on any scale, national or international. What’s more important is that our responses to the heinous acts were moral. The question of their legality is immaterial. Justice was done.

On Iraq, not only were our two countries legally justified under our respective domestic laws, but we were morally justified as well. A terrorist-sponsoring and harboring madman who used WMDs on his own people and produced no evidence of their destruction under treaties that fall under what you and many other reasonable people call “law” was removed from power. I won’t defend Saddam’s Iraq and I don’t think you do either.


rightonoz June 16, 2008 at 6:33 pm

Hi Mike,

I certainly do not defend Saddam. Like you I think the world is a better place with him gone. I didn’t claim that the war was not legal in US law.

Me reference was that no country can pass a law internally that makes it’s actions outside it’s borders legal if the rest of the world consider them illegal. (but then who enforces this – answere no-one except in heinous cases per my examples)

I agree totally with you that our responses to Hilter and Milosovic were morally justified and would have been ashamed if our countries did not respond.

To get back to my original point that I was trying to make, was regardles of the finer points of US internal law, that the detainees should be given every legal protection to set the benchmark for all countries to apply, because the bar we set in cases such as these is one that may well be applied to our citizens by some other country in the future. In response to your final paragraph, while I agree to some extent, this same reasoning could have been applied to many other countries, perhaps with more urgency than Iraq.

There would have been far less issue if GB senior had finished the job in the first war when we were responding to the invasion of another country, hostage taking etc and held the high ground with far broader support. Having missed that opportunity my view remains that we should have taken an opportunity to take care of Iran instead. They actively harbour terrorists, finance them and now hold sway over significant parts of the Middle East through their proxies. They will eventually by the power that controls or at very least significantly undermine legal governments in Iraq and Afghanistan once we leave.


Mike June 16, 2008 at 7:20 pm

Comment #5:

“There was no legal basis for the invasion in US or international law. . .”

Maybe its just the profession I’m in, but I am a stickler for accurate statements of what law is. That’s why Courts often bother me. Democracy is about what law and policy should be. Courts are about accurately stating what law is.

I think you have a point about 41 not finishing the job, but the fact that he may have had more international support doesn’t speak to whether Saddam should have been removed. Either he should have been or he should have been left in power. I think 43 had a much stronger case after international terrorism hit our soil. Though you’re right that maybe it would not have been a problem if 41 took him out.

I agree with you on the threat posed by Iran. However, the morality of taking action or showing restraint would be completely unaffected by what other countries may or may not advocate (though their input should be considered). Remember, in Iraq, many nations simply opposed it because they were lining their pockets with redirected oil for food assets. I think if the time comes, force would be the right option precisely for the reasons you state, not because the correct number of European Parliaments agree.


Leave a Comment

You can use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Previous post:

Next post: