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US Supreme Court showdown on Gitmo...

Discussion in 'Off-Topic' started by Che Guava, Dec 5, 2007.

  1. Che Guava

    Che Guava The Juicy Revolutionary

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    ...or the crisis of corpus ;)

    link

    So, third time's a charm...?

    A few questions to ponder....

    (1) First, and most importantly, how do you think the SC court will rule, and how will the goverment respond (i.e. another leslative response?)

    (2) Given the timing of the final decision, do you think that the ruling will have a major/minor/insignificant effect on the 2008 presidential election?

    (3)If the right to habeas corpus of those held in Guantanamo is granted, what effect, if any, will this have on america's security and future conflicts in unconventional warfare?
     
  2. IglooDude

    IglooDude Enforcing Rule 34 Retired Moderator Supporter

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    They seem to lean in favor of deciding 'detainees' should get US constitutional rights, so odds are that they'll go that way again. The government will close Gitmo and spread the detainees out to CIA-maintained vacation spots in countries that won't squawk about it.

    Minor, unless McCain is the Republican nominee. The likely other ones are all agreed that Gitmo is still needed.

    IMHO, not much. However much it actually hurts our intel gathering (and see the answer to question #1 for that), it will be balanced by our image abroad not being quite as provocative when we're Gitmo-free.
     
  3. El_Machinae

    El_Machinae Colour vision since 2018 Retired Moderator

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    I must have missed something earlier? I thought that there had been a ruling (or law?) that there was no habeas corpus for non-citizens who were declared to be militants?
     
  4. Che Guava

    Che Guava The Juicy Revolutionary

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    There's been two rulings already. Both had been counrtered with congressional legislation.

    The law you are referring to is the Military COmmissions Act, which is currently being challenged.
     
  5. El_Machinae

    El_Machinae Colour vision since 2018 Retired Moderator

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    http://forums.civfanatics.com/showthread.php?t=203772

    I might be misremembering an AG opinion.
     
  6. I'm Cleo!

    I'm Cleo! Deity

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    It's going to be interesting. I think the claim that Guantanamo is not "owned" by the U.S. is silly, and won't work -- it's under the "exclusive jurisdiction" of the United States, and I think one of the previous Guantanamo cases determined that. The Solicitor General's argument is essentially to create a zone of no law, which I think the Supremes will find offensive.

    It seems that most people think the Supremes will hold that the detainees do have the right to challenge their detention in a federal court, but I don't know if the MCA will be an unconstitutional suspension of habeas. I think that'll be a closer question, but the Court's going to be very wary of "deferring to military judgment", since the last time it did that was in the Korematsu decision -- upholding the detention of Japanese-Americans during WWII -- and it is generally regarded as one of the worst episodes in American constitutional law.

    It's a great case, and the Guantanamo detainee cases are going to be in textbooks a hundred years from now. They go straight to the core of American "liberty" -- who may the government detain, and what procedures must it follow when it detains those people?

    I'm Cleo!
     
  7. Che Guava

    Che Guava The Juicy Revolutionary

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    What interesting also is that the precedence for this case goes back to the 17th century...from the BBC:

    link
     
  8. Elrohir

    Elrohir RELATIONAL VALORIZATION

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    Clearly, habeas corpus can be suspended by Congress "when the public safety requires it". So the only question is whether doing so is necessary for national security, in this case. I'm not sure myself, but it seems to me that decision should rest with the legislative branch, in authorizing it, and the executive branch, in executing it - not with the judicial branch. I don't think the Supreme Court should get involved at all here.
     
  9. eyrei

    eyrei Deity Retired Moderator

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    Hopefully the Supreme Court continues to do a better job of standing up for our ideals than Congress.

    If a few thousand more Americans die for the rights granted by our constitution because of the loss of Gitmo, it will be a worthy sacrifice. There is really no point in fighting this 'war on terror' if that for which we fight is gone already.
     
  10. IglooDude

    IglooDude Enforcing Rule 34 Retired Moderator Supporter

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    I think it is perfectly reasonable for the Supreme Court to decide "if the public safety requires it" - you're implying that SCOTUS has no authority to decide if police powers granted by the legislature are constitutionally valid, and that's is obviously not correct. Why should habeas corpus be different from any other constitutionally-recognized right?
     
  11. Elrohir

    Elrohir RELATIONAL VALORIZATION

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    But the SC isn't a national security institution. It's their job to decide if legislation is constitutional, not whether the US is in danger. The SC is not, and cannot be privy to all the information the president and key members of Congress are.

    Perhaps I should rephrase - the SC can decide whether congress has overstepped its bounds in granting extra powers to the president. However, generally speaking, I don't think they should weigh in, becuase they don't have all the information to decide whether or not such a measure is justified. Only when the president is clearly wrong, and is using such powers to harm civil liberties in America unnecessarily should the Supreme Court issue a ruling on the subject.

    Since the US is indeed under the threat of an attack from terrorist groups, I think the president should be given a little leeway in deciding how to treat and or charge prisoners, since he has been authorized to do so by Congress. Personally, I do think they should charge the prisoners at Guantanamo, as opposed to holding them indefinitely. That isn't really the issue, though - I don't want the president's hands tied in a national security emergency because the Almight Supreme Court felt the need to step in. I think enough is enough. Since Congress' authorization isn't unfounded on the face of it, the SC should give the president the benefit of the doubt and let him decide where to apply habeas corpus in this area.
     
  12. .Shane.

    .Shane. Take it like a voter Retired Moderator

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    Yeah, I know, how dare they do their job! Didn't they get Bush's memos?
     
  13. eyrei

    eyrei Deity Retired Moderator

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    Terrorist threats do not a national security emergency make...under that logic the president is allowed to do whatever he wishes indefinately because there are people in the world that want to blow up bombs here.

    Every time I see someone make that argument it makes me think the 'terrorists' are winning.
     
  14. Elrohir

    Elrohir RELATIONAL VALORIZATION

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    I disagree - terrorism is indeed a threat to American national security, and I think it's terribly naive to dismiss it as anything else.

    And no, the president can't do anything he wants to. If the president wants to ban protesters from protesting in Washington, because he doesn't like them - well, he can't do that. If he wants to close down internet blogs that are speaking against him or the war - he can't do that. Basic civil liberties are still protected. The president is just given a little bit of leeway in areas directly connected with the threat to national security - in this case the charging and detention of terrorist threats.

    If the terrorists were winning, most American cities would be radioactive rubble by now. That we haven't been seriously attacked since 9/11 makes me think that we've given more than we've got.
     
  15. IglooDude

    IglooDude Enforcing Rule 34 Retired Moderator Supporter

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    Not where to apply it, but where to revoke it. ;)

    But anyway, the Bush Administration has made the case that this "War on Terrorism" is going to be a long one. The threat of terrorist attack is not a binary - we've always been threatened by it to some degree (in the past few decades anyway) and likely it'll never go away. Certainly this isn't a disruption of the President's emergency exercise of powers, these detainees obviously aren't going anywhere. It seems unlikely to me that the drafters of the Constitution felt that the "public safety requiring it" would be a long-term, even open-ended circumstance applying effectively to the entire planet.

    Besides, SCOTUS should be ruling on whether Gitmo is effectively US territory in the first place, which they'll apparently do in this case.
     
  16. eyrei

    eyrei Deity Retired Moderator

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    The terrorists will also win if we give up parts of our constitution to fight them. They do not need to physically destroy us...making us more like them would be a victory.

    And the leeway you speak of is in direct violation of our own laws. Maybe I would agree to that in the face of a major insurrection, but compromising the laws that make this a great country to detain a few people of dubious guilt and importance is a victory for the terrorists.
     
  17. Elrohir

    Elrohir RELATIONAL VALORIZATION

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    And I think it's unlikely that the Founder's would have permitted the federal government controlling the state's through the giving or taking of "highway funds" which are spent on everything but highways. ;)

    Anyway, as I said, I don't think the SC has the knowledge or expertise to decide in every little case what's acceptable and what isn't. As long as the argument that it is for national security is a reasonable one, and the president has been legally authorized by Congress, then that should be enough.

    Are you really comfortable with the idea of the Supreme Court overriding both of the other branches of government, just like that? Checks and balances were put in to check all three branches, not just the executive or legislative branches. It seems to me that as long as Congress legally authorizes the president to suspend habeas corpus in limited circumstances, then the SC shouldn't interfere. Because the judicial branch is as much of a threat to civil liberties in the US as the executive or legislative....we've got to keep them all in check, and sometimes people forget that.

    I definitely think that Guantanamo should count as US territory.
     
  18. Elrohir

    Elrohir RELATIONAL VALORIZATION

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    What are you on about? :crazyeye:

    We aren't giving up parts of our constitution. The constitution authorizes the suspension of habeas corpus "when the public safety requires it". Congress has authorized the suspension, and the president has used it. Where's the constitutional violation? And more like them? What? Not immediately charging terrorists makes us the moral equivalent of terrorists?:crazyeye:

    Look, as I said, I think they should charge these guys and be done with it. But saying we're becoming like them if we don't is crazy. Blowing up innocent civilians and detaining terrorists without charge are hardly moral equivalents.

    Can you quote where, exactly, this directly contradicts the laws of the United States?
     
  19. illram

    illram Deity

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    In the end, the Bush administration got what they wanted out of Gitmo. Most of the original detainees have either been released or taken elsewhere as Camp Delta has continued to chug along throughout the years and years of litigation.

    It may be an important ruling in a long and controversial constitutional saga, but practically speaking I don't believe this will have much effect, because Gitmo will be defunct soon anyway.
     
  20. eyrei

    eyrei Deity Retired Moderator

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    The public safety requires no such extraordinary measures at this time, and if it did, it would almost always be required. There are always threats. We already have laws in place to deal with criminals. We should be using them instead of creating new ones after the fact (ex post facto).

    And holding people without charge for years is something we have derided other nations for throughout our history. That is why we have a right of habeus corpus.

    I'm not saying we are already like terrorists, but that this is one step in that direction, and one we could and should avoid.

    Regarding congress authorizing this...well, the Supreme Court has the authority and the duty to review the authorization.
     

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