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This page contains a single entry from the blog posted on November 15, 2005 5:11 PM. The previous post in this blog was Wisdom from the Far East. The next post in this blog is Where we swore, "Forever friends". Many more can be found on the main index page or by looking through the archives.

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Tuesday, November 15, 2005

Ron, Gordon, and Gitmo -- Part Two

The Senate has passed what they are calling a "compromise" amendment to last week's vote to deny access to U.S. courts for prisoners at our military prison camp in Guantanamo, Cuba. The vote on the amendment was 84-14, with the entire Northwest delegation, including both Oregon senators, voting in favor this time.

Thirteen Democrats and Arlen Specter (R.-Pa.) voted no.

The "detainees" will get access to the federal courts to raise some issues, but not others, surrounding their confinement. Here's the text of the language on court access. I doubt that many civil libertarians will find it a "middle of the road" approach at all:

(d) Judicial Review of Detention of Enemy Combatants.--

(1) IN GENERAL.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

"(e) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.".

(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.--

(A) IN GENERAL.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any decision of a Designated Civilian Official described in subsection (b)(2) that an alien is properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien applied the correct standards and was consistent with the procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government's evidence); and

(ii) whether subjecting an alien enemy combatant to such standards and procedures is consistent with the Constitution and laws of the United States.

(D) TERMINATION ON RELEASE FROM CUSTODY.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS.--

(A) IN GENERAL.--Subject to subparagraphs (C) and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) LIMITATION ON APPEALS.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) SCOPE OF REVIEW.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision applied the correct standards and was consistent with the procedures specified in the military order referred to in subparagraph (A); and

(ii) whether subjecting an alien enemy combatant to such order is consistent with the Constitution and laws of the United States.

The "compromise" label will allow Oregon Sen. Ron Wyden enough cover to emerge from behind his giant sacks of money and explain his wrong-headed vote from last week. As many leftie pundits have complained, when the chips were down, he was absent.

The net effect of the new provision is that some, but not all, of the rights that the Supreme Court recently found applicable to the Gitmo prisoners will now be denied. Not something the senior senator from the Beaver State ought to be bragging about the next time he comes around.

The fact that the United States is operating a prison camp in Cuba is one of the strangest things I've ever heard. The flap over the prisoners' rights just adds to the surreal nature of it all.

Comments (6)

Now of course I don't condone torture in any way, shape or form.

But you have to ask yourself...why did the Pentagon and the White House pursue this course of action: to have secret prisons out of the country?

And the simple answer is not because they want to torture these people BUT to keep them from being used by the ACLU and other similar law groups as pawns to further those groups' agenda of tying the hands of the government through the judicial process--with constant appeals of heinous murderers because of technicalities. The ALCU's complete disregard of the victims of crime has forced this situation.

So if you want to point fingers on why this has happened... it's not the Pentagon/White House... they are REACTING to the perversion of our judicial process by these groups over the past 30 years.

Like it or not.... we are in a war with an enemy who will show no mercy. Would I prefer to fight the Japanese or Germans or Communists who valued self-preservation over ideology--you betcha! But we are not that lucky. And all the hand-wringing about their rights is pretty much a suicide pact.

So I'm afraid Jack, I'm Wyden and Smith on this one...

We're sunk. They won.

"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."

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba."

To me, nothing more needs be said.

Is McCardle still the law?

Sure it is. You would have to change the Constitution to void it.

--

The Graham-Levin leaves people held in Guantanamo in legal limbo, the powers of appeal granted by it are basically meaningless, the only benefit I see here is that it gives Levin and Graham some excuse to claim a high moral ground again. Or so they think. That unquestionably is badly needed these days.

The amendment itself is an excellent example of a terribly shoddy legislative work, shi..ty really, see this technical analysis if interested. But what can you expect from something that was cooked up in a day or two w/o any meaningful public discussion.

Didn't Lincoln suspend the writ of habeus corpus during the Civil War? And, if he did, did the suspension stand for the whole war?

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