"The world is beginning to doubt the moral basis of our fight against terrorism"

Actually the law only applies to non-citizens. A citizen still has habeus corpus even if suspected of terror related activities.

 

When is illegally entering the country going to be considered a "terror" related offense? That might make people south of the border think twice.

 

green card holders and other legal aliens are not considered citizens and therefore are subject to indefinite detention, as are illegal aliens.

However; citizens are still protected and can not be held under this law unless they have revoked their citizenship ala the American Taliban.

 

Wrong.

Law Professor Marty Lederman...

Law Professor Bruce Ackerman...

 

It's a tossup, what exactly will happen on this specific issue in terms of American citizens.

In WWII, the Supreme Court ruled in Ex Parte Quirnin that US Citizens can be tried in Military commissions if they can be classified as "unlawful belligerants." The case involved potential Nazi saboteurs that were discovered to be American citizens. It was later exposed that the FBI had completely botched the intelligence surrounding this group of Nazis and in an effort to silence the fact that the FBI was utterly incompetent as well as spin this as some sort of victory on Nazis, Roosevelt moved to try them in military commissions that would carry none of the traditional court safeguards and rig the game so that the government would come out looking like champions.

HOWEVER, in 2004, the Supreme Court ruled in the case of Hamdi v. Rumsfeld, the Supreme Court ruled that constitutional protections did apply to Yasir Hamdi, who was an American citizen being detained in Guantanamo. He was later released into Saudi Arabia on the condition that he renounce his citizenship.

So these two rulings almost directly conflict on the question of civilian military commissions. The Bush administration has in fact cited Quirnin as the justification for the use of military commissions. Furthermore, Quirnin essentially interpreted part of the UCMJ (Uniform Code of Military Justice) to contrive some legal power to prosecute citizens using military commissions.

Now in terms of the actual legislation that passed, there are some significant constitutional issues. First and foremost, the question of prosecuting citizens which should have been resolved two years ago in Hamdi. Next, the question of habeas corpus which Hamdi also partially answered. Four justices (including Rehnquist and Kennedy) used the Geneva Conventions as a basis and stated that habeas corpus is applicable to "enemy combatants" Point blank in the opinion of the decision, habeas corpus is cited and extended to all enemy combatants. Additionally, in the case Rasul v. Bush, the Supreme Court ruled that the court system was applicable to Guantanamo detainees and that limited habeas corpus rights do apply. (I think the only thing they can protest is illegal detainment)

Either way, several court cases have created limited rulings and answers to this issue so at some point a legal challenge has to arise but the timeframe for that challenge will take a while so in the short term this thing will stand. In the long term, however, I expect parts of this law to be struck down by the courts.

 

Good post, and a healthy dose of optimism.

One can only hope that something as fundamental as habeas corpus and the Geneva Conventions will be upheld in the courts.

I hope...

And that's as optimistic as I can be.

 

It's an attitude like yours -- and countless other Americans, the majority of whom seem 'OK' with anything that they perceive will make them 'safe' -- that makes me believe that we, as Americans, deserve whatever leadership we get, no matter how corrupt, undemocratic, or outright tyrannical they might get.

No wonder our 'elected' leaders think they can get away with almost anything, but in reality, the average American could care less.

Believe me, Faos, you will get the government you deserve...

As far as American citizens are concerned, I love how some posters act as if it's a mere 'hypothetical', there already have been cases involving American citizens whom the executive branch wanted held indefinitely, without presentation, and without due process. In one or more of the cases, the courts moved in to challenge the administration's stand and asserted the right of Americans to due process regardless of what they're being charged with -- something no one ever thought was in question, that it was even debatable. So when you address this issue, you don't have to use a hypothetical situation to further your argument. Our government has already shown a willingness to deny Americans their right to due process simply by labeling them as a threat (sounds familiar?).

But, again, if the average American doesn't care, then we will get what we -- collectively -- deserve.

It's rather ironic that some Americans are looking to the Supreme Court -- the only unelected body of the federal government -- as a last resort to preserve our ever-diminishing and conveniently 'redefined' rights...

 

I know rimrocker already pointed this out. But you wrong. American citizens lost habeas corpus as well. Actually we didn't lose it, the President took it away with the help of his buddies and the weak in congress.

Sadly some people who claim to be 'American' don't even care.

 

Read the Ackerman article - it clearly states that habeus corpus is still in effect for American citizens...even though they may have to face a military tribunal afterwards.

I'm not saying this bill is good, but let's make sure we're accurate, it does not take habeus corpus away from American citizens.

 

But it doesn't say it (the Ackerman article) doesn't say that the bill maintains Habeus Corpus protections of American citizens. What it says is that the President and Sec. of Defense can determine someone is an unlawful combatant and detain them indefinately and subject them to military justice. Calling someone an unlawful combatant isn't the same as Habeus Corpus.

 

The removal of habeaus corpus applies only to aliens. This is widely reported in the news media...

 

I have to admit I haven't read the whole bill but from my understanding of it is that the wording of it is rather vague regarding Habeus Corpus and a broad reading of it would also allow the Executive to strip Habeus Corpus protections from even citizens. What I'm guessing you are hearing is what supporters of the bill are saying but again from my own understanding there is nothing in the bill itself that states that Habeus Corpus is protected and since the bill allows for the indefinate detention of American citizens deems unlawful combatants under such a designation even American citizens wouldn't have Habeus Corpus protections. Since for one the determination of being an unlawful combatant isn't a judicial judgement and indefinate detention means that even an American citizen is held in custody without the guarentee of a court hearing where they would have to be guarenteed Habeus Corpus.

I will say again that I haven't had the chance to read the bill itself but will try to to see if that's the case.

 

Actually, in this case the Supreme Court helps out Bush substantially on this issue. In the Hamdi case, the court ruled that habeas corpus rights do apply to citizens being detained BUT due to the unique nature of the war on terror, that right is stripped down and the rules of evidence are more diluted. In fact, in response to this ruling, the detainee treatment act mandated the creation of tribunals that grant each detainee a review of his or her status. This, unfortunately, does qualify as meeting the lower habeas standards created by the Hamdi decision. Something very interesting in the Hamdi decision, is the fact that Scalia was probably the most critical of Bush's policy arguing that Hamdi must be given full habeas rights, arguing that habeas corpus rights were a constiutional guarantee that cannot be altered unless the government suspended the writ outright. Unfortunately, a majority of the justices went along with O'Connor's opinion that a limited version of habeas corpus was acceptable in wartime.

Furthermore, in the Rasul decision, the court ruled that habeas rights extend to Guantanamo Bay camps and even extended habeas corpus rights to ALL detainees but based this decision solely on the federal habeas corpus statue rather than the 4th/5th amendment and the 14th amendment equal protection clause. Functionally, this meant that rather than being a constitutional right, the right of habeas corpus was a legislative creation and could easily be undone by Congress if they chose to. (which they basically did)

Also, in the Hamdan decision, the court struck down Bush's original tribunals on the grounds that the UCMJ (uniform code of military justice) never authorized them, which essentially gave more credence to the idea that this was a legislative question rather than a constitutional right.

I originally thought that the odds were good that a large majority of this legislation would be struck down but after reading more I'm really not so sure anymore. The legislation is poorly written and parts of it do violate the aforementioned Supreme Court decisions but not as much as I originally thought.

 

I haven't read it either,but am basing my argument on media reports from various sources who have stated that it only applies to aliens. I do think if it did apply to citizens it would have never passed. Even repubs would have opposed it.

 

That sounds like a good analysis but my understanding is that this law is written directly in response to the Hamdan decision and addresses many of the issues raised. As I stated previously my understanding in regard to Habeas Corpus for citizens is that its written vaguely enough to allow the executive branch to detain a US citizen indefinately just by calling them an enemy combatant and not giving them a legal process where they would have habeas.

As many have pointed out this law will very likely have several court challenges.

 

And several Repubs have opposed it. The bill doesn't say it removes Habeas protections directly from citizens but I don't believe it protects them directly and the danger with it is that it is written very broadly and vaguely.

 

A bill can not remove the rights of habeas corpus for U.S. citizens since it's in the constitution and would require an amendment. It would be directly overturned by the Supreme Court.

 

Just stop and think about this... there's over a page of posts trying to figure out whether a bill passed by both Houses in the United States Congress actually strips US Citizens of habeus corpus rights or not.

Unbelieveable.

 

Which is why I said it will likely face many court challenges.

Just because the court should overturn something though doesn't mean we should tolerate bad laws being passed. The problem we have with having one party controlling all branches of federal government is that a patently unconstitutional law could be passed and survive legal challenges if 5 USSC Justices choose to not see it as Constitutional.

 

The bill doesn't even need to mention about it's been removed from citizens as well, to risk a challenge. The bill provides the means to start the action practically. Once you are detained, you won't be shown any evidence against you, so you can't fight for anything, including rights of habeas corpus. The bill doesn't remove that, just stop your opportunity to exercise that. How convenient.