Tuesday, October 03, 2006
The different types of habeas corpus
Until I read Richard Posner's clarifying book, Not a Suicide Pact: The Constitution in a Time of National Emergency
But let’s ignore that the critics are wrong about the entitlement of al Qaeda terrorists to constitutional or treaty-based rights to habeas. There is an even more gaping hole in their attack on the new law. Congress has already given al Qaeda detainees the very rights the critics claim have been denied.
Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.
This was a revolutionary innovation. As we’ve seen, Rasul did not (and could not) require Congress to allow enemy combatants access to the federal courts. Congress could lawfully have responded to Rasul by amending the habeas statute to make clear that al Qaeda terrorists have no more right to petition our courts in wartime than any other enemy prisoners have had in the preceding two-plus centuries. Instead, Congress responded by giving the enemy what are in every meaningful way habeas rights.
Read it all. Then print it off, put it in your wallet, and whip it out at the next tendentiously left-wing dinner party you have occasion to attend.
9 Comments:
By 
Cardinalpark, at
Tue Oct 03, 09:16:00 AM:
Alternatively, you can argue with far less intellectual prowess (it's tough to keep up with Posner's very large brain), "I don't care about al qaeda detainee rights."
Interestingly, even on the New York City liberal cocktail circuit, that tends to differentiate the the truly crack ingesting, neo-commie liberal from the well intentioned liberal. I have found that most well intentioned, but intellectually serious, "I love America liberals" don't much care about al qaeda detainee rights, are happy to eavesdrop on al qaeda phone calls and check out there banking transactions.
It's a modest overgeneralization, but those who seem to ache for al qaeda detainee rights seem to overlap prominently with profoundly unserious people who don't much care for the country they live in.
By Consul-At-Arms, at
Tue Oct 03, 01:25:00 PM:
I've linked to you here: http://consul-at-arms.blogspot.com/2006/10/re-different-types-of-habeas-corpus.html
By 
, at
Tue Oct 03, 03:33:00 PM:
I have tried to gin up interest in the issue of Hamdan v Rumsfeld, McCarthy's columns and the SCOTUS perversion of Geneva Conventions Common Article 3. Can't get no traction with readers at The Elephant Bar which is a spin-off of the Belmont Club. Hope you have had better response.
By Lanky_Bastard, at
Wed Oct 04, 01:11:00 AM:
Actions speak louder than words. Remind me of our bold preservation of habeus once 1/10th of the prisoners have seen a federal court. (ie. I'll believe it when I see it)
CP, if you want to find someone who is "profoundly unserious" look at the US Attorney who argued before the Supreme Court that US law does not have jurisdiction of Gitmo, because it is on Cuba. That's our government at work.
Some of us liberals (I can't vouch for the New York cocktail-circuit variety) not only love the US, but are proud of it's concept of justice and want to maintain a post-Renaissance standard of law. Others recognize that we are in a culture war, and the way to win a culture war is to have a better culture. It's this simple: America has exceptional standards, ones we are proud of, and we should not compromise them for terrorists. We should go on proving that our way of life is different from opressive Middle Eastern regimes. It's not just different, but significantly better.
It's a modest overgeneralization, but those who seem to ache for the waterboarding and trial-free lifetime incarceration of prisoners seem to overlap profoundly with the blindly sychophantic nationalists who boldly proclaim the US is the greatest country on Earth, but have never taken the time to analyze why we are great - and in their ignorance undermine our very principles.
By Cardinalpark, at
Wed Oct 04, 01:46:00 PM:
Lanky - for the record, I have no problem with waterboarding of al qaeda detainees - enemy combatants who fail to even qualify as POWs; I also have no problem holding them indefinitely, in humane conditions at Gitmo, without trial. It's not a criminal law thing.
I am not quite sure what the implication of "sycophantic nationalist" is, but let me describe to you from where I think our nation's greatness emanates, among other places -- liberty for which we are prepared to fight and die; liberty for which people with cojones in other less fortunate circumstances pick up and move here (not the other way around); liberty above all else.
References to curtailment of liberties in times of war require appropriate historical handling. We are also great, and free, Lanky, because we have defeated all of our enemies in war. Suspensions of habeus corpus happened, and we won. The Alien and Sedition Act happened and we won. Internment happened, and we won. American soldiers marched into a concentration camp, saw the monstrosity of the Final Solution up close, and summarily executed Germans on their knees begging for mercy. I never said we were perfect. Just the best.
By Lanky_Bastard, at
Wed Oct 04, 05:43:00 PM:
I see these words "liberty above all else" as you rationalize torture and indefinite detention without due process of law. You have the right answer, but I don't think you know what it means.
By Dawnfire82, at
Wed Oct 04, 08:06:00 PM:
On the contrary, I don't think that you know what it takes to secure our liberty.
If I told a regular person that there is a concerted and deliberate effort by foreign powers, some in conjuction with each other and with terrorits groups, to harm the US and our interests through covert means and people like me are required to work, also covertly, to thwart them, they'd roll their eyes and quip something like, "Do you think you're James Bond then?"
We live in a happy little bubble, and most of us have no idea what kind of oppression, pain, misery, hatred, avarice, and violence exist outside our hallowed borders, trying to force their way in.
By Cassandra, at
Wed Oct 04, 09:07:00 PM:
Bloody fascist :) Good book, isn't it?
By Cardinalpark, at
Wed Oct 04, 09:27:00 PM:
Lanky - you are deaf (or blind) I guess. Do you acknowledge history?
Al qaeda detainees are not entitled to due process. You are mixing your concepts. They are enemy combatants.
And I am not rationalizing a thing. I told you quite clearly what I am comfortable with. I am not criticizing you for your absence of that comfort. As DF82 said, I just think you have no idea what it takes to secure the country.
Sleep well tonight knowing others do.
