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more on new habeas law
From: David Farber <dave () farber net>
Date: Mon, 2 Oct 2006 08:28:25 -0400
Begin forwarded message: From: Jonathan Zittrain <z () oii ox ac uk> Date: October 2, 2006 6:29:50 AM EDT To: Dan Shoop <shoop () iwiring net>, dave () farber net Subject: Re: more on new habeas lawI think we're missing the forest for the trees. So long as any category of person doesn't get a form of neutral review for his or her detention, the Executive (whether this administration or a future one) can simply designate anyone to be in *that* category and the designation will stick, since it's unreviewable. That's one reason why those people not covered by Article III of the Geneva Conventions (regarding "lawful" prisoners of war) are thought to be covered by Article IV of the Geneva Conventions.
In that context, why should Congress pass a bill that says that American citizens can be declared unlawful enemy combatants, but that lays out no rights for them at all? This is especially troubling because the administration has maintained that they have zero rights, and I don't share your certainty that the rights of citizens are "already codified" in this circumstance. Read Hamdi and you'll see how confused the Supreme Court was on this score, failing to reach a majority rationale for the outcome of the case. The administration's position on this certainly is material, because while "the law is the law," it is not self-executing. The Executive's unilateral interpretation, in the case of someone detained indefinitely -- perhaps without any notice to the public that the person's disappearance is occasioned by the government seizing him or her -- is difficult to challenge. Padilla is an actual case of an American citizen seized and held on American territory with a claim that no review of any kind is called for. Habeas is designed to facilitate a judicial review of the nature and circumstances of the detention and it's a start, but it's not a trial, and in an open-ended war a detention becomes a life sentence from a crime neither alleged nor proven to a court.
This is what a charge of treason is for. I don't think my view requires lawyers to run around battlefields; we're talking about a deliberative seizure of someone in a civilian airport on US territory with plenty of time to figure out what he's done and what to do with him, apart from the exigencies of bullets flying.
At EDT 07:48 PM 10/1/2006, Dan Shoop wrote:
At 10:32 AM -0400 10/1/06, Jonathan Zittrain wrote:I don't think Dan's analysis contradicts Bruce Ackerman's worries.The bill allows that an "unlawful enemy combatant" can be either a citizen or a non-citizen (a "person").While an can clearly be either a citizen or an alien, and defines the term "unlawful enemy combatant", the mere definition of a term in the law doesn't mean that's who the law covers. The bill quite clearly states, after this definition, that it applies to *alien* "unlawful enemy combatants".Most of the law then goes on to talk about what happens to "alien unlawful enemy combatants," including review of status by a tribunal (but by no particular deadline), and trial by a military commission affording "judicial guarantees which are recognized as indispensable by civilized peoples." (That's drawn from the Geneva Conventions, but the law also says that "[n]o alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.")This is a necessary clarification by the law. As non-state actors (those affected) the Geneva conventions do not apply.OK, so what happens to non-aliens -- American citizens -- who are deemed to be unlawful enemy combatants?They're not covered by the law.In the Padilla case, the government maintained that Jose Padilla, an American citizen, was an unlawful enemy combatant and deserved no access to the courts at all.And this law doesn't cover him either. Bring up his case in this situation is non sequitur.As Dan points out, the bill itself says nothing about the rights afforded to American citizens.The rights afforded to American citizens are already codified. Nor are they abridged in any way by this law.But as Bruce suggests, that shouldn't put one at ease -- there's just a hole in the bill on whether American citizens get habeas, and what I think is the current administration position that they do not.The administration's position on this is immaterial. The law is the law. This /new/ law in no way changes the fact that citizens, and even aliens, get habeas. What this law denies is habeas to alien unlawful enemy combatants.We only know for sure in the bill that non-citizens, including permanent residents, do not.No, non-citizens, including permanent residents aliens, *do* get habeas, they only don't get habeas if they are unlawful enemy combatants. If they are lawful enemy combatants they get habeas too.This entire session of Congress fell short of even 100 days. More than a quarter of those were half days or less. As far as I'm concerned, Congress' behavior in terms of legislation and logistics this session has been disgusting and an affront to the honor of our country.This too is non sequitur to this matter. Congresses latest session was short mainly b/c of upcoming elections, something which is historically routine such times.-- -dhan---------------------------------------------------------------------- -- Dan Shoop AIM: iWiring Systems & Networks Architect http:// www.ustsvs.com/ shoop () iwiring net http:// www.iwiring.net/1-714-363-1174 "The wise man doesn't give the right answers, he poses the right questions." -- Claude Levi-Strauss---------------------------------------------------------------------- --iWiring provides systems and networks support for Mac OS X, unix, and Open Source application technologies at affordable rates.
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