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Guantanamo Detainees Entitled to Court Review

By TChris, Section War on Terror
Posted on Tue Feb 01, 2005 at 05:29:04 AM EST
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Bump and Update: This is still a big story:

by TChris

Federal Judge Joyce Hens Green is unimpressed with the tribunals devised by the Bush administration to decide whether prisoners at Guantanamo should continue to be held as enemy combatants. Judge Green rejected the administration's claim that the tribunals satisfied last year's Supreme Court decisions permitting Guantanamo detainees to challenge their detentions. (TalkLeft background on the tribunals can be found here and here. TalkLeft background on the proceeding before Judge Green is here.)

"It would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected 'enemy combatants' at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees," Green wrote. "That, however, is not the relevant legal test."

Judge Green was "brought out of retirement to consider the legal questions raised by multiple suits filed in federal court in Washington on behalf of Guantanamo detainees." Her decision conflicts with a ruling by the only federal judge who decided to keep a case filed by Guantanamo detainees rather than reassigning it to Judge Green. Judge Richard Leon dismissed
 requests made by seven detainees for court review of their detentions, saying he found "no viable legal theory" permitting the court to order a detainee's release. Judge Green found that "theory" in the Constitution, while Judge Leon deemed the right to due process to be inapplicable to detainees.

The conflict between the decisions will likely be resolved by an appellate court. Stay tuned.

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    Guantanamo Detainees Entitled to Court Review | 25 comments (25 topical)
    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#1)
    by Talkleft Visitor on Mon Jan 31, 2005 at 07:25:47 PM EST
    Why do the Federal judges hate America? Isn't this going to demoralize our troops and embolden our enemies? On the serious side, we depend on the judiciary branch to a large extent right now to maintain this republic. It won't be popular, but I believe they may be equal to the task, Thomas and Scalia notwithstanding.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#2)
    by Talkleft Visitor on Tue Feb 01, 2005 at 12:30:08 AM EST
    Is the US gov appealing this decision?

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#3)
    by chris on Tue Feb 01, 2005 at 04:43:26 AM EST
    Yes, the Justice Department has already signaled its intent to file an appeal. When (ouch!) Gonzales becomes Attorney General, he can more actively pursue the shredding of the civil rights of people of whom he doesn't approve. C

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#4)
    by Talkleft Visitor on Tue Feb 01, 2005 at 05:39:23 AM EST
    Chris - Gasp. Shock. I am stunned, yes stunned that our AG wouldn't approbve of terrorists, illegal combatants and others wishing us harm. Yes, the man is obviously dangerous. (That's sarcasm, son, in case you're a little slow this morning.) BTW - I again ask how we can have a US verson of due process when the evidence chain is apt to extend from a battle field, have secret communications in it, and be years old. After we release'em, who of you will volunteer to try and capture them the second time?

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#5)
    by Talkleft Visitor on Tue Feb 01, 2005 at 06:30:50 AM EST
    Jim is right, we need huge penal colonies. Everyone who we capture who might be a terrist or who is sold to us in some foreign country under God knows what circumstances with the understanding that the sold person is a terrist must be held forever in this detention system. I think we should call it the liberty gulag. Or maybe freedom detention system. Some of us do seem to be a little slow this morning.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#6)
    by Talkleft Visitor on Tue Feb 01, 2005 at 06:37:10 AM EST
    This will be overturned.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#7)
    by Talkleft Visitor on Tue Feb 01, 2005 at 06:44:10 AM EST
    Jim, how 'bout signing up to the ICC? Or is that too much like 'due process'?

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#8)
    by Talkleft Visitor on Tue Feb 01, 2005 at 07:08:50 AM EST
    I hope that at some point we get numbers: how many innocents were imprisoned and tortured because they were presumed guilty in our "kill 'em'all and let God sort 'em out" anger. We need to understand this so we don't make the same mistake next time.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#9)
    by kdog on Tue Feb 01, 2005 at 08:17:24 AM EST
    Good news, I though due process had become another of those "quaint" nuisances like the geneva convention. How I long for leadership that tells us things like "We have nothing to fear but fear itself"....instead of "fear...Fear....FEAR all brown skinned men and keep them locked up forever, guilty or not, just in case"

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#10)
    by Darryl Pearce on Tue Feb 01, 2005 at 08:22:20 AM EST
    We need to understand this so we don't make the same mistake next time Alas, we've been killing each since the first generation out of the Garden and all of recorded history. ...

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#11)
    by Adept Havelock on Tue Feb 01, 2005 at 08:39:26 AM EST
    Kdog- This administration will never take the moral high road of "we have nothing to fear but fear intself". Fear-Mongering is the #1 tactic in the Rove/Bush playbook, best illustrated by the infamous "45 minute" WMD speech in Cincinatti, or the attempts to generate hysteria about Gay Marriage before this last election? BTW- Yes Daryl, we've been killing each other since we came down from the trees. Probably since we left the oceans. Possibly before then. However, this does not mean that we should not hope to and attempt to improve ourselves. Indeed, it is the fact that we can strive to be better than our nature that makes us different from the other animals. As for the decision, Judge Green is taking a step in the right direction. Yes, we need to investigate those suspected of terror. Yes, we need to abide by the rule of law in doing so. Yes, we should not discard the constitution and it's right of due process just because it's inconvienient.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#12)
    by Talkleft Visitor on Tue Feb 01, 2005 at 08:42:37 AM EST
    PPJ - What can I say to or about you? I'd feel sorry for you except your giving away my F***ing Civil Rights. Don't you realize that as go they, so go you? If the government (AND YOU!!) don't care about the guilt or innocence of detainees why should the government (or me) care about YOUR guilt or innocence. To follow your logic, if you were arrested and convicted for a felony you didn't commit you would happily sacrifice your life to make sure the government doesn't release a really bad guy by accident. If you tried to get on an airplane and found your name on a no-fly list and couldn't get it off, you'd consider not flying to be your patriotic duty since you support your governments actions against terrorism. When you imagine meeting your buddy Charles Grainer you envision you and Chuck posing on a pyramid and doing a few college cheers, in brotherly comraderie. When I picture you meeting Charles Grainer, I imagine you as one of his "abuse" (it's not torture, remember)victims, saying "But Chuck - read Talk Left - we're on the same side" and Grainer replying "Shut the F*** up you MFing Camel Jockey" and stepping on your face with his big hard boot". ... I think I hear a game of five-card stud calling.... "Jim...jim..."

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#13)
    by Talkleft Visitor on Tue Feb 01, 2005 at 08:42:40 AM EST
    Kdog, The man who said, and for whom you yearn, "We have nothing to fear..." is the same man who rounded up, took property from, and imprisoned American citizens of Japanese descent. Your ignorance is astonishing!!!!!

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#14)
    by Adept Havelock on Tue Feb 01, 2005 at 08:59:42 AM EST
    BocaJeff- Abe Lincoln arrested members of the press he didn't agree with, suspended Habeas Corpus, and generally trampled on the Bill of rights... I gather that you are also equally outraged by this. Or do you reserve you outrage for the actions of only one party? And no, the behavior of one does not excuse the behaivor of the other. Both actions should be condemmed. Yes, FDR was wrong to incarcerate the Japanese-Americans. This does not change the fact that the Bush administration has embraced spreading fear as a political tactic, while FDR's administration attempted to get americans to look past it.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#15)
    by Dark Avenger on Tue Feb 01, 2005 at 09:10:38 AM EST
    If by "battlefield conditions", PPJ is referring to reports that some of the detainees were arrested on no more than the say-so of neighbors or enemies without any real 'proof' that they were part of AQ/Taliban activities in whatever part of the world they came from, then, yes, having the AG to get up in court and tell a judge this is probably a bad thing to have happen here in America. Why don't we make iron masks for them to wear, since we've adopted an old French tradition, the lettre de cachet? If it was good enough for Louis XIV and Napoleon I, it should be good enough for the enemy and any America-hating leftists who get our way. "Fiat justitia ruat coelum" Let justice be done, though heaven should fall.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#16)
    by Dark Avenger on Tue Feb 01, 2005 at 09:17:45 AM EST
    "get in our way"

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#17)
    by kdog on Tue Feb 01, 2005 at 09:56:17 AM EST
    TY Adept for responding so well to the very fair criticism of FDR. I didn't say FDR was infallible, but I think the "We have nothing..." quote is one of the wiser things said by a president in this century. I believe fear itself is as much of a threat to our way of life as any terrorist, probably more so. What I find funny is bocajeff will criticize FDR and defend similar actions by GW regarding detainees. You said something about ignorance, well if the shoe fits... C'mon bocajeff, due process for all people sound like a good idea to you? It sure does to me. It would do a lot to return our once great nation to the high standard it once held. All right/left rhetoric aside, I thought all Americans regardless of ideology could agree on this. We shouldn't detain people without due process. It's a question of right and wrong, not a question of republican or democrat, liberal or conservative. I'm fairly liberal, yet I believe in balanced budgets, small gov't, gun rights, and freedom for the individual above all else. This often leaves me with no one to vote for, but that's another topic. Don't let your ideology put you in a cubby hole with torturers, war mongers, and profiteers jeff. Good day sir.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#18)
    by Talkleft Visitor on Tue Feb 01, 2005 at 10:01:38 AM EST
    I have a crazy idea. If it is important to detain these "enemy combatants", lets have some checks a balances. How about a fingerprint and photo for everyone held by the three branches of Government and a time limit before due process? I understand the need to protect National Security, but I want a Nation worth protecting too.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#19)
    by pigwiggle on Tue Feb 01, 2005 at 10:05:27 AM EST
    It is a self-evident truth, self evident to this person anyway, that all people are equally endowed with a set of inalienable rights; one being due process.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#20)
    by kdog on Tue Feb 01, 2005 at 10:14:25 AM EST
    Amen pigwiggle. Too many seem too willing to accept these inalienable rights for themselves, yet deny them to others they have never met. I find that incredibly selfish and shortsighted. It's one human race, regardless of how many labeled subsets we create.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#21)
    by pigwiggle on Tue Feb 01, 2005 at 10:23:37 AM EST
    “Too many seem too willing to accept these inalienable rights for themselves, yet deny them to others they have never met.” As a point of pragmatism; these same folks might find themselves, citizenship revoked, growing old in the newly minted US gulags. Or perhaps not; where government and bureaucracy are concerned I’m a resolute pessimist.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#22)
    by Talkleft Visitor on Tue Feb 01, 2005 at 12:36:58 PM EST
    The comments supporting the "detention" of enemy combatants starts with one basic assumption. The assumption makes all further argument irrelevant. So what is that assumption? The detainee is a terrorist therefore no due process is necessary. Let's look at some of the falacies behind that assumption. Even the advanced legal and procedural protections of the U.S. criminal system does not prevent innocent persons from being convicted of crimes. Note those who have been conveicted of murder or remember that little town in Texas where one paid informant destroyed the lives of many falsely accused of selling drugs. Second, the conditions under which some of the detainees were apprehended provided ample opportunity for error. In addition to thos turned in by good citizens, there were also those turned in by others harboring a grudge or being paid a bounty by the U.S. for turning over combatants. Third, the inability to provide a "chain of evidence" was complicated by a failure to anticipate ever providing due process. The military was prepared to handle such issues during the first gulf war and did not end up with such open ended detentions as seen in our two current military adventures. Fourth, the courts have not demanded the same kind of due process or evidentiary proceedings as required in a U.S. court. I have been a judge advocate and am aware of how sensitive evidence can be utilized by counsel to permit the accused some chance for justice. Please note that over 700 Arab individuals were detained in the United States after 9/11 without a single enemy combatant being found. These thngs have a way of growing. We have already attempted to extend the concept of indefinite detention and denial of due process to a U.S. citizen in the United States. This is not a path the we want follow.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#23)
    by Talkleft Visitor on Tue Feb 01, 2005 at 04:49:25 PM EST
    kdog - Hmmmm, so you long for a return of the administration that imprisoned Japanesee Americans and had military tribunals that hung 6 illegal combatants. Wow. Matt W - Would agree to review the GC? J.Moir - No, I just believe that Military Tribunals are better able to to sort them out. They are not american citizens, and do not rate the same rights as american citizens. If that bothers you, sorry. BTW - The comparsion of how prisoners were held, etc., in Desert Storm and now is apples and oranges. mfox - Well, you certainly have a version of civil rights that few do. Is that missionary ?? Or something more unsual? Can you understand this? I am not talking about American Citizens's civil rights. See above.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#24)
    by kdog on Tue Feb 01, 2005 at 06:43:21 PM EST
    I abhor those criminal mistakes FDR made Jim, and can't defend them. But we were attacked by a strong military representing an empire, not 9 hijackers representing a terrorist group. To compare the two is somewhat ridiculous. And shouldn't we have learned from that mistake? To deny a man his inalienable rights should be against everything we stand for. Kinda makes me wonder what our country stands for after all. And you mean to tell you wouldn't take FDR in his prime over Bush and the boys right now in a heartbeat? We may disagree, but I figured you'd take that deal.

    Re: Guantanamo Detainees Entitled to Court Review (none / 0) (#25)
    by Talkleft Visitor on Tue Feb 01, 2005 at 08:56:51 PM EST
    And lots of the founding fathers were slave owners. It's kind of important to keep in mind the evolution of our political philosophy. Also, like whether women should be allowed to vote, or black people be allowed to own real estate. The arc of history bends towards justice. The evolution of our political thinking moves towards more enlightened understanding. We don't have to make the same mistakes that FDR made a few decades ago. We have the option of building and learning from mistakes if we choose to. Or we can make excuses for Abu Ghraib. They never had it so good.

    Guantanamo Detainees Entitled to Court Review | 25 comments (25 topical)