by hilzoy
Matt Stoller at MyDD reportsthis:
“I’m told there’s an outside shot that House Democrats on the Armed Services Committee will put a restoration of habeas corpus into the Defense Department Authorization Bill being marked up tomorrow [i.e., today — hilzoy] and Thursday. Apparently Chairman Skelton has the votes but there are concerns about whether to have this fight now.
Now’s the time to let them know that this is something that we elected them to get done. There’s a bit of fear that this vote could put freshmen members at risk, though I don’t really know why as the data on this isn’t compelling and the attack ads just didn’t work in 2006.
The most important members to contact are Ike Skelton, antiwar freshmen, and members of the Armed Services Committee. Pelosi and Hoyer would be good too. (…)
Call and ask them to restore habeas corpus and put it in the Defense Department Authorization bill. This is an especially important message to deliver to freshmen members who have the moral credibility of having been in elected in 2006 in the teeth of Republican fear-mongering.”
I have no idea whether or not this is true, but I don’t think there’s ever a bad time to call your representatives and tell them to reinstate habeas corpus: the right of anyone detained by our government to ask on what grounds he or she is being detained, to receive an answer in court, and (if the grounds are insufficient) to be released. Habeas is what stands between us and the kinds of governments that can disappear people at will, and toss them into a black hole where the law cannot reach them. You can find out how to contact your representative here (top left corner of the page.)
Thanks.
I don’t understand how you can waste your time squabbling about habeas corpus when Congress wants to give money to Guam.
Don’t you understand that giving money to Guam is the defining issue of our generation?
Seriously, habeas shmabeus. Priorities, people.
I’d strongly recommend talking to your Rep about the need for it to be included in, or amended to, the appropriations bill. The line from Skelton, confirmed here, seems to be, “oh, we think it should be a standalone bill so that everyone in Congress takes a stand.” A standalone bill will be vetoed & they do not currently have the votes to override, and they damn well know it. It’s a gesture way to placate their base without actually doing anything.
You’re not actually going to get an answer from their staffer about this, but it’s worth asking & signalling that you know this.
“I encourage you to do whatever you can to reinstate the right of habeas corpus to any prisoner in US custody. Habeas corpus is a human right, not simply an American Citizen’s right.”
Sent that to Mr. Boehner…let me know when I can stop holding my breath.
As for attaching this to an appropriations bill, I’m a crazy dreamer. I think it should be a standalone bill and out in the open. So there’s not an ‘oh by the way’ impact with the public. Cold comfort to those in prison without the right should it be vetoed, but without convincing the public, the issue will have a very tenuous hold.
Well, I emailed my Representative, who happens to be on the Armed Forces Committee, but she’s the Republican Jo Ann Davis, so I don’t expect it to make any difference.
Man, when did a congresscritter being Republican mean you could expect them to not care about fundamental founding principles of the country? That’s really sad.
1) veto is a certainty if it’s a standalone bill.
2) polls on this actually suggest that the public’s ahead of Congress (though they depend very heavily on how the question is posed). I’d like them improve too but it’s perfectly possible to have a debate in terms of amendments rather than a standalone bill.
Um, did miss when habeas corpus got suspended? I thought the last time it was suspended was during the civil war.
Last fall, for non-citizens accused of being “enemy combatants”.
“…it’s perfectly possible to have a debate in terms of amendments rather than a standalone bill”
I’m not a political junkie, nor do I have a deep knowledge of the inside baseball of this, but why entangle this issue with funding. It seems to me that it adds distraction to the argument. I understand a connection can be made between the funding and no habeas as an instrument of the administration to prosecute the war, but obstructionism and gridlock become more of an issue with each bill. Perhaps the President will look worse than Congress, but they will all suffer in some way.
While we’re asking rudimentary questions, are we certain non-citizens on overseas battlefields had habeas rights previously? Up until this issue came up in the news, I never got the impression they did.
Oh for God’s sake. It looks like there are votes to pass it in an appropriations or authorization bill, and the President would have a hard time vetoing such a bill (I suppose it is possible, but also unlikely). There are not votes to override the inevitable veto of a standalone bill, and so people will remain locked up without a hearing until the day that Anthony Kennedy decides to hear their cases–which could be, oh, never–or until inauguration day 2009. I really don’t give a crap whether you think it “looks bad” or “gridlock” or if a couple editorial boards think so (the Washington Post and New York Times do NOT think so, and have criticized the Democrats for taking your low-priority, symbolic approach).
“battlefields”?!!!?
I’m banning myself from this thread.
Katherine, I didn’t mean to make your head explode, really. I don’t buy the “all the worlds a battlefield” thesis of the Administration, but a battlefield exemption to Habeas (not Geneva) makes practical sense to me.
, but a battlefield exemption to Habeas (not Geneva) makes practical sense to me.
and how do you know where any of these people were picked up? you can take the govt’s word for it, or you can…. well, that’s the only choice you have. it’s not like the people in jail have any real chance to tell their side of the story.
That’s a fair objection, when we’re dealing with maybe the CIA picking up people all over the world for god knows what reason. But if a certain military unit takes a prisoner, we should have a good idea of where they’re deployed, correct?
Jonas, I’m sorry to get all pissy, but most of them were picked up by the Pakistani security forces, then the Northern Alliance, the U.S. military running far behind. Even if it was the military, there are 3 guys there who were picked up in a &*^$@&@$&@^% Taliban prison, where two of them had been held since early 2000. This has been public domain for a while now. Further, they are nowhere near the battlefield now & have not been for five years; they are at a military base that was chosen because the United States has complete and permanent ownership and control of (except in the most meaningless, legalistic sense imaginable–Cuba supposedly the “ultimate sovereign” in the sense that if we up and left the land would return to Cuba–but the U.S. has a permanent lease against Cuba’s will that gives us all real power over the land).
Also, the MCA also suspended habeas for non-U.S. citizens in the United States.
(a short term exemption for genuine battlefield detention might be okay if they were treated in accordance with Geneva, but you wouldn’t actually need to suspend the writ, you could have a court say: “okay, you’re being held by the executive on a battlefield during a shooting war in accordance with Geneva, that’s all I need to know”. That would be a merits decision, not a habeas decision.
I would want habeas to be available in a case where, e.g., a gov’t was taking people on a genuine battlefield & sending them to death camps…not that I think this is likely to ever happen with the US gov’t but after the past 5 years I’m scared of law free zones.)
“Oh for God’s sake.”
Thanks for not using the exclamation point and sorry to cause even mild exasperation. I accept your assessment and am absolutely willing to retract the “what it looks like” aspect of my question. Taking that tack, I would have to say that the principle behind habeas in US courts is of such vital importance that it needs to be the center of debate. This is fundamental and I apologize for a lack of compassion which you may see in this position regarding innocents jailed today.
I would be interested in some resources for further reading on the subject, particulary primary sources–eg current law etc…
If only Katherine could get so fired up about defending our troops against AQ or Iraqi insurgents who don’t even follow the Geneva Conventions.
Sadly, her passion lies with others as opposed to the people who provide the freedom for her to even express an opinion that is so pissy.
Katherine, maybe the privacy a burka affords would help calm you down.
DNFTT
Just this: The US hanged people for not following Genava with that exact excuse (“We are not bound because the enemy isn’t!”), but that was of course before 9/11 and there were only 70 million Germans following that commie Adolf and now there are a billion commie Islamofascists threatening our bicycles.
Yes! Whenever bicycles are broken, or menaced by International Communism, George W Bush is ready! Ready to smash the Islamofascsts, wipe them up, and shove them off the face of the earth… Mash that dirty red scum, kick ’em in the teeth where it hurts. Kill! Kill! Kill! The filthy bastard ragheads, I hate ’em! I hate ’em! Aaargh! Aaargh!
My goodness. Our Constitution has many enemies, both foreign and domestic.
Not meaning to feed, but bril’s 5:36pm is beyond the pale, even for him/her. YMMV, of course.
I was thinking the same thing MB.
DNFTT.
but bril’s 5:36pm is beyond the pale
sure is.
Okay, I now feel really bad for jumping down the throats of two perfectly reasonable commenters with perfectly reasonable concerns…
Just for the hell of it, 4 reasons why I don’t think Taliban’s non-compliance with Geneva justifies Guantanamo: 1, 2, 3, 4.
Still, Katherine, I have to wonder where your passion is on the issue of Guam.
Steve-heh. Seriously, what’s with that?
It looks like Skelton isn’t budging. I’ve heard that Levin is also reluctant to attach it to a Defense Authorization or Appropriations Bill.
This interview with Sherrod Brown from a few months ago is very, very telling:
Right, Brown voted for the MCA to help the detainees. What a sweetie. That’s not what he said last fall, but for all I know he did believe that the bill would mean that all the prisoners got commission trials instead of being held without charge. There’s a combination of cynicism and cluelessness that’s a bit hard to untangle, but one thing is clear–it’s not a priority.
bril: personal comments like your 5:36 are out of bounds. This is your warning.
I think, Katherine, they’re under the impression that Guam is this little island of native people that we graciously saved from the imperial Japanese, and that now we’re paying them reparations as though we were the bad guys. What they somehow fail to grasp is that Guam has been under U.S. protection and control since 1898 and that the residents of Guam are U.S. citizens.
When bad things happen to U.S. citizens, like a hurricane or a foreign invasion, the government tends to help them out. This is not news; somehow, though, these guys seem to think that all the American soldiers who gave their lives in order to liberate Guam did so for the sacred principle that we would never pay these people a plum nickel. In Bizarro World, a Democrat can never manage to draw breath without somehow scorning the troops.
As to the subject at hand, guys like Sherrod Brown let habeas corpus slip away because they wanted to play it safe and win the election, and no amount of BS will change that. I agree with you that it’s now their obligation to make up for it and set things right. However, I’m not sure I’m as convinced as you that a veto of a standalone bill is such a sure thing; would Bush really piss on a fundamental precept of the Magna Carta like that, in front of God and everyone? The whole reason they got away with this in the first place is because it was just one element of the MCA and everyone could pretend like the bill was about a bunch of other stuff as opposd to habeas corpus.
At this point, I’ll take it any way I can get it, I just want the Democrats to acknowledge that it’s a priority one way or the other.
It’s certainly worth making him veto, though I am pretty pessimistic. (I’m not positive we have the votes to defeat a filibuster in the Senate, either). It’s just that when they say “it should be a standalone bill”–they mean “it’s not a high enough priority to risk the appropriations/authorization bill”. We shouldn’t have any illusions about that. Look at the difference between the standalone nonbinding resolution on Iraq about ending the war they couldn’t even get a vote on, & the bill that Bush recently vetoed.
would Bush really piss on a fundamental precept of the Magna Carta like that, in front of God and everyone?
Uhhhh… yes and twice on Sunday.
Why? Because of his capacity for moustache-twirling evil? I’m simply suggesting that it’s not a no-brainer; he might have the chutzpah to veto and he might not.
update here.
Very disappointed in Pelosi.(Go Marty Meehan! The Massachusetts House delegation is awesome, and I miss them.).
Impressive spontaneous organizing by this by liberal blogs, too.
I’ll jump in to answer Jonas Cord’s point: in the current context, habeas is a vehicle to get an independent review of the government’s determination that a particular individual is properly held as a prisoner of war. Combatant, if you like that word better. A person who is captured on a battlefield, having surrendered, isn’t going to win a habeas case: the government is going to be able to prove that the person is properly held as a combatant.
It’s the people who claim that they were not combatants that the cases are really about. And foreigners who claim that they are civilians, not combatants, and thus improperly held as combatants, have had recourse to habeas since the 1760s at least. This is a part of the common law.
One hears it said that WWII prisoners didn’t file habeas actions. I’m not sure this is really true, but even if it is, it is of no moment: German soldiers would not have been able to win a habeas action, since their status as combatants would’ve been very easy to establish.
If one doesn’t want to buy the whole ‘world is a battlefield’ thing, then a number of detentions in gitmo fall apart quickly. Certainly civilians arrested in a courthouse in Sarajevo have an argument to make. Or in Gambia. Or, for that matter, civilians arrested in Pakistan by Pakistani police.
Ok, I emailed Carolyn Maloney.
Compromise. Keep it in the appropriations bill and do it standalone both.
When bad things happen to U.S. citizens, like a hurricane or a foreign invasion, the government tends to help them out.
After Katrina that is not the perception I have.
Why? Because of his capacity for moustache-twirling evil? I’m simply suggesting that it’s not a no-brainer; he might have the chutzpah to veto and he might not.
Because he sees it as a threat to his ability to “effectively wage the war on terror”, not to mention a threat to his personal power and the “unitary executive.” Plus he’ll have Cheney telling him that this is unacceptable and that will be the end of it. I would be shocked if he did not veto a stand alone bill on this point. The only possible way I see him signing such a bill would be to get yet another round of litigation through the courts such that any court-ordered release of prisoners from Gitmo occurs at the end of next year.
Steve, the suspension of habeas corpus got into a bill and was passed and signed into law in the first place. Presumably the same reasons that caused that to happen (unitary executive, 9/11 means we’re in a new world, got to stand up to terrorists) would be sufficient for Bush to veto a restoration. No mustache twirling necessary.
Why on earth do you think he would not veto? Because he’s a good guy who now realizes his mistake in trashing habeas?
court-ordered release of prisoners from Gitmo
The calendar is always a problem. There may well not be any DTA merits decisions from the Circuit in 2007 — the earliest cases I know of have merits argument in the fall. If the prisoner wins, then I suppose there’s still the question whether the matter gets sent back for a new CSRT, or whether the Circuit orders a release. (I expect that the government will argue that the Circuit lacks the power to order a release — just like in Qassim.) Which remedy is chosen would depend on the basis upon which the CSRT was overturned: if it’s because the definition of enemy combatant is overbroad, and the prisoner cannot be brought into a reasonable definition, then the prisoner would have a strong claim for immediate relief. If it’s because the government didn’t make more than a token effort to get testimony from the prisoner’s witnesses (and the record on this is very bad for the government) then maybe the Circuit is more inclined to order a new CSRT.
I suppose a prisoner could petition for cert from a Qassim-like order — holding you is unlawful, but I can’t do anything about it — but the most likely cert petitions would come from a prisoner who (a) loses his DTA petition and (b) can point to a serious error in the DTA process that led to the loss. Fortunately, the government will be helpful here, but seeking unreasonably narrow interpretations of everything. Still, there may not be a cert petition until the first quarter of 2008.
And this make a decision in June 2008 less than certain. If the Supreme Court rules for a prisoner, and finds that the Circuit correctly applied the DTA, but that the DTA is not an adequate substitute for habeas, then the prisoner can restore his district court case. If the Supreme Court rules for the prisoner, and says that the Circuit mis-applied the DTA, then it may well be back to the Circuit for a new DTA review.
So Bush gets all the litigation he could ever want, even without signing the bill. I would put the chances of him signing it at less than zero, by the way. Where do people think the habeas strip came from?
Yep. This is charming, by the way:
“House Armed Services Committee spokeswoman Loren Dealy said no such amendment is coming because chairman Ike Skelton, D-Mo., cares so deeply about the issue that hes drafting a separate bill to deal with this alone.”
Charming to be treated like idiots.
Levin, btw, may be speaking the truth about not having the votes on his committee. Senate Armed Services has an equal # of Democrats and Republicans, plus Joe Lieberman. And the Dems include Ben Nelson, Mark Pryor, Bill Nelson, and Evan Bayh, none of whom can be relied on on these issues (though I think when push came to shove it’d be Nelson & Lieberman who were the real problem.) So Levin may be unable, not unwilling; it’s hard to know.
I don’t know if there are other committees that can attach it to a must-pass bill–the Senate Judiciary commitee is quite promising but they don’t do big authorization and appropriations bills. But there may be, I just don’t know. A floor amendment is also possible but I don’t know how much the leadership cares.
Katherine:
“And the Dems include Ben Nelson, Mark Pryor, Bill Nelson, and Evan Bayh, none of whom can be relied on on these issues (though I think when push came to shove it’d be Nelson & Lieberman who were the real problem.)”
Er, which Nelson?
the Benator.
Apparently hilzoy, you’re promoting a dumb lefty meme™
Congrats.
Mr Wolfe apparently doesn’t know hilzoy, as Mr. Wolfe refers to her as a he. And of course totally misrepresents the whole meme. I mean, if you are going to discredit a meme, at least get the meme right.
He lies, in the usual blatant way of habeas-stripping fans, by using “terrorists” to mean “people accused of being terrorists”.
If the governmenmt accuses them of being terrorists, they are by definition terrorists. After all the government can’t possibly be wrong.
Exactly right KC, he doesn’t seem to get that since habeas has been stripped from people accused of being terrorists it has been effectively stripped from everyone so accused and we’re all just relying on the gov’t not to accuse us so.
john millerMr. Wolfe refers to her as a he
That’s not your hilzoy it’s a man baby!
/austin powers
Steve, the suspension of habeas corpus got into a bill and was passed and signed into law in the first place.
Yes, it got into a bill with a lot of other things. Outside the liberal blogosphere, most people did not see that bill as being about habeas corpus.
Why on earth do you think he would not veto? Because he’s a good guy who now realizes his mistake in trashing habeas?
No, because there’s a lot more political pressure when the issue on the table is unmistakeably habeas and you can’t confuse matters by dragging in a lot of collateral issues.
I’m not saying he will or won’t, by the way. I’m just saying it’s not such a no-brainer no-consequences decision as everyone seems to think.
More to the point, I’m increasingly coming around to the point of view that habeas is an issue that needs more attention from the public, and if that means it needs to be in a standalone bill that might get vetoed, so be it. I’m willing to take that chance because I’m optimistic that at the end of the day, Americans will stick up for the idea of fundamental rights and we’ll have reaffirmed our basic values. We won’t do any of that if we sneak it into some bill in the middle of the night.
History and the Constitution are on the line here. I want people to have to go on record with habeas and only habeas being the issue. If there aren’t enough votes to restore this basic right, then so be it. Let’s at least find out where the Republic stands.
Tee he he. — I’d correct Leon Wolf, but I got banned there. (And I don’t even know why: I hardly ever try to comment, and one fine day I tried to log on for the first time in months, and was told my account had been suspended.)
None of the editors at Bizarro World can be “corrected” by mere mortal commenters, any definitive proof that an editor is wrong simply results in the commenter being banned, end of story. I got banned because the editors didn’t know how to read subject lines.
It was fun to watch Leon argue with “streiff” one day about whether the water Jesus turned into wine had alcohol in it or not – both sure that their view of the question was absolutely metaphysically correct and, IIRC, (and this really confused me) that the answer to the question was somehow crucial to their particular christian sect’s belief in Jesus (who I like to picture in a tuxedo T-Shirt because it says I want to be formal, but I’m here to party. )
After all the government can’t possibly be wrong.
i believe it was St. Reagan who said, “The most comforting words in the English language are ‘We’re from the government and we say you’re a terrorist.’ ”
BTW, the government is engaging in a little of its usual pre-oral-argument manipulation wrt the new access rules.
Hilzoy: And I don’t even know why
Your reputation precedes you Mr. Hilzoy. Your manliness is feared far and wide on these intertubes.