SCOTUS lets GITMO Detainees have
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bozo_casanova
2,500+ Posts
ousuxndallas
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washparkhorn
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LonghornLawyer
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washparkhorn
2,500+ Posts
If it's not digressing too much and some of you lawyers will humour me I'd like to ask about how the law today views a situation in the late 40s and 50s.
In the latter days of WW II the US government went in search of German rocket guys. We raced the Soviets. They got to some first but, principally because they wanted to be found by us, not the Soviets, we found more, and found the best, inluding von Braun. Without giving you a step by step let me say it was many years later (like ten or fifteen years), that these guys were allowed to go where they wanted. They weren't closely watched but they were essentially prisoners. Some of them have talked with my dad about this and I've heard a few stories.
Suppose that in say, 1950, one of these guys hired a lawyer and asked to go home. What would happen? (Use today's law as well as 1950 law.)
In the latter days of WW II the US government went in search of German rocket guys. We raced the Soviets. They got to some first but, principally because they wanted to be found by us, not the Soviets, we found more, and found the best, inluding von Braun. Without giving you a step by step let me say it was many years later (like ten or fifteen years), that these guys were allowed to go where they wanted. They weren't closely watched but they were essentially prisoners. Some of them have talked with my dad about this and I've heard a few stories.
Suppose that in say, 1950, one of these guys hired a lawyer and asked to go home. What would happen? (Use today's law as well as 1950 law.)
FondrenRoad
1,000+ Posts
Not really the same thing at all, Tahoe. You're talking about people seeking asylum in exchange for their knowledge in the case of German scientists. They made a deal to come here, and they knew what they were doing. They were watched to make sure they weren't German agents. I'm sure we're cutting similar deals with Iranian scientists right now, not for their scientific knowledge, but for their knowledge of Iran's level of advancement.
In GITMO, you have combat detainees. A whole different ball of wax. They were hostile and taken against their will. IMO, they should have been tried by tribunals following the end of the war in Iraq. Since they have not, the courts felt the need to step in. I agree with the decision in this case simply because of the amount of time that has passed without access to any kind of impartial arbiter. I don't feel the courts should have been the first place for these cases to be heard, but the military didn't feel the need to have tribunals.
As far as enemy combatants in the current police action, I feel they should be tried in Iraqi courts.
In GITMO, you have combat detainees. A whole different ball of wax. They were hostile and taken against their will. IMO, they should have been tried by tribunals following the end of the war in Iraq. Since they have not, the courts felt the need to step in. I agree with the decision in this case simply because of the amount of time that has passed without access to any kind of impartial arbiter. I don't feel the courts should have been the first place for these cases to be heard, but the military didn't feel the need to have tribunals.
As far as enemy combatants in the current police action, I feel they should be tried in Iraqi courts.
Jive_Turkey
1,000+ Posts
Sooner in Korea
250+ Posts
washparkhorn
2,500+ Posts
Tahoe -
Operation Paperclip brought them here. At the time, there was a reaction to war and the atrocities of the Nazis by the more left in this country that created a hostile environment for these scientists. They did not want them in this country. They were wanted by the Army; they were despised by many in the more elitist circles in this county at a time when we were war weary.
They all applied to come to the United States, signed an agreement for their stay in the United States, if they performed well under the agreement - they were set on the first path to citizenship, and most became citizens.
The lefties didn't want them here. Some of our more liberal scientists didn't like them. The Navy was given the preeminent role in developing rockets and they worked for the Army. I imagine many were bored at Fort Bliss and felt unappreciated at Kraut-hill Alabama. I am sure many were homesick. I am sure some of the more Nazi-involved of the bunch felt like they were in danger of being tried as war criminals, especially with the loud fringey sentiment against them coming here.
Once the Navy failed at getting a rocket up and Sputnik was launched, these guys promised and delivered a satellite in months.
As to your specific question, it depends on a lot of factors. If they were spies during wartime (WWII/Korea), they would have been picked up by the Army, tried by a secret military tribunal, and electrocuted. The Supreme Court (EX PARTE QUIRIN, 317 U.S. 1 (1942)) --The Link -- permitted their trial by the military and found unlawful combatants (spies) were subject to a quick execution.
If they were citizens, I doubt they would have been allowed to emigrate to an enemy land if they had our military secrets. They would have been arrested for espionage, tried in a civilian court and been sent to prison.
If they were working under an immigration agreement, they would have been detained as posing a threat to national security until the threat passed (could have been indefinite).
But all of that is based them having information the Soviets wanted and a threat that they would go to the Soviets (or the Soviets picking them up). They were in Germany - not in custody - before they came to the U.S. so it's hard to create a scenario similar to this one. They were watched, I'm sure, in Germany to protect them from the Soviets. We "rescued" family members from the Soviet occupied Germany surreptitiously. The families came to the U.S. with them.
With the ruling today, they would be subject to DHS statutes/regs/administrative procedures. Aliens are subject to administrative proceedings and mandatory deportation orders. There is a kink in the law that requires release after a deportation order, except in special circumstances. If we had a nuclear scientist of Iranian citizenship who was trying to go back to Iran from this country after working in nuclear technology, he would be detained and the government would work for indefinite detention based on the threat he posed.
He would have habeas rights because he was in this country. Habeas requires proof that the detention is lawful, which takes into account necessity). Detention does not necessarily mean a crime was committed in the national security context (and pursuant to legislation by Congress).
The difference? It depends on the circumstances. Would EX PARTE QUIRIN, 317 U.S. 1 (1942) be followed by this Supreme Court? Hard to say. Kennedy is the swing and he moves with the wind. It would be 5-4 and my guess is the German saboteurs executed in that case wouldn't have been executed and would be called POW's by the Court, not unlawful combatants (as they called them in 1942).
Operation Paperclip brought them here. At the time, there was a reaction to war and the atrocities of the Nazis by the more left in this country that created a hostile environment for these scientists. They did not want them in this country. They were wanted by the Army; they were despised by many in the more elitist circles in this county at a time when we were war weary.
They all applied to come to the United States, signed an agreement for their stay in the United States, if they performed well under the agreement - they were set on the first path to citizenship, and most became citizens.
The lefties didn't want them here. Some of our more liberal scientists didn't like them. The Navy was given the preeminent role in developing rockets and they worked for the Army. I imagine many were bored at Fort Bliss and felt unappreciated at Kraut-hill Alabama. I am sure many were homesick. I am sure some of the more Nazi-involved of the bunch felt like they were in danger of being tried as war criminals, especially with the loud fringey sentiment against them coming here.
Once the Navy failed at getting a rocket up and Sputnik was launched, these guys promised and delivered a satellite in months.
As to your specific question, it depends on a lot of factors. If they were spies during wartime (WWII/Korea), they would have been picked up by the Army, tried by a secret military tribunal, and electrocuted. The Supreme Court (EX PARTE QUIRIN, 317 U.S. 1 (1942)) --The Link -- permitted their trial by the military and found unlawful combatants (spies) were subject to a quick execution.
If they were citizens, I doubt they would have been allowed to emigrate to an enemy land if they had our military secrets. They would have been arrested for espionage, tried in a civilian court and been sent to prison.
If they were working under an immigration agreement, they would have been detained as posing a threat to national security until the threat passed (could have been indefinite).
But all of that is based them having information the Soviets wanted and a threat that they would go to the Soviets (or the Soviets picking them up). They were in Germany - not in custody - before they came to the U.S. so it's hard to create a scenario similar to this one. They were watched, I'm sure, in Germany to protect them from the Soviets. We "rescued" family members from the Soviet occupied Germany surreptitiously. The families came to the U.S. with them.
With the ruling today, they would be subject to DHS statutes/regs/administrative procedures. Aliens are subject to administrative proceedings and mandatory deportation orders. There is a kink in the law that requires release after a deportation order, except in special circumstances. If we had a nuclear scientist of Iranian citizenship who was trying to go back to Iran from this country after working in nuclear technology, he would be detained and the government would work for indefinite detention based on the threat he posed.
He would have habeas rights because he was in this country. Habeas requires proof that the detention is lawful, which takes into account necessity). Detention does not necessarily mean a crime was committed in the national security context (and pursuant to legislation by Congress).
The difference? It depends on the circumstances. Would EX PARTE QUIRIN, 317 U.S. 1 (1942) be followed by this Supreme Court? Hard to say. Kennedy is the swing and he moves with the wind. It would be 5-4 and my guess is the German saboteurs executed in that case wouldn't have been executed and would be called POW's by the Court, not unlawful combatants (as they called them in 1942).
dognduckhorn
500+ Posts
From the syllabus:
"This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant
to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfullydetained. But more may be required depending on the circumstances.
Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s
case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limitson the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ,or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."
Consider what Sooner in Korea said about how people end up in GITMO, and read in the opinion what the CSRT consist of. I disagree with wash's assertion that they have been provided with "counsel"; the opinion details that lawyers appointed to "assist" detainees are not advocates for them. They can be held on hearsay, unsubstantiated from any source. They can be transported into custody from anywhere. There is no mechanism to screen them, save the say-so of the Government. The Government, in this case, can be the CIA. And, as the opinion points out, they can be kept indefinitely.
Trial lawyers soliciting cases? Don't be absurd. Aside from the odious nature of some of these people, the way they end up in Gitmo begs the question of how these people find themselves in this position.
We did not declare war on the nations from where these people evolve. From what I've read, few of these people were "plucked from the battlefield".
If you trust the unchallenged judgment of the CIA or military intelligence to brand you a threat, then of course, this course of treatment will not present a problem to you. But we went out of our way to set up a system outside the scope of military justice, international law or American law to create a system in which indefinite imprisonment could be accomplished.
"In contrast the DTA’s jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standardsand procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful."
"because it can be assumed
that, in the usual course, a court of record providesdefendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a directappeal. The present cases fall outside these categories,however; for here the detention is by executive order.
Where a person is detained by executive order, ratherthan, say, after being tried and convicted in a court, the
need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing
before a tribunal disinterested in the outcome andcommitted to procedures designed to ensure its own independence.
These dynamics are not inherent in executivedetention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpusproceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention
and the Executive’s power to detain"
"This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant
to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfullydetained. But more may be required depending on the circumstances.
Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s
case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limitson the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ,or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."
Consider what Sooner in Korea said about how people end up in GITMO, and read in the opinion what the CSRT consist of. I disagree with wash's assertion that they have been provided with "counsel"; the opinion details that lawyers appointed to "assist" detainees are not advocates for them. They can be held on hearsay, unsubstantiated from any source. They can be transported into custody from anywhere. There is no mechanism to screen them, save the say-so of the Government. The Government, in this case, can be the CIA. And, as the opinion points out, they can be kept indefinitely.
Trial lawyers soliciting cases? Don't be absurd. Aside from the odious nature of some of these people, the way they end up in Gitmo begs the question of how these people find themselves in this position.
We did not declare war on the nations from where these people evolve. From what I've read, few of these people were "plucked from the battlefield".
If you trust the unchallenged judgment of the CIA or military intelligence to brand you a threat, then of course, this course of treatment will not present a problem to you. But we went out of our way to set up a system outside the scope of military justice, international law or American law to create a system in which indefinite imprisonment could be accomplished.
"In contrast the DTA’s jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standardsand procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful."
"because it can be assumed
that, in the usual course, a court of record providesdefendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a directappeal. The present cases fall outside these categories,however; for here the detention is by executive order.
Where a person is detained by executive order, ratherthan, say, after being tried and convicted in a court, the
need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing
before a tribunal disinterested in the outcome andcommitted to procedures designed to ensure its own independence.
These dynamics are not inherent in executivedetention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpusproceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention
and the Executive’s power to detain"
Bob in Houston
2,500+ Posts
I am somewhat sorry to say that this decision was an easy call if anyone read some of the previous cases, which I had to do this semester in a seminar.
We were required to write a small synopsis with a prediction on the case, if it hadn't been decided. Here is what I wrote, back in January:
We were required to write a small synopsis with a prediction on the case, if it hadn't been decided. Here is what I wrote, back in January:
triplehorn
2,500+ Posts
If I'm not mistaken, it looks like the Supreme Court also declared that the manner in which the status of "enemy combatant" is conferred on individuals is also illegal.
This would be huge and affects each and every one of us Americans, not just suspected terrorists.
.
This would be huge and affects each and every one of us Americans, not just suspected terrorists.
.
bozo_casanova
2,500+ Posts
Bob in Houston
2,500+ Posts
washparkhorn
2,500+ Posts
In reply to:
washparkhorn
2,500+ Posts
bozo_casanova
2,500+ Posts
washparkhorn
2,500+ Posts
bozo_casanova
2,500+ Posts
i think somebody just rented the John Adams miniseries.
Black Ninja
500+ Posts
Seems the best thing to do now is just kill them in the battlezone and be done with it, but of course, then I guess whoever did that would get prosecuted.
Bob in Houston
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