Square that circle.

Those held at Gitmo chose not to avail themselves of this procedure. So the Supreme Court decided to give the detainees unprecedented rights.

Warren thinks this is great news. Perhaps he has an incomplete understanding of the facts?

The Supreme Court’s decision aggregates for itself war fighting powers which properly belong to the executive and legislative branches. For more, see Beldar’s posts of 6/12, 6/14, and 6/15 http://beldar.blogs.com/beldarblog/

Note that the majority opinion even admits that they are making up a right never found in the Constitution before. As the dissent notes, there is a case precisely on point which they ignore.

Beldar’s post of yesterday (6/14) specifically addresses the error in Warren’s understanding of the facts and law.

“More than half the problem with this whole damn war is the magnificent ignorance displayed by commentators on issues of international law.”

and

“Again, that was an example of a whole bunch of people talking about something which they completely misunderstand.”

Timothy Lynch at Cato seems to agree with my view–not exactly an “ignorant” commentator. Here is a podcast where he discusses the decision:

http://www.cato.org/dailypodcast/timothylynch_scotusgivesdetaineesadayincourt_20080614.mp3

I’ve finally read the opinion. The five who voted for extending the right of habeas corpus to Guantanamo (and the three of those who signed a second opinion saying “sure, it’s unprecedented to declare a Constitutional right covering enemy combatants during an ongoing war, but that’s only because Congress changed the statutory right to habeas corpus after the time we made the unprecedented ruling that a statutory right covered these guys”) made a big deal about the fact that some people have been detained for six years, and as nobody knows how long the war will go on, nobody knows how long they may continue to be detained. And they make the same point — that these guys need some way of challenging their detention.

But then along comes Chief Justice Roberts to set the record straight. The law that the five judges declared unconstitutional (1) provides a way to challenge the detention, (2) has existed for 2 1/2 years (after the Supreme Court decided these prisoners were not getting due process), and (3) the people bringing this case made a strategic decision to NOT challenge their detention with the law Congress passed 2 1/2 years ago so it’s odd that the Court is wringing its hands that these guys may have not yet “been able to challenge their detention.”

Roberts even goes on to suggest that the due process the DTA existed to provide may well include habeas corpus. “May well” because every opinion about Guantanamo Bay prisoners has declared these guys have some rights, but fails to list which. Even this opinion implies that the habeas right these prisoners have may not be a full habeas right. One reason the majority opinion didn’t like the DTA was that it limited what the District Court was allowed to consider when reviewing cases where the prisoner challenged his detention. One of the cases used as proof that POWs may have habeas rights was ex parte Quirin; but the opinion admits that habeas review in Quirin was limited. I find it interesting that the limits from Quirin sound almost identical to limits in the now-unconstitutional DTA.

Point being that (1) Congress provided a way for these guys had a way to challenge their detention, (2) if their cases were strong enough to survive the DTA then these detainees would be free today, and (3) assuming that the Court is right and these guys already had a habeas right (as the Court is not allowed to create new laws, only say what the law already is) then they would still have had that right after trying for release under the DTA.

Additionally the Court’s opinion cites several cases where a POW petitioned for habeas but habeas was denied, but the opinion does not contain any example of a case where a POW was released due to filing the writ. The Court uses this as proof that these guys have the ability to petition for habeas, but it doesn’t sound like they’ve got much of a chance if they go that route. Especially given Hamdi’s decision that the AUMF legally authorizes the military to take prisoners.

If the Court chips away at the military’s ability to take and keep prisoners, I strongly expect the military to adopt a “take no prisoners” approach when possible. I’m really not sure if the world is better or worse because of this opinion.

A good many of the Gitmo prisoners were not captured by our forces – they were sold to our forces by bounty hunters. There is no reliable evidence that they were ever combatants, enemy or otherwise.

Second, you must understand that this only applies to foreign combatants captured by U.S. troops, not by our allies, even if U.S. troops may be involved in the operations.

Third, the question of whose law applies in a foreign country is still open for resolution.

For now, a simple “work around” would seem to be that any U.S. military operation in the Middle East should include foreign nationals of that country. Any enemies captured in or out of uniform would been deemed captured by the foreign nationals and subject to the laws and interrogation methods of that country. U.S. forces could “observe” interrogations and glean any intelligence that might come out of such interrogations.

While this does not address suspects caught in the U.S., there are more than enough elsewhere.

That’s bad.

The other take is this prevents something from happening which never happened. And it will probably allow foreign parties to influence US sovereignty.

That’s bad, too.

This is a very poorly reasoned opinion, without consequence to those reasoning it…

“There are several reasons to hold somebody against their will. For instance, my family may eventually commit me to a mental institution. In that case I wouldn’t be charged with a crime, I wouldn’t be in the institution for punishment, I wouldn’t be considered guilty of anything, and there wouldn’t necessarily be a promise that I would ever actually be released. In short, I’d be subject to indefinite detention without trial. And, even if the institution were run by the federal government, I would be unable to file a habeas corpus challenge against my detention because habeas simply doesn’t apply in every definition of detention.”

Max, first let me say that your use of the term “eventually” is foreboding!

But there are a few flaws in this analogy. If you are committed to a mental institution, the institution will likely need to evaluate you and actually conclusively diagnose that you’re indeed crazy. And if you’re not crazy, I would expect that you have some legal recourse to seek a second opinion, or prove your sanity, and then would be released. If there are no legal methods for you to “appeal” your status, would you not consider this to be “kidnapping”? It doesn’t mean that you will be let go if you are, indeed, proven to be crazy. But there should be a burden of proof and legal method under which you can contest the diagnosis. Whether the challenge would be called “habeas corpus” is immaterial, there would undoubtedly be a way for you to challenge your detainment.

These prisoners are not afforded any of that. They do not have ANY way to challenge their status.

Thus, the analogy is false.

If, on the other hand, you rule your subjects according to the laws of war, you are a despot.

Because of the nature of this war, it is difficult to keep the one from infecting the other.

If people let their concern with human rights or human lives interfere with fighting wars in the most effective way possible, those who have no such concerns will win.

Chief Justice Roberts concluding his dissent:

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers,who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
I respectfully dissent.
-Chief Justice Roberts

Justice Scalia concluding his dissent:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent.
-Justice Scalia

-My own opinion is that the majority lost control of itself and used this case simply as an opportunity to take a cheap shot at departing President George Bush. This is not one of the great moments in American Jurisprudence. A latter Court and Congress will unfortunately have the knotty task of undoing all the damage this feckless Court has done.

I believe that Scalia is correct. We will regret this impulsive decision down the road. And much sooner than we think.