The practical results, so far as the detainees are concerned, are that (1) they no longer have any right to file a habeas challenge to their detention or to their designation as enemy combatants because Congress has taken that away and the lower court ruling that the Court left undisturbed Monday upheld that withdrawal, (2) those not charged with war crimes must now go through a military-only review of their enemy combatant status in proceedings that the detainees' lawyers consider seriously inadequate; some had had that review, but there is a question whether another is to be held for most of them, (3) those charged with war crimes must now go through trials before new "military comissions" with procedures also widely attacked as inadequate and can go further only if convicted, (4) and detainees in both groups, after going through those two processes, have only a limited right to challenge their detention status or their military commission convictions in the D.C. Circuit Court, with possible later review by the Supreme Court -- a process that, in its entirety, could take months, and maybe longer.
At issue is whether prisoners held at Guantanamo have a right to habeas corpus review, a basic tenet of the Constitution that protects people from unlawful imprisonment.
The right of habeas corpus—or rather, the right to petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency.
On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would suspend habeas corpus for any alien determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States” by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48–51.) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.
With the MCA's passage, the law altered the language from “alien detained … at Guantánamo Bay”:
“Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” §1005(e)(1), 119 Stat. 2742.
On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision. The decision is likely to be appealed to the Supreme Court.
Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.
In 1861 President Lincoln suspended Habeas Corpus and in the 1870's so did President Grant.
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations.
I bring up the Breitbart quote (above) for a reason.
What people keep getting confused is the fact that the Constitution was written and protects Citizens of the United States of America.
Preamble to the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Only the ignorant that have never bothered to read the Constitution in full would argue that OUR Constitution applies to terrorists.
We the People of the United States of America are protected under the Constitution.
Just as the Geneva Convention protects enemy combatants that wear a uniform or a badge and fight FOR a sovereign country, not terrorists that fight for no country but fight for an ideology.
Article 4 of the Geneva Convention:
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
I see people that constantly try to apply OUR Constitution to enemy combatants that wear no uniform or badge and fights for no sovereign nation and one has to wonder whether they have bothered to read these documents or are simply repeating deliberately misleading information they have read elsewhere from people equally ignorant.
The Supreme Court has ruled now and this will bear watching, but for now, I personally believe they have made the right decision and one needs to look no farther than a post I wrote on October 17, 2006:
If there was an iota of doubt in anyone's mind about the validity of the Military Commissions Act-2006 that President Bush signed this morning, this should dispel it.But Judge Koeltl said there had been “an irreducible core of extraordinarily severe criminal conduct” in her actions on behalf of the client, Sheik Omar Abdel Rahman, a blind fundamentalist Islamic cleric who is serving a life sentence for plotting to bomb New York City landmarks. Ms. Stewart was convicted on Feb. 10, 2005, of conspiring to provide material aid to terrorism by smuggling the sheik’s messages encouraging violence by his militant followers in Egypt.
28 Months for an act that can and is seen as treason to some of us.
This prominently shows the civilian courts inability and incompetence in dealing with military issues, national security issues and trying terrorists and their accomplices.The judge acknowledged that Ms. Stewart'’s crimes were serious, involved dishonesty and breach of trust,” and led to “potentially lethal consequences.
Liberal bleeding hearts can whine all they want about the Military Commissions Act-2006 that was signed this morning, but I, for one, have much more confidence in the Military Tribunals effectively punishing these traitors and terrorists than a court system that can do what Judge Koeltl just did.
Our laws and Constitution should never be allowed to be used by terrorists against us, it is there to protect us and that ruling alone showed me that our civilian courts are not capable of handling matters of National Security and terrorists should be tried by Military Tribunal.
In my eyes, this was not a win for the administration but it was a huge win for America.
Many will disagree with me about this, but as far as I am concerned, our safety trumps the rights of terrorists.