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openspace4lifeThat's right: on November 6th, two days after the election, we finally had the first test of the restored Habeas Corpus rights the Supreme Court granted this past June to detainees at Guantánamo Bay, an already massively delayed decision whose primary effect was to strike down the relevant clauses of the Military Commissions Act passed in October of 2006. And boy, did the test go over like a lead balloon.
For starters, according to the NY Times article, the judge presiding over the hearing “was appointed by President Bush, [and] initially ruled in 2005 that the men had no habeas corpus rights.” Not exactly likely to be the most impartial guy when hearing a case brought by six suspected “illegal enemy combatants” using those same rights. Then, this judge decides the classified evidence can only be discussed “outside the presence of the public and the detainees,” which might well violate the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . and to be informed of the nature and cause of the accusation”--note there's no mention of the accused having to be a citizen). To add insult to injury, “The six detainees had been scheduled to listen to opening statements from Guantánamo by way of a telephone hookup, but a technical problem left them with a silent line, court officials said.” The government lawyers, for their part, deem it likely that “'the information justifying detention is too sensitive' to share not only with the detainees but also with their lawyers.”
Meanwhile, the radical activist group The People's Email Network recently sent out an action email titled “Impeach Bush before he pardons himself.” What kind of nonsense is that, I wondered? How can Bush pardon himself for crimes for which he hasn't even been indicted, much less sentenced? And in any case, would Bush really have the guts to take an action that so clearly implies his having done something wrong? The answer to both questions, apparently, is that he buried a clause retroactively granting himself legal immunity in the depths of the Military Commissions Act, where no one important would actually notice. So it's a little late to prevent that now, though I guess we can be glad there are so many other charges to indict him for...
The relevant clause of MCA 2006 is as follows:
“Sec. 7 (a) In General.--Section 2241 of title 28, United States Code, is amended by . . . inserting the following new subsection (e):
“(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
And in case you're wondering, the paragraphs in the Detainee Treatment Act referenced above are limited to detainees “for whom a Combatant Status Review Tribunal has [already] been conducted” and to investigation of whether the decision was made properly, as opposed to any possible prosecution of people who may have contributed to making the decision improper under, for example, the Eighth Amendment. That's as far as I can tell; if you're more fluent in legalese than I (which wouldn't be hard), please feel free to suggest another interpretation.
For starters, according to the NY Times article, the judge presiding over the hearing “was appointed by President Bush, [and] initially ruled in 2005 that the men had no habeas corpus rights.” Not exactly likely to be the most impartial guy when hearing a case brought by six suspected “illegal enemy combatants” using those same rights. Then, this judge decides the classified evidence can only be discussed “outside the presence of the public and the detainees,” which might well violate the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . and to be informed of the nature and cause of the accusation”--note there's no mention of the accused having to be a citizen). To add insult to injury, “The six detainees had been scheduled to listen to opening statements from Guantánamo by way of a telephone hookup, but a technical problem left them with a silent line, court officials said.” The government lawyers, for their part, deem it likely that “'the information justifying detention is too sensitive' to share not only with the detainees but also with their lawyers.”
Meanwhile, the radical activist group The People's Email Network recently sent out an action email titled “Impeach Bush before he pardons himself.” What kind of nonsense is that, I wondered? How can Bush pardon himself for crimes for which he hasn't even been indicted, much less sentenced? And in any case, would Bush really have the guts to take an action that so clearly implies his having done something wrong? The answer to both questions, apparently, is that he buried a clause retroactively granting himself legal immunity in the depths of the Military Commissions Act, where no one important would actually notice. So it's a little late to prevent that now, though I guess we can be glad there are so many other charges to indict him for...
The relevant clause of MCA 2006 is as follows:
“Sec. 7 (a) In General.--Section 2241 of title 28, United States Code, is amended by . . . inserting the following new subsection (e):
“(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
And in case you're wondering, the paragraphs in the Detainee Treatment Act referenced above are limited to detainees “for whom a Combatant Status Review Tribunal has [already] been conducted” and to investigation of whether the decision was made properly, as opposed to any possible prosecution of people who may have contributed to making the decision improper under, for example, the Eighth Amendment. That's as far as I can tell; if you're more fluent in legalese than I (which wouldn't be hard), please feel free to suggest another interpretation.
