We didn’t have to wait long to see what’s coming. Defense attorney’s are gearing up for fresh battles, and prosecutors assume they are going ahead with military commissions as planned. Without clear due process and legal guidance, it’s as if the process were a severed earthworm, with both halves crawling off in opposite directions.
Tho it was made abundantly clear the concurring justices viewed the Military Commissions Act as un Constitutional, the opinion does not address the fate of the CSRTs/military commissions that were created with Detainees Treatment Act. Are they necessary anymore? Are they legal proceedings in the court’s eyes?
“It is an open question whether the military commissions, as they currently exist, satisfy the requirements of the Constitution,” said Michael Dorf, a law professor at Columbia University.
The military lawyers said they would use the Supreme Court’s 5-4 ruling to argue that if detainees have the right to habeas corpus, they are also entitled to other constitutional protections. (emphasis added by MH)They say the Constitution would bar the planned trials, asserting that legal procedures at Guantánamo violate basic legal protections.
The lawyers cited commission rules that permit hearsay and evidence derived by coercion as examples of commission procedures that they argued would not be permitted by the Constitution.
“It no longer makes sense for the government to pursue these cases through military commissions,” said Lieutenant Commander Brian Mizer, adding that he would quickly press a federal court challenge on behalf of his client, Salim Hamdan, a former driver for Osama bin Laden. Hamdan is scheduled to be the first detainee to face a commission, now set for July 21.
We’ve now moved beyond “basic” Constitutional rights to upcoming demands for full Constitutional rights by defense lawyers.
And the prosecutors? Knowing only that they face added review of their past, and upcoming commissions, they otherwise appear to be shrugging their shoulders, anticipating business as usual.
Asked for a reaction to the defense’s assertions Friday, Erik Ablin, a Justice Department spokesman, again provided the statement that asserted that the military commissions would proceed. He added that the government would respond “though its filed pleadings” to any specific claims.
snip
Through a spokesman, the chief Guantánamo prosecutor, Colonel Lawrence Morris of the U.S. Army, said he did not believe that the ruling “should slow the progress of the commissions process.” He added that he “looks forward to charging additional individuals while moving forward on those already charged.”
Prosecutors are expected to argue that the Supreme Court’s ruling, in the case of Boumediene v. Bush, did not suggest that detainees have broad constitutional rights. They are also expected to say the federal courts should not hear a challenge before a conviction.
Since the purpose of Boumediane v Bush was in response to these pending cases, booted out of federal courts by MCA, the Supreme’s did not address the military trials process in their opinion. But one has to wonder if they could be so anal as to not see the chaos that would ensue with an opinion that shrouds the legal process in fog.
Defense lawyers are not having any problems picking up on the plethora of opportunities.
Commander Suzanne Lachelier, the lawyer for one of five detainees charged in the terrorist attacks of Sept. 11, 2001, whom prosecutors said they hoped to bring before a commission in September, said that because of the Supreme Court ruling, “there’s just no way the government can proceed on the course they thought.”
snip
Douglas Kmiec, a constitutional-law professor at Pepperdine University, said federal courts might stop the commissions from proceeding while considering what he said were serious questions the defense lawyers were raising.
“The argument has potential,” said Kmiec, who was a Justice Department official in the Reagan administration.
He said the Supreme Court’s ruling did not categorically declare that the military commissions should stop. But, he said, the decision “certainly invites legal challenges.”
It’s not just lawyers. Captain Keith Allred of the U.S. Navy, the judge for Hamdan’s commission, postponed his decision pending the SCOTUS opinion – saying the justices’ decision “may well change the tenor or conduct of the trial.” Which begs the response, change the tenor to what?
Unlike Col. Morris above, the defense attorneys do predict a slowing of the Gitmo war crimes process while the judges review claims that the proceedings did not pass Constitutional muster. Or, as the defense attorneys promise, they plan to use the decision “to mount new attacks on the government’s war crimes prosecutions that stall”, or even stop, trials. The process could now be tied up for years as it bounces between military commissions and federal courts, blind to who actually has authority.
Perhaps the single best indicator of the legal mayhem about to commence comes from Michael Berrigan, deputy chief defense counsel for the Guantánamo cases, pointing out that the rejection of the Constitution, as it applies to these detainees, is no longer valid.
“Now,” Berrigan said, “the battle lines are: Exactly what are the protections?”
What indeed….
Vietnam era Navy wife, indy/conservative, and an official California escapee now residing as a red speck in the sea of Oregon blue.
Are illegal aliens granted U.S. Constitutional rights?
If not yet, I supose they should be if ENEMY COMBATANTS are?
If Illegals and Enemies are granted U.S. Constitutional rights, should not every man, woman and child on the entire planet be given U.S. Constitutional rights??
Why not? Right?
What is it about the lefties that they want to prosecute PHONY war crimes against Bush and Cheney and don’t want to prosecute the man who actually planned 9/11 and personally sawed the head off Daniel Pearl?
Talk about self loathing gone to the extreme. These lefties need mental help.
Will this lead to fewer detainees being taken in the field?
A fleet of C-17’s should be on the way to the U.S. with all of the terrorists on board. Take them to the front steps of the SCOTUS, rearm them with whatever they had when captured, or give them whatever weapons they desire and turn them loose. They might even clean up the crime capital of the world. I’m not kidding, turn them loose in the middle of D.C. and walk away.
And this, my friends, is the reason why having a conservative court matters so much.
From Beldar:
The reason the dems are so ecstatic about this ruling is that it is a foot in the door to global socialization or marxism. If all prisoners of the US whereever they may be are entitled to habeus corpus it is just one more step to giving everyone in the world the same rights as US citizens. A bloe to national pride and unity.
What is interesting about this decision is that, because it opens the door to giving everyone on the planet the rights guaranteed in the US constitution, it ALSO opens the door to giving the US government jurisdictional claim over the ENTIRE EARTH.
Yep, you read that right. This decision is the first step in turning the United States into a fascist, expansionist, empire. Not surprising such a momentous and pivotal decision should come from the Leftists on the court.
It was pointed out to me that Congress never declared War. Funding and Authorizing the use of military force(AUMF) is not the same as a Declaration of War according to the Constitution. Thus the Supreme Court’s decision was based on the status of the detainees. A thorn any way you look at it. No matter if they are correct in the ruling, it still paves the way for these people into the justice system at our cost, which may be more than a trial. If we set up a court there at Gitmo are we any less stupid for saying they “deserve” what the natives get? XXXX!! Not in my book.
makes you wonder what country we are living in. terrorists deserve zero rights, we are nice enough to keep them alive and well fed while their brothers-in-arms run around killing innocent people. i think we should no longer aford them the “luxuries” they have recieved as prisoners of this nation, they should be taken hundreds of miles into the ocean and released on very small rafts with a gallon of water. they deserve no rights for what they have done to the people of this nation.
Will the Congress and the Executive branch not have recourse to this power grab by the black robed activist? Will anyone grow a spine in DC and try to protect our country?
GI Joe
Don’t know they have any power as the only branch that can rule legislation as un Constitutional is the judicial branch. Congress can’t just turn around and say “you’re wrong” and ignore them. Congressional recourse would be to rewrite the now declared unconstitutional law (Military Commissions Act of 2006) so it fits SCOTUS standards.
However that is, in essence, impossible. SCOTUS deemed MCA as an inadequate substitute for habeus corpus, but gave no guidance as to what would be acceptable as an alternative. Nor did the SCOTUS address whether the CSRTs created with DTA in 2005 are legal, or necessary, proceedings in the detainees due process. They only “suggested” that any federal judge should delay hearing a detainees case until the CSRT is completed.
We’re floating around in a legal fog here… and will stay that way until some courts start hearing cases and making decisions, creating new precedents.
Any action taken by military or the WH admin can now be challenged in federal courts, if petitioners and their lawyers consider it in violation of the recent decision. At that time, federal judges either affirm using the SCOTUS decision, or reverse it. If they do the latter, petitioners go thru the appellate process until they find a judge who will affirm… perhaps even again getting to the SCOTUS themselves.
I think I am seeing what I think is some misunderstanding of the second ruling. They way I read it, it goes something like this:
If an individual overstays their visa and is found out by authorities, they basically have a choice. Have an immigration hearing where they can be either allowed to stay or deported depending on their circumstance or they can leave voluntarily with no stain on their record and can re-apply for admission at a later time.
The Supreme Court ruled that if a person had agreed to leave voluntarily, they have the right to change their mind and have a hearing. They can still be deported as a result of that hearing. It is simply granting them the right to change their mind and stay pending the outcome of due process. They might still get deported in the end.
In the case of the ruling on people with who have overstayed their visas, it applies ONLY (as far as I know) to people who entered legally. In this case you have a person who has applied for residency, their visa expired before they got a ruling on their application, they offered to leave voluntarily but that would also pull their residency request. So (again, as far as I know) they decided to change their mind and ask a judge and see if they could remain until their residency application was decided.
Sounds reasonable to me. The immigration officials were arguing that once a person decided to leave voluntarily, they couldn’t change their mind and request a hearing.
Crosspatch, I must have missed something. I don’t get what the SCOTUS opinion has to do with leaving “voluntarily”, changing their mind and having a hearing, or being deported. None of these things have to do with Boumediene v Bush. Or are you on a side tangent subject here?
Boumediene was about whether the cases that were in process in the federal District courts at the time of MCA enactment were entitled to continue pursuing their habeas rights. SCOTUS said yes.
Habeas Corpus is the right to challenge the reasons for detention. Implied in that challenge is the right to recitfy, including being released.
UPDATE to your UPDATE… what “second ruling”?
_______________________________
DefendUSA, about your:
SCOTUS had already determined the detainees had habeas status (despite combatant status) in a prior decision (Rasul v Bush, 2004). It was that decision that prompted Congress to enact both the DTA and MCA as a more palatable solution to traditional common law habeas (i.e. challenge detention).
Their detention is by executive authority under the powers Congress granted in AUMF. SCOTUS has never implied, and in fact agrees, that the CIC has the authority to detain combatants. They are just saying the detainees have right to habeas actions because they equate the unique agreement in Cuba as a sovereign US territory in effect (tho not legally).
Scalia has dissented on this base issue both decisions. He covers the Gitmo/sovereignty issue again quite thoroughly in his dissent.
Dissenting judges say that DTA/MCA is habeas by another name…. in other words, Congress put a process in place to accomplish their right to challenge detention, review by DC circuit, and the right to request a new status hearing. Also their status is reviewed annually.
Concurring judges say this didn’t specifically include the remedy of release. Yet traditional habeas also doesn’t say the remedy specifically either. As the dissent by Roberts says, it is implied that release is a possible remedy by a change in CSRT status.
SCOTUS blew out the Congressional path before the process was put into action. Yet before one can file a habeas claim, they must exhaust all other legal remedy. This would have been a legal remedy to exhaust.
Also, it will elongate the whole legal affair. Per Roberts dissent: