Friday, June 13, 2008
So Illegal Combatants Have Habeas Corpus Rights?
In a breathtakingly stupid piece of legal reasoning only a libtard could possibly justify, the Supreme Court has ruled 5-4 that illegal combatants captured on the battlefield have the legal right to appeal their imprisonment to a civilian court.
Let's put this in perspective: Our own soldiers, sailors, airmen and marines, overseas putting their very lives on the line to protect our constitutional freedoms, do not have that right, when confined under an article 15 or court martial, for reasons that I would have heretofore thought obvious: The civilian courts have no competence to weigh mission accomplishment needs against the need to maintain order and discipline in the ranks, they have no competence to establish practical and useable rules of evidence collection and gathering on the battlefield, they have no competence to sit in judgement of warriors who are accused of crimes in the heat of a firefight, and they have no administrative capacity to extend judicial oversight over thousands of miles for thousands of cases.
Yet liberals have granted the precious right of habeas corpus to terrorists.
Never, to my knowledge, in the history of warfare, has any nation ever granted the right of judicial review to prisoners of war. Indeed, it is an extremely dangerous precedent to do so, because aside from illegal combatants, international law and custom does not assume that prisoners of war have committed a crime. The criminal model is wholly inappropriate for use in the context of the routine detention of prisoners of war - a concept which the mental midgets on the left, for some reason, seem to have a hard time processing.
But let us put it another way: Would the United States accept the legitimacy of any foreign criminal court passing judgement on the professional conduct of our own military members? Would we find it an acceptable judicial process if our soldiers and marines were, say, captured by Iraqi soldiers during the normal course of their duties, stood up on charges in an Iraqi court, convicted of trespassing, and then subject to whatever draconian punishment an Islamic nation's criminal system may prescribe?
Would we accept the legitimacy of a Saudi court trying one of our female service members for the proper wear of her duty uniform - which does not contain a veil - and sentencing her to prison or flogging?
No.
Neither of them have committed crimes, and should not be subject to the treatment normally given to criminals. If they are captured in the course of armed hostilities, their status is wholly separate from criminals, and their status as uniformed service members is sufficient to detain them for the duration of the conflict.
This is proper and necessary. If their status as hostiles weren't sufficient to detain them, they would simply be killed.
And therein lies the rub. Because any nation immediately recognizes the right to detain uniformed, legal combatants for the duration of an armed conflict without the neccessity of judicial review, our bleeding-heart, half-wit libtards on the bench have granted illegal combatants greater rights in detention than would be afforded a legal combatant.
When fighting Americans, then, there is simply precious little reason any more to abide by the laws of war. Indeed, assuming that US fighting men still give quarter to those attempting to surrender (as we are ourselves required to do under the law of land warfare), and barring the practice of summary execution, the enemy has zero incentive to comport themselves in accordance with the Geneva and Hague conventions on the law of war.
By remaining illegal, they can gain all the advantages of being a terrorist, with none of the legal downside.
Absent a legislative remedy (and given how stupid the court's libtards are now, even such a legislative remedy may be struck down as unconstitutional), a likely outcome of their abortion of a ruling is that prisoners will not be detained by Americans, but that custody will be transferred to host nations forthwith - and our bleeding-heart justices may console themselves with the knowledge that their precious charges are being left to the tender mercies of Iraq's Shia-led Interior department and Afghanistan's security forces.
So tell me how that is in the human rights interest of our detainees?
This ruling is an assault on reason, it is an assault on the constitutional power of the President to execute his duties as commander in chief, it is an assault on the law of land warfare, and by putting these animals on a higher legal plane than even our own military are entitled to in the event of court martial, it is a slap in the face to our soldiers, marines, sailors and airmen.
Splash, out
Jason
Let's put this in perspective: Our own soldiers, sailors, airmen and marines, overseas putting their very lives on the line to protect our constitutional freedoms, do not have that right, when confined under an article 15 or court martial, for reasons that I would have heretofore thought obvious: The civilian courts have no competence to weigh mission accomplishment needs against the need to maintain order and discipline in the ranks, they have no competence to establish practical and useable rules of evidence collection and gathering on the battlefield, they have no competence to sit in judgement of warriors who are accused of crimes in the heat of a firefight, and they have no administrative capacity to extend judicial oversight over thousands of miles for thousands of cases.
Yet liberals have granted the precious right of habeas corpus to terrorists.
Never, to my knowledge, in the history of warfare, has any nation ever granted the right of judicial review to prisoners of war. Indeed, it is an extremely dangerous precedent to do so, because aside from illegal combatants, international law and custom does not assume that prisoners of war have committed a crime. The criminal model is wholly inappropriate for use in the context of the routine detention of prisoners of war - a concept which the mental midgets on the left, for some reason, seem to have a hard time processing.
But let us put it another way: Would the United States accept the legitimacy of any foreign criminal court passing judgement on the professional conduct of our own military members? Would we find it an acceptable judicial process if our soldiers and marines were, say, captured by Iraqi soldiers during the normal course of their duties, stood up on charges in an Iraqi court, convicted of trespassing, and then subject to whatever draconian punishment an Islamic nation's criminal system may prescribe?
Would we accept the legitimacy of a Saudi court trying one of our female service members for the proper wear of her duty uniform - which does not contain a veil - and sentencing her to prison or flogging?
No.
Neither of them have committed crimes, and should not be subject to the treatment normally given to criminals. If they are captured in the course of armed hostilities, their status is wholly separate from criminals, and their status as uniformed service members is sufficient to detain them for the duration of the conflict.
This is proper and necessary. If their status as hostiles weren't sufficient to detain them, they would simply be killed.
And therein lies the rub. Because any nation immediately recognizes the right to detain uniformed, legal combatants for the duration of an armed conflict without the neccessity of judicial review, our bleeding-heart, half-wit libtards on the bench have granted illegal combatants greater rights in detention than would be afforded a legal combatant.
When fighting Americans, then, there is simply precious little reason any more to abide by the laws of war. Indeed, assuming that US fighting men still give quarter to those attempting to surrender (as we are ourselves required to do under the law of land warfare), and barring the practice of summary execution, the enemy has zero incentive to comport themselves in accordance with the Geneva and Hague conventions on the law of war.
By remaining illegal, they can gain all the advantages of being a terrorist, with none of the legal downside.
Absent a legislative remedy (and given how stupid the court's libtards are now, even such a legislative remedy may be struck down as unconstitutional), a likely outcome of their abortion of a ruling is that prisoners will not be detained by Americans, but that custody will be transferred to host nations forthwith - and our bleeding-heart justices may console themselves with the knowledge that their precious charges are being left to the tender mercies of Iraq's Shia-led Interior department and Afghanistan's security forces.
So tell me how that is in the human rights interest of our detainees?
This ruling is an assault on reason, it is an assault on the constitutional power of the President to execute his duties as commander in chief, it is an assault on the law of land warfare, and by putting these animals on a higher legal plane than even our own military are entitled to in the event of court martial, it is a slap in the face to our soldiers, marines, sailors and airmen.
Splash, out
Jason
Labels: law, soldiers' issues, War on Terror
Comments:
It was your beloved Bush Administration that went to great lengths to keep these bad guys from being classified as POW's. And they refused to indulge in the kind of multi-sided diplomacy to get a Geneva Convention-style treaty for military ops ("wars" if you will) run by terrorist (non-governmental) organizations. So now their goose is cooked.
Basically the you and court agree that POWs are not criminals, but they are saying if you treat them as criminals, then criminal law applies.
Basically the you and court agree that POWs are not criminals, but they are saying if you treat them as criminals, then criminal law applies.
# posted by 
: 12:32 PM
: 12:32 PM
I still don't understand why those guys aren't being stood up against a wall and shot, all nice and geneava convention style, like what you're supposed to do with bandits.
God, seadrive, are you dense? The GC provides for two types of combatants: uniformed and unlawful. These guys weren't wearing unforms, so they were unlawful. That means you can do with them as you please. Hold 'em in chains for years? Go for it. Stand 'em against the wall and shoot 'em? Have at it.
# posted by : 2:11 PM
: 2:11 PM
Jason, your result is exactly what I told one of the guys in my office earlier. In the end, this ruling will have a detrimental effect on human rights, because "capture/kill" missions, will simply become "kill" missions, and if someone happens to be captured, they'll be turned over to the host country. Nice job Justices!
# posted by : 2:11 PM
: 2:11 PM
That's exactly what Justice Scalia said, too, in his dissenting opinion, though I've only been able to read part of it, so far.
Another shining example of American Jurisprudence that will serve as an inspiration to future generations in the tradition of Dred Scott and Plessy v Ferguson.
# posted by : 3:58 PM
: 3:58 PM
Has an enemy of the U.S. ever followed the Geneva and Hague Conventions with regards to American POW's?.....the Germans, the Japanese, the North Koreans, the North Vietnamese?
With illegal combatants (terrorists, pirates, brigands), a policy of "take no prisoners" might just avoid a lot of expense and frustration.
With illegal combatants (terrorists, pirates, brigands), a policy of "take no prisoners" might just avoid a lot of expense and frustration.
Yet liberals have granted the precious right of habeas corpus to terrorists.
Lets just remember that they have them in Cuba. If it had not been for Bush's great idea to put soldiers in Cuba so he could skirt the law, this would not be the case. The only reason they had standing is because they were in Cuba, where only the Federal government had control. Had they been held almost anywhere else in the world, including here in Florida, this would not be the case.
Blame the Bush administration, it's their fault.
Lets just remember that they have them in Cuba. If it had not been for Bush's great idea to put soldiers in Cuba so he could skirt the law, this would not be the case. The only reason they had standing is because they were in Cuba, where only the Federal government had control. Had they been held almost anywhere else in the world, including here in Florida, this would not be the case.
Blame the Bush administration, it's their fault.
Tom,
And who would have had control had the detainees been held in Florida? The f***ing Girl Scouts?
I swear, you get more inane by the day.
So you agree that giving foreign illegal combatants the right to habeas corpus is a stupid idea?
And who would have had control had the detainees been held in Florida? The f***ing Girl Scouts?
I swear, you get more inane by the day.
So you agree that giving foreign illegal combatants the right to habeas corpus is a stupid idea?
And, as someone over at B5 pointed out today, the attack on a prison in Pakistan today illustrates precisely why GITMO is needed: we can't be guaranteed these unlawful combatants will remain in custody if given over to host countries/country of origin of the UC, and we can't have them in the US.
SCOTUS may very well have condemned innocents to death through this horrendous ruling, and I'm not just talking troops in the field...
SCOTUS may very well have condemned innocents to death through this horrendous ruling, and I'm not just talking troops in the field...
I agree with the basic ideals of separation of powers, that in this case the administration has time and again tried to overreach, and that the courts have acted in "this" circumstance to limit the power of the executive as per the constitution.
I am afraid I can not see it like you, in a vacuum.
From what I have read, it's clear to me, Bush is no Truman.
I am afraid I can not see it like you, in a vacuum.
From what I have read, it's clear to me, Bush is no Truman.
You dodged the question.
Again, Tom, who would have had control had they been housed in CONUS, if not the Federal government? Tony the Tiger? The Smurfs? Who?
Or were you just talking out of your ass?
Again, Tom, who would have had control had they been housed in CONUS, if not the Federal government? Tony the Tiger? The Smurfs? Who?
Or were you just talking out of your ass?
You dodged the question.
I'm trying my best too.
But to the issue of control, I would have to present a completely ridiculous hypothetical.
Given two prison camps, one in Florida, one in GITMO.
Given two prisoners with the exact same charges and status.
The president operating under the theory of Unitary Executive orders them executed by, "burning at the stake"
The order could be challenge in Florida for the obvious reasons, but who could challenge the executive at GITMO? If not the court.
I'm trying my best too.
But to the issue of control, I would have to present a completely ridiculous hypothetical.
Given two prison camps, one in Florida, one in GITMO.
Given two prisoners with the exact same charges and status.
The president operating under the theory of Unitary Executive orders them executed by, "burning at the stake"
The order could be challenge in Florida for the obvious reasons, but who could challenge the executive at GITMO? If not the court.
I was reading the decision and I do not think it sets such a president as to allow all those being held access to the writ. I think it's specific to the circumstance of these detainees, and can not be so easily expanded to every prisoner. But it does send a message to the executive that they need better processes, and that holding to history, that process should come at the beginning of detention and not at the end.
Even in your ridiculous hypothetical, who would challenge the summary execution of illegal combatants in Florida, other than the courts (I'm assuming there is a litigant with standing to act as plaintiff in the case, which you have glossed over).
Well. Congress. But Congress has equal standing to challenge the executive whether the detainees are housed in Florida or Cuba or Neptune.
And Congress was, apparently, fine with their current status at GITMO.
But enlighten us, Tom. Under what curious liberal reasoning would the right of habeas corpus attach to prisoners in Cuba but not in the United States?
Well. Congress. But Congress has equal standing to challenge the executive whether the detainees are housed in Florida or Cuba or Neptune.
And Congress was, apparently, fine with their current status at GITMO.
But enlighten us, Tom. Under what curious liberal reasoning would the right of habeas corpus attach to prisoners in Cuba but not in the United States?
It's not the habeas, it's the issue of separation of powers. In GITMO the executive argued unlimited power, including the power to "say what the law is". And that was it's mistake. As close as I can tell.
I'm not completely happy with the results, but they did seem obvious to me from the beginning. The executive put himself at a disadvantage.
You know I think the greatest danger that we might see as a result of this decision is going to be in the moral of the troops, which might see this whole episode as having their commander in chief rebuffed over and over. And it might cause a lose of confidence in his judgment. Had I sat on that bench, that issue would have weighed heavily on my mind.
I'm not completely happy with the results, but they did seem obvious to me from the beginning. The executive put himself at a disadvantage.
You know I think the greatest danger that we might see as a result of this decision is going to be in the moral of the troops, which might see this whole episode as having their commander in chief rebuffed over and over. And it might cause a lose of confidence in his judgment. Had I sat on that bench, that issue would have weighed heavily on my mind.
Under what curious liberal reasoning would the right of habeas corpus attach to prisoners in Cuba but not in the United States?
I'm going to give it a shot.
It's not that there would be no Habeas in the US, it's that in the US there would already be limits to what the executive could do. So even though there is a greater right to Habeas the court would be less likely to interfere with the executive because there are already other restraints in place. The executive could order an execution of an Illegal combatant, but not by burning at the stake, he could interrogate the illegal combatant, but not by waterboarding. He could hold them for the duration, but not without establishing some form of due process. Or in the case of a prison in the war zone, the court would be less likely to interfere as to not put unnecessary cost or obstacle in the militaries ability to do it's job and protect the country.
In GITMO the reverse would seem to be true, because there were no restraints even though the prisoners have less of a right, there did not seem to be any additional burden on the military ability to protect the country and there were no other restraints that applied to the executive, the court granted Habeas to ensure a minimum of process.
Kind of upside down, but that's the way it turned out.
I'm going to give it a shot.
It's not that there would be no Habeas in the US, it's that in the US there would already be limits to what the executive could do. So even though there is a greater right to Habeas the court would be less likely to interfere with the executive because there are already other restraints in place. The executive could order an execution of an Illegal combatant, but not by burning at the stake, he could interrogate the illegal combatant, but not by waterboarding. He could hold them for the duration, but not without establishing some form of due process. Or in the case of a prison in the war zone, the court would be less likely to interfere as to not put unnecessary cost or obstacle in the militaries ability to do it's job and protect the country.
In GITMO the reverse would seem to be true, because there were no restraints even though the prisoners have less of a right, there did not seem to be any additional burden on the military ability to protect the country and there were no other restraints that applied to the executive, the court granted Habeas to ensure a minimum of process.
Kind of upside down, but that's the way it turned out.
Due process?
Tell me... just what "due process" were German and Japanese POWs entitled to in WWII?
Rommel used to round them up by the thousands.
Just what "due process" do you suppose we should have been granting them? In what courts?
Tell me... just what "due process" were German and Japanese POWs entitled to in WWII?
Rommel used to round them up by the thousands.
Just what "due process" do you suppose we should have been granting them? In what courts?
Did you read the decision, they talked about just that.
The law was something called the Allied powers governing of occupied territories act, or something. I would have to go look to get the correct citation.
But it was an important distinction to GITMO
The law was something called the Allied powers governing of occupied territories act, or something. I would have to go look to get the correct citation.
But it was an important distinction to GITMO
madtom, you think that our troops will lose confidence in their commander-in-chief because he was rebuffed by the courts? I think it far more likely that they will lose confidence in the courts.
Also, the Supreme Court is not only rebuffing the "unitary executive", but the Congress as well, which has issued two laws pertaining to the status and rights of detainees, the last of which was in response to the SC's Hamdan decision, and which the court has just overruled. Apparently the liberal wing of the SC has decided that they will be the arbiters of this issue, period, no matter what Congress or the President says.
But I guess if Bush can be perceived as getting a bloody nose out of all of this, then it's worth the damage to the republic and the Constitution.
Also, the Supreme Court is not only rebuffing the "unitary executive", but the Congress as well, which has issued two laws pertaining to the status and rights of detainees, the last of which was in response to the SC's Hamdan decision, and which the court has just overruled. Apparently the liberal wing of the SC has decided that they will be the arbiters of this issue, period, no matter what Congress or the President says.
But I guess if Bush can be perceived as getting a bloody nose out of all of this, then it's worth the damage to the republic and the Constitution.
That's exactly right, Chris. My own confidence in the judgement of our supreme court has dropped 90 percent as a result of this ruling.
It's quite clear that the libtards on the court fixed their ruling around their bias against the Administration, and directly crossed their Hamdan decision in a blatant display of judicial Indian giving.
It's as if the Hamdan decision, upon which both Congress and the executive relied, was a great big practical joke. A game of keep-away. It's Lucy snatching the football away from Charlie Brown, except with lives in the balance.
Perhaps most outrageous of all is the fact that Justice Kennedy cites the Eisentrager case, acknowledges that the justices in that case found that trying to grant the writ of habeas corpus to prisoners of war held overseas would be a stupid idea for administrative reasons alone (gathering evidence, producing witnesses, producing the prisoners themselves, etc.), makes zero attempt at refuting that argument, and proceeds to do it anyway.
The court acted like a child, having had its hand slapped once while reaching for a pot of boiling water on the stove, redoubling its efforts, only this time fetching a step ladder and actually grabbing the pot by the handle.
The results are predictable: A fresh round of litigation, and a whole lot of detainees left in the hands of foreign governments - governments with a far more casual approach to human rights for prisoners than ours.
Tom, you did the same thing the court did: Fixed your opinion around your bias against the Bush administration, rather than around looking at the facts. That's the only way you could have come up with the inane argument that you did: That it was the Administration's fault for not housing them in the United States.
That's just stupid. You're grasping at any straw you can to use as a club against the Administration. But you haven't expressed why an illegal combatant abroad should have more priviledged access to the courts than a legal private on Fort Benning in Article 15 trouble.
It's quite clear that the libtards on the court fixed their ruling around their bias against the Administration, and directly crossed their Hamdan decision in a blatant display of judicial Indian giving.
It's as if the Hamdan decision, upon which both Congress and the executive relied, was a great big practical joke. A game of keep-away. It's Lucy snatching the football away from Charlie Brown, except with lives in the balance.
Perhaps most outrageous of all is the fact that Justice Kennedy cites the Eisentrager case, acknowledges that the justices in that case found that trying to grant the writ of habeas corpus to prisoners of war held overseas would be a stupid idea for administrative reasons alone (gathering evidence, producing witnesses, producing the prisoners themselves, etc.), makes zero attempt at refuting that argument, and proceeds to do it anyway.
The court acted like a child, having had its hand slapped once while reaching for a pot of boiling water on the stove, redoubling its efforts, only this time fetching a step ladder and actually grabbing the pot by the handle.
The results are predictable: A fresh round of litigation, and a whole lot of detainees left in the hands of foreign governments - governments with a far more casual approach to human rights for prisoners than ours.
Tom, you did the same thing the court did: Fixed your opinion around your bias against the Bush administration, rather than around looking at the facts. That's the only way you could have come up with the inane argument that you did: That it was the Administration's fault for not housing them in the United States.
That's just stupid. You're grasping at any straw you can to use as a club against the Administration. But you haven't expressed why an illegal combatant abroad should have more priviledged access to the courts than a legal private on Fort Benning in Article 15 trouble.
That it was the Administration's fault for not housing them in the United States.
Jason that was not my argument?? What I said was that the Administration picked GITMO so "It" could skirt the laws. You got it upside down. And the only bias I have ever shown toward the Bush administration in it's prosecution of this war has been performance based.
I am a believer of leaving politics at the shore, and have not wet my feet to date. you just think anyone who could dare disagree with your prophet, Bush, must be bias, or something. apparently.
But you haven't expressed why an illegal combatant abroad should have more priviledged access to the courts than a legal private on Fort Benning in Article 15 trouble.
Nor do I believe you or anyone else has ever shown that to be the case. As a matter of law if any detainee had ever been afforded the same privileges afforded any soldier under the UCMJ, there would be no case at all. Liberal court or not. Just saying so does not make it true. It's the reason given for throwing out these CMT or whatever they are called. They did not allow for council, they did not allow for witnesses, and they did not allow for exculpatory evidence, all of which exist in some form with Article 15 preceding. It's not the liberal courts, it's the militaries own UCMJ and the Geneva Convention that demand as much.
Jason that was not my argument?? What I said was that the Administration picked GITMO so "It" could skirt the laws. You got it upside down. And the only bias I have ever shown toward the Bush administration in it's prosecution of this war has been performance based.
I am a believer of leaving politics at the shore, and have not wet my feet to date. you just think anyone who could dare disagree with your prophet, Bush, must be bias, or something. apparently.
But you haven't expressed why an illegal combatant abroad should have more priviledged access to the courts than a legal private on Fort Benning in Article 15 trouble.
Nor do I believe you or anyone else has ever shown that to be the case. As a matter of law if any detainee had ever been afforded the same privileges afforded any soldier under the UCMJ, there would be no case at all. Liberal court or not. Just saying so does not make it true. It's the reason given for throwing out these CMT or whatever they are called. They did not allow for council, they did not allow for witnesses, and they did not allow for exculpatory evidence, all of which exist in some form with Article 15 preceding. It's not the liberal courts, it's the militaries own UCMJ and the Geneva Convention that demand as much.
Neither the UCMJ nor the Geneva Conventions demand a thing in order to detain combatants, illegal or otherwise, with hostilities still extant.
POWs don't get "council," nor witnesses, and never did, anywhere, in the recorded history of warfare. They are detained until the cessation of hostilities.
"That was not my argument."
Horse hockey. That was PRECISELY your argument in your comment timestamped at 10:48, above.
POWs don't get "council," nor witnesses, and never did, anywhere, in the recorded history of warfare. They are detained until the cessation of hostilities.
"That was not my argument."
Horse hockey. That was PRECISELY your argument in your comment timestamped at 10:48, above.
Must be my lack of communication skills, because no reading of my comment TS:10:48 should communicate that. Only that the court would have been less likely to grant a hearing because of separation issues in the US to Illegal alien combatants, which the administration guessed they could skirt at GITMO. They guessed wrong.
At 3:29, in response to my assertion that granting habeas rights to illegal combatants would grant more priviledged access to the courts than our own military personnel enjoy. I was perhaps inaccurate in fixing Ft Benning as the locale-it could just as easily be a remote post, which would place it outside of US territory.
Nevertheless you write that neither I nor anyone else has shown that to be the case. But Justice Jackson, in illustrating the absurdity of granting habeas rights to illegal combatants, deals with precisely this question at length in the Eisentrager decision. To wit:
If this Amendment invests enemy aliens in unlawful hostile action against us
with immunity from military trial, it puts them in a more protected position
than our own soldiers. American citizens conscripted into the military service
are thereby stripped of their Fifth Amendment rights and as members of the
military establishment are subject to its discipline, including military trials
for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695;
Wade v. Hunter, 336 U.S. 684. [***1269] Can there be any doubt that our foes
would also have been excepted, but for the assumption "any person" would never
be read to include those in arms against us? It would be a paradox indeed if
what the Amendment denied to Americans it guaranteed to enemies. And, of course,
it cannot be claimed that such shelter is due them as a matter of comity for any
reciprocal rights conferred by enemy governments on American soldiers. n11
...And further: If the Fifth Amendment confers its rights on all the world except Americans
engaged in defending it, the same must be true of the companion civil-rights
Amendments, for none of them is limited by its express terms, territorially or
as to persons. Such a construction would mean that during military occupation
irreconcilable enemy elements, guerrilla fighters, and "werewolves" could
require the American Judiciary to assure them freedoms of speech, press, and
assembly as in the First Amendment, right to bear arms as in the Second,
security against "unreasonable" searches and seizures as in the Fourth, as well
as rights to jury trial as in the Fifth and Sixth Amendments.
Such extraterritorial application of organic law would have been so
significant an innovation in the practice of governments that, if intended or
apprehended, it could scarcely have failed to excite contemporary comment. Not
one word can be cited. No decision of this Court supports such a view.
And in Justice Roberts' dissenting opinion in the case at hand, he also notes, citing Burns v. Wilson (1953) that habeas review is far narrower in scope in military cases than in civil cases.
It seems that everyone grasps this, except you, Tom.
Nevertheless you write that neither I nor anyone else has shown that to be the case. But Justice Jackson, in illustrating the absurdity of granting habeas rights to illegal combatants, deals with precisely this question at length in the Eisentrager decision. To wit:
If this Amendment invests enemy aliens in unlawful hostile action against us
with immunity from military trial, it puts them in a more protected position
than our own soldiers. American citizens conscripted into the military service
are thereby stripped of their Fifth Amendment rights and as members of the
military establishment are subject to its discipline, including military trials
for offenses against aliens or Americans. Cf. Humphrey v. Smith, 336 U.S. 695;
Wade v. Hunter, 336 U.S. 684. [***1269] Can there be any doubt that our foes
would also have been excepted, but for the assumption "any person" would never
be read to include those in arms against us? It would be a paradox indeed if
what the Amendment denied to Americans it guaranteed to enemies. And, of course,
it cannot be claimed that such shelter is due them as a matter of comity for any
reciprocal rights conferred by enemy governments on American soldiers. n11
...And further: If the Fifth Amendment confers its rights on all the world except Americans
engaged in defending it, the same must be true of the companion civil-rights
Amendments, for none of them is limited by its express terms, territorially or
as to persons. Such a construction would mean that during military occupation
irreconcilable enemy elements, guerrilla fighters, and "werewolves" could
require the American Judiciary to assure them freedoms of speech, press, and
assembly as in the First Amendment, right to bear arms as in the Second,
security against "unreasonable" searches and seizures as in the Fourth, as well
as rights to jury trial as in the Fifth and Sixth Amendments.
Such extraterritorial application of organic law would have been so
significant an innovation in the practice of governments that, if intended or
apprehended, it could scarcely have failed to excite contemporary comment. Not
one word can be cited. No decision of this Court supports such a view.
And in Justice Roberts' dissenting opinion in the case at hand, he also notes, citing Burns v. Wilson (1953) that habeas review is far narrower in scope in military cases than in civil cases.
It seems that everyone grasps this, except you, Tom.
I've quoted you and linked to you here: http://consul-at-arms.blogspot.com/2008/06/re-so-illegal-combatants-have-habeas.html
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