SUPREMES PLAY GITMO
SCOTUS QUINTET MAY CLOSE THE SHOW TRIALS
INNOCENT MEN HELD FOR YEARS WITHOUT DUE PROCESS APPLAUD DECISION
Or They Would If They Could Move Their Hands
National Public Radio News Hour
"Justices Rule Terror Suspects Can Appeal Detentions"
"Many detainees' ties to terrorism doubted"
"David Hicks set to be Guantanamo's only convict"
"Habeas Ruling Lays Bare the Divide Among Justices"
"Scalia's fear factor"
"McCain: Guantanamo Ruling One of the ‘Worst Decisions’ in History"
"Why This Court Keeps Rebuking This President"
The corporate media that sold us the phony "War On Terror" are in a dither over the recent US Supreme Court decision that rejects Bushco arguments against due process for "unlawful combatants," ie, those poor bastards down in Gitmo, and elsewhere. Given the fact that dozens of them have been discovered to have been mistakenly arrested, and then held without trial for years, and tortured, it's about time the Supremes got off their asses.
It's tough for them to do, even now. Four of the nine Justices have played their role as Republican Party apparatchiks diligently over the years, ceding unprecedented powers to the corrupt, incompetent, Constitution-shredding Bush Junta. The usual excuses were dragged out: National security, executive privilege, there's a war on sorta, all that fucking bullshit. But when the other five justices finally found their balls, or ovaries, or consciences, or sense of Constitutional responsibility again, the bullshit broke.
Head hatchet-man, election-stealer and shooting buddy of the crypto-nazi Vice President, Antonin "I Love Dick" Scalia accidently spilled the beans: He hasn't been working as an impartial judge fighting "judicial activism," he's been engaged in blatant political activism from the bench.
It was all just a power grab. Few if any convictions on real terror charges have been won by the government. Most of the Gitmo detainees have been found harmless and let go, after years in unlawful detention. The real reason for the whole kangaroo court system is now obvious: Bushco couldn't stand public scrutiny in their failed war on terror.
The Bushco position on these cases was based on Johnson v. Eisentrager , from WWII.
Johnson v. Eisentrager is not a valid precedent in this case, if only because the Bush prisoners were held on U.S. soil. Their combatant status, if any, and the crimes that they were charged with, if any, are also not covered by Johnson. Bush cannot simply waive the U.S. Constitution when he finds it inconvenient. If he wants to cite Johnson, he should hold his prisoners on somebody else's territory. (Oops, I've said too much.) But then he'd be subject to their jurisdiction, and they might be found complicit. There are other problems with using Johnson v. Eisentrager as precedent:
1. In Johnson v. Eisentrager, the prisoners had never been on US sovereign territory. They were in a German prison, administered by the US Army, but on German soil. U.S. Embassies and most military bases abroad are U.S. sovereign territory*; all are under US jurisdiction. Therefore, our law applies there. Some of the Bush prisoners were held on U.S. soil. The Constitution applies on U.S. soil. Gitmo is U.S. soil. Just ask Castro. Johnson doesn't apply on U.S. soil, under US jurisdiction.
2. "We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." No prisoners in these terror trials and non-trials is or has been accused of being in the service of a government at war with the US. We are not at war. War has never been declared, by us or any other government. There is no enemy government. These prisoners are not soldiers in service of an enemy government in time of war. So Johnson v. Eisentrager doesn't apply.
3. Ironically, the plaintiffs in Johnson had been accused by the U.S. Army of violating the Geneva Conventions. I don't believe any of the accused in the Bush cases has been charged with violations of the Geneva Conventions. If anything, they may be victims of violations of the Geneva Conventions, by the U.S.
4. Some of the plaintiffs in the Bush cases are American citizens. The Constitution always applies to American citizens, wherever they may be, if they can find U.S. jurisdiction. Johnson simply does not apply here. Using it as precedent was a stretch at best. "But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens". The civilized world, as in, America before Bush.
The Bushies wanted to have it every which way: We're at war, but we're not at war. They're enemy soldiers, but they're not enemy soldiers. They're common civilian criminals, but we'll try them in military courts. We'll keep them out of the Homeland and away from judges, but we'll hold them on U.S. territory overseas. We'll give them trials, but we won't allow them due process. We'll cite U.S. law and the Geneva Convention, but we're not following them ourselves. U.S. Courts don't have jurisdiction, but we'll go to them for a rubber-stamp. We're defending the Constitution, but it doesn't apply to us. Legalistical horsesh*t, and very bad lawyering.
Actually, the issue is one of jurisdiction: The US Courts had no jurisdiction on German soil, in a German facility on German property not owned, leased, or controlled, or under US jurisdiction, specifically, by treaty with any legitimate German government.
*Not all US military bases abroad are sovereign US territory. That depends upon the "Status of Forces Agreement" for each base in each country. But every US military facility in the world is under US Courts' jurisdiction. The only question might be, is it a US military base, owned, leased or controlled by the US by treaty with a legitimate local government?
The German prison was not a US military base. Guantanamo is a US military base. A perpetual lease (requiring no action for renewal) on the land was given to the US by the Cuban government after the Spanish-American War. The Cubans retain sovereignty over the Bay, but the US has "control and jurisdiction." Subsequently, the US has been been making payments to every Cuban government since 1898 for Guantanamo. Castro has never set foot on the base. We might arrest him.
Actions of US military personnel on US military bases, or in the field in times of war, are subject to the Uniform Code of Military Justice. Actions of US military personnel off the base and in peacetime are subject to the UCMJ and/ or the local civilian Courts, according to the Status of Forces Agreement, and the discretion of the military authorities.
Actions of soldiers in the service of an enemy government in time of war are subject to the Geneva and Hague Conventions. Enemy soldiers are entitled to due process under the Conventions.
Actions of civilians or "unlawful combatants" are subject to the Conventions, and the laws of their native country, or the country where the actions took place. They are NOT under military jurisdiction under the UCMJ. They are NOT under US civilian Courts' jurisdiction if they never set foot on US soil, or US-controlled soil, such as a US military base. If they EVER set foot on such soil, they are under US civilian Courts' jurisdiction.
Once under US civilian Courts' jurisdiction, they can claim all the rights of a US citizen under the US Constitution to due process, including habeas corpus, and a speedy trial. If Bill O'Reilly and Rush Limbaugh are not happy about this, they should move to a country not covered by the Constitution, such as Iraq or Afghanistan.
They should also blame the arrogance and stupidity of Bushco, and their crooked compliant lawyers, who should have known that, even in time of war, the President can sometimes get away with bending the Constitution, but not breaking it. Ultimately, he is answerable for his actions, to Congress and to the Courts. That's what it says in the Constitution. The Wingers should read it, next time, before they wipe their asses with it.
The Constitution is what preserves and protects our liberties, the democracy and freedom and rule of law Bushco is pretending to export to the Middle East, while violating it here. The Constitution IS America. By violating it, Bush has betrayed us all. He has violated his oath of office, committed high crimes and misdemeaners, and should be impeached, convicted and removed from office. No time for that now. But he MUST be indicted for these and all his other unlawful acts, along with Cheney, Rumsfeld, et al, after we take back our country. I hope Obama has the balls to do that. It needs to be done. Otherwise, they will be back, just as Nixon's and Reagan's old gangs came back.
[Cross-posted at THEAMERICANSTREET.]
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