The Mills of Justice Grind Slowly

To be sure, but they do at least seem to be reaching the right conlusion in the end.

In its third rebuke of the Administration\’s treatment of prisoners at Guantanamo Bay, the court ruled that the 270 foreign suspects have the right under the US Constitution to challenge their detention in civilian courts on the American mainland.

The 5-4 ruling did not order the military tribunal process to be halted but by giving the detainees – many held without charge for more than six years – the right to be heard by a federal judge, it could trigger a rush to civilian courts that, in practical terms, will leave the question of what to do with men such as Khalid Sheikh Mohammed, the alleged mastermind of 9/11, in the hands of the next president.

Barack Obama, the Democratic nominee, has pledged to close down the facility and opposes the military tribunals. John McCain, his Republican opponent, also wants Guantanamo Bay closed.

Unlike Mr Obama, the Arizona senator supported a law rushed through Congress in 2006 by Mr Bush to resurrect the military tribunal system after the Supreme Court last ruled it unconstitutional.

That law, the Military Commissions Act, was passed when Republicans controlled the House and Senate and was the legislation declared unconstitutional yesterday because it denied the detainees the right of habeas corpus – the ability to ask a court if one is being held illegally.

This is exactly the same argument that David Davis is on the correct side of (and much to my anger, Bob Spink isn\’t).

It\’s the whole point of a system of civil liberties (and what, if one is to have a constitution, it should lay out): it isn\’t a description of what government may do for us, it\’s a detailing of what government and The State may not do to us.

Yes, yes, I know, in previous times most of these detainees would have been shot on the battlefield, yes, I\’m aware of the arguments about being at war, about the thought that these constitutional protections belong only to US citizens and not to Johnny Foreigner: but that\’s what the Supreme Court is for, to consider such arguments and they have rejected them.

You can\’t lock people up without offering them a fair trial and convicting them in one of such.

Good, now that\’s settled, let\’s get on with said trials, shall we?

7 thoughts on “The Mills of Justice Grind Slowly”

  1. No, I think this just comes down, yet again, to the argument over whether you treat terrorists as enemy combatants or civilian criminals. The Supreme Court have clearly decided they’re civilian criminals, but that’s a political decision, not a legal one, however they’ve chosen to dress it up. And it’ll come as news to the men who were being shot at by them on the battlefield.

    > You can’t lock people up without offering them a fair trial and convicting them in one of such.

    Yes, you can, if they’re prisoners of war.

  2. Sorry, should have added:

    Yes, David Davis is right, but no, it’s not exactly the same argument. Brown is trying to extend police powers because he’s determined to treat terrorism as a civilian crime, not a military matter, so needs the civilian police to be more powerful to cope with terrorists. In other words, he’s working on the same assumption as the Supreme Court (though disagreeing about methods). The detainees at Guantanamo were not arrested by civilian police departments while driving down Fifth Avenue or somewhere; they were captured by the military in war zones. David Davis, as far as I know, has not claimed to be calling a bye-election to debate what powers of detention our military may have in war zones on foreign soil.

  3. Yes, yes, I know, in previous times most of these detainees would have been shot on the battlefield, yes, I’m aware of the arguments about being at war, about the thought that these constitutional protections belong only to US citizens and not to Johnny Foreigner: but that’s what the Supreme Court is for, to consider such arguments and they have rejected them.

    I don’t think, ‘I’m a fuckwit, just like five of the Supremes,’ is a very telling argument for your stupid position in this matter.

  4. But Justice Kennedy, having now ignored 7 precedents and overturned 140 years of prior rulings, can now bask in the adoration of his audiences during his upcomming summer tour of Europe. You know-its “evolving standards of international decency” and the idea that there’s a “time limit” on the length of any warfare. This is fine for those currently held, but the net effect will be either “Miranda” warning cards carried by all USA troops during combat or-much more likely-the NCO’s have quietly informed the rifle companies that there will be no more prisoners taken.

  5. The question also arises that if the detainees have gained the right of access to the civilian courts under a Constitutional argument, will they then obtain further protections under said Constitution? Do they gain Fifth Amendment rights against self-incrimination? Sixth Amendment rights to a speedy and public trial, and all the hearsay restrictions that the Sixth entails? The power to compel witnesses to come forward? Fourth Amendment probable cause protections? Does this constrain what we can do from an intelligence-gathering point of view? Assuming arguendo that the Sixth’s right to a speedy trial requires a captive to be tried before his intelligence value has been completely mined, what incentive other than ‘we just don’t do that sort of thing’ is there to capture him alive in the first place? I think Mike, above, may have a point when he wonders if this will not create a moral hazard.

    When have the norms of peacetime judicial process ever been applicable (never mind applied) in a kinetic combat environment with an open-ended timeframe? Soldiers in Northern Ireland were given very strict legalistic rules of engagement, but even there procedures differed from the standard (e.g. Diplock courts). Terrorism is not warfare in the conventional sense. It is not crime in the conventional sense. Applying strict legalistic criteria to the fight against it would appear to be a category error. Perhaps the reason our forebears shot irregulars out of hand was because they recognised the dilemma that would arise from treating them either as POWs or as criminals.

    Lenin said that capitalism would sell the rope used to hang it. It seems the rope-vendors this time are activist judges. They would do well to remember Justice Goldberg’s statement that the Constitution is not a suicide pact.

  6. > The power to compel witnesses to come forward?

    Since witnesses will nearly always be on foreign soil, that one could get very interesting. Can we see many countries agreeing to extradict witnesses? Or will extraordinary rendition be required?

  7. Since most of the witnesses would presumably be the soldiers who shot/captured them, will we now see a steady stream of troops taken out of their units and flown home to testify whether the detainees got their Miranda rights, were they adequately warned before being shot, and perhaps a delving into the soldiers’ pasts to see whether they ever drank too much, uttered un-PC thoughts etc?

    Is the same system that freed OJ going to now tackle al-Qaeda?

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