Cafe Talk | Talking Points Memo | Do The Gitmo Detainees Have the Same Rights As, Say, OJ Simpson?

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Do The Gitmo Detainees Have the Same Rights As, Say, OJ Simpson?

By Fredrick Bernanke - June 12, 2008, 9:52PM

Questions from a non-Attorney

" [The ruling] says that anyone held in what is de facto U.S. territory -- no matter what crimes he may have committed or where he is from -- is entitled to challenge his detention."--from an article just published on Salon.com

Please excuse the ignorance of the following questions from a non-attorney (me.)

1. Does this ruling give the Gitmo detainees the same rights as, say, OJ Simpson?

2. Does this ruling mean that if Executive-prisoners are detained on de facto and de jure territory that the United States does not control, they do not possess the right of habeas corpus?

3. Does this ruling extend the Constitutional rights enjoyed by US citizens to every citizen of the world?

4. Would the court have ruled this way if the petitioner were a prisoner rended by the US to a Romanian or Jordanian facility?

5. Does the ruling open the door for "obviously dangerous and guilty" prisoners to have their cases dismissed and be released into the world to saw heads off and blow up children at school based on legal transgressions committed by the Bush Administration?

MyBlog: http://ProteanPerspectives.blogspot.com

Comments (14)

Read the opinion.

Posted by Chris Brown
June 12, 2008 10:17 PM | Reply | Permalink

That's not a "reply."

I did read the opinion, BTW. Did you? And, if so, answer my questions, smartass.

Posted by FredrickBernanke
June 12, 2008 10:26 PM | Reply | Permalink

The ruling pertains to the writ of Habeas Corpus. The GREAT writ, written long before the USA. Decent civilized people have a right to know why are are detained and have a right to defend themselves.

I suggest you read it:
http://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States

Posted by mageduley
June 13, 2008 12:55 AM | Reply | Permalink

The ruling applies to habeas corpus, agreed.

But, having read both the majority decision and the dissenting opinions of Roberts and Scalia--have you done that?--the majority opinion seems to hinge on the meaning of "sovereignty,"
nothing more.

The majority determined that Gitmo, though de jure under the soveriegn jurisdiction of Cuba in perpetuity was de facto under the sovereignty of the United States and therefore the detainees therein were entitled to habeas corpus.

"The Nation will live to regret what the Court has done today. I dissent."

I ,as a US citizen, non-attorney, agree with the above quote, which are the last two sentences of Scalia's dissenting opinion.

Posted by FredrickBernanke
June 13, 2008 1:39 AM | Reply | Permalink

"The Nation will live to regret what the Court has done today. I dissent."
I ,as a US citizen, non-attorney, agree with the above quote, which are the last two sentences of Scalia's dissenting opinion.

FB - Whatever you may think of Scalia's dissent, please be aware that he is a lousy fortune teller.

Five years ago he promised a "massive disruption of the current social order" should the laws against gay sex be overturned. [Lawrence v Texas]. Didn't happen.

Shortly before that, he failed to foresee that the man he was duck hunting with would soon mistake an elderly lawyer for a small quail. Lousy judgment.

Consider this: 85% of Americans and most of the the world do not agree with the administration's foreign policy...(and by default Scalia, in this case). Is there possibly something or some things that you have misjudged regarding terrorists or our global position? Personally, I don't see any honor in always being wrong.

Posted by seashell
June 13, 2008 3:21 AM | Reply | Permalink

Sigh. I miss preview. Working link to Lawrence v Texas, I hope.

Posted by seashell
June 13, 2008 3:25 AM | Reply | Permalink

Do you remember this famous exchange between Arlen Specter (R) and Alberto Gonzales regarding Habeas Corpus and detainees?
http://www.youtube.com/watch?v=YIFqYVAOosM

Posted by mageduley
June 13, 2008 12:59 AM | Reply | Permalink

But I think a good history lesson will help you understand the argument.

Posted by mageduley
June 13, 2008 1:05 AM | Reply | Permalink

FB - is your goal to have people do their own research?

Posted by Aunt Sam
June 13, 2008 1:23 AM | Reply | Permalink

AS,

See my reply above to mageduley.

Have you read the opinion...and the Roberts and Scalia dissents?

Frankly, it wouldn't hurt if some of the knee-jerk liberal posters here did some research...and some thinking.

But I love TPM nonetheless. Great place to exchange ideas...Only in America. =)

Posted by FredrickBernanke
June 13, 2008 1:44 AM | Reply | Permalink

You wrote:
"Frankly, it wouldn't hurt if some of the knee-jerk liberal posters here did some research...and some thinking."

How about this research and thinking Fred:

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from. We have been here before—and we have been here before led here—by men better and wiser and nobler than George W. Bush. We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives, only to watch him use those acts to jail newspaper editors. American newspaper editors, in American jails, for things they wrote about America. We have been here when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives, only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war. American public speakers, in American jails, for things they said about America. And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9066 was necessary to save American lives, only to watch him use that order to imprison and pauperize 110,000 Americans while his man in charge, General DeWitt, told Congress: “It makes no difference whether he is an American citizen—he is still a Japanese.” American citizens, in American camps, for something they neither wrote nor said nor did, but for the choices they or their ancestors had made about coming to America. Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons. And each was a betrayal of that for which the president who advocated them claimed to be fighting. Adams and his party were swept from office, and the Alien and Sedition Acts erased. Many of the very people Wilson silenced survived him, and one of them even ran to succeed him, and got 900,000 votes, though his presidential campaign was conducted entirely from his jail cell. And Roosevelt’s internment of the Japanese was not merely the worst blight on his record, but it would necessitate a formal apology from the government of the United States to the citizens of the United States whose lives it ruined.

http://www.commondreams.org/views06/1019-24.htm

Posted by mageduley
June 13, 2008 10:37 AM | Reply | Permalink

OK FB, the de facto that Gitmo is sovreign unto the US rests in the fact that it is a US military base. If Gitmo is not de facto part of the US, then the naval base McCain was born at in Panama is not de facto part of the US and therefore he can't legally, constitutionally run for President. ( Nor could my ex-hubby, who was born at a US Army base hospital in Japan.)

Question #1: No it does not. OJ is and was a citizen of the US and therefore was granted all rights as such. Habeus Corpus is knowing the charges against you, and having a court decide whether the charges are legal and having the right to defend yourself. The Great Writ is close to 1,000 years old and is the basis of all our jurisprudence, without it an individual would be nothing. See Magna Carta and Lettres de cachet if you want a more historical outlook.

Question #2: I'm not sure what Executive detainees means. But this ruling was narrow as far as I can tell and if a prisoner is not on de facto or de jure US territory, this finding does nothing for them. So prisoners at US black sights around the world are not protected, unless they are on US bases. Prisoners at Abu Graib are for all intents and purposes under Iraqi sovreign control, so they get nothing from this ruling. I don't know about Bagram in Afghanistan since it is a US Base, but it's also an Afghani town, I guess it depends on where the prison is located and who controls it legally.

Question #3: Not no, but hell no. Are you high?

Question #4: No. There would have been no standing for the complaint. If a prisoner in Romania/Jordan wants relief he must go through the Romanian or Jordanian Courts. After that, he must hope for International or EU Court relief. This ruling will not help them.

Question #5: Gosh what a loaded question. Again, please read up on the Great Writ before you try to define it in an inflamitory manner.

I'm pretty knew to the TPM reader's blogs, thought I've been reading the front page for many years. And I recognize your name FB, so I'm taking your questions to be sincere and all you want is knowledge. I'm not an atty; hell, I'm nothing legal, but I answered your questions the best that I knew. And yea, I was pretty snitty at #3 mostly because I couldn't beleive they were actually legitimate questions. And if they were, I apologize for my brusqueness. And perhaps someone else could take them on more gracefully than I. It's been decades since I took a Con Law class, but it was around the time of the Iranian Hostage Crisis and we discussed de jure and de facto sovreignity and Habeus Corpus and from those memories I answered your questions. So any mistakes I've made are my own and the lapse of time and not my fine professors :-)

Posted by Dee Loralei
June 13, 2008 2:30 AM | Reply | Permalink

If Gitmo is not de facto part of the US, then the naval base McCain was born at in Panama is not de facto part of the US and therefore he can't legally, constitutionally run for President.

Although I agree with the rest of your points, I'm going to take exception to this one (having been born abroad I might be a bit sensitive here).

To be a naturalized citizen of the US you merely have to be born a citizen of the US. That might mean being born in the US, or it might merely mean being born to parents who are American citizens. If your parents are American citizens, you do not have to be born on American soil to be recognized as a naturalized citizen yourself.

Posted by Ben Hocking
June 13, 2008 9:34 AM | Reply | Permalink

No, no, no.

Bernanke doesn't really want a reasoned and measured analysis of the ruling. His purpose was to bring up the case, lure people in by asking ridiculous questions, and then pounce on unsuspecting posters by accusing them of not knowing what they're talking about.

Unfortunately, this strategy no longer works when you're faced with people who know what they're talking about.

Please. Doesn't Fredrick deserve a little more compassion?

Posted by imani360
June 13, 2008 11:12 AM | Reply | Permalink

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January 12-16

Do The Gitmo Detainees Have the Same Rights As, Say, OJ Simpson?

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