More Habeas

Its seems a shame that I've had to return to the theme of Habeas Corpus.  But as long as Bush keeps taking it away, and Dahlia Lithwick keeps writing great articles on it at Slate, I'll keep at it.  Great article last week that I'm just now getting around to excerpting.  Anyway, last week the Supreme Court heard oral arguments on the status of prisoners at Guantanamo and whether they deserve any Habeas protections.  Lithwick eviscerates the government's case:

If the rule of law were a religion, habeas corpus would be the first commandment.

The
right to have the state justify anyone's incarceration is so
fundamental?dating back centuries to the Magna Carta?that in this
country it's protected by statute, by the Constitution, and at common
law. Today's oral argument in Boumediene v. Bush and Al Odah v. United States is
about nothing less than whether the Bush administration's war on
terror?endless in its geographic reach and indefinite across time?will
become the instrument of the great writ's demise.

The question the court must answer is whether Congress properly
stripped the remaining 300-and-some detainees at Guantanamo Bay of
their right to go before a neutral judge and challenge their detention.
If that feels familiar, it's because we've heard this fight before in Hamdan v. Rumsfeld (2006). And also before that in Rasul v. Bush (2004). What's changed is that Congress, by enacting the 2006 Military Commissions Act (PDF), joined President Bush in the family habeas-stripping business.

Anyway, for me, its all summed up amazingly in the following paragraph:

Except, six years later, it's clear (PDF) that the legal proceedings set up at Gitmo in the wake of Rasul, the so-called Combatant Status Review Tribunals
(PDF), mostly give prisoners the “right” to be tried by a judge who
answers to the military; the “right” to be tried with evidence obtained
by torture; the “right” to be presumed a terrorist from the outset; the
“right” to be tried without a lawyer present; and the “right” to be
tried with evidence that's sloppy, inaccurate, and classified.

I'm not suggesting by any means that all the guys at Gitmo are innocent.  I'm sure that some are (as Babu Bhat would say) very, very, bad men.  But a system such as the CSRT really does not offer a meaningful way to tell the former from the latter.  And in an American (or any) system of justice, that's just plain wrong.  

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