Should Habeas Corpus apply to non-resident combatants captured in a third country?

[Perky]

:hide::popcorn:

Defend your position not with a rant but with logic. Convince us that the Contitution applies or doesen't

[BlooInBloo]

1. I don't know. It partly depends on how broadly/narrowly you construe the concept.

[Perky]

2. But it should not be contrued either way,

How can the Consituion be applied where it has no authority and the party involved is not subject to the laws of the Unites States either because he has never set foot on US Territory?

[pat_k]

53. They are in U.S. custody. . .

and http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">the Constitution applies to Everyone in U.S. Custody. . .

[Kali]

3. my view:

Should it? Yes. Does it legally? I don't know.

It seems to me if we value our system/"way of life" so much we should be applying it where ever we are involved in the world. I realize even our military doesn't use the same justice system we civilians supposedly have, but I think the Constitution should guide our actions and decisions.

[pat_k]

54. "Does it legally?" -- It does.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">Reply 49 and related post http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8342623">Reply 35

[Kali]

56. I thought so - thanks for the confirmation.

Those guys were pretty on the ball when they came up with that document, eh?

[atreides1]

4. Here you go

The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
Is in custody in violation of the Constitution or laws or treaties of the United States; or
Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
It is necessary to bring said persons into court to testify or for trial.

[Egnever]

99. wow thats really interesting

You write that or is there a link?

Cause according to that it seems as though they dont qualify. I am not sure that I like that.

[lazer47]

5. Habeas Corpus is an extension of our constitution,

If a foreign government adapts that form of constitution, and adds Habeas Corpus to their constitution, then the protection should stand,,However it is our constitution (We The Citizens)that we go by, you can no more apply Habeas Corpus to an Islamic Third World Country,,than you could The Equal Rights Amendment..

[Zodiak]

44. Except there is no Equal Rights Amendment

That is one battle we have lost time and time again. Southern Democrats will not allow it.

[Perky]

45. Yes there is....it is called the 14th Amendment.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.<1>

[pat_k]

55. But take a person into U.S. Custody, and it applies.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">Reply 49 and related post http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8342623">Reply 35

[Perky]

59. It may well depend on who takes them into custody.

The military has no arrest authority under Posse Commitatusm, But they are obligated to sieze POWs and treat them according to Geneva.

Police Authority extends to FBI and other federal authorities, (secret service. Postmaster General, US Marshals) but not the CIA (as I understand it). So this issue of Habeus may actually be limited to renditioned detainees but not enamy combatants. CIA can detain... but because they are not military so they can not hold them. They have to either turn them over to the MIlitary as A POW or the FBI makiing them subject to the Constitution and the legal process.

[pat_k]

69. If status is in doubt or challenged, we must "produce the body" and justify. .

. . .confinement, whether it be as a "lawful combatant" (POW immune from prosecution for acts permitted under the laws of armed conflict), as a criminal suspect under indictment, as an unlawful combatant subject to prosecution for war crimes, or as a person subject to extradition. If we cannot determine status and justify confinement in court, we can't keep holding them. Period.

Both the Federal and Military justice systems provide the means to judge and keep state secrets secret. Put it before the court and let the various entities argue it out.

And if the courts provide answers that are abhorrent to the American people, we lobby our Congress to remedy the law. This is the means by which we resolve the "issues." And doing so is what the constitution demands.

[slackmaster]

6. The term "combatant" implies that there is a military conflict

Therefore such an individual would be a prisoner of war, and as such must be treated in accordance with the Geneva Conventions, not the Constituation.

[peace13]

8. The patriot Act included anyone who the President deemed a threat

as an enemy combatant. That included Americans on the street corner demonstrating against Iraq. So... I beg to differ with you! My guess is that you too were an EC of some form or other! I do believe that Obama has changed this or is working on it.

[slackmaster]

12. I don't respect that definition, and the OP did not state that it was the operational one for this

...discussion.

[Johnyawl]

18. Right!!

[anonymous171]

30. Correct. nt

[pat_k]

61. Treaties are part of the Constitution. . .

And it is necessary to do more than "imply" status by a label. One must actually BE a "lawful combatant" for the law of military conflict to apply (i.e., be a member of a regular armed force or an irregular force; commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly. . .)

"Unlawful combatants" taken on the field of battle are subject to prosecution for war crimes for acts committed on the field of battle. (Lawful combatants are immune from prosecution for acts permitted under the law of armed conflict.)

Persons kidnapped from other countries without warrant are NOT "combatants" of any kind (regardless of Bush and Cheney's fascist fantasies). Like any other criminal, they'd need to be charged with a crime based on evidence, but the unwarranted kidnapping is likely to put any case at risk (why this wasn't done pre-Bush occupation)

Clinton's form of rendition required a formal warrant or conviction from the country to which the person was "rendered." Different countries have different rules about whether or not "bounty hunters" can operate in their borders. What Clinton did, having a warrant, is arguably legal or illegal depending on the operable laws. (And, of course, the people doing the snatching risk prosecution under those laws.)

More in http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">Reply 49 and related post http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8342623">Reply 35

[snake in the grass]

7. Yes.

If these rights are universal then we have no choice. There aren't two types of humans i.e. U.S. citizens and lesser beings.

[Perky]

10. But the right of Habeas is not universal,

We may want it to be, but that is a decision for sovereign governments to decide for themselves,

It may seem "inhumane" but a US right of Habeas Corpus can no more apply to an individual captured on a battlefield in another sovereign county, then can Portuguese laws regarding vandalism be applied to someone tagging their embassy in DC.

[snake in the grass]

28. I know what you mean...

...and I actually didn't answer the question correctly. However, I do find it a pity that non-citizens are considered not worthy of that which most of us in the U.S. take for granted. The thought that there are innocent people still in Gitmo Limbo after all these years really makes me have to choke down the bile.

[pat_k]

64. A person in U.S. Custody has the right of Habeas if status as "lawful combatant"

. . .has not been established.

A lawful combatant is an individual authorized by governmental authority or the Law of Armed Conflict (LOAC) to engage in hostilities. A lawful combatant may be a member of a regular armed force or an irregular force. In either case, the lawful combatant must be commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly; and conduct his or her combat operations according to the LOAC. The LOAC applies to lawful combatants who engage in the hostilities of armed conflict and provides combatant immunity for their lawful warlike acts during conflict, except for LOAC violations.

When there is doubt as to whether a person taken on the field of battle is a lawful or unlawful combatant, they must be afforded the rights of a criminal suspect -- and that would include an opportunity to establish their status as a "lawful combatant" (and thus be afforded the rights of a POW and immunity from prosecution for acts permitted under LOAC). Or, if there is a valid warrant from another country, they could be extradited.

If status as "unlawful combatant" is confirmed through judicial process, the person is subject to prosecution for acts committed on the field of battle, and has all the rights of any other criminal suspect. If there is any question regarding jurisdiction, they could be turned over to international authority for prosecution for war crimes.

People kidnapped from other countries without warrant are unlikely to qualify as "combatants" of any kind. If there is insufficient evidence to charge with a crime under U.S. Federal law, to extradite, or to turn over to international authority, we have no right to hold them. Period. As long as the Obama administration tries to "get around" this reality, they are promoting Bush&Cheney's fascist fantasies.

[WeDidIt]

9. No, that would be a violation of treaty and the US consitution

Enemy combatants captured in ANY nation are coverd under the Geneva Conventions.

[Perky]

11. Acceot those nations that have not signed the conventions.

[peace13]

13. Post * , signing a treaty has nothing to do with anything.

Until the United States gets it straight on torture and seeks to punish those who broke the law, there is no rule of law from the US. This is pretty simple.

[TechBear_Seattle]

14. Yes. Allow me to explain....

All law within the United States is ultimately grounded in the Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding

U. S. Constitution, Article VI, para. 2

I would assert that all of the rights, protections and guarantees provided by the Constitution must apply equally in all cases arising out of US law. The Constitution itself makes this assertion with regards to state laws in Amendment XIII, Section 1: ... nor (shall any state) deny to any person within its jurisdiction the equal protection of the laws. Except and unless the Constitution makes an EXPLICIT distinction between citizen and non-citizen (such as with voting rights or the right to be elected to the House or Senate), both groups are entitled to the same rights and protections. That would include habeas corpus.

Edited for formatting.

[HamdenRice]

16. What a crock!

The following is bullshit: "I would assert that all of the rights, protections and guarantees provided by the Constitution must apply equally in all cases arising out of US law..."

Have you ever heard of immigration law? There have always been areas of US law that recognized that the Constitution doesn't apply. The most obvious is immigration law. People outside the US have no rights under the Constitution, and immigration law has always recognized that aliens outside the US have no due process or equal protection rights under the Constitution.

[TechBear_Seattle]

22. Habeas corpus still applies with regards to immigration laws

So your screams of "Bullshit!!" can be ignored, like so much of what you post.

[HamdenRice]

23. Constitutional rights do not apply to US immigration law for many aliens

Everyone knows this -- apparently except you. Your post was a crock of shit.

Have you ever heard of an excludable alien? They explicitly have no due process rights.

The Constitution does not apply to foreigners on foreign soil. How elementary is that?

[TechBear_Seattle]

29. The question was not DOES habeas corpus apply, but SHOULD it apply

Do try to keep up for a change.

[HamdenRice]

31. You mean keep up with your shifting and changing positions?

As they are demonstrated to be wrong?

It does not apply. It should not apply.

Period. End of story.

[pat_k]

74. It should; and it Does.

The previous statement that "The Constitution does not apply to foreigners on foreign soil" is just plain silly. Habeas doesn't "kick in" until some U.S. authority takes "the body" into U.S. Custody, at which time the authority must be prepared to either show cause for confinement, or release.

The U.S. Constitution affords any person in U.S. Custody the right to challenge the confining authority to show cause. (Just because homeland security has been committing appalling violations of illegal immigrants' rights, doesn't mean they don't have rights.)

The Constitution also applies on the field of battle (Geneva, like any other treaty, is part of the Constitution). Under the law of armed conflict (LOAC) there are mechanisms by which to resolve a question of whether or not a person captured on the field of battle is a lawful combatant (rights of a POW; immune from prosecution for acts permitted under LOAC) or an unlawful combatant (rights of a criminal suspect; subject to prosecution for war crimes for acts on the field of battle).

There are only a limited number of "causes" -- holding a lawful combatant as a POW; holding a mentally ill person who is a danger to themselves or others; detaining an illegal immigrant pending deportation; holding a criminal suspect for questioning; jailing an indicted person pending trial; imprisoning a convict. . .

The thing is, kidnapping and indefinitely holding a person arbitrarily labeled "terrorist" or "unlawful enemy combatant" just plain isn't on the list of possible "causes" under U.S. Federal law.

[BzaDem]

91. .

[pat_k]

72. But as soon as they are in U.S. Custody. . .

. . .they are afforded protections under the constitution.

And that includes prohibitions against cruel or degrading treatment and the right of the person confined to challenge the confining authority to show cause in court -- whether they be an immigrant in custody pending deportation; a lawful combatant held as a POW; an unlawful combatant charged with war crimes, a mentally ill person deemed to be danger to themselves; or a criminal suspect held pending indictment.

And if the confining authority can not show cause or justify the designated status, the person cannot be held. Period. As long as Obama tries to find some way "around" this truth, he is promoting the BushCheney fascist fantasy of unitary authoritarian power to arbitrarily kidnap and indefinitely hold ANY person.

[HamdenRice]

15. Of course not. Never has, never will

Combatants have the right to be treated as prisoners of war. Habeas Corpus applies only to citizens and aliens within the United States who are subject to criminal prosecution.

The Bush administration tried to argue that there was a category of combatants who were entitled to NEITHER prisoner of war status NOR criminal law status. That was obviously wrong.

But the distinction between combatants and criminal defendants hasn't been erased just because Bush tried to carve out a third category.

The only time a combatant would be entitled to Habeas Corpus is if he is captured and brought to the US for trial on criminal charges.

The Constitution does not extend to every one of the six or seven billion humans on the planet. The logical extension of believing it does leads to the irrational situation of every Chinese peasant having US Constitutional rights. Obviously they don't.

[Perky]

17. There is an exceptional arrogance to the belief that US Law should apply to the whole world.

It does not, should not, can not. Just think where such a slippery argument can wind up?

[HamdenRice]

19. Exactly. That would mean that Chinese law or Zimbabwean law could apply to us!

The arrogance is pretty amazing.

[Soylent Brice]

20. to that i say this:

if you were fighting in another country and you were captured, would you want habeas corpus to apply?

[zipplewrath]

21. habeus corpus predates the constitution

It is a right which was recognized prior to the existence of the US Constitution. It was not connected to any government or citizenship. The Constitution recognizes that it exists, and also recognizes that during war, including civil war, it does not exist for the time of the insurrection or combat. In our current battle form, we are acting as a government in a country involved in either a civil war, or an invasion. That can justify the suspension of the right, but it can't extend to people not involved in that battle. And people transported to the battlefield in order to be retained cannot be presumed to be part of the battle.

[Perky]

26. But doesn't that argument extend fro an understanding that the"war" is on US Soil?

Were English soldiers captured during the War of 1812 given Habeas rights? Were American soldiers captured by the brits given a trial?

Were Italian soldiers captured during WWII given Habeas Rights?

My guess is that the case law here pretty unambiguously says that is does not apply,

Whether it exited prioer tothe US COnsituruoin really is of no importance to the discussion.

[zipplewrath]

32. No

It extends from an understanding that the applicable war, and the applicable suspension is effectively the same place. Soldiers were not given habeas rights because they were captured in the battlefield in question. What is ambiguous is the realities of either asymetric warfare or insurgencies across borders. To declare the "whole earth war" is to suspend habeas world wide. To declare a suspension in the US based upon a single attack, 8 years ago, is to have a permanent suspension. Case law is definitley could use some puffing up on the issue of terrorist based threats, but in reality the only reason anyone accepted the suspension during insurrections was because it was realized that the infrastructure to handle these situations was dubiously available. I don't think we can credibly claim that our infrastructure is so compromised that we have to fly folks to afganistan to protect ourselves.

[Perky]

58. Seems to me the language implies US Soil failrly explicity

"Invasion or insurrection" It is silent on when we are the ones doing the invading and on froreign soil.

But no country has ever extended Habeus to foreign combatants captured in battle, But rendition is a seperate issue.

[harun]

24. Yes, for the simple reason that it says to the world we don't throw people in cages for the rest

of their lives without a damn good reason.

[iamthebandfanman]

25. in our hands?

under our laws.

[slipslidingaway]

27. Here is what Senator Obama said - September 2006

http://obamaspeeches.com/091-Floor-Statement-on-the-Habeas-Corpus-Amendment-Obama-Speech.htm

via

http://www.salon.com/opinion/greenwald/2009/04/11/bagram/index.html

"...Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:

To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ..... The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.

The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future--our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the ``great writ''--a writ that has been in place in the Anglo-American legal system for over 700 years..."

[stillcool]

52. Guantanamo is our prison..

I don't know about the prisons in Afghanistan..either in legal terms, or actual.

[slipslidingaway]

71. So is Bagram...

http://www.salon.com/opinion/greenwald/2009/04/11/bagram/index.html

"In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process. So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn't apply to them. The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game -- fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process. Put another way, you just close Guantanamo, move it to Afghanistan, and -- presto -- all constitutional obligations disappear....


Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo...


...In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind..."

[stillcool]

78. Does the United States own the property?

Is it one of our military bases? Are any other prisoners held there? I believe that all of these detainee's or at least hundreds out of the thousands..will find their way to a legal system where they can sue the United States Government. I'm just not sure it will be ours. The floodgates will open, and we will be paying reparations for a long time.

[slipslidingaway]

80. We occupy the property, more prisoners at Bagram than Gitmo n/t

[stillcool]

87. I guess if a United States Judge

thinks they have the right to sue, there must be some legal tie to the prison, a lease? Or it's one of the 1,000 military bases we have on foreign soil. I think like 60% or something of the prisoners at Gitmo have been released. I know we've been doing the rendition thing for a long time. I guess that method wasn't good enough for the amount of prisoners we've detained.

[ima_sinnic]

90. he's quite the liar and con artist. blah blah blah, "constitutional scholar" Obama

apparently he no longer feels the need to pretend to care about consitutional law.

Not Just State Secrets: Obama Continuing Bush's Stonewalling On Gitmo Cases, Lawyer Claims
By Zachary Roth - April 10, 2009, 3:43PM

. . . Last year, the Supreme Court ruled that detainees at Guantanamo had the right to appeal their detentions in federal courts. But since then, only a few cases have been completed. And in an interview with TPMmuckraker, David Cynamon -- a lawyer for four Kuwaiti Gitmo detainees who are bringing habeas corpus claims against the government -- said that the Justice Department has been consistently dragging its heels in the case, denying detainees their basic due process rights and furthering what he called the "abandonment of the rule of law."

"The Department of Justice has been doing everything in its power to delay and obstruct these cases," said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. "They're not doing anything to move the case along, and doing everything to avoid it."

Asked whether he had observed a shift of any kind in the government's approach since the Obama administration came into office, Cynamon flatly replied: "None whatsoever."

. . . "The fundamental problem is that there has been a complete abandonment of the rule of law and a denial of the most basic due process, which is: 'If you get thrown in jail, you ought to have the right to have an independent judge look at the basis on which you're in jail to decide whether you should be there,'" he said. "And closing Guantanamo doesn't address that, if they just end up getting transferred to prisons in other places."

http://tpmmuckraker.talkingpointsmemo.com/2009/04/yesterday_we_told_you_about.php

[Laelth]

33. Provided the executive branch of the U.S. is the body doing the "picking up,"

Then I'd say yes, habeas corpus should apply. The Constitution creates and limits Federal power (including the executive branch), and it applies to all branches of the Federal Government. It ought to be up to a Court to decide whether the detained person is a "citizen" or not. The executive branch should not be unilaterally granted that power, ever. Thus, a Court should always hear wrongful detention cases as soon as possible, and then determine whether the detained person is a citizen to whom the Constitution applies. Either way, the Courts should make such decisions, and not an un-checked executive. Giving the executive branch the power to decide who is and who is not a citizen, and thereby getting to decide who does and who does not have access to our Courts, is tyranny.

:dem:

-Laelth

[Hippo_Tron]

34. Depends on how they are captured

In a battlefield situation they do not have habeas rights and are protected under the Geneva Conventions. That said, I don't accept the Bush Administration definition of battlefield to mean "the entire world". Somebody abducted in the process of fighting against our troops in Iraq or Afghanistan is an instance of captured on the battlefield. A terrorist that is captured while hiding in Europe, on the other hand, is not someone who was "captured on the battlefield". That is a police action and thus that captured person should have habeas rights once they are turned over to the US by European law enforcement.

[Perky]

41. I think that is about right,

IF the military captures. Geneva applies. It the FBI ARRESTS then habeas ought to apply. The CIA and other entities that have no arrest authority can probably for capture or arrest but they should not have their own prison system where neither Geneva or the courts govern their conduct.

[grantcart]

47. Not all combatants in a batlefield situation are covered by Geneva Conventions

I believe that Geneva Conventions are restricted to uniform combatants who are openly identified as part of a military unit.

Spies and combatants who camoflauge themselves as civilians are not covered by the conventions.

[Hippo_Tron]

65. There's a legal debate about that, but by any reasonable ethical standard they should be

Saying that we have the right to do whatever the hell we want to you just because you are not wearing a uniform certainly violates the spirit of the Geneva Conventions.

[pat_k]

35. A nation is defined by its treatment of people who are in the custody of the state.

Our treatment of any person in state custody, and the process by which they are committed to state custody -- whether that person is captured in the field of battle; an orphaned child, a convicted prisoner, an illegal immigrant; a criminal suspect; or suffers from mentally illness -- define our identity as a nation. A government that employs arbitrary or unjust processes, is unjust. A government that subjects those in its custody to inhumane treatment is inhumane. A government that refuses to enforce the law by prosecuting those who commit such atrocities under color of law is a fraud.

Committing ANY person to state custody without process of law violates core and inviolable American principles. Obama's defense of such acts is an intolerable breach of our Constitution. As is his refusal to demand the prosecution and punishment of government officials who proudly ordered Americans to torture.

The battle for the soul of the nation is not between people who label themselves "liberal" or "conservative," it's between those who tolerate the harboring of torturers and those who refuse to; those who are willing to continue as a War Criminal Nation and those who are not; and those government officials who are acting in accord with their oath of office and those who aren't.

With our foundation in ruins, anything our so-called "leaders" manage to build will be as lasting as a castle built on quicksand. There can be no real progress toward "a more perfect union" until we confront the truth, admit that the failure to impeach is a stain we can never erase, affirm the principle that ALL persons must be afforded basic human rights, and Finally Do what duty demands and prosecute Bush, Cheney, and their co-conspirators.

[Perky]

39. the Affording f Habeas to non residents and the harboring of torturers are not the same thing.

They are linked only by the surround circustances. Habeas affrded to non-residents for events not occurring in a sovereign country has no precedent any where.

[pat_k]

43. They are in U.S. Custody. Fail to afford them human rights that date back. . .

. . .to the Magna Carta and we are no better than any of the unjust, inhumane, authoritarian governments that pre-dated the "age of reason."


And as to the harboring of torturers -- that refers to Obama's commitment to protecting Bush and Cheney from prosecution for their crimes against humanity.

[leftofthedial]

36. habeas corpus should apply to every human being on earth

[SpartanDem]

37. No

they're combatants in war the Constitution has never and should never apply to them. The only obligation the US has is to treat humanely under the provisions of the Geneva Convention.

[pat_k]

49. The Constitution applies to everyone in U.S. Custody

. . .including lawful combatants. (i.e., member of a regular armed force or an irregular force; commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly. . .)

In fact, the Constitution and the Geneva Conventions, are the same thing.

Article VI
. . .
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Where there is any doubt that a person captured is a lawful combatant, U.S. Federal law demands that we "produce the body" and justify status -- as a suspect charged with a crime and tried in U.S. Court, a person to be extradited, or as a POW to be treated in accord with the law of armed conflict -- in court.

We know that many of those held in Bagram don't qualify as lawful combatants. We must therefore indict, extradite, or prove their status as POWs through judicial process.

And if the country from which we snatched the person objects to our action, we'll have to deal with that too.

[Perky]

57. So Japanese Kamikaze Pilots who failed in their mission and were captured

should have been put on trial rather than put in a POW camp?

[pat_k]

86. May want to re-read my reply.

As lawful combatants (under the Constitution/Geneva/Laws of Armed Conflict), those Kamikazes are immune from prosecution for acts committed on the field of battle (as long as the acts are within the bounds of the laws of armed conflict). There is no need to show cause to hold as POWs because their status as lawful combatants is crystal clear.

[Hanse]

38. No.

Habeus corpus applies to criminal courts. Crime and punishment.

Not prisoners of war.

No if they were planned to be tried, convicted and punished as Bush did, then sure.

[pat_k]

51. No.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">The Constitution applies to Everyone in U.S. Custody. . .

[LiberalFighter]

40. Should a country capture someone in a different country?

[TankLV]

42. It should apply to EVERYONE - especially US CITIZENS, which it aparently doesn't

at least in the last eight years...

It should apply to EVERYONE, NO EXCEPTIONS...who should have to use our legal system...

[Danger Mouse]

67. Why should Prisoners of War ever even enter our legal system, though?

[Two Americas]

46. my position

My position is that I am thoroughly disgusted that there is any controversy about this here. I also will not defend my position that habeas corpus applies to all human beings. It applies to all or it applies to none. If that is not self evident to anyone here, then they are not going to be persuaded by any arguments.


...

[Danger Mouse]

68. But why would it apply to people who never even enter our court system?

They're covered by the Geneva Convention. Why is further required than that?

[Two Americas]

70. habeas corpus

The idea is presumed to exist outside of "our court system" and supersedes it. Of course. The legitimacy and authority of any conventions, any law, any court and any government rests on the recognition and protection of human rights. It is not the other way around, as your question implies.


...

[Danger Mouse]

73. Yet on the field of combat, habeas corpus is not required to take P.O.W.'s.

Nor is it required to detain them.

[pat_k]

85. If status as lawful combatant is clear. . .

. . .there is no need to "show cause" to detain.

And since lawful combatants/POWs have immunity for acts committed on the field of battle (as long as the acts are within the bounds of the laws of armed conflict), it is probably safe to assume that a person would prefer to deemed a lawful combatant and held as a POW than to be deemed an "unlawful combatant" who has the right of Habeas under U.S. Federal, U.S. Military, or International law, but who is subject to prosecution for war crimes for acts committed on the field of battle.

[Two Americas]

95. sure it is

Habeas corpus law forbids the holding of people arbitrarily and indefinitely. The moral principles underlying habeas corpus apply everywhere, or else they are not moral principles and they do not apply anywhere.

Obviously, the exact language, documents, etc., are different in different cases. But the moral principles remain the same, if they are to be recognized as existing at all.

The moral principles underlying the concept of human rights are not the creation of treaties, government or law. It is the other way around. Were it not, the foundation for the legitimacy of government and laws and treaties would be non-existent. The moral principles are presumed to be the authority for the law and governments and treaties - the only purpose for governments, laws and treaties.

"Governments are instituted among Men" for the purpose of "securing these rights" which are the birthright of "all men" - who are presumed "created equal" in regards to rights. These rights are "unalienable."

How would habeas corpus "be required"in order to take prisoners? That makes no sense.


...

[HamdenRice]

92. Prisoners of war have the Geneva Convention, not habeas

This argument is so preposterous. POWs are not guilty of anything; they are soldiers.

They are to be treated with the human dignity demanded by customary international law and treaties, and released at the end of hostilities.

[Two Americas]

94. nonsense

Pure nonsense. You are looking at this backwards.

Habeas corpus is based on the idea that people should not be arbitrarily or indefinitely detained. The legitimacy of various courts, treaties, laws and government are presumed to rest on principles such as habeas corpus, not the other way around.

Accused and detained people are not guilty of anything either. They are to be presumed innocent and the burden of proof is on the authorities.

[HamdenRice]

96. So tell us about all those POWs who have filed successful habeas petitions

Arguing over something so elementary with someone who thinks POWs have habeas rights is like trying to discuss moon geology with someone whose basic premise is that the moon is made of green cheese.

[Two Americas]

97. you are not reading what I posted

The moral principles involved are not something that can be "filed." The law is founded on the principles, the principles are not created by law. That is foundational to understanding and respecting the very concept of human rights, the theory of self-government upon which the courts, laws, and our system are based.

I guess that it really is true that freedom dies first in the hearts and minds of the people. Very sad to watch.

No need for insults, by the way.


...

[annabanana]

48. Habeas Corpus is not an American invention. . . . so, yes.. . n/t

[La Lioness Priyanka]

60. well stated

[Perky]

62. No country has ever ectened Habeas rights to foreign combatants,

[pat_k]

79. It is built into the law of armed conflict.

There is no need to "show cause" to hold a lawful combatant captured on the field of battle when it is clear that they ARE a http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x8341897#8343318">lawful combatant. (A status that renders them immune from prosecution for acts permitted under the laws of armed conflict and affords them the rights of a POW).

If the person captured committing acts of violence on the field of battle is an "unlawful combatant" (not acting under governmental authority), they are subject to prosecution for their acts and are afforded the rights of a criminal suspect under U.S. Federal, U.S. Military, or International law. (In other words, Habeas applies. The person must be formally charged or released.)

The bottom line is that the is absolutely NOTHING in U.S. Federal law that would permit ANY U.S. authority to kidnap, indefinitely hold, and deny a person access to any court or legal authority to which they can challenge their confinement. The BushCheney attempts to invoke unitary authoritarian power to do this are blatant violations of the Constitution. And Obama's attempt to preserve this prohibited power is despicable.

[stillcool]

50. There needs to be something...

Some way for people..regardless of where they are..to find justice when any government scoops them up off the street and throws them in a black hole. If another country did it here..what would we do? Never mind..I know the answer to that. Bombs away!!

[Fearless]

63. Of course. The rights of this nation are all well and good if never used.

When used, we show the true nature of the promises made generations ago. Bush talked about spreading democracy and used fascism to do it. We cannot afford that mistake again.

[Danger Mouse]

66. Only if they are being put on trial in the U.S.

[pat_k]

75. So, if we don't intend to try in U.S. Court, we can imprison forever?

The assertion is nonsense. May want to check out http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8343052">Reply 49 and http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8341897&mesg_id=8342623">Reply 35

[Danger Mouse]

77. No, we can't. That's why the Geneva Convention exists.

[pat_k]

81. "They" are either lawful combatants or criminal suspects. . .

Your reply implied that there is some other status. There is not.

Just to be clear:

• If lawful combatants, they are afforded the rights of POWs and are immune from prosecution for acts permitted under the laws of armed conflict. There is no need to show cause under Habeas when the status of lawful combatant is clear (i.e., a member of a regular armed force or an irregular force; commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly. . .)


• If the status as lawful combatant is not clear, then they are criminal suspects, and as such have a right of Habeas under U.S. Federal, U.S. Military, or International law. If they can establish immunity as a lawful combatant, then they become POWs.

[Danger Mouse]

88. Well, of course. You're right.

Hopefully, President Obama refrains from the kind of shit Bush pulled.

[mmonk]

76. If they are really combatants, then the Geneva Convention applies

according to our Constitution. The so called invention "enemy combatant" that falls under the dictates of the executive on its say so alone and doesn't require them to actually be combatants and is a status offense based on say so, then the Constitution should apply since it isn't based on any real body of law and is subject to abuse.

[baldguy]

82. If agents of the US govt are capturing them? Definitely.

[TheBigotBasher]

83. Habeas Corpus yes

but that is not a Constitutional Right; Non Americans do not have rights under the Constitution, but it is a human Right.

[geek tragedy]

84. The constitution does not apply to actual combatants.

It never has, it never will. They are governed by the Geneva Conventions. They do not have habeas rights. They do not have the right to challenge their detention in US courts.

It is patently absurd to suggest that every POW in a war has a right to sue in federal court to challenge their detention.

[Perky]

93. Precisely.

I thinke someone picked up by non military and/or off the battlefield is a different matter, becasue it is a legal process and not a military one.

[ima_sinnic]

89. apparently Obama, the "constitutional scholar," believes it should not

Obama to Appeal Detainee Ruling
By THE NEW YORK TIMES
Published: April 10, 2009

WASHINGTON — The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.
http://www.nytimes.com/2009/04/11/world/asia/11bagram.html?_r=2&ref=world

. . . Last year, the Supreme Court ruled that detainees at Guantanamo had the right to appeal their detentions in federal courts. But since then, only a few cases have been completed. And in an interview with TPMmuckraker, David Cynamon -- a lawyer for four Kuwaiti Gitmo detainees who are bringing habeas corpus claims against the government -- said that the Justice Department has been consistently dragging its heels in the case, denying detainees their basic due process rights and furthering what he called the "abandonment of the rule of law."

"The Department of Justice has been doing everything in its power to delay and obstruct these cases," said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. "They're not doing anything to move the case along, and doing everything to avoid it."

Asked whether he had observed a shift of any kind in the government's approach since the Obama administration came into office, Cynamon flatly replied: "None whatsoever."

. . . "The fundamental problem is that there has been a complete abandonment of the rule of law and a denial of the most basic due process, which is: 'If you get thrown in jail, you ought to have the right to have an independent judge look at the basis on which you're in jail to decide whether you should be there,'" he said. "And closing Guantanamo doesn't address that, if they just end up getting transferred to prisons in other places."

http://tpmmuckraker.talkingpointsmemo.com/2009/04/yesterday_we_told_you_about.php

for these reasons, I consider Obama to be a con artist. He made a big deal on Day 1 about how habeas corpus would be reinstated, because "the whole world is watching." What the whole world is seeing is a president who is basically saying, it's okay to kidnap people and hold them against their will for however long he, now the one who has assumed responsibility for the welfare and justice of these people, sees fit. The world sees a man who speaks with forked tongue, who says whatever We The People, and the world, want to hear and then does just the opposite. This issue erodes his credibility on everything else because it is a cancer. "constitutional scholar" my ass.

[Djinn]

98. I'd say yes and no

it shouldn't apply because the US has zero right to hold those people, allowing US courts to decide whether they should be held still doesn't change the fact that they were kidnapped.

[Djinn]

100. on the battlefield detainee point

that's been brought up in this thread - many detainees were not caught on ANY battlefield. Australia's Mamdouh Habib was kidnapped from a house in Pakistan, then taken to Egypt for some handy torture before being sent to Gitmo. The Geneva convention & any Bush fashion "battlefield detainee" rules are all bullshit for someone who is a citizen of an ALLIED nation and was kidnapped in another ALLIED nation.

For those people, no US law AT ALL applies - the only legal (not to mention moral) steps to take are immediate repatriation PLUS a large sum of money as compensation.