[IP] more on new habeas law
Begin forwarded message:
From: Jonathan Zittrain <z@xxxxxxxxxxxx>
Date: October 2, 2006 6:29:50 AM EDT
To: Dan Shoop <shoop@xxxxxxxxxxx>, dave@xxxxxxxxxx
Subject: Re: more on new habeas law
I think we're missing the forest for the trees. So long as any
category of person doesn't get a form of neutral review for his or
her detention, the Executive (whether this administration or a future
one) can simply designate anyone to be in *that* category and the
designation will stick, since it's unreviewable. That's one reason
why those people not covered by Article III of the Geneva Conventions
(regarding "lawful" prisoners of war) are thought to be covered by
Article IV of the Geneva Conventions.
In that context, why should Congress pass a bill that says that
American citizens can be declared unlawful enemy combatants, but that
lays out no rights for them at all? This is especially troubling
because the administration has maintained that they have zero rights,
and I don't share your certainty that the rights of citizens are
"already codified" in this circumstance. Read Hamdi and you'll see
how confused the Supreme Court was on this score, failing to reach a
majority rationale for the outcome of the case. The administration's
position on this certainly is material, because while "the law is the
law," it is not self-executing. The Executive's unilateral
interpretation, in the case of someone detained indefinitely --
perhaps without any notice to the public that the person's
disappearance is occasioned by the government seizing him or her --
is difficult to challenge. Padilla is an actual case of an American
citizen seized and held on American territory with a claim that no
review of any kind is called for. Habeas is designed to facilitate a
judicial review of the nature and circumstances of the detention and
it's a start, but it's not a trial, and in an open-ended war a
detention becomes a life sentence from a crime neither alleged nor
proven to a court.
This is what a charge of treason is for. I don't think my view
requires lawyers to run around battlefields; we're talking about a
deliberative seizure of someone in a civilian airport on US territory
with plenty of time to figure out what he's done and what to do with
him, apart from the exigencies of bullets flying.
At EDT 07:48 PM 10/1/2006, Dan Shoop wrote:
At 10:32 AM -0400 10/1/06, Jonathan Zittrain wrote:
I don't think Dan's analysis contradicts Bruce Ackerman's worries.
The bill allows that an "unlawful enemy combatant" can be either a
citizen or a non-citizen (a "person").
While an can clearly be either a citizen or an alien, and defines
the term "unlawful enemy combatant", the mere definition of a term
in the law doesn't mean that's who the law covers. The bill quite
clearly states, after this definition, that it applies to *alien*
"unlawful enemy combatants".
Most of the law then goes on to talk about what happens to
"alien unlawful enemy combatants," including review of status by a
tribunal (but by no particular deadline), and trial by a military
commission affording "judicial guarantees which are recognized as
indispensable by civilized peoples." (That's drawn from the
Geneva Conventions, but the law also says that "[n]o alien
unlawful enemy combatant subject to trial by military commission
under this chapter may invoke the Geneva Conventions as a source
of rights.")
This is a necessary clarification by the law. As non-state actors
(those affected) the Geneva conventions do not apply.
OK, so what happens to non-aliens -- American citizens -- who are
deemed to be unlawful enemy combatants?
They're not covered by the law.
In the Padilla case, the government maintained that Jose
Padilla, an American citizen, was an unlawful enemy combatant and
deserved no access to the courts at all.
And this law doesn't cover him either. Bring up his case in this
situation is non sequitur.
As Dan points out, the bill itself says nothing about the rights
afforded to American citizens.
The rights afforded to American citizens are already codified. Nor
are they abridged in any way by this law.
But as Bruce suggests, that shouldn't put one at ease -- there's
just a hole in the bill on whether American citizens get habeas,
and what I think is the current administration position that they
do not.
The administration's position on this is immaterial. The law is the
law. This /new/ law in no way changes the fact that citizens, and
even aliens, get habeas. What this law denies is habeas to alien
unlawful enemy combatants.
We only know for sure in the bill that non-citizens, including
permanent residents, do not.
No, non-citizens, including permanent residents aliens, *do* get
habeas, they only don't get habeas if they are unlawful enemy
combatants. If they are lawful enemy combatants they get habeas too.
This entire session of Congress fell short of even 100 days. More
than a quarter of those were half days or less. As far as I'm
concerned, Congress' behavior in terms of legislation and logistics
this session has been disgusting and an affront to the honor of our
country.
This too is non sequitur to this matter. Congresses latest session
was short mainly b/c of upcoming elections, something which is
historically routine such times.
--
-dhan
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questions." -- Claude Levi-Strauss
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