I'm glad about the ruling in Boumediene v. Bush, and have been pleased with a few quotes I've seen from the opinion of the court written by justice Kennedy.
I've heard a lot of the opposing viewpoint, and want to list my thoughts below.
Here are some important source documents:
You can read the syllabus and the decision on the web: syllabus of Boumediene v. Bush
You can also see how the framers of the US government thought a fair society should be built, based on the Declaration of independence, the bill of rights, and the constitution.
Boumediene v Bush is about people captured in Afghanistan and abroad that the government says are dangerous and can be held indefinitely, without trial, and without the right of habeas corpus (to seek relief of illegal detention). Bush says it's legal because a majority-Republican congress passed a bill in 2005 that read:
the President is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned,authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
But the Bill of Right says:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
And the declaration of independence says:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
I read that to mean that, until we tear up the constitution, a person can't be imprisoned unless his crime is presented before a jury and he's given due process of law. Amendment 6 even guarantees the trial will be speedy and public (not secret tribunal).
Some would argue that these only apply to citizens, but I see no way of claiming a foreign person is less deserving of rights than a local - otherwise we don't hold those truths to be self-evident.
Others would argue that it makes allowances during times of war, but the USA is not at war with Afghanistan, and the petitioners are not citizens or soldiers of any nation with which the USA could be at war. If we were at war, then they are P.O.W.s. I cover that below.
If the government detains dangerous criminals, the government must have reason to believe they are criminals. They can show that reason (evidence) to a judge or jury and rule on their punishment if convicted. With no evidence, and no jury, there is nothing proving that the government is not detaining innocent people - this should be unacceptable to any reasonable person.
Some may argue that Guantanamo bay detainees are P.O.W.s and may be treated differently than citizens. However, the USA must actually be at war to hold prisoners of war. We're not at war. Some argue we're at war on Terror. We're not. Hostage-takers are terrorists. The police have been handling them since Hammurabi etched some laws on tablets. That's not war.
If there was a war on terror, the war would never be over, as there are always potential terrorists at home and abroad. That would completely eliminate the 5th amendment to the constitution. Article 7 states that an amendment may not be eliminated without a 2/3 vote in both houses of congress.
But we can play devil's advocate. Let's say Guantanamo bay detainees are POWs even though they aren't. That would mean they are subject to protections agreed upon at the third geneva convention:
They "shall in all circumstances be treated humanely," and "the following acts are and shall remain prohibited: violence to life and person; cruel treatment and torture; humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
It's clear that Guantanamo detainees are not having sentences carried out with judgment pronounced by a regular constituted court affording all judicial guaranties recognized by civilized people - a direct violation of the 3rd Geneva Convention.
"Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third [Geneva] Convention, a civilian covered by the Fourth [Geneva] Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law."
Labels: politics, rant, security, terrorism
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