rssObama DOJ: ‘Aliens Held at Guantanamo Do Not Have Due Process Rights’
Friday, March 13, 2009 at 4:27 pm
- 12 Comments
Following up on my post yesterday about the Obama administration’s court filing in the case of Rasul v. Rumsfeld — in which four British former prisoners at Guantanamo Bay are seeking damages for being tortured, humiliated, abused and indefinitely detained without charge or access to counsel — SCOTUSblog today points to a few key points and phrases in the government’s brief that are worth repeating here.
Not only is the Obama administration arguing that government officials involved in developing policies that led to the torture and indefinite detention without charge of Guantanamo detainees should all be immune from suit because the detainees’ rights weren’t clear at the time, but the government is arguing that, based on a recent ruling by the U.S. Court of Appeals for the District of Columbia that “aliens held at Guantanamo do not have due process rights” — even now.
Moreover, the government urges the court to ban all lawsuits claiming constitutional violations by U.S. military officials. Such lawsuits, the Justice Department argues, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”
This appears to be yet another argument for sweeping executive authority, unfettered by the judiciary. Put another way, it’s an argument to allow the political branches of government — and in particular, the president — to be declared not accountable under the law.
In a more recent development, the Justice Department said it has “withdrawn” the enemy combatant definition for Guantanamo detainees. But, it says it still has the right to hold them there indefinitely, so long as the government believes they provided “substantial” assistance to the Taliban or al-Qaeda.
I’ll have more on this soon.
12 Comments
Pingback posted March 13, 2009 @ 5:58 pm
[...] The Washington Independent » Obama DOJ: ‘Aliens Held at Guantanamo Do Not Have Due Process Rights… Daphne Eviatar [...]
Comment posted March 13, 2009 @ 8:49 pm
Well, they don't have constitutional due process rights.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; “[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society.” Id. at 339 U. S. 770. But our rejection of extraterritorial application of the Fifth Amendment was emphatic:
“Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S. 244 (1901). None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.”
United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990)
Comment posted March 14, 2009 @ 10:24 am
In other words now in addition to, “When your President does it it is not against the law” we have added that when past as well as present officials do it it is not against the law.
This is Bush with more.
Congress and the Courts if you don't save the United States who will?
Pingback posted March 14, 2009 @ 2:37 pm
[...] counsel to argue your case in front of an impartial judge. That’s out the window with Obama. Daphne Eviatar writes: Following up on my post yesterday about the Obama administration’s court filing in the case of [...]
Comment posted March 15, 2009 @ 2:52 pm
If we had lost WWII, we would have been put on trial for war crimes due to firebombing dozens of japanese cities and killing hundreds of thousands of people. Google Robert McNamara. Why'd we do that? Was it necessary? Did those people in the japanese cities have rights? Or is war in fact another form of terrorism? Terrorism is defined as “The systematic use of violence as a means to intimidate or coerce societies or governments”. That seems to fit perfectly the circumstances in place when we employed firebombing during WWII to both instill fear and vulnerability in the japanese.
Comment posted March 17, 2009 @ 11:52 am
Well Mr. President???
In a way you are lucky the economy is taking up all the news. Otherwise you would be answering questions like:
How do you not prosecute US citizens that break the law against torture, indefinite detention, and deprivation of Constitutional rights? And, If there was no law against torture so it was legal, how did we prosecute the Nazi war criminals after WWII?
Or, when do we get transparency, no man is above the law, etc.
The world is watching and some are saying, “Its a lot easier to criticize when you are not the man making the decisions isn't it???” Hmmm?
Comment posted March 17, 2009 @ 12:02 pm
I faulted Congress for not doing its job under Bush. You know the Constitutional part about oversight.
Its beginning to look like having once lain down on the job its too hard to get up.
Witness all the torture defense, illegal spying, FISA problems, and non prosecution of criminals because its against tradition, currently happening. The current Administration believes in rendition; has not repudiated domestic spying, and is agreeing with the fatuous reasoning that lawyers opinions can be a defense to breaking the law.
And Congress is doing???? And, thinking about it the Courts???
Comment posted March 17, 2009 @ 6:52 pm
Well Mr. President???
In a way you are lucky the economy is taking up all the news. Otherwise you would be answering questions like:
How do you not prosecute US citizens that break the law against torture, indefinite detention, and deprivation of Constitutional rights? And, If there was no law against torture so it was legal, how did we prosecute the Nazi war criminals after WWII?
Or, when do we get transparency, no man is above the law, etc.
The world is watching and some are saying, “Its a lot easier to criticize when you are not the man making the decisions isn't it???” Hmmm?
Comment posted March 17, 2009 @ 7:02 pm
I faulted Congress for not doing its job under Bush. You know the Constitutional part about oversight.
Its beginning to look like having once lain down on the job its too hard to get up.
Witness all the torture defense, illegal spying, FISA problems, and non prosecution of criminals because its against tradition, currently happening. The current Administration believes in rendition; has not repudiated domestic spying, and is agreeing with the fatuous reasoning that lawyers opinions can be a defense to breaking the law.
And Congress is doing???? And, thinking about it the Courts???
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