How to Get Out of Being Held Indefinitely Without Charge
Friday, January 22, 2010 at 5:37 pm
So the Obama administration’s Guantanamo task force has decided that about 50 people ought to be held indefinitely without charge. What’s the remedy to for that? Basically, there’s habeas corpus, the procedure by which a detainee requests that a court determine the validity of the government’s claim to hold him (in this case) because of his status as a belligerent in the conflict with al-Qaeda. Notice that’s not the same thing as asking a court to decide whether the government in the first place has the power to detain someone indefinitely without charge. According to lawyers for Guantanamo detainees and prominent civil liberties advocates, any lawyer who asks a court to decide that broader question will immediately be told, “Your client has the right to a habeas hearing. File a habeas petition and then come talk.” So here’s what the procedure is for the 50 or so detainees in this indefinite-detention-without-charge category.
First a detainee has to win a habeas case. (Check their track record here.) Easy, right? If the government decides not to contest the decision, then the detainee — who, recall, the Obama administration is saying is too dangerous to responsibly release — walks. (More on that in a second.) We haven’t been faced with this situation yet. But if the administration appeals, then the detainee has to win. And on up to the Supreme Court, if the government really wants to contest the issue. Joseph Margulies, a professor of law at Northwestern University who’s focused extensively on Guantanamo, estimates that this process could take at least 18 months to exhaust itself at the earliest. Possibly years. (And even then, it wouldn’t be certain that the Supreme Court would use a habeas appeal as an opportunity to decide the first-order question: whether the Obama administration has the constitutional power to hold a member of al-Qaeda or the Taliban in indefinite detention without charge.)
The real inflection point will come “when the government loses” a habeas case, said Margulies. “Are they going to let [a detainee] go?” If the administration concedes the loss, then there’s no crisis. But if it decides it can’t let someone go, and runs out of appeals, then the administration’s most likely option is to get a get a preventive detention bill from Congress, a civil liberties Rubicon. The Obama administration briefly considered that option this summer and balked. But if the administration loses a habeas case; seeks to detain someone indefinitely even so; and doesn’t have explicit preventive detention powers from Congress, then it most likely is just simply breaking the law.
“I heard about this listening to an NPR story this morning,” said Sabin Willett, a lawyer for the Uighurs at Guantanamo Bay, describing his big-picture reaction to the Guantanamo task force’s conclusions. “The intro to that story described them as ‘the terror suspects at Guantanamo.’” Willett pointed out that his clients have been cleared by Defense Department tribunals and exonerated by the courts. They are not terrorists, and no one believes they’re terrorists. “This proves the power of the press — those two words ‘terror suspects.’ How do I fight that?”
From there, Willett continued, it’s natural to start wondering if those “terror suspects” really are too dangerous to release. “I keep saying, give me a name. Who’s too dangerous? Give me a reason. Then start asking what other regimes had people they considered ‘too dangerous to release.’ You’re going to find yourself on a list of countries you’re not too proud to be on.”
A postscript: Dear lawyers. I am not one of you. This is my best attempt to understand what you guys do. I am happy to correct errors here, but please read this post in that spirit.
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Comment posted January 22, 2010 @ 7:29 pm
“They are not terrorists, and no one believes they’re terrorists.”
I do. Once the people you acknowledge as being in charge of the training camp you attended in Tora Bora start saying that all infidels and apostates must die, that martyrdom in jihad is the highest calling a Muslim can aspire to, and use attacks against innocent civilians to further their stated goal of imposing Islam across the world, yeah, you're a terrorist.
Please don't start saying how there isn't any link between the Uighurs and the Taliban either since there's video of Hassan Makhdum fighting with the Taliban on YouTube.
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Comment posted January 23, 2010 @ 7:11 pm
COLOGNE HOLBROOKE OLD SCHOOL SABER RATTLING OR WESTERWELLE NEW SCHOOL FIVE STEP APPROACH
[Impetus Meetings]
German representative completed its [2] of [3] Three Impetus meetings with member states of the [EU] European Union, and [NATO] the North Atlantic Treaty Organization, the first was held upon the [1st] Tuesday, 12th, Jan., in Abu Dhabi, with a [2nd] meeting the following week Tuesday, 19th, Jan. and now the [3rd] and most important of what is called a Town Hall Meeting in Cologne, Germany on Jan. 25th, is just a day away, the last, just [3] Three days prior to the London [Confab] meeting, the international Afghanistan Conference next week in London.of Jan. 28th. Germany has one of two plans to choose from the Perpetual Peace Plan or Self Supporting Security Plan.
[Dr. Guido Westerwelle]
So, who is Dr. Guido Westerwelle, a young up and coming political star of the [21st] Century, the German Foreign Minister, the guy is a talented leader, and unlike the Saber Rattling Hillary Diane Rodham-Clinton, my way or the highway, gun-boat diplomacy, Dr. Westerwelle has chosen to fall another direction and is unwilling to just go along for the ride, and simply say yes to everything put forward by the Empire or any other government, seeing that approach as not good German foreign policy, willing to develop new strategies and policies with allies willing to be open to give and take and not a our way or the highway resolution with the New Germany taking the lead. Dr. Westerwelle brings a youthful, [21st] Century approach to doing business on the International scene, working to create both a New and Dynamic Germany, and Europe, Dr. Westerwelle’s approach to the on going conflict on the Islamic Crescent/Arabian Peninsula/ Hindu Cush, is based upon the concept of [Self Supporting Security], and has outlined a [5] Five point plan, which will allow the ending of German military involvement, an at the London [ComFab] conference will press for a process ending in the handing over of responsibility for its own Self Supporting Security to Afghanistan starting within the year, and ending with German military withdrawal by May Day [2011], based upon a [5] five step program;
Step One: Training Security Forces, with a rapid transfer of responsibility to one of a Self Supporting Security.
Step Two: The Government in power must get its house in order, ending wide spread corruption, and Germany is willing to help to creation and establish a viable, functioning stable state government which need not necessary be democratic or even western in style, within the regions by aiding to help rebuild the government infra-structure’s, creating some acceptable rule of law both internally and internationally, which fit the norms of civilized society, able to create their own methods of maintaining the governance of their country
Step Three: The Peace Process must be an open process, one in which all parties are brought to the table, labels must be removed such as [Terrorist], which only serve foster resentment, the peace table is made to allow peace within a society and the reintegration of those who now are labeled as [Renegades, and Terrorist], but will once again be citizens of their societies, individuals can not be held in prisons without trial for indeterminate periods its not in line with international law, or common sense
Step Four: A reconstruction, economic and social development process is vital, and in line with Step Six, of the [Self Supporting Security] approach.
Step Five: A process must be put into place allowing for Regional and International cooperation between [Sphere of Influence, Governments, and power structures] within the effected area.
[Self Supporting Security]
STEP ONE: Asymmetrical [21st] Century
The [UN] United Nations organization members having joint interests everywhere, with new asymmetrical threats having arisen in the [21st] and missions having developed that no one could have imagined within the past decade, the [UN] stands as a bulwark, providing stewardship in dealing with these new forms of state based and non-state based terrorism, preventing the acquisition of [WMD’s] Weapons of Mass Destruction with missiles or other deliver systems, cyber warfare, the threat posed by pirates, the [UN] within its charter stands ready to provide assistance upon request of failed states or regions which pose a threat to the Community of Nations, and after having taken vote of its membership, would authorize any assistance required to protect human life and dignity.
STEP TWO: A Unity Forum of Nations
The process of Self Supporting Security is seen by the Community of Nations as the only rational approach to the solution to failed states which have collapsed serving as incubators of terrorism. The true reality is it is not logical that an organization such as [UN] alone, or in concert with others too give expectations, or assurance’s of viable government as either non-occupational or occupational forces, [receivership executors] artificially propping up a weak and unpopular government, beyond those held in place by force by occupational forces receivership executors, which won’t mean a thing, unless that force is held in place. That it is a natural occurrence for Sphere’s of Influence to develop and exist, where weaker groups either join together to form association, organizations state, or unions of mutual interests, but with the freedom of such individual members of the association, organizations, state, or union, [BRIC/ASEAN] too withdraw. The purpose of the [UN] is to act as Forum for Nations, to discuss their differences, based upon give and take to achieve a win/win between membership nations, creating a unity of understanding forum between nations, without nation states relinquishment of obligations to nations or organizations within there Spheres of Influence. The Structure of the [UN] is flexible enough to allow for coordination and liaison between it membership, to preclude the necessity the creation of a [UN] Czar, with official departments within the [UN] structure capable of handling any tasks mandated to them.
STEP THREE: Building Stable Societies
The [UN] mission is a means of providing an open hand of support upon request of the failed states or regional area [Spheres of Influence], association, organizations, state, or union, to provide those aids which the failed states, regional [Spheres of Influence], association, organizations, state, or union, request for the building, creation of and/or establishment of a viable, functioning stable state governments [NOT NECESSARILY DEMOCRATIC OR EVEN WESTERN IN STYLE], by aiding to help rebuild the government infra-structure’s, creating some acceptable rule of law both internally and internationally, which fit the norms of a stable civilized society, able to create their own methods of maintaining the governance of their society, thru the process of [Self Supporting Security]. The [UN] is not responsible for the establishment of a world Democratic System or governmental structure based upon any plan, but to work with existing failed structures, providing, advise, support and training at their request, providing an opportunity for requesting help and aid as needed.
STEP FOUR: [ISAF] Mandate
The [UN] The United Nations, would mandate the creation of [UN/Blue Beret/ISAF] The structure of the [ISAF] would be a Defensive Security Assistance and Training Force with logistical and support funding provided under the International Law and Order Trust Fund of the [UN], paid for by a tax levied upon [UN] member nations. International Security Assistance Forces, the key word being Assistance, with authorization of Defensive nature [ONLY] authorized to use lethal force only in the defense of human life or self-defense, [NO] offensive actions would be authorized. Pre-emptive use of force, the intentional targeting of suspected belligerents, not posing a direct or immediate, threat or involvement in actions that threaten [Human Life], or suspected provability of a future but in the present non-existent threat in any area were warlike or hostile conditions exist of [UN/ISAF] operations is [Forbidden]. [ISAF] forces will [not] engage in combat actions of any nature that would put [HUMAN LIFE] at risk.
STEP FIVE: Exit Strategy
The [ISAF] having a pre-transitional exit strategy in providing requested assistance under [UN] Mandate within unstable regions or states, primary mission would be one of training combined military, paramilitary, and civilian police force too protect their own population, and thereby gaining the trust of the inhabitants of these failed states, allowing for with a gradual ending of assistance, district by district, province by province, under a combined assessment of [UN/ISAF] reviews, in consultation with the requesting authority, but within a pre-set and established time frame subject to change at the request of the requesting authority and review of the [UN/ISAF] for the complete, total and unequivocal, withdrawal upon the completion of that Self Supporting Security Training Mission, with [NO] troops of unlimited durational occupation [receivership executors] maintained within these regions, or nation states, Peace thru non-aggressive, temporary military support and training.
STEP SIX: Post Mandate Functions
Upon the completion and withdrawal of [UN] support activities, any help or assistance needed in civilian projects such as providing, clean water, education, and health care, that their leadership and/governing structure are unable to furnish can have assistance supplied thru civilian agencies within the [UN] structure and mandate, but it is not the job of the [UN] to subsidize Internet, giant [TV] television screens and two cars for every individual, its function is one of equipping subsistence for the basic necessities to maintain health, and well being, keeping body and soul together, as those in need work at earning their own keep, within a stable environment.
[EPILOG]
Germany is [KEY] at the [COMFAB] meeting of Jan. 28th To be held in London [UK] United Kingdom if Germany selects the based upon a [Self-Supporting Plan] a policy of State Supporting Non-Offensive Aid, the International balance is shifting the [EU] European Union and Brussels, based upon providing necessary aid and support, but based upon overview and deliberations, between concerned parties, creating a win/win for all involved, and not a our way or the highway, leading to continued international strife.
HERCULE TRIATHLON SAVINIEN
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Comment posted January 24, 2010 @ 8:44 am
It's refreshing to find a journalist who reduces the law to simple declarative Ebnglisnh sentences that anyone can understand. That's what journalists are supposed to do. Thanks, Spencer!
Comment posted January 24, 2010 @ 2:15 pm
Does not the question of “Extended Detention” hinge on whether we are at “war”, on whether these people are “prisoners of war”?
Are we engaged in a legal war? War is defined as armed combat between nations.
What is the nation of Al Qaeda?
Our politicians shot themselves in the foot when they started using the “War on…” phrase to pacify the public. They used the phrase to connvince us that they were doing the maximum to stop some problem such as drugs, poverty, etc.
In reality terrorists who commit terror acts commit a crime against humanity. Crime should be fought with existing local, national, and international police forces. Those caught should be tried in existing courts using existing justice systems and if found guilty imprisoned in existing prisons.
This has been done successfully in the past. It was only the horror and magnitude of the 9/11 attack that panicked the politicians into starting a “War on…” And in their panic they imprisoned many men that may have needed it but the politicians and others did not think that justice applied. They did not think that such things as chains of evidence, habeas corpus, the right to a lawyer applied, because we were “at war”. Unfortunately they didn't want the Geneva Conventions to apply either because we were busy torturing prisoners so they refuted the Conventions and the idea that we were legally at war.
By defining terrorism as a crime against humanity, we gain many advantages.
We stop killing people ours and theirs in a futile exercise of power “war on…”
We will not go broke spending Billions of dollars that we don't have.
We will stop asking our loyal, dedicated military to do a job they were never supposed to do and let them get back to DEFENSE.
We will regain the respect of the International community instead of being quietly called a rogue nation engaged in illegal (preemptive) war.
We will use existing police, judicial and prison systems.
We won't create gulags such as Guantanamo.
We won't engage in the torture of humans
We won't have to create kangaroo courts such as Military Commissions where the purpose is to find guilty those we want to find guilty.
We might even restore American Pride both at home and abroad.
And, most important, after not killing people, we would have money to use both at home and abroad.
Because, in the future the way to fight terrorism is to help the poor that terrorists recruit. Food, medicine, shelter are better than guns. You can't change the hearts and minds of someone whose friends and neighbors have been killed in a “War” with a gun.
Comment posted January 24, 2010 @ 3:37 pm
Aufwiedersenen alt freudn / Goodbye Old Friend
[Crossroads]
Now, awhile back their use to be a very good Christian [TV] Tele/Television Program, on Sunday mornings, even we non-deist take advantage of sound advise, no matter what the source, but that being said the program dealt with the fact that at some point in time all human being on the planet come to a Crossroads, sometimes offering only two directions sometime multiple Autobahn [A Super lane highway / Freeway], a choice of continuing down the same road and direction or changing directions, and the Old Germany/Europe are now fast within hours approaching that Crossroads, the argument for continuing down the same path will be made by Hal Holbrooke at the Cologne ramp on Monday, Jan. [25th] Twenty-fifth at a Town Hall Meeting in Cologne, just [3] Three days, [72hrs] Seventy-two hours, in advance of the International Afghanistan Conference of Wednesday, Jan. [28th] Twenty-eight to be held in the [UK] United Kingdom, Metropolis of London, at which point a decision will have to not only be made but acted upon.
[Uncoupling the Engines]
Now, using railroads there are times when you have to split the trains cars off either at the rail [head/yard] or at a junction, uncoupling one of possibly many engines, some continue down the main rail line as others inter-connect into other major lines in a new and different direction, Dwight David Eisenhower another of German Heritage wrote quote, I like to believe that people in the long run are going to do more to promote peace than our governments. Indeed, I think that people want peace so much that one of these days’ governments had better get out of the way and let them have it, unquote. Another leader of German Heritage has arisen, Dr. Guido Westerwelle, the Federal Foreign Minister, of the Federal Republic of Germany, and much, as his predecessor is responding to the people of Germany, the French and German Alliance, and of the [EU] European Union, for the trains [2nd] Second Engineer to decouple the [2nd] Second Engine and step out of the role of being [2nd] Second Engineer on a runaway train to being the [1st] First Engineer of the Engine of a Powerful New Engine, and rail line. The passengers are simply not willing to just go along for the ride, and simply say yes to everything put forward by the Empire’s [1st] First Engineer, with no control of the trains engine of state, the trains rail junction has been reached and its time to split off.
[EPILOG]
Germany is [KEY] at the [COMFAB] meeting of [Jan 28th] Twenty-eight, to be held in the [UK] Metropolis of London, if Germany selects upon a [Self-Supporting Plan], a [5] Five Step Plan, A Combo platter combination of both, or a completely New Plan or Strategy based upon but not excluding those mentioned plans, it will be one based on the best interests of Germany, the German & French Alliance, and the [EU] European Union, a Conan O’Brien moment, we have had a good ride, and now there are differences which can’t be resolved to the benefit of either party, friends often part ways, but still remain friends, not as close, different difficult choices often have to be made, and its simply time for friends to go their separate paths/ways, I’m going to take the car and drive, No, I think I’ll take the train an ride, it’s got a club, and sleeper, but you have a good drive, and you have a good ride, So Long Old Friend, Aufwiedersenen alt freudn [Good Bye, old friend].
HERCULE TRIATHLON SAVINIEN
Comment posted January 25, 2010 @ 8:12 am
I agree with you, hawaiian, excepting that you characterize the War on Terror as a case of politicians shooting themselves in the foot—-that makes it sound as if all the Orwellian nightmare which has befallen the US in the wake of this fateful declaration has been some sort of mis-step, when in fact it has been quite calculated. The Constitution is on life-support, thanks to both the Cheney & Obama administrations…
Comment posted January 25, 2010 @ 12:18 pm
One person on a YouTube video proves the Uighurs are terrorists? Really?
And if you are so certain of the guilt the people in question, feel free to let us know who they are and what they've done, and whether there is any distinction between the ones actually capture on an actual battlefield v. those we've paid bounties for.
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Comment posted January 28, 2010 @ 12:54 pm
Good post, I agree with most of what you write – with one exception.
“And in their panic they imprisoned many men that may have needed it but the politicians and others did not think that justice applied. They did not think that such things as chains of evidence, habeas corpus, the right to a lawyer applied, because we were “at war”.”
It was simple opportunism that allowed for 'them' to push through anti-democratic measures that benefit their level of power. IMO, it was calculated deliberately to do so(i.e PNAC). Calling it a 'war' once again allowed them to take away citizen's rights and boost their own political power.
That's the real story of 9/11, everything else is relatively minor in comparison…
Comment posted January 28, 2010 @ 5:54 pm
Good post, I agree with most of what you write – with one exception.
“And in their panic they imprisoned many men that may have needed it but the politicians and others did not think that justice applied. They did not think that such things as chains of evidence, habeas corpus, the right to a lawyer applied, because we were “at war”.”
It was simple opportunism that allowed for 'them' to push through anti-democratic measures that benefit their level of power. IMO, it was calculated deliberately to do so(i.e PNAC). Calling it a 'war' once again allowed them to take away citizen's rights and boost their own political power.
That's the real story of 9/11, everything else is relatively minor in comparison…
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