Hamilton, Madison, and Jay

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Tuesday, December 4, 2007

Romney on Gitmo

This press release is on his site, and it's spot-on:

"Today, the Supreme Court will once again hear arguments on the detention of captured terrorists being held at Guantanamo Bay. Some people view Guantanamo as a symbol of American aggression. I view it as a symbol of American resolve.

"Our country is asking young men and women in our military and intelligence services, and their families, to sacrifice beyond all knowing to capture or kill radical Jihadists before they plan and execute another attack on the United States. To win this fight, we must be able to detain and interrogate the terrorists they catch.

"The base at Guantanamo is designed to hold and question enemy combatants who pose a threat to the nation or have intelligence value. Closing and relocating the facility to the heartland of the United States, as some have suggested, would pose an undue risk to innocent Americans and, as today's arguments demonstrate, could have profound legal implications.

"So long as it remains a vital tool to keep America safe, I will fight to keep Guantanamo Bay open."

The cases he's referring to are Boumediene v. Bush and Al-Odah v. US, two more detainee cases that have worked their way through the appellate courts, including their recent venture through the DC Circuit Court. According to the SCOTUS Wiki site the brief background on the cases are this:

Since President Bush in the early afternoon of Sunday, Oct. 7, 2001, disclosed that he had ordered military strikes against “the Taliban regime in Afghanistan,” in direct response to the terrorist attacks on the U.S. on Sept. 11, 2001, the legal questions have been building. Somewhat curiously, they are being worked out primarily in the context of how the U.S. treats those individuals who have been rounded up around the globe as terrorism suspects. That is curious because the Bush Administration adopted a policy on handling of detainees specifically to avoid fighting legal battles in U.S. courts over the “war on terrorism.” That is why an offshore location, Guantanamo Bay, was chosen as the place to hold detainees; Administration lawyers thought it was beyond the reach of the civilian courts.

But, not long after the first dozen detainees arrived at Guantanamo on Jan. 11, 2002, the court cases began. Since then, those cases have brought some answers to core questions about presidential authority and individual rights. But more questions remain.

Three times, beginning on June 28, 2004, the Supreme Court has supplied some of those answers. The lawsuits over detainees’ rights – and, with them, the outlines of basic constitutional controversy over war powers – may still be a significant distance short of final resolution. But the Court will offer some further answers in the current Term when it decides the consolidated cases of Boumediene v. Bush and Al Odah v. U.S. – cases that it originally refused, on April 2, to hear, before changing its mind on June 29.

While the two cases are weighty with significance, they also are limited in significant ways: they involve foreign nationals only, not U.S. citizens; they involve individuals taken captive overseas, not in the U.S.; they involve persons held outside mainland U.S., not in custody anywhere inside this country; they involve individuals none of whom faces any criminal charges, in civilian or military courts. Although the decision in Boumediene/Al Odah may well have an effect later on U.S. citizens, permanent resident aliens, individuals held elsewhere than at Guantanamo, and prisoners facing trial before military commissions, their fate is not directly at issue now. The Court, for example, has expressly declined – so far – to rule on challenges by military commission defendants Salim Ahmed Hamdan and Omar Ahmed Khadr.

The granted cases involve 37 Guantanamo detainees. The individuals who give their names to the cases are Lakhdar Boumediene, a native of Algeria captured in Bosnia in October 2001, and Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in Afghanistan in late 2001. Those two are among hundreds of detainees who have filed challenges in U.S. federal courts in Washington to their detention, seeking writs of habeas corpus to force the government to justify their captivity and hoping to achieve their release after more than five years in military prison. Although Guantanamo at one point held more than 700 prisoners (and a total of nearly 900 have been there at some time), the detainee population there is now down to about 305. There have been recurrent reports that the Bush Administration is studying whether to close Guantanamo altogether, but that does not appear to be imminent.

No Guantanamo detainee has ever won release in a court case because of the simple fact that not one has yet had a hearing to judge their habeas claim. Federal judges initially threw out the cases, finding no jurisdiction. But the Supreme Court found on June 28, 2004, in Rasul v. Bush and Al Odah v. U.S. (Al Odah is the same individual as in the new case), that detainees had a right under federal statutory law to file habeas challenges. The Court sent the cases back to lower courts to decide initially whether to grant any remedy.

In two District Court decisions within days of each other in January 2005, the judges reached opposite conclusions – one holding in the Boumediene case that the courts could not give detainees any remedy, the other holding in the Al Odah case that the detainees could claim a due process violation in their continued detention. The judge in the Al Odah case ruled that a system of military-only review of detainees’ status – set up by the Pentagon in July 2004 in direct response to the Supreme Court rulings in Rasul and Al Odah (the Combatant Status Review Tribunal system) -- was a violation of due process rights.

The cases went up to the D.C. Circuit Court. While those appeals were pending, Congress passed the Detainee Treatment Act of 2005, stripping the federal courts of authority to hear habeas challenges by detainees. That law was tested in the federal courts, and ultimately in the Supreme Court, resulting in the ruling by the Justices on Hamdan v. Rumsfeld on June 29, 2006, that the court-stripping provision of the DTA did not apply to already-pending detainee habeas cases. That led Congress to try again, enacting the Military Commissions Act of 2006, with a more explicit withdrawal of habeas authority in the federal courts in any detainee case.

Finally, after nearly two years of intermittent activity in the D.C. Circuit Court, that Court on Feb. 20, 2007, upheld the Military Commission Act’s court-stripping provisions, and ruled that the detainees who had no “property or presence within the United States” had no constitutional rights whatsoever. It ordered the Boumediene and Al'Odah cases dismissed. The only court process left for detainees, the Circuit Court ruled, was an appeal to the Circuit Court for limited review of the detention findings of the military Combatant Status Review Tribunals, appeal rights that were authorized by the Detainee Treatment Act of 2005.

These detainee cases are extremely important. This goes wholly to whether or not these people technically have any merit to sue for rights they don't possess. The constitution provides legal protections for United States citizens -- namely habeas corpus rights -- not for foreign nationals, and certainly not for enemy combatants fighting illegally on the battlefield against US forces.

But the main crux of Governor Romney's argument regarding Gitmo is correct. To transfer these animals to US mainland soil is dangerous. He gets it. Mike Huckabee doesn't get it. Gitmo must absolutely stay open, and that is where these people belong until such a time it's deemed that they can be released. We can ill afford to risk the possibility of these people escaping from custody if they were transferred here. With a single press release, Mitt Romney just nailed a home run; one that, coupled with his speech tomorrow, should vault him into a solid first place position in the early primary states.

Publius II


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