(The Supreme Court ruling at issue, along with the dissenting opinions, can be found here.)
Justice Scalia's Verdict: Guilty with No Chance to Prove Your Innocence
by Dan Clore
The U.S. Supreme Court recently issued a ruling recognizing the right of the prisoners in Guantanamo Bay to habeas corpus hearings to determine whether the government has evidence against them that justifies keeping them prisoner pending trial.
The Bush administration has labeled these prisoners “enemy combatants”, and the habeas corpus hearings are needed to provide an impartial review of the evidence, if any, to determine whether or not this “determination” is justified.
This ruling clearly represents a sound reading of the Constitution. The relevant clause reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” As neither rebellion nor invasion is the case, the right to a writ of habeas corpus cannot constitutionally be suspended.
However, four of the nine Supreme Court Justices dissented from this ruling.
Read the following quotations from the dissenting opinion of Justice Scalia, joined by Justices Thomas and Alito, bearing in mind that the question at issue is whether or not those imprisoned (“detained”) by the government as “enemy combatants” have the right to habeas corpus hearings to determine whether or not this “determination” is warranted by the evidence:
“Today, for the first time in our Nation’s history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.”
“The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens.”
“In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect.”
“Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”
“The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.”
“The prisoners in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict.”
Scalia uses the phrases “alien enemies”, “enemy aliens”, “enemy combatants”, and “enemy prisoners”, as if the guilt of those held prisoner had been established. There are no “suspects” whose innocence or guilt needs to be determined here. Scalia, Thomas, and Alito apparently presume that the mere accusation is adequate to prove guilt.
This being the case, it might be worth recalling that the Pentagon was forced by a FOIA lawsuit to release the proceedings of the Combatant Status Review Tribunal (CSRT). Seton Hall University did a study of the evidence presented at these tribunals. It found that a large majority of the prisoners were not only not captured on a battlefield, but were not captured in the same country as a battlefield. The vast majority of them were not captured by U.S. forces.
A majority of them were found to have committed no hostile act against the U.S. or its allies. A majority of them were not accused of belonging to al-Qaida or the Taliban. Evidence linking prisoners to al-Qaida or the Taliban was frequently very weak–for example, the prisoner's cousin was claimed to have an unstated “association” with a group that had an unstated “association” with al-Qaida.
In a few cases, evidence against the prisoners includes wearing “olive drab clothing”, which supposedly constitutes a Taliban uniform. (So much for the claim that these prisoners do not deserve the Geneva Conventions protections for prisoners of war because they were not wearing uniforms.) In other cases, wearing a common Casio watch was considered evidence of being a terrorist, because components from it can be used in a time-bomb.
And these are the prisoners who were confirmed to “continue” to be enemy combatants. One can only wonder how any of the prisoners managed to get released.
Given the facts, it is shocking that anyone would presume the guilt of these prisoners merely on the Bush administration's say-so, much less three of the justices on the Supreme Court of the United States, and the need to recognize the right of these prisoners' to habeas corpus is cryingly obvious.
I'm considering following up this article with another creating a “dishonor roll” of others who have committed the same crime as Scalia, Alito, and Thomas, making declarations regarding this Supreme Court ruling in which they presume the guilt of the accused. Also, making false statements such as that the accused were captured fighting U.S. Forces, were captured on the battlefield, that many of them have “returned” to the battlefield, etc.
John McCain would top the list. Others would include Ann Coulter, Cal Thomas, Newt Gingrich, John Yoo, and Kyndra Rotunda, along with the editors of the Wall Street Journal and the National Review Online.
Readers will notice that these offenders tend to fall within a certain area of the political spectrum. (One might even say within a certain quadrant of the Nolan Chart.)
George Will, on the other hand, I would single out for criticizing John McCain and standing up for habeas corpus.Tweet
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