Wednesday, December 13, 2006 11:02 PM

Hamdan a harbinger of things to come?

The first results are in. Jurisdiction: D.C. district court. Ruling part 1: The MCA does not suspend the writ of habeas corpus generally; if that was the intent of Congress, then that attempt fails as unconstitutional, given that there is no rebellion or invasion at present (nor when the MCA was passed). Ruling part 2: Hamdan, as a non-citizen who was apprehended outside of the U.S. and is being held outside of U.S. territory in Guantanamo, has no constitutional right to the writ. Therefore, the court has no jurisdiction to hear his claims.

Summary: there may be due process claims that are valid, or equal protection claims that are valid, but none of them can be reached, because the MCA requires the case be dismissed. See the full ruling.

In the meantime, the federal government has subpoenaed a document in the ACLU's possession. A grand jury is apparently investigating the leak of this document, which is classified. But the government isn't asking the ACLU to produce the original, or to produce emails and notes in connection with the acquisition of the document; rather, the subpoena is for "any and all copies", including those in electronic form, presumably so that the document itself can disappear from public dialogue.

Apart from a certain lack of trust that I have in the current administration's use of classification to hide documents that could prove politically embarrassing, things like this spark my concern:

' The group’s lawyers have agreed for now not to disclose the contents of the document, but hyperlinks to the papers posted yesterday on its Web site include the word “torture.” '

(Source: NYT,

I am long past the point where I can believe that the government is not involved in something nefarious, and that this isn't related to another attempt to hide techniques related to torture, because they have already argued that torture is legal and they are now arguing in another case that all details of interrogation techniques must remain hidden from the public and from detainees' lawyers.

And so, at this point, I must believe the worst. On such days it is difficult to remember that the sun still shines, yes, on the just and unjust alike...


Thursday, December 07, 2006 2:25 PM

Plan for Iraq (not!)

Hey, I have an idea. Let's invade a country, overthrow its dictator, let folks loot various artifacts and trash the infrastructure, let's go door to door to root out the bad guys, making more enemies as we go, and let's help set up a government that will be responsive to us and our needs. As violence gets worse, let's impose some cray checkpoints, put all our officials inside a safe zone, hold over ten thousand folks in military detention centers for the indefinite future, and pay contractors way too much money for fraudulent rebuilding plans. When people make noises about us being an occupying force, we'll just ignore them; it's for their own good. Now...

Let's go tell that same government what to do, without checking *with the folks who actually live there*. Am I just wankers? Or don't the Iraqi people have some say in what happens to their country?

ISG report, my *ss. The Iraqis should just vote no confidence in the govt and tell *us* what to do. Although in the most recent poll I guess they already did: i.e., get the fsck out.


11:11 AM

Specter and Leahy get a move on (S. 4081)

You can't even find the text in Thomas yet. But it's in the Congressional Record. What text is that, you say?

Why, the text of the Habeas Corpus Restoration Act of 2006, of course. Here it is, so you can read it and go notify your Senators about it:

S. 4081

    Be it enacted by the Senate and House of Representatives of the United States of America in 
Congress assembled,


    This Act may be cited as the ``Habeas Corpus Restoration Act of 2006''.


    (a) In General.--Section 2241 of title 28, United States Code, is amended by striking  
subsection (e).

    (b) Title 10.--Section 950j of title 10, United States Code, is amended by striking
subsection (b) and inserting the following:

    ``(b) Limited Review of Military Commission Procedures and Actions.--Except as otherwise 
provided in this chapter or in section 2241 of title 28 or any other habeas corpus provision, and 
notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction 
to hear or consider any claim or cause of action whatsoever, including any action pending on or 
filed after the date of the enactment of the Military Commissions Act of 2006, relating to the 
prosecution, trial, or judgment of a military commission under this chapter, including challenges 
to the lawfulness of procedures of military commissions under this chapter.''.


    The amendments made by this Act shall--

    (1) take effect on the date of the enactment of this Act; and

    (2) apply to any case that is pending on or after the date of enactment of this Act.

This bill was introduced by Senator Specter on Dec 5th, and Senator Leahy joined him as a cosponsor. Leahy's statement is available on his web site; Specter's statement is only in the Congressional Record for the moment, so here are a couple of highlights:

The administration has taken the position now that someone who is making a charge of having been 
tortured, which is a violation of U.S. law, may not be permitted to disclose the specifics of his 
interrogation which he says constituted torture because al-Qaida will find out what our 
interrogation techniques are and will move to train their operatives so they can withstand those 

   It is unthinkable, in my opinion, to have a system of laws where someone who claims to have 
been tortured cannot describe what has happened to him to get judicial relief because al-Qaida 
may be able to educate or train their operatives to avoid those techniques.

But that is just what the United States government argues, and will continue to argue, unless the laws are changed. And frankly, even if the laws are changed, I expect the administration will continue to insist that its views are valid until both Congress and the courts assert themselves through court rulings, oversight with teeth, and withholding of funds that can be used for the administration's various indefinite detention programs.

And, lest you believe that the tribunals that determine a detainee's enemy combatant status are sufficient, here's Specter's description of them:

Combatant Status Review Tribunals, commonly referred to as ``CSRTs,'' are not an adequate and 
effective means to challenge detention in accordance with the Supreme Court's decision in Swain 
v. Pressley (``the substitution of a collateral remedy which is neither inadequate nor 
ineffective to test the legality of a person's detention does not constitute a suspension of the 
writ of habeas corpus.'').

   CSRTs are not adversarial, but consist of a one-sided interrogation of the detainee by the 
tribunal members. The proceedings do not comport with basic fairness because the individuals 
detained do not have the right to confront accusers, call witnesses, or know what evidence there 
is against them. As Justice O'Connor wrote in her plurality opinion in the Hamdi case, ``[a]n 
interrogation by one's captor, however effective an intelligence-gathering tool, hardly 
constitutes a constitutionally adequate factfinding before a neutral decisionmaker.''

   According to the September 25, 2006 Judiciary Committee testimony of the former U.S. Attorney 
for the Northern District of Illinois, Thomas Sullivan, who has been to Guantanamo on many 
occasions and has represented many detainees. Mr. Sullivan cited hearings where individuals were 
summoned before the tribunal, but did not speak the language, did not have an attorney, did not 
have access to the information which was presented against them, and continued to be detained.

   For example, in the case of Abdul Hadi al Siba'i, a Saudi Arabian police officer who came to 
Afghanistan in August 2001 to build schools and a mosque, Mr. Sullivan described how Mr. Siba'i 
had no lawyer, spoke through a translator, and was read the charges against him, but with no 
access to the underlying evidence. According to Mr. Sullivan, his client was returned to Saudi 
Arabia after a prolonged detention without a trial, compensation, or apology. Mr. Sullivan 
received no notice that his client was to be returned to Saudi Arabia. 

Additional news: Senator Leahy has joined on as a co-sponsor of Senator Dodd's bill, described earlier. Still no word on movement to stop extraordinary renditions^W^Wshipping prisoners to other countries to be tortured.