Habeas Corpus for Terrorists? For Shame!

After an email from Angel stressing her concern over the Supreme Court’s decision over giving the terrorists unlawful combatants held at Guantanamo Bay rights equal to the American citizen, I thought I would look into exactly what the highest Court in the Land actually did.

I found the Court’s decision here and read through it.  Strangely enough, the 135 pages was somewhat easy to read for a legal document, although there are multiple references to previous legal arguments both foreign and domestic.  Not being a legal scholar (although I had considered a career in law before engineering), I’m going to leave the references alone and just focus on the content of the decision.

The Opinion of the Court on a decision of 5-4 basically gives the terrorists unlawful combatants the right to habeas corpus, which is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error.  The Opinion challenges and strikes down Section 7 of the Military Commissions Act (MCA) of 2006, which states (in part):

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The MCA (found here) was drafted & passed by Congress and signed by President Bush.  It has been criticized by the ACLU and others for unduly suspending the rights of a individual or individuals to habeas corpus and due process.  However, what is interesting is that the MCA sets up military commissions under the Uniform Code of Military Justice (UCMJ), which is more restrictive than the normal civil code, and only targets those individuals who are determined to be unlawful enemy combatants.  In case you were wondering about the definition of an unlawful enemy combatant:

A person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);

We are a nation of laws.  Our rights as guaranteed by the Constitution is unique in the world.  Our system of government, while flawed, is the best in the world as to affording and affirming the rights of the individual citizen, and in some cases, the non-citizen.  Should our laws be observed and enforced?  Yes, they should.

I don’t think that the Opinion rendered by the Supreme Court is going to make as big an impact on the inhabitants of Guantanamo Bay as we think it might as I doubt that many of the detainees will be able to apply habeas corpus to their cases.  The way you get to Guantanamo Bay is to get caught with a rifle in your hands shooting at our soldiers or with blood on your hands (or both).  I doubt very much that our troops would haphazardly pick up a person at random & hand him a ticket to Club Gitmo unless they had proof that this person was in it up to his eyeballs.  But knowing our legal system, and the various shysters that will turn the law upside down in order to protect the “rights” of people committed to kill you and I, I’m not sure.

In his article “Justices Gone Wild,” Ellis Washington stated:

This decision tragically puts foreign terrorists’ rights above the safety of the American people.

Our government, all three branches, are charged with the safety and welfare of the American people first.  This means safeguarding this country and its citizens from harm from any and all countries or individuals from anywhere in the world.  And I hope that the rights of a killer don’t override my rights for pursuing health and happiness.

But there seems that there could be hope.  From Real Clear Politics:

Besides, any releases are only speculative right now. To have a chance at freedom, a prisoner will have to make a plausible case that he’s innocent. The administration had already planned to try 80 of the detainees before military commissions, which suggests it has abundant evidence of guilt.

Presumably the Defense Department has information to show that many, if not all, of the others were connected to al-Qaida or other enemy forces. If the government presents incriminating evidence that the inmate can’t refute, a habeas corpus petition will be about as useful to him as a snowboard.

I can only hope that Justice Scalia’s statement in his dissenting statement can be taken to heart by those people who claim that this Opinion makes us, the American people, safer:

America is at war with radical Islamists.  The enemy began by killing Americans abroad:  241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole.   On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon and 10 in Pennsylvania…  It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane, to know the threat is serious… Last week, 13 of our countrymen in arms were killed.

Last, I believe that the Court failed to understand or remember it’s own history.  From The American Thinker:

The late Justice Robert H. Jackson — who grew up in Frewsburg and lawyered in Jamestown — exemplified the patriotic canniness found in rural New York since the days of Fort Ticonderoga.  His worldview was shaped by experience as Chief War Crimes Prosecutor at Nuremberg.  In a 1950 opinion — tossed into the dustbin of history last week — Jackson denied habeas to a Nazi prisoner because there had been “no instance where a court has issued habeas corpus to an alien enemy who…has never been within its territorial jurisdiction.”

Shame on the Court…


About Tom Roland

EE for 25 Years, Two Patents - now a certified PMP. Married twice, burned once. One son with Asperger's Syndrome. Two cats. Conservative leaning to the Right. NRA Life Member.
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21 Responses to Habeas Corpus for Terrorists? For Shame!

  1. Ron says:

    Well, the USA used to be the beacon for treating people innocent until proven guilty, Now it’s the other way around thanks to King George.

  2. Tom says:

    Ron – Note that Congress writes the laws of the land. The President either accepts (signs) or rejects (vetoes) the bills that make it to his desk. The President may make policy, but the burden is on Congress to formulate laws that are Constitutional.

  3. Ron says:

    Tom This President intimidated the Congress into turning his ideas into law. When things like The Patriot Act was put before them they were scared that Bush would kick their butts into the next terrorist attack if they didn’t comply. Suckers they were!

  4. wordsmith says:


    What is it about the Patriot Act that you find so reprehensible?

    “King George” gets criticized for agency failures not to connect the dots to prevent 9/11, then gets criticized when FISA laws get updated to deal with today’s technologies so that the dots can get connected….?….? What am I missing here?

  5. Tom says:

    Actually, it was the terrorists that scared everyone into this reactionary mode. The public demanded that something be done to ensure their safety, and this is what they got. The President may have called for some of the measures, but Congress put them in writing and into law. In many respects, both the Legislative and Executive branches with the public bear the responsibility for these laws. But remember, if the terrorists had kept their activities overseas, none of these laws would have ever seen the light of day.

  6. wordsmith says:

    Similarly, if people didn’t abuse each other, we wouldn’t need to create laws that put a restriction on our “freedoms”, such as gun laws.

  7. Mustang says:

    I recently enjoyed a debate with a long-time friend, who like Ron believed that the USA Patriot Act presumes to deny Americans their constitutional guarantees. We discussed this at length … I have a copy of the act on my computer. Not a single of his objections was valid. I find it amazing that people will argue against the USA Patriot Act, validating their propositions almost exclusively on leftist propaganda, rather than the facts. I defy anyone to tell me (specifically) how the Act violates their right as law-abiding citizens of the United States. As to the argument that President Bush rammed the law down the throats of Congress, are the branches of government not equal and separate?

    As to the courts recent ruling, the subject of this post, I am reminded of what Andrew Jackson once said, “They have made their decision, not let them enforce it.” Justice Kennedy essentially threw case law out the window with his decision, and in my view, he ought to be ashamed of himself.

  8. Ron says:

    The Patriot Act lets law enforcement do sneak and peeks. It allows for gag orders. It lets them wiretap any and all phones. It lets the law pick you up on mere suspicion of being a terrorist. It allows for you to be spied on in any fashion government sees fit. If we don’t fix that document now, technology will be used to watch your every move, like taking the three esses.

    Whoever did 9/11 wanted Americans on their knees begging for big brother, and that is just what they got. The war that Bush gave us was lost, imho, in October 2001 when that Unpatriotic piece of paper was dusted off and thrust upon those of us who don’t have impeccable status.

  9. Tom says:

    Mustang, if you please, address Ron’s Patriot Act points. I will admit that I am not familiar enough with the Act to address them as well as I would like to.

    As far as the “whoever did 9/11” comment – Are you telling me that you doubt that 19 fanatical Islamic radicals hijacked those airliners at the behest of an equally fanatical Islamic radical? That this was a coup attempt by a “shadow government” to terrify and otherwise subvert our rights as citizens as provided by the Constitution?

  10. Mustang says:


    The purpose of law enforcement is to enforce laws. They do this through lawfully upheld investigative techniques, beginning with “suspicion.” If you are a law abiding citizen, then you are not under suspicion – and it really is that simple. And even if you are “innocent” but fall under suspicion, government may not act against you without probable cause. Does the federal government have a right to search and seize without a court order? Under extreme circumstances, yes they do – in the area of Homeland Security – but they must justify that extremity before the “fruit of the crime” can be admitted into a court of law. This provision may concern you . . . until, I suppose, you realize that one extreme circumstance may be to prevent the detonation of a nuclear device in downtown Manchester.

    My friend objected to “electronic surveillance,” too. Let me ask you . . . do you think the US government has a sufficient number of employees to monitor every e-mail transmission sent every day in this country? Do you think there are enough employees to monitor your personal browsing activities? What “electronic surveillance” means is that government is looking for words, phrases, or a combination of words or phrases that may cause the government to be “suspicious” of your activities. Personally, this doesn’t cause me any undue alarm – no more than erecting closed circuit television cameras at every intersection in every one of our major cities, and no more than issuing traffic citations through closed-circuit technology.

    I am of the view that government is too involved in our personal lives, but there is a trade off. The one thing I do expect from my government is to keep my countrymen secure. We can’t have it both ways . . . so if we expect law enforcement/counter-terrorism to do its job, then we may have to give a little. Since none of us is under suspicion, then we are in fact giving up very little in return for safety and security. None of this would be necessary if there was not a clear and present danger to national security . . . I hope you at least can see that.

  11. Tom says:

    Mustang – Thank You!

    I’m reading over the Patriot Act, and thus far it targets foreign powers and agents, money laundering, and judicial approval for various activities. So far, I haven’t seen anything too disturbing.

    Ron – Have you read the Act?

  12. Shoprat says:

    So dangerous non-Americans matter more than Americans. That’s how I see it.

    My only concern would be how Obama would find a way to abuse this power against his political enemies, something Bush has not done but is standard procedure for many leftists.

  13. Mustang says:

    I might agree with Shoprat were it not for the fact that there are 3 million Muslims living in the United States today, so that if even 10% of them were radicalized by the Wahhabist clerics in local mosques (funded by the Saudis, of course), there does continue to be the possibility — even a likelihood — of extremism and terrorist activities from that quarter. We are living in dangerous times.

    I keep wondering why there is no bar to immigration from nations who sponsor terrorist activities, and why our universities continue to teach Middle Eastern students in the disciplines terrorists find most useful in their chosen vocation: murdering scum.

    The enemy might be an interesting collection of morons, but they are hardly stupid. It is only a matter of time before we are attacked again: from Flint, Michigan or from across the southern border — it doesn’t matter. We must remain vigilant.

  14. Brahma says:

    Ron – What are you smoking?

    I think President Bush has done a superb job fighting terrorism. You lefties just can’t stand the fact that he just may have it right. He hasn’t rounded up Americans and had his way with them, as you would like, so you can say, gotcha! I have no problem with The Patriot Act because I have nothing to hide. From your posts, I’d say you do, though. Get over it and realize this President is the best one this country has ever had. If I had my way, he’d be in the White House for as long as he wants. I feel he is the only one that can handle these dangerous times we are in.

    Quit your whining already, and grow up!

  15. Tom,
    “I don’t think that the Opinion rendered by the Supreme Court is going to make as big an impact on the inhabitants of Guantanamo Bay as we think it might as I doubt that many of the detainees will be able to apply habeas corpus to their cases.”

    If the ACLU doesn’t get involved!

  16. Bartleby says:

    I don’t think prisoners at Gitmo should have any rights at all. They are a sorry bunch that needs to be taught a lesson. I heard that if you become a member of the ACLU, they use your name in all cases they fight whether you agree with it or not. It’s so they can bring the numbers up to make it look like more people agree, than not.

  17. Jim Dandy says:

    Yoo hoo? That’s the American Civil Liberties Union you criticize. You should be thankful that they care about your freedoms at all.

  18. Tom says:

    I have issues with the ACLU, although that is a post for a later time. I also have issues with the Supreme Court for using foreign laws to make their decisions and not using the supporting documents and notes from the Founders (such as the Federalist Papers) to help interpret the Founder’s intentions of the purpose & scope of the Constitution. This last is akin to legislating from the bench.

  19. Patty says:

    As a democrat, I am proud of the Supreme Courts decision concerning gun laws. Without guns, the citizenry would be helpless to protect themselves from anything. I also have issues with the ACLU. Those people are backwards in most things that they do, including what you just cited above, Tom.

    See? Some democrats aren’t so bad.

  20. Tom says:

    Patty, it’s not the Democrats that I have a problem with. It’s the Liberals that have hijacked the Party that are the problem.

    Note: I used to be a registered Democrat until the radical Liberal Left took over. I can just hear the shock and awe out there now…

  21. Patty says:

    You are so right about the liberals. Although I am still democrat, alot of people say I don’t think like one and should be kicked out. I really wouldn’t call myself a conservative democrat, though. I consider myself a democratic republican.

    Actually, Tom, I’ve also noticed that the radicals on the right have hijacked the Republican party. The neocons to be exact. They are a sorry bunch giving the party a bad rap! What really irks me is how republicans want to regulate businesses by telling them no smoking is allowed in the establishment? They used to want to keep that up to the owner. Than there is the religious right, they are choking the life straight out of the party. I think those people need to get a life and stop worrying about everyone elses.

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