Habeas Corpus

Soon after the agency’s contractors began their program of “enhanced interrogation’’ at the secret black site in Thailand – placing him in a coffin-size box; slamming him against wall; depriving him of sleep; bombarding him with loud music; as well as waterboarding – they sent an encrypted cable to Washington.

The CIA interrogators said that if Zubaydah died during questioning, his body would be cremated. But if he survived the ordeal, the interrogators wanted assurances that he would “remain in isolation and incommunicado for the remainder of his life.”

Senior officials gave the assurances. Zubaydah, a Saudi citizen, “will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released,” the head of the CIA’s ALEC Station, the code name of the Washington-based unit hunting Osama bin Laden, replied. “All major players are in concurrence,” the cable said, that he “should remain incommunicado for the remainder of his life.”
It would be nice if the court would explain itself, at least in broad and general terms, to the American people. Courts are not political branches, at least in theory, but their workings should not be opaque to the sovereign. Accepting some need for government secrecy in matters of national security, nevertheless an explanation for this strange case that redacts what is necessary should be possible. We ought to know, and approve, the justification for such a major exception from our rule.


Cass said...

Why does a Saudi citizen have habeas corpus rights under the US Constitution?

From whence does this right arise?

Grim said...

If the US courts are in fact properly governing cases in GitMo, it arises from the Constitution's guarantee as that governs the conduct of US courts.

Now, I'm old enough to remember that the whole reason GitMo was opened as a prison was the Bush administration's thought that US courts would not in fact operate there nor govern the disposition of these cases. The hope was to prevent the people put there from having an appeal to the courts, to habeas, or to the guarantee that they would not be deprived of life or liberty without due process (e.g., put in a hole for the rest of their life with no human contact without trial).

However, the question is now before a Federal judge. Wisely or unwisely, that ship has sailed. Under those circumstances I think we ought to have an account of why -- again, respecting the legitimate needs of intelligence and operational secrecy -- this case is being handled in such an unusual way.

Cass said...

This really isn't something I know enough about to comment upon (not that THAT ever stops me... :p). During the Evil BusHitler's reckless and unsanctioned war on terriers, I found this whole area to be very confusing - had to do tons of reading to even begin to get my bearings and even then I felt I was in over my head.

Sadly, I haven't retained more than the bare outlines of all that long-ago reading.

I'm not sure if this case is based on a Constitutional right of habeas corpus, a SCOTUS decision, or on a federal statute I'm not even sure is Constitutional so I'll shut up now :p

Texan99 said...

The S. Ct. ruled in 2008 that Gitmo prisoners, including foreign nationals, have a right to habeas corpus review. This particular guy's habeas proceedings are simply moldering in the D.C. court, classified, and unexplained.

Foreign nationals on foreign soil, not controlled by U.S. authorities, in wartime, have no habeas rights and instead have to look to the Geneva Conventions (which I'm sure most of them would rather not do). It can get murky deciding what soil the U.S. controls, but "black sites" operated by the U.S. seem like fair game to me for habeas purposes. Gitmo, of course, is much clearer.

It's not that the S. Ct. says we can't detain these people, but a question of whether they have the right to a hearing in a civil court on whether their detention is justified. In a WWII case, for instance, some Germans caught engaging in continued war activities after Germany surrendered (but before Japan did) were arrested in China and tried and imprisoned under U.S. military law in Germany. The S. Ct. declined to interfere, but seemed to be relying heavily on the idea that some kind of review had taken place, even if it wasn't a U.S. civil proceeding. In 2008, the S.Ct. ruled specifically that Gitmo detainees were in U.S. custody and therefore were entitled to civil habeas hearings.

In the present case, the question really is, what do you do if you've technically been granted a habeas proceeding but it's been stalled for many years in secrecy? The whole thing is classified, and no one has the slightest intention of explaining any part of it. The court may have fairly considered all kinds of things and reached the right conclusion, but we have no way of knowing.

I'm frankly amazed that cables from the Thai black-site operations ever came to light. They should have stored them on Hillary's server.

Cass said...

I'm frankly amazed that cables from the Thai black-site operations ever came to light. They should have stored them on Hillary's server.

Best. Comment. Ever. :)

Cass said...

The S. Ct. ruled in 2008 that Gitmo prisoners, including foreign nationals, have a right to habeas corpus review.

Ah.... it's all coming back to me now. That Habanero v. US, no es verdad?

*running away*

raven said...

Remember how asset forfeiture was just a limited tool to go after high profile drug lords? And now every nickle and dime cop shop in the country uses it as a standard revenue enhancement?
Wonder how long it will be before this type of interrogation makes it mainstream here?