Kaffee vs. Jessup II?: Obama and McCain Square Off on Habeas Corpus Rights for Accused Terrorists

Obama is showing his weakness and his naiveness, the Suprem Court was wrong on all levels, the Constitution applies to US citizens and welcomed guests only!! (We the People)

But no where in history has POW's or illegal combatants ever got access to our courts!!

If we are attacked again the line will lead right up to the DNC, ACLU and Supreme Court!!

Abe wrote:

Will he give them citizenship, a driver license and free medical care, also. What a liberal empty suit.rime. But
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Yo, Abe. Hillary supports driver's license for illegals.

Newsrook, while the link was taken down I am familiar with the report. That is OLD news. VERY OLD news. Secretary of the Army Thomas White made his comment way back in 2002. And guess what? Over 400 of the detainees HAVE ALREADY BEEN RELEASED.

Now as for Thomas Jefferson's quote, it is applicable to criminals not to terrorists. Do you -- search your soul long and hard before you answer -- really believe that it is better to let 9 known "guilty" TERRORISTS free than to incarcerate one innocent man?

A "yes" answer would mean that you believe it is better that 9 individuals -- EACH OF WHOM -- will likely plan or execute suicide bombings resulting in the death of dozens, if not hundreds, of innocent people, is better than allowing ONE innocent individual to be detained for years? A "yes" answer would mean that you believe that the possible sacrifice of hundreds of people versus keeping an innocent man away from his loved ones for a number of years is acceptable.

THAT is the dilemma that President Bush has had to deal with since 9/11.

McCain's right. Courts will be flooded with habeas corpus petitions. Throwing away due process will also bring more Abu Ghrab (or however you spell it).

Oh, as for rights, wasn't it Hillary who supported drivers license for illegals?

I am no lawyer and it seems that the Court could have been a little more precise in it's ruling but the fact is that there are hundreds of people being held in a prison, they have been there for 6 years, and they have never been charged with anything or had a chance to prove their innocence. This is yet another example of how the Bush administration has botched things. I'm guessing that the government either tortured them and doesn't want anyone to know or they have no proof but are now afraid that this emprisonment has given these people reason to want to harm Americans. In Indonesia terrorists are put on public trial and all evidence is seen. Many people credit this process for a reduction in attacks as everyone can see the results and it shows these monsters for who they really are. Am I dreaming or at first didn't we label them "enemy combatants" as oppsed to "prisoners of war" so the Geneva Convention wouldn't apply? I'm sure some of those people deserve to be thrown in a hole and never see the light of day again but I'll also bet some are innocent of any wrongdoing. Do we write these people off so our government can continue to hide the fact that mistakes were made? Do we not offer justice because our government does want to admit they tortured people? Put them on trial and get this over with!

Just one more reason I cannot and will not vote for Obama. Nor will I stay home. I refuse to even discuss the notion that non-Americans have American rights that only Americans have died to defend. Period.

Thinking, the Constitution is just fine, it's the judges that need changing. The preamble makes it clear that the constitution applies to the Citizens of the US, not whom ever the ACLU thinks it should.

The debate on whether the detainees have rights should be blatantly obvious by just reading this article on the numerous perons that were falsely imprisoned, abused, tortured, and murdered. If we allow this to happen to others, remember it can happen to you.
Read this artice on how the Secretary of the Army even states how 1/3rd of the prisoners do not belong there.

"It is more dangerous that even a guilty person should be punished without the forms of law than that he should escape."

Thomas Jefferson

THE TERRORISTS WIN WHEN WE SURRENDER OUR CONSTITUTIONAL RIGHTS.

Bob Johnson, I agree with most of your assessment. However President Bush had a number of legal scholars, constitutional lawyers and Geneva Convention experts hashing this out. When presented with the options he chose the course he took. He was not about to call these terrorists "prisoners of war," as that would have placed them in the same category as the common private who was captured in battle. And there is nothing common about these terrorists. President Bush knew that there would eventually be a ruling on the term "enemy combatant." But he expected that the worse that would come out of this is the U. S. Supreme Court would give them "prisoner of war" status; with a reasonable possibility that the U. S. Supreme Court would defer to his decision. But the U. S. Supreme Court decided to give the "enemy combatants" even more rights instead.

I really don't believe that withdrawing from the Geneva Convention would have been a very wise move.

Ironically, had we located WMDs in Iraq, President Bush's approval rating would be at 70% today. And none of this would be an issue.

Vernonwerge, sorry I forgot one of your questions. You asked: "...who you think were stronger figures in History. Those like Ghandi and Mandela who were prepared to accept great personal suffering for their convictions that the path of least bloodshed was the route to their long term goals or Lenin and Castro who shot first, asked questions 2nd and shot again if they didn't like the answers."

Actually I believe the premise to your question is limited. Taking the military option off the table, no matter the circumstances, is suicide. And a "shoot first and ask questions later" policy is foolish and dangerous. President Bush's policy is NEITHER.

President Bush was prepared to be as patient as President Clinton was with Iraq. While not taking the military option off the table, he maintained that it was the last option. That was until 9/11. That's when he decided that when dealing with potential WMD threats, we could no longer sit back and have a foreign policy that was based on reactive responses but instead we must must be pro-active and eliminate threats BEFORE they become imminent. You have to remember, Congress had already given President Clinton the authorization for regime change in 1998 because of the WMD threat that he posed. Several Democrats even called it an imminent threat. And Sen. Rockefeller said that Iraq would have a nuclear bomb "within 5 years." That time frame is significant because if true that would have meant Saddam Hussein would have nuclear capability in 2003!!!!!

So after the UN Security Council made it known that they did not have the will power to confront Saddam Hussein and enforce their ultimatum, President Bush stepped in. But he did not "shoot first and ask questions later" nor was he willing to wait until Saddam Hussein used a nuclear bomb before going into Iraq. President Bush gave Saddam Hussein a final ultimatum. But having been convinced by the French, Germans and Russians that the United States would not invade, Saddam Hussein decided it was to his best advantage to still have his neighbors believe that he had WMDs. So he called President Bush' perceived bluff. The invasion could have been prevented had Saddam Hussein just complied with the conditions of the 1991 cease fire. He didn't and President Bush -- a man of his word -- kept his word.

I thank God that President Bush had the courage to stand up to Saddam Hussein and force the issue. We now know that Saddam Hussein had gotten rid of his WMDs. But had we not invaded we would still be under the threat that he had WMDs and so would his neighbors.

James wrote: 'What the U. S. Supreme Court has done is give these "enemy combatants" MORE rights than what "prisoners of war" are entitled to under the Geneva Convention.'

That is correct. The problem though is that there's pretty good evidence that the Bush Administraion, rightly or wrongly, decided to use the Enemy Combatant tag to get away with not treating captured enemy as dictated under the Geneva Convention.

Therefore, the advantage of being able to challenge your detention when you're an enemy combatant is, I think, made up for by the disadvantage that you aren't protected by the Geneva Convention.

The thing is that if Bush thought after 9/11 that he couldn't let the Terrorists he caught get away with just giving him their name, rank and serial number, he probably should've just withdrew from the Geneva Convention instead of making this highly problematical category called "enemy combatant".

Given it was a new category (unlike POW) there was every possibility that it would come to be defined in such a way that they'd have a right to challenge their detention.

The rights they were just given, however, were probably excessive and out of proportion to legal need.

I guess we can just hope at this point that the enemy combatants don't end up in front of some typical bleeding heart liberal judge who'll let them go without giving proper consideration to whether releasing them will endanger the public.

Vernonwerge,

Meanwhile as to your most recent comment, I certainly agree with most of what you wrote. I strongly believe that President Bush's long term vision for the Middle East is the ONLY way to defeat the Islamic estremists. He sees both Afghanistan and Iraq as becoming thriving democracies who are allies in the War on Terror. And he also sees them as being role models for their neighbors, hoping that their populace will one day demand that their country also turn towards democracy. But that is only the first of three key components to peace in the Middle East. The second key component is that here must be a peaceful solution to the Israeli-Palestinian conflict. President Bush's two-state solution with a democratic Palestine existing side-by-side with the democratic Israel is absolutely essential for peace as that conflict is the root of all of the turmoil in the Middle East and the impetus which fuels the jihad against Western Civilization. The other key component is to convince the neighboring countries to ban their anti-West and anti-Israeli hate-filled curricula in their schools. While the first two key components may require patience and much sacrifice, this last key component may be the most difficult to come to fruition. And should it ever come to fruition then it will take at least one (if not two) full generation(s) removed from that curricula change to actually begin changing the hearts and minds away from hatred to one of acceptance.

One day historians will have a much more favorable opinion of President Bush than many of these commenters and the public at large have at the moment. Many on the Left hate President Bush about as much as the Islamic extremists hate the Israelis. So many just don't understand how that he really is dedicated to defending the U. S. Constitution and the nation. Unlike President Andrew Jackson, who was admonished by the U. S. Supreme Court for his plan to kick out the soverign Cherokee and other soverign Indian nations from their land and ordered him to stop the exodus; only to have him tell the U. S. Supreme court that they will have to enforce their order; and executed the exodus; President Bush accepts the U. S. Supreme Court's rulings.

Everything that President Bush has done has had legal justifications. Unfortunately, in some cases the U. S. Supreme Court has disagreed with his conclusions. While he disagrees with many of the rulings, he understands and accepts that the U. S. Supreme Court IS the law of the land. Many of the decisions were 5-4 opinions. That means that EVEN on the U. S. Supreme Court there are some legal minds who agreed with President Bush. They just weren't in the majority.

Take the Terrorist Surveillance Act. The 14th Amendment protects against "unreasonable" searches and seizures without a warrant. It does not say "ALL" searches seizures. Therefore the 14th Amendment implies that there is such a thing as reasonable searches and seizures that do not require warrants. And what could be more reasonable than searching and seizing communications between the enemy abroad and individuals here at home during wartime? During WWII letters from overseas were actually opened by the War Department. At least now the targets are much more specific in nature.

You really hit it on the nail when you say that we Americans are used to short term solutions. I once heard Speaker Nancy Pelosi say, on the floor of the House, that this war in Iraq has lasted longer than WWII. While that may be true, Germany, Italy and Japan surrendered. The extremists will never surrender. BUT even more important, most people forget that our American Revolution took 8 years (1775-1783) before the British surrendered. It took another four years before the U. S. Constitution was adopted (1787); another year (1788) for the ratification of the U. S. Constitution; and another 9 months (Mar 4, 1789) before the First Congress convened. That is FOURTEEN years in total! And then sadly the Indian Wars lasted another 101 years, with hundreds of thousands, if not millions, of casualties on both sides before the Massacre at Wounded Knee in 1890.

James,
As you acknowledge a large percentage of those detained have been shown to have been innocent or at least lacking of any creditable evidence of guilt. They were held for many years. Those errors alone should be sufficient for any reasonable person to see that without trials the guilt or innocence of all those remaining is questionable. The onus is not on me to show there are innocents being held still, it is on the government to show that ALL of those being held are guilty of something that warrants their continued detention.************james said "this War on Terror is like no other. The "battlefield" is world wide. The enemy combatants are in Pakistan and other parts of Asia, the UK and other parts of Europe, Africa and even in the Western Hemisphere." This is going to surprise you. I agree with you. Where I disagree with you is how to deal with that situation. We can not simply invade every country that has a sizable Muslim population and arrest (without trial) anyone we think may pose a threat. The only way to defeat radical Islam is by winning the hearts and minds of moderate Islam, by showing them their future is healthier,safer and wealthier by being allied with the West than it is by moving closer to radical Islam. Radical Islam's immediate goal is not to over throw or defeat America (or the West) it knows it can't do that on it's own. It's hopes are that by antagonizing America into rash acts it can make moderate muslims fearful of America and the west, driving them into the arms of the radicals. Arabs/Muslims are a patient people, they think in terms of centuries, not when the next TV commercial is on. We have to show we value our constitution, that we believe in the statutes our forefathers put into the law books, that they are not just flags of convenience that we throw away as soon as they become inconvenient to our desires. James you confuse strength with desire for retribution and confuse weakness for a patience to make sure the end result is one that provides a safe and sustainable future for our children. I would ask you who you think were stronger figures in History . Those like Ghandi and Mandela who were prepared to accept great personal suffering for their convictions that the path of least bloodshed was the route to their long term goals or Lenin and Castro who shot first, asked questions 2nd and shot again if they didn't like the answers. I am ( and I think most Americans are) prepared to give my life for my family and my values. If all that one values (freedom, rights in law, constitutional values) are given away to provide the illusion of "safety" (and that is all it is a temporary illusion) under the banner of "national security" what is there to die for? AND THAT IS WHAT AL QAEEDA WANT TO DO,THEY BELIEVE AMERICANS ARE SOFT, THEY WANT TO DIMINISH THE RESOLVE OF THE AMERICAN PEOPLE, TO CORRODE THEIR SENSE OF VALUES, TO MAKE THEM TIRE OF THE BLOODSHED, BECAUSE WITHOUT BELIEF IN THE RIGHTIOUSNESS OF THE CAUSE WE WILL NOT HAVE THE SUPPORT OF THE REST OF THE WORLD OR OUR OWN PEOPLE THAT WE NEED TO WIN THIS WAR. We are too used to short term solutions, this is a long term problem, it needs long term solutions. At times they will be painful and they will be difficult, but it is only by showing WE have true belief that our system is right even under great provocation that we can defeat radical Islam and leave the world a safer place for our children.

Everybody should take a look at McClatchy's comprehensive investigation of Guantanamo detainees, released today. Some excerpts:

"For some detainees who went home far more militant than when they arrived, Guantanamo became a school for jihad, or Islamic holy war."

"But because the Bush administration set up Guantanamo under special rules that allowed indefinite detention without charges or federal court challenge, it's impossible to know how many of the 770 men who've been held there were terrorists."

"The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't "the worst of the worst." From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there."

"Only seven of the 66 were in positions to have had any ties to al Qaida's leadership, and it isn't clear that any of them knew any terrorists of consequence."

"If the former detainees whom McClatchy interviewed are any indication — and several former high-ranking U.S. administration and defense officials said in interviews that they are — most of the prisoners at Guantanamo weren't terrorist masterminds but men who were of no intelligence value in the war on terrorism."

Spirit Rebel, I will repeat what I wrote earlier. The invasion of Iraq was a result of the final ultimatum issued to Saddam Hussein after12 years of failing to comply with the conditions of the 1991 cease fire. While the UN Security Council issued their final ultimatum in 2002, they made it known that they had no intention of following through on their ultimatum. So President Bush issued his own ultimatum. When Saddam Hussein continued his refusal to comply, President Bush -- with the authorization of Congress given to him in 2002 -- kept his word.

There is an old adage that it is better to let 9 guilty men free than to convict one innocent man. That is fine when it comes to criminal cases. But when you are dealing with terrorists, and you consider that the 9 guilty terrorists will only kill more innocent people following their release, that is neither prudent or cost effective.

The main purpose for keeping these cases out of civil court, and more specifically the American judicial system in general, is that some of the evidence that must be presented in order to prove guilt would also expose informants and the methods of obtaining the evidence. Furthermore, imagine having 15 different trials going on at the same time in different jurisdictions. And all of these trials require CIA agents (and in some cases maybe the same agents) to appear as witnesses. Also, some military personnel may have to be taken off the battlefield in order to testify. We are at war! We don't need to have our CIA agents and military personnel being tied up in courts while they need to be out gathering information and doing their regular duties. We have already had at least two individuals have the charges against them dropped rather than revealing the top secret information. Military tribunals afford the necessary secrecy that are not possible within the American judicial system.

Eric, I did not argue that "being held is proof of guilt." I asked how Vernonwerge knows that there are innocent individuals still being detained. That is not the same thing.

Vernonwerge, this War on Terror is like no other. The "battlefield" is world wide. The enemy combatants are in Pakistan and other parts of Asia, the UK and other parts of Europe, Africa and even in the Western Hemisphere.

You are correct that some detainees were detained based on inaccurate information. Once individuals are detained investigations are done in an attempt to verify that (1) they have the correct person; (2) that the original information they have is accurate; and (3) whether the individuals still pose a threat. Over 400 of the original detainees have been released for varying reasons. A few may be because it was determined that the individual being detained was the wrong individual; and some may be because it was determined that the information given could not be corroborated or was proven to be false. But there have been some released who were determined to no longer be a threat -- although a few of those have since returned to fighting Americans and/or coalition troops.

Now then you emphatically state that there are still "innocent" individuals being detained. I would certainly like to know your proof of that.

Finally, I am actually more concerned about the "innocent" who are being killed every day by the Islamic terrorists. And how many Americans may lose their lives when some of these terrorists are freed based on "rights" afforded them that the Geneva Convention never intended for them to have.

They are NOT US citizens; they are NOT entitled to the rights of a US citizen!\

Posted by: questioner | Jun 15, 2008 2:56:02 AM
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No PERSON shall be . . . . . deprived of life, liberty, or property, without due process of law.

The word “citizen” is not even mentioned in the Fifth Amendment of the US Constitution.

Karen you wrote: "Do you understand the concept of legal precedents? If you take away rights from one group of people, the prededent will exist to take them away from everybody else. The Supreme Court, by one vote, stepped in and said NO. We will not allow the pillar of Western Civilation to be dissolved..."

Actually it is the reverse. The legal precedent has now been set to give MORE rights to "enemy combatants," than "prisoners of war" have been previously entitled to and given. The Supreme Court by ONE vote has now opened the door for every future "prisoner of war" that Americans take to be allowed their day in the American courts.

Karen,

I agree with you on the merit.
But ...blaming president without blaming the congress will not solve a problem. "Democratic" congress passed Military Commissions Act. Not to mention USA Patriot Act.

I bet McCain really wanted his day in court back when he was a POW.