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View Diary: Due process at Guantánamo (78 comments)

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  •  while it's true that the appeal for habeas review (1+ / 0-)
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    does not depend upon the length of imprisonment, that is not what I'm addressing here. Roberts and others imply that the length of imprisonment does not militate against sending the case back to District court, which is where (they imply) the decision over the suitability of CSRTs ought to be made.

    My point is that when the government has been deliberately destroying the mental state of prisoners, partly by means of prolonged captivity and obstructing habeas review time after time, then the Roberts argument becomes fatuous.

    When you see a house catching fire, do you declare that the proper authorities to rescue the inhabitants are firemen, not yourself, so somebody had better send for them? Or do you intervene in a timely fashion?

    •  Under our system, the Supreme Court (0+ / 0-)

      (and other appellate courts) do not decide issues that have not been passed on below.  Supreme Court does not hold evidentiary hearings, call witnesses and the like, and thus is in no position to assess, as a factual matter whether CSRTs and subsequenct DC Circuit review serve as a sufficient substitute for habeas.  

      This was detainees litigation strategy.  They wanted to go for a full win right away, and have the courts declare military commission to be unconstitutional EVEN IF they provided sufficient substitute for habeas.  They could have argued in the laternative below.  The consciously chose not to.  If their choice prolongs the litigation, it hardly seems fair to blame the government for it.

      •  CSRTs did not have the authority to release (1+ / 0-)
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        prisoners or to determine whether the government had adequate grounds for charging them with any crimes. Therefore they cannot by their very structure have served as a substitute for habeas review. SCOTUS is certainly competent to make that ruling if it wishes, since the issue does not require witnesses or evidence.

        •  Since the issue was not litigated below (0+ / 0-)

          the Supreme Court is not in a position, under rules of appellate procedure to make that determination.

          And your assertion is contradicted by the position of the Solicitor General.

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