A diarist wrote today that the leader of the Democratic Party is a liar. The matter deals with the most recent district court appeal filed by the Justice Department yesterday. This appeal deals with three persons being held at Bagram Air Base in Afghanistan.
The diarist's general point is that President Obama stated that he would restore habeus corpus during his campaign, but that since becoming President he has abandoned this goal. The diarist does not consider these matters to be complex legal issue, but merely a question about the motives of the President:
And since then he has yielded his integrity and the claim to stand for anything meaningful beyond the Pursuit Of The Presidency. Oh, he is perfectly happy to distribute the fish and loaves of office. I'm sure it is very noble (and in some sense it is) to distribute taxpayers' money to help taxpayers instead of sinking it into a hole in Iraq for instance; or to find a way of making taxpayer money work more effectively.
By the diarists logic, if President Obama were not a liar, habeus corpus would be restored. In other words, this isn't a matter to be resolved in a court a law, but merely one that lives in the dark, evil heart of a sinister man.
I'll make two points in rebuttal:
- The President has announced how he will handle current detainees at Guantanamo, with the goal of closing the facility there. The issues of how to try each of the persons contained therein will be made on a case by case basis. This process is now underway and the President has made it his goal of having that process completed in about a year. The President's Executive Order to Close Guantanamo states clearly in section 2, subsection (c):
(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
By executive order, the President has proclaimed with the force of law that persons held at Guantanamo have the right of habeus corpus, consistent with recent Supreme Court rulings. This is now the view of the entire executive branch, including the Justice Department. So, the idea that President Obama is no longer in favor of habeus corpus is patently false.
- The District Court held that these persons held at Bagram Air Force Base are entitled to the same protections as the Guantanamo detainees. The Supreme Court in Boumediene vs. Bush, which is the case cited by the plaintiffs, had a very specific territorial constraint. The court was careful not to extend habeus corpus to all military bases, but only to those which existed in territory that was de facto and de jure under the control of the United States. The Court was clear that they understood that extended it beyond these points could be impractical. The Court's majority opinion held:
Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
The District Court's ruling took none of these factors into account and simply granted these rights by reason of determining that Bagram Air Base is no different than Guantanamo. This is a key question that could have unintended consequences if it is not reviewed, since the Supreme Court was very particular about limiting the scope of its ruling. Being responsible lawyers, the Justice Department asked that this matter be reviewed:
Fourth, this Court’s proper assessment of the practical obstacles inherent in extending the writ to the site of detention – a factor weighed heavily by the Supreme Court in Boumediene – is subject to substantial debate. Unlike the Guantanamo detention facility which is "located on an isolated and heavily fortified military base" far away from the theater of war, Boumediene, 128 S.Ct. 2261-62 (emphasis added), Bagram Airfield is at the center of an area rife with danger.
The heart of the question of how to resolve the habeus petition in an Article III court in the middle of hostile war zone. The Supreme Court thought that this distinction was critical, so shouldn't the Justice Department?
Why would the Justice Department choose to do this? Why does the Justice Department think there is a difference between someone being held at Guantanamo and someone at Bagram, or any other military base for that matter? I don't know exactly. Could be a myriad of factors having to do with the practicality of the prosecutorial discovery. Could be wading into new territory with respect to probable cause. It could have to do with waiting to see how the president's policy works out with respect to handling the Guantanamo situation (likely in my opinion).
One thing is clear: The Justice Department is NOT saying these people are not entitled to habeus corpus. There isn't a sentence like that anywhere in the appeal. What DOJ did do was lay out all the things that the Appellate Court should consider when trying to craft a solution that deals with the very clear concerns the Supreme Court laid out in the Boumediene ruling.
On a more important note, why are some people who hated the way the White House was involved in the administration of justice under Bush, now so eager to see the new White House intervene in every case? The President has appointed lawyers NOTED for their support for habeus corpus and their oppostion to Bush justice.
But all this is lost on the diarist I am rebutting. Because he KNOWS, that Obama is indeed a sinister character:
The shameful thing would be for Daily Kos to keep quiet because he's our Democratic President instead of trying to raise the same controversy and fury that was directed against G.W. Bush for exactly the same reasons. This is a test, too, of the Daily Kos community. I hope to God that it passes the test. There isn't much else left at this point.
Spoken like a true teabagger.