Balkinization  

Sunday, June 03, 2007

The "Legal Hurdle" for Detaining Prisoners in the United States

Marty Lederman

At a late-April hearing before the Senate Armed Services Committee on the subject of what to do about detainees at Guantanamo, Daniel Dell'orto, Deputy General Counsel at the Pentagon, explained why this Administration refuses to transfer the GTMO detainees to a domestic facility:

If we talk about now moving to the United States, I think then you bump up against the legal aspect, and that is, are we going to have the full panoply of constitutional protections for those individuals by virtue of their presence on U.S. soil? If we are going to try these people by military commissions, as we have traditionally done for violations of law of armed conflict-- the eighteen hundred we did in post-World War II Germany; the fifteen hundred or so we did in the Far East theater post World War II to deal with law of war violations-- then the military commissions traditionally, historically, and practically are the best way to deal with that. But, they don't necessarily match up when you try to overlay them with the full range of constitutional protections. And so, you do face that legal hurdle were you to bring them to the United States. You could very well wind up not being able to try them by military commission and then practically, rules of evidence and things like that would hamper your ability to get to truth in trying to hold them accountable in a legal system.
Ah, yes, those damned rules of evidence that hamper the federal courts' "ability to get to truth." We wouldn't want that, would we? Much more likely the "truth" will emerge if the prosecution is able to indiscriminately use hearsay evidence and the fruits of "enhanced" interrogations.

In any event, invoking the heightened evidentiary protections that would be required if military tribunal prosecutions occurred in the U.S. is hardly the main reason for the Administration's opposition to domestic detention, since very few of the GTMO detainees will ever be tried by such commissions. What's really driving the opposition is that if the detainees were housed in the United States, the Administration would no longer be able to argue that they lack any constitutional rights to challenge their detention in habeas proceedings. (The detainees might have a stonger claim to legal representation in the U.S., too.)

Comments:

The government is staking out an unnecessary and potentially losing position by relying upon geography rather than arguing that foreign POWs simply do not have rights under the Constitution including habeas corpus.

Until Rasul, US courts never extended habeas rights to foreign enemy combatants challenging their wartime detention, even when they were detained in the US.. Before US independence, the British precedent denied habeas review to foreign POWs detained in England.

The Supremes in Quirin denied enemy belligerents appealing from military commissions constitutional rights under the 5th and 6th Amendments because of the fact that they were enemy belligerents, not because they were being tried overseas.

The government should directly take on the radical and unworkable proposition that foreign enemy combatants should be treated like civilian criminal defendants with constitutional rights for the first time in Anglo-American history for the folly it is.
 

Bart: Until Rasul, US courts never extended habeas rights to foreign enemy combatants challenging their wartime detention, even when they were detained in the US.. Before US independence, the British precedent denied habeas review to foreign POWs detained in England.

But, of course, Rasul v Bush did occur. And the Rasul court read the English common-law precedent (specifically King v Schiever) in a fashion directly opposed to what Bart asserts -- that in fact, the case stood for an example of the English court "reviewing the habeas petition" of a neutral alien deemed to be a prisoner of war, thus exercising habeas jurisdiction.

The Schiever court denied relief, not review.

Similarly, the D.C. Court of Appeals in Boumediene v. Bush read Schiever as a case where the English court "denied [Schiever] relief because it found ample evidence that he was a prisoner of war."

Surely Bart, in making the flat statement that "Before US independence, the British precedent denied habeas review to foreign POWs detained in England," did not deliberately omit the key fact that the U.S. courts disagree. To do so would be a rather dishonest propaganda tactic, and Bart would have us believe he is oh, so lawyerly.

The one element of truth in Bart's post is that the U.S. government does not challenge the U.S. courts' reading of the precedent. So perhaps if Bart can convince the Solicitor General, he in turn can convince the courts that they are wrong and Bart is right.

And perhaps pigs will fly.
 

"Bart" DePalma:

The Supremes in Quirin denied enemy belligerents appealing from military commissions constitutional rights under the 5th and 6th Amendments because of the fact that they were enemy belligerents, not because they were being tried overseas.

We've been over this before (see here and above on that thread). The Quirin court said that enemy belligerents don't get jury trials because even our own servicemen don't get them.

Cheers,
 

L.S.,

Allow me to just take issue with the remark about hearsay. Imo, the rule against hearsay evidence is first and foremost a consequence of the involvement of the jury. If it was just a matter for the judge, he/she could give the hearsay evidence just as much (little) weight as it deserves. In other words, the rule against hearsay is not as fundamental as suggested, nor does it necessarily help to improve the quality of evidence.

The general point stands, though: the government should want to uphold the rule of law and civil liberties, rather than looking constantly to get around them.
 

jao:

But, of course, Rasul v Bush did occur.

That is why I lamented the self limiting government argument based on geography which they used in that case.

And the Rasul court read the English common-law precedent (specifically King v Schiever) in a fashion directly opposed to what Bart asserts -- that in fact, the case stood for an example of the English court "reviewing the habeas petition" of a neutral alien deemed to be a prisoner of war, thus exercising habeas jurisdiction.

As I have noted before and you continue to ignore, the Supremes merely noted that the King's Bench reviewed (ie read) Schiever's petition and nothing more.

The evidence to which the DC Circuit was referring was Schiever's report that he was being held as a POW by the Crown. That was all the King's Bench required to deny Schiever's petition.

Habeas review is much more extensive than just reading the brief and involves actual fact finding. A court which denies habeas review still has to read the brief before it knows to deny the petition.

As you well know, the question of whether the Crown properly designated Schiever a POW was not before the Court, the court never addressed the question sua sponte and the court denied Schiever's request to provide testimony before summarily denying his petition. To continuously imply otherwise is simply dishonest.
 

Arne Langsetmo said...

"Bart" DePalma: The Supremes in Quirin denied enemy belligerents appealing from military commissions constitutional rights under the 5th and 6th Amendments because of the fact that they were enemy belligerents, not because they were being tried overseas.

We've been over this before (see here and above on that thread). The Quirin court said that enemy belligerents don't get jury trials because even our own servicemen don't get them.


I have to get to work now, but I invite interested parties to actually read Quirin. As I have pointed out to arne in the past, the petitioners were seeking the full panoply of 5th and 6th Amendment rights which were denied them when they were tried by military commission. While the Court discusses the right to trial, which itself encompasses a wide spectrum of rights, the Supremes denied the petition in its entirety, which is a holding that foreign enemy belligerents do not enjoy constitutional rights.
 

"Bart" DePalma:

Habeas review is much more extensive than just reading the brief and involves actual fact finding.

"Bart" once again shows himself to be a poorer excuse for a lawyer than a lowly IANAL like me.

In fact, habeas corpus review is generally not an exercise of "actual fact finding" and factual judgements made below are generally given quite a bit of deference (this is notable in criminal cases, where even in the fact of new facts that prove actual innocence, the courts are reluctant to intervene because such habeas reviews are not new "trials"). Just a two second Google would show the general outlines of this policy.

IOW, "Bart"'s a legal nitwit ... or just a dissembling RW sycophantic hack. Or perhaps both.

Cheers,
 

"Bart" DePalma:

I have to get to work now, but I invite interested parties to actually read Quirin. As I have pointed out to arne in the past, the petitioners were seeking the full panoply of 5th and 6th Amendment rights which were denied them when they were tried by military commission....

Nonsense and balderdash.

Just go back and read the thread I linked to.

BTW, some more "Bart" ridiculousness from that thread:

["Bart"]: "US citizens enjoy rights under the 5th and 6th Amendment, including a right to silence, while the Court in Ex Parte Quirin made it clear that foreign unlawful enemy belligerents do not. 317 U.S. 1, 44-45 (1942)."

You will search in vain for any statement of the Ex Parte Quirin court (much less a holding) where they say that non-citizens (or some subset thereof) don't have a "right to silence". "Bart" just makes sh*te up.

Cheers,
 

Bart: As I have noted before and you continue to ignore, the Supremes merely noted that the King's Bench reviewed (ie read) Schiever's petition and nothing more.

That you repeatedly misstate the Rasul court's opinion does not make such a misstatement true; it merely makes you dishonest. The court did not say "ie read ... and nothing more." That is your own made-up spin. The Rasul opinion said the Schiever court was "reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France."

The fact is that the Supreme Court in Rasul cited the Schiever case as common-law precedent where the English court "exercised habeas jurisdiction." And jurisdiction is what is at issue with respect to the modern question of the Suspension Clause.

Bart: The evidence to which the DC Circuit was referring was Schiever's report that he was being held as a POW by the Crown. That was all the King's Bench required to deny Schiever's petition.

Habeas review is much more extensive than just reading the brief and involves actual fact finding. A court which denies habeas review still has to read the brief before it knows to deny the petition.


The court denied relief, not review. And it did more than read a brief. It read an affidavit from Schiever, along with another affidavit from another witness, and heard arguments from Shiever's lawyer. Schiever's affidavit did not merely swear that he was being held as as prisoner of war, but also that he was actually serving on the French privateer when captured. But he argued that he should be released because he had been was a neutral conscripted in the first place. The court accepted his evidence, but did not find the arguments about conscription persuasive.

As the report of the case says:

But the Court thought this man, upon his own shewing, clearly a prisoner of war, and lawfully detained as such.(a) Therefore they

Denied the motion.

(a) Qu. For as he was the subject of a neutral prince and was in the French service by compulsion against his own will? Qu. Whether when he was taken the last time by the English, he was to be considered not as an enemy, but as the subject of a neutral prince, and therefore not as a lawful prisoner of war?


Thus, in "reviewing the habeas petition" (per Rasul), Schiever's court "denied him relief because it found ample evidence that he was a prisoner of war" (per Boumediene).

Bart, we understand that you -- alone -- claim a different reading of Schiever. That is simply irrelevant, because the Supreme Court and the D.C. Court of Appeals typically do not care what blog trolls think, and even the Solicitor General does not remotely adopt your position. But to claim that the Rasul court and the Boumediene court actually agree with your reading would simply be a lie.
 

I note that Omar Khadr has had charges dismissed against him because he was designated an "enemy combatant" but not an "alien unlawful enemy combatant" by a CSRT in 2004.

Given that the charges against Khadr included murder in the violation of the law of war, it seems a bit ridiculous to claim that the military didn't think he was an unlawful combatant, but yet the CSRT seems to have flubbed the designation. It seems like they're going to kick him back to another CSRT to get his status changed.

Any thoughts? It's been 4 years since he was detained, and only now are they going to try to get his status correct. Wasn't this foreseeable, and what does that say about the quality of the process in general?
 

In Quirin, the Supreme Court expressly stated that the petitioners had the right to habeas review, despite language in a presidential order to the contrary, but then denied relief on the constitutional claims. So...why does the government believe military commissions would have to operate differently on U.S. soil? If all the arguments the government has been making up to now are correct, there should be no problem. The argument for denying habeas review altogether would be weaker if the detainees were on U.S. territory, but so long as the government could persuade the court that the defendants are unlawful belligerents (not even necessarily aliens) within the meaning of the law of war, then Quirin would seem to permit their trial without full constitutional protections.
 

Arne Langsetmo said...

"Bart" DePalma: Habeas review is much more extensive than just reading the brief and involves actual fact finding.

"Bart" once again shows himself to be a poorer excuse for a lawyer than a lowly IANAL like me.

In fact, habeas corpus review is generally not an exercise of "actual fact finding" and factual judgements made below are generally given quite a bit of deference (this is notable in criminal cases, where even in the fact of new facts that prove actual innocence, the courts are reluctant to intervene because such habeas reviews are not new "trials").


This happens so rarely that I have to congratulate arne for getting this right. I misspoke when I used the term "fact finding." Arne is correct when he notes that substantive fact finding is the job of a lower tribunal and not the court conducting habeas review. To be accurate, I should have written that habeas review requires a full record, which arne correctly observes is usually created by a lower tribunal and which did not exist in the Schiever case.

BTW arne, your current correct legal observation that habeas corpus review does not generally involve substantive fact finding is in line with the analysis I provided on this issue a couple months ago with which you vehemently disagreed. I am glad we both agree now.
 

Normally I don't get involved in Bartaramas here on the ground that it's a waste of time. But being human, I make mistakes.
So here goes:
I have to get to work now, but I invite interested parties to actually read Quirin. As I have pointed out to arne in the past, the petitioners were seeking the full panoply of 5th and 6th Amendment rights which were denied them when they were tried by military commission. While the Court discusses the right to trial, which itself encompasses a wide spectrum of rights, the Supremes denied the petition in its entirety, which is a holding that foreign enemy belligerents do not enjoy constitutional rights.

All that Qurin says is that these petitioners could be tried by validly established military commissions and, consequently, the petitioners were not entitled to a civil trial. This is not a statement that they possessed no constutional rights. Your "conclusion" doesn't follow from the holding, either. Oh, and rhetorically you don't have much to work with: "We are not here concerned with any question of the guilt or innocence of petitioners. Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty." 317 U.S. at 3-4 (citations omitted).

Bart, when you make legal arguments, I have no idea whether you're trying to convince people that you have an argument or whether you're just throwing stuff up to see what sticks. If it's the former, IMO you'd get a lot less flak from people like me about the law if you were a little more careful about your arguments. If you want to make an argument, then make one. But please stop with these conclusory assertions: like citing overruled cases, they aren't good for the health of your argument.
 

JaO said...

The fact is that the Supreme Court in Rasul cited the Schiever case as common-law precedent where the English court "exercised habeas jurisdiction."

For clarity, this is the complete statement for which Schiever and other cases were cited in Rasul:

Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, 11

I have no disagreement with this statement. British courts did have jurisdiction to hear habeas corpus petitions within British sovereign territory.

This is just further evidence that the Supremes were not citing Schiever for your proposition that the King's Bench conducted a habeas review.

As you should know as an attorney, just because a court has jurisdiction to hear a type of claim does not mean the petitioner has the right to make that claim or that the court granted the review requested by the claim.

The court denied relief, not review. And it did more than read a brief. It read an affidavit from Schiever, along with another affidavit from another witness, and heard arguments from Shiever's lawyer...[who] argued that he should be released because he had been was a neutral conscripted in the first place.

You are making a completely baseless claim. Schiever's attorney made no such argument. Here is the reporter's summary of the attorney's argument:

Mr. Stowe urged that it would be very hard upon this man, to be kept in prison here, until exchanged by cartel; and then sent back to France, where he would be forced into their service again

The attorney never argued, as you imply, that the Crown illegally designated a neutral as a POW and that he should be released. Rather, the attorney made a purely equitable hardship argument. As I posted before, the question of whether the Crown properly designated Schiever as a POW was never before the King's Bench - PERIOD.

jao, I am trying to stay patient with you, but your misrepresentations concerning this case are wearing very thin because you should know better after I provided you with the full text of the Schiever opinion. The Courts
 

Jnk said...

In Quirin, the Supreme Court expressly stated that the petitioners had the right to habeas review, despite language in a presidential order to the contrary, but then denied relief on the constitutional claims. So...why does the government believe military commissions would have to operate differently on U.S. soil?

Good point. Quirin extended habeas corpus review to enemy belligerents because the government brought them into the legal system by trying them before a military commission, not because of their geographical location.

Indeed, I would suggest that Congress wrote the MCA to deny habeas corpus relief, but to provide an alternative of appeal from a military commission to the Supreme Court based in part on the Quirin precedent.
 

sparky, arne and any other interested parties who decline to read the actual Quirin opinion, here is the Court's summary of the petitioners' claim:

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses.

As I posted before, this petition and its argument was rejected in its entirety.
 

Bart,

1) I provided a more complete link to the report of the case above, than your own cherry-picked version, thanks to the transcription provided by Balkinization commenter hip cat hobbes. Footnote (a), which I quoted above, clearly shows the questions considered by the court regarding Schiever's neutrality and conscription. Readers interested in forming their own opinion about the original case can follow the link and do so.

2) In the end, it does not matter what you, I or other readers think about the case. What matters is what U.S. courts think, and the Supreme Court has read the case to mean the Schiever court "excercised habeas jurisdiction."

It is okay, but of little consequence, if you want to say the court got it wrong. It is not okay to deny that the court's reading found what it found: common-law precedent for an English court exercising habeas jurisdiction and reviewing a habeas petition of a captive deemed to be a prisoner of war.

Do you dispute that the Rasul court found the Schiever court exercised habeas jurisdiction in reviewing the petition? Yes or no?
 

JaO said...

1) I provided a more complete link to the report of the case above, than your own cherry-picked version, thanks to the transcription provided by Balkinization commenter hip cat hobbes. Footnote (a), which I quoted above, clearly shows the questions considered by the court regarding Schiever's neutrality and conscription.

I provided a complete transcription of the reporter summary of the Schiever case from a pdf of the original reporter pages at the juris.com, which is the British version of Westlaw / Lexis. I questioned hip cat from where he obtained the version with what appears to be extra third party commentary added after the fact, but he was too busy with finals to respond.

Do you dispute that the Rasul court found the Schiever court exercised habeas jurisdiction in reviewing the petition? Yes or no?

I believe that I distinguished jurisdiction from the petitioner's right to habeas review and the review itself. What part did you not understand?

The Rasul court was dealing with the geographic limits argument of the government and cited Schiever and several other cases to demonstrate the geographic extent of habeas jurisdiction extended further than the government claimed.

At no time interpreted the Schiever case to be a habeas review of whether the Crown had properly designated Schiever as a POW or you would have cited this language rather than playing semantic games with a simple unrelated citation by the Court.
 

Bart.

You said no republican would call America an Empire.

Suskind says the quote came from a "senior white house advisor" a "member of Bush's inner circle."

I think that means a Republican.

Are you calling Suskind a LIAR?

i have admitted that we don't know for sure who gave the quote except for the above clues.

# posted by Garth : 10:55 AM





"Find me a single Republican who would credit the far left smear that the United States is an "empire" or an "imperial power."
-Bart DePalma

Suskind has done so.

Are you calling Susking a liar?

# posted by Garth : 10:56 AM
 

do not discuss anything with Bart until you have covered the FIRST ORDER questions.

Bart believes that habeus corpus is not a requirement for Al Queda.

Any discussion or analysis of points further down the chain of analysis is fruitless.
 

Bart,

I note that you refuse to answer the question. In fact, you have "distinguished" nothing.

The fact remains that the Supreme Court in Rasul said the Schiever court was "reviewing the habeas petition" and "exercised habeas jurisidiction."

Either you agree with that, or your position is at odds with the reading of the Supreme Court. I, the courts and the Solicitor General really don't care which, because you are just a blog troll blowing smoke.

Habeas jurisdiction is precisely what the Rasul case, as well as the habeas-stripping provisions of the MCA, is all about. And not only have our courts recognized such a precedent for habeas jurisdiction, you admit that the government does not even argue to the contrary.

So, that gets us back to Marty's original point, which is that the reason the government is afraid to abandon its geographic enclave in Guantanamo and transfer the detainees stateside is that constitutional habeas jurisdiction would certainly obtain. (Whether it also obtains in the peculiar geography of Guantanamo is a question not yet answered by the Supreme Court.)
 

This comment has been removed by the author.
 

Bart: [quoting Rasul] "Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, 11"

I have no disagreement with this statement. British courts did have jurisdiction to hear habeas corpus petitions within British sovereign territory.

This is just further evidence that the Supremes were not citing Schiever for your proposition that the King's Bench conducted a habeas review.


You omit footnote 11, which begins: "11. See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France); ..."

Taken together, the text and the footnote in context say exactly what you say they do not!
 

"Bart" DePalma:

["Bart"]: Habeas review is much more extensive than just reading the brief and involves actual fact finding.

[Arne]: "Bart" once again shows himself to be a poorer excuse for a lawyer than a lowly IANAL like me.

[Arne]: In fact, habeas corpus review is generally not an exercise of "actual fact finding" and factual judgements made below are generally given quite a bit of deference (this is notable in criminal cases, where even in the fact of new facts that prove actual innocence, the courts are reluctant to intervene because such habeas reviews are not new "trials").

This happens so rarely that I have to congratulate arne for getting this right....


Nice try, but you make one more mistake. This does not happen "rarely". You're wrong all the time, "Bart".

... I misspoke when I used the term "fact finding."

You were wrong in saying that habeas "involves actual fact finding". Generally, it doesn't. But see below.

... Arne is correct when he notes that substantive fact finding is the job of a lower tribunal and not the court conducting habeas review....

No. You misstate what I said. WHat I said (and what is correct) is that it generally doesn't involve such "fact finding".

... To be accurate, I should have written that habeas review requires a full record, which arne correctly observes is usually created by a lower tribunal and which did not exist in the Schiever case.

Oh, bullsh*t. As any competent lawyer knows, a habeas petition can be brough absent any "record ... by a lower tribunal", and in fact, one of the original primary uses of habeas was as a cure for executive detention absent any court involvement prior to the habeas petition. Nowadays, most executives (the Dubya maladministration being a notable exception) have knuckled under to the rule of law, and have stopped with such lawless detentions, so the original form is rarer in practise nowadays.

But the Schiever case was just such a petition.

"Bart" is just heaping more scat on top of the previous pile he deposited here.

BTW arne, your current correct legal observation that habeas corpus review does not generally involve substantive fact finding is in line with the analysis I provided on this issue a couple months ago with which you vehemently disagreed....

Nonsense. I made a number of points at that link, all of which stand:

1). You're a dishonest twit that cuts'n'pastes without attribution.

2). You misquote (or quote out of context) in order to present a different message than that the person sought to convey.

3). You don't even bother to read from the stuff you cut'n'paste cites to.

4). You won't admit getting caught at something even if you got caught red-handed.

and lastly (on the subject above)

5). There's been a recent trend (particularly in capital cases) to look at the justice in refusing to consider facts, and to find that in extremis the courts do need to step in and say "enough's enough" when someone's life may be unjustly taken. To maintain the "fiction" that courts don't rule on facts in habeas cases but rather consider only the process, they've come up with "rationale" that the process was obviouly severly broken to have arrived at the factual conclusion they arrived at. Thus they (in name) fault the process, but in fact it's really the divorce of the outcome from provable fact that is the driver.

Folks, just follow the link (if you can stomach the full enormity of "Bart"'s malfeasance), and read it from top to bottom, and decide which of us is telling the turth here.

... I am glad we both agree now.

We "agreed" back then that courts generally don't re-examine factual determinations in habeas cases currently (although I pointed out a trend to look at these a bit more closely recently). My beef was with your "scholarship" and your tristing of quotes to make an invalid rhetorical point.

But here, you've gotten caught red-handed once again making a real stoopid mistake. You do acknowledge it, but then try and twist it as a 'poor choice of words', when in fact the proper state of affairs simply makes your original statement (the top one above) ridiculous nonsense, and your 'correction' -- even if it were factually correct (which it isn't), and even if it was a legitimate 'I misspoke myself and here's what I meant to say' (which it can't be construed as) -- wouldn't help make that first statement any more correct. You were just flat-out wrong. Because you don't think, "Bart", before you open your friggin' yap. Your clients deserve better. But I doubt they get it.

Cheers,
 

JaO:

Good heavens man, we have been chewing on your Rasul bone for months and have not ignored any portion of this small straightforward cite. There are only two passages to look at - the habeas jurisdiction sentence in the body and the summary squib after the cite in the footnote. That is it.

To me, jurisdiction is simply a determination of whether the court can hear that category of claim.

To you, jurisdiction somehow means that the court acted on the action brought before it.

The problem with your reading is that a court can have jurisdiction over a category of claim and still dismiss an action because the plaintiff had no right to bring that category of claim.

For example, a district court in Colorado has jurisdiction to hear foreclosures of mechanics liens on property, but a plaintiff seeking to bring such a claim must jump through a number of statutory hoops to perfect the lien and to bring the claim. Therefore, if a plaintiff filed a complaint which facially disclosed that she had not perfected the lien, the district court could "exercise its jurisdiction" over mechanics line foreclosures to read the complaint and then dismiss the complaint because the plaintiff had no right to bring the claim.

The distinction between jurisdiction and actually acting on an action is not that difficult to understand.

To me, reviewing the petition simply means reading the petition.

To you, the very act of reading the petition constitutes a full flung habeas review.

To chew on this bone some more until it splinters into nothingness, it is impossible for the court to deny review of a petition or appeal for lack of standing without reading the submitted brief. Therefore, reading the brief is not determinative as to whether a review occurred. You have to look further.

To have a review, you must have a question before the court to review. Contrary to your earlier claim, Schiever's lawyer never raised the question of whether the Crown properly designated Schiever as a POW. We do not have to guess about what question was brought before the court because the reporter provided the summary I quoted above - an equitable argument based on the personal hardship Schiever was undergoing. Nor is there any indication that the King's Bench sua sponte raised this question on their own.

If the King's bench was at all interested in the facts of whether the Crown properly designated Schiever as a POW, they sure did a good job of hiding it. The man appears to be a non combatant citizen of a neutral country who served as a common sailor on a merchantman. Yet, despite a very favorable set of facts, the Court summarily rejected the petition. I do not see how you can read a factual review in that.

That is the sum and substance of our Rasul argument. Nothing as been ignored. Rather, you are doing your best pit bull imitation by refusing to let go of an unsupported argument.
 

Garth said...

Are you calling Suskind a LIAR?

Which part of creating fiction did you not understand?

Even if one of the Administration did secretly harbor fantasies of empire which they have not made public because he or she knows how that would sound, why then would they reveal this fantasy to a leftist reporter hostile to the Administration?

This reminds me of Woodward's claim in "Veil" that Bill Casey made a death bed admission to him that no one else had ever heard. Casey was one of the most tight lipped people in the intelligence community and all the sudden he reveals his deepest secrets to the guy who brought down Nixon?

Get real.
 

Bart,

Your argument is not with me, but with the courts of the United States, which have said of the Schiever court:

1) It "exercised habeas jurisdiction."

2) It was "reviewing the habeas petition."

3) It "denied him relief because it found ample evidence that he was a prisoner of war."

However much you seek to redefine common legal terms -- that is, simply making stuff up -- the above legal facts remain.

Update us on your progress in convincing the Solicitor General to adopt your amusing theory. Then keep us informed further when he convinces the courts that they were wrong and you are right -- or even more preposterously, that they didn't actually mean the plain words they wrote themselves.

I doubt that will occur in the next few hours. So goodnight, propagandist troll.

Meanwhile, Marty's original point remains valid.
 

"Bart" DePalma has added a new logical fallacy to his repertoire:

[Garth]: Are you calling Suskind a LIAR?

Which part of creating fiction did you not understand?

Even if one of the Administration did secretly harbor fantasies of empire which they have not made public because he or she knows how that would sound, why then would they reveal this fantasy to a leftist reporter hostile to the Administration?

This reminds me of Woodward's claim in "Veil" that Bill Casey made a death bed admission to him that no one else had ever heard. Casey was one of the most tight lipped people in the intelligence community and all the sudden he reveals his deepest secrets to the guy who brought down Nixon?


The argument from incredulity.

Glad to see you're broadening your rhetorical techniques a bit, "bart".

Cheers,
 

Bart: Even if one of the Administration did secretly harbor fantasies of empire which they have not made public because he or she knows how that would sound...

Ahem. PNAC, Project for the New American Century. Look at the signatories (notice Curious George's Smarter Brother is one.) From their ironically titled page, "Statement of Principles":

As the 20th century draws to a close, the United States stands as the world's preeminent power. Having led the West to victory in the Cold War, America faces an opportunity and a challenge: Does the United States have the vision to build upon the achievements of past decades? Does the United States have the resolve to shape a new century favorable to American principles and interests?

Now, it's true, they don't come right out and say the word "empire" for exactly the reason you state. But the principle is as clear as a whore's wink. We are the new Rome, we must fashion the world to our image, which, for your scripture buffs out there, doesn't mean "to look like we look" but rather, "to look like we want it to look."

PNAC = Haliburton/Bechtel whores? You tell me. Then tell me with a straight face these people have any objective other than empire. And don't, please, insult your own intelligence by mouthing disingenuous claims of governmental or economic sovereignty; in an age of plausible deniability such facades are necessary to keep the folks back home from ever looking behind the curtain. But you, Bart, you know better.
 

Just noticed this thread several months after the fact, although I'm sure no one will see my comment. Bart, I got my copy through HeinOnline's access to English Reports, the authoritative publicly-available version of these reports. These are the versions cited by courts, including in the Rasul majority opinion. If the Juris version did not include that footnote, it was relying on a different version of the case than the version the United States courts are using.
 

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