Habeas May Get A Hearing

There has been a big development that may give the heinous Military Commissions Act of 2006 a day in court, and it needs wider attention. This could go absolutely nowhere or all the way to the Supreme Court.

The LA Times reports today that attorneys for the Center for Constitutional Rights have filed habeas corpus petitions on behalf of 25 Afghan prisoners, to protest their detention at the hands of the US at Bagram Air Base. These are exactly the type of petitions that would be denied to all so-called "unlawful enemy combatants" (by the way, who is a LAWFUL enemy combatant? "You there, it's OK for you to kill me; you, not so much) under the Military Commissions Act. However, while it has passed Congress, the President hasn't SIGNED the bill as of yet. So the attorneys for these Afghans launched what the Times called "a preemptive strike" to get these petitions in under the wire.

It gets trickier:

Monday's filing initiates what is likely to be a drawn-out legal fight similar to the one over detainees at a military prison in Guantanamo Bay. Detainees there have dozens of petitions pending [...]

Though the petition was filed before the bill was signed, the law was written retroactively, so a judge would have to strike down at least some of the law for the detainees represented by the center to prevail.

The case was assigned to U.S. District Judge Richard J. Leon, who, in a Guantanamo Bay case last year, ruled that Congress had authorized the president to order "enemy combatants" detained for the duration of the war on terror. Leon did not set a hearing date in the new case.

By filing these petitions now, at least the CCR gets the law before a court and shows standing. I know I was concerned that nobody would have the ability to challenge the Constitutionality of the Military Commissions Act because they would have no opportunity to file a claim. But the CCR was on it.

As the story intimates, it's extremely likely that Judge Leon will deny the habeas request on the grounds that enemy combatants have no such protection. It seems like the CCR could take that decision up the chain of appeals and eventually get it before the Supreme Court. Victory there is not assured. Hamdan was a 5-3 decision, with Roberts recusing because he already ruled on the side of the minority in a lower court case. And Justice Stevens is 86. And Congress was involved in creating the commissions, which was a main point of contention in the Hamdan opinion.

But the CCR's maneuver at least gives a chance to overturn what I feel is a blatantly unconstitutional and dangerous law.

To wrap up, I also wanted to share this synopsis of Gen. Wesley Clark's first address as a senior fellow for UCLA's Ronald W. Burkle Center for International Relations. Some politicians use California as an ATM, others just set up shop here! But this gives me the opportunity to hear more from Gen. Clark, who is certainly the most respected Democrat in America on foreign affairs issues. Now he has another platform from which to lay out a progressive foreign policy based on muscular internationalism, and which connects our historical standing in the world to how far afield we are from it today. Hopefully I'll get to sit in on one of these speeches soon, but for now here are excerpts from the LA Times report:

Retired Gen. Wesley K. Clark, speaking to UCLA faculty and students Monday, said that observing the Geneva Convention is crucial to America's interests and its ability to mobilize other countries for collective efforts.

Clark — who was supreme commander of the North Atlantic Treaty Organization under President Clinton and led a coalition of nearly a score of countries to successfully end Serbian oppression of Kosovo's Albanians in 1999 — said the Bush administration's insistence on more leeway in applying Geneva Convention standards to the interrogation of terrorism detainees runs counter to America's history of observing international law.

History has become so trivialized and so placed in a vacuum by contemporary culture, that it's crucial for someone to come out and say that we didn't always act like this before, and we aren't consigned to do so now. This is a slightly rosy historical picture, but generally correct:

"We were anti-colonial," he said. "We did not support the French re-conquest of Indochina. We helped force the Dutch out of the East Indies. We did not support the invasion of Suez by Britain and France in 1956. We were a nation that operated selflessly. People saw us as different because we followed international law." [...]

Clark called law "the ultimate human construct — more important than bridges, more important than [micro]chips…. Law is sacred in the American system."

And that's why this particular bill caused such outrage, it was an attack on what it means to be America.

Gen. Clark continued, specifically taking on the deplorable action by the Congress and the Administration:

Recent congressional action authorizing the administration to try terrorism suspects before military tribunals and banning torture — while not prohibiting specific coercive techniques — will not silence the debate over the Geneva Convention, he said. The trials of the suspects will raise questions, he said: "What coercive tactics were used? How reliable was the information" thus obtained?

"It's going to bring everything back to the surface," Clark said.

Most important, he told the approximately 40 people who attended the breakfast roundtable, backtracking on the Geneva Convention represents a retreat from values America once promoted to the world.

"It was America that led to the creation of the Geneva Convention," he said, "and now we're walking away from it, from the very values we espoused?" [...]

Clark said experience shows that coercive tactics against detainees tend to break only those who are undisciplined or uncommitted to their causes, and that such tactics often result in unreliable information given in the hope of stopping the abusive treatment. By contrast, he noted, prime Al Qaeda suspects tend to be "hard and tough."

The way to deal with them, he said, is not to apply coercion but to seek to change their minds. Yemeni authorities, he added, "actually bring imams in and try to deprogram them and challenge their interpretation of Islam. Eventually, they blurt out everything — and you can believe them."

Clark said the Bush administration's indifference to public opinion in other countries about U.S. violations of accepted international standards makes it difficult for leaders of those countries to collaborate with America.

"It's bad, bad policy for a legitimate state to mistreat people in its power," he said.

This is the Democratic position, short and eloquent. This is still the choice of this election. I know that the bombshell exploded this week turns it into a whole new ballgame, but if your friends ask you what they should vote FOR, show them this. It's called responsibility, accountability, and nobility.