on the farms here in America. I know because I met several former German POWs here. Did they have habeas rights while on American soil? Of course they did to the extent their rights were not protected by the applicable prisoner of war treaties.
The Guantanamo base was completely under American control. The Bush administration argument that habeas corpus did not apply there was ridiculous. It did not required a S.C. decision to see that obvious fact.
During the Revolutionary War, the British took Americans prisoner and held them without trial.
I quote from a newspaper article describing the history of that time. The article is actually about the visit of President Taft to an important historical monument where, he states, the British allowed 10,000 Americans, rebels in the Revolutionary War, to die. Taft resoundingly condemns the failure of the British to treat the prisoners humanely and suggests that the prisoners were due the rights of other prisoners of war.
The American revolutionaries who were the prisoners were similar to the Guantanamo prisoners in that a) they were neither captured nor held on the soil of Britain itseelf but in a colony which viewed the British soldiers as an unwelcome, invading army; b) they were not soldiers of a force or army recognized by the British as representing a sovereign nation.
Taft explains that the friends of the prisoners brought writs of habeas corpus on behalf of the prisoners. Another solution was finally adopted, and the prisoners were given prisoner of war status. In his speech, Taft presented those two choices as the alternatives and states that rebel fighters not only in the Revolutionary War but in the Civil War had to be treated according to the applicable prisoner of war law.
This speech by Taft suggests that he would have seriously disagreed with Bush's solution: creating a new status of enemy combatant that permitted Bush to avoid recognizing the habeas rights of the prisoners or applying the Geneva Conventions which now govern the rights of prisoners of war. Taft suggests that those are the two alternatives: (The Hague Convention applied in the time of Taft.)
Here are excerpts from Taft's speech.
"The holding of prisoners (by the British) without proceeding against them for treason in the regular courts made it possible for friends of the prisoners to apply for writs of habeas corpus, and thus embarrass the commanding officers. Accordingly, Lord North, George III's Prime Minister, secured the passage of an act of Parliament whereby in the suppression of the rebellion of his Majesty's subjects in America, persons captured in arms might be detained without an examination into the legality of their detention under the process of the writ of habeas corpus, and in this way there was established a quasi status of prisoners of war as between the British forces and the American forces. Indeed, the status had been recognized before the passage of the act by the personal arrangement between commanding officers of the opposing forces. There was nothing in the peculiar relations between a Government and the forces of its rebellious subjects, therefore which should have differentiated the treatment of the captives in such a way from that which ought to obtain under the rules of international law in the case of war between independent nations.
The same embarrassing questions arose in our own civil war, and were solved in much the same way. However loathe we were to recognize the Confederation internationally as an independent power, the extent of the rebellion, which made it one of the greatest wars of modern times required for humanity's sake that all the rules applicable to the conduct of war between two independent nations should be observed in the War of the Rebellion . . . .
http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9502E0DD1731E233A25756C1A9679D946997D6CFThe prisoners in Guantanamo are either criminals with the right to habeas corpus or they are prisoners of war. That Bush did not choose to classify them as prisoners of war makes the argument that they had the right to habeas all the stronger. They were being held on soil that was totally under the control of the United States. I do not believe that it takes much to figure out that Bush's solution was illegal. A review of the history shows the two choices: habeas or prisoner of war status. There is no other choice.
Bush and Rumsfeld were acting outside the law. Had they requested their lawyers to provide a well informed legal opinion on the issue, the lawyers would have looked at the situations in the Revolutionary and Civil Wars including this speech by Taft and advised wisely.
Obama's lawyers should not be defending the sloppy lawyering and illegal acts of the Bush administration. Obama is buying into the horrible acts of the Bush administration by defending them.
The suit in question is a civil suit. Let Rumsfeld get his own lawyer to defend him for abuse of his authority. That's what rogue police officers who abuse their prisoners have to do. That is what a rogue secretary of defense should do.
The horror of the deaths of these prisoners in the Revolutionary War would have still been fresh in the mind of James Madison when he drafted the Bill of Rights including the right of habeas and stating precisely the conditions under which it could be set aside by Congress.
http://21stcenturycicero.wordpress.com/people/presidents/james-madison/As I said in my original post, when the Guantanamo prisoners were taken, the conditions for setting aside the right to habeas did not exist. To the extent that Congress attempted to set it aside, Congress exceeded its power under the Constitution.
The prisoners either had the rights of prisoners of war or the right of habeas. There is no third way, and, because the Geneva Convention as an international treaty supersedes any congressional enactment, Rumsfeld and Bush had, I repeat, two choices: habeas or Geneva Convention.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
