1. The new torture bill, which allows Bush to detain anyone, "specifically bars detainees from filing habeas corpus petitions challenging their detentions in federal courts." So how can any case involving this totalitarian law be brought before the Supreme Court?
2. A first-year legal student tells me that federal bankruptcy court has been placed under the control of the Department of Homeland Security. What the hell? Is this true? If it is...why? Why?
5 comments:
I haven't read the Military Commissions Act yet, but my understanding is that US citizens will still have the right of habeas corpus, but non citizens, including lawful permanent residents of the US, will not have habeas corpus rights. Therefore a US citizen detained under the act would challenge the law by filing a writ of habeas in a federal district court to challenge the legality of his detention.
As for aliens, I guess the act will be challenged before it is used by an alien. In other words, an alien will have standing to challenge the constitutionality of the law without actually having been detained.
My big worry about this law, if its constitutionality is sustained, is that it could be applied in a circular manner to citizens. Imagine that the government points its finger at Joe Cannon and says you are an enemy combatant and surprise, surprise, you are not actually a citizen. We have secret evidence your parents snuck across the rio grande when you were a baby. Off to Guantanamo with you
Bullshit of course, but since the government has alleged you are an alien, rather than a citizen, you don't have the right of habeas corpus to challenge the legality of your detention -- even to prove your US citizenship. You are in chicken and egg hell.
My guess though is that the federal courts would have to allow some kind of motion or writ to at least prove your citizenship.
If not, then maybe that explains why the detention camps being build by Halliburton are being called detention and processing camps for aliens.
Hamden from DU
joe, as i understand it, a group defending several detainees took the opportune time between the passing of the bill and its signing to file lawsuits that will certainly end up before the SC. i honestly don't believe even scalia will uphold this law, particularly the habeas corpus part.
but i believe that question was raised in comments here before, and my response was that it really is not quite as catch-22 as it might seem. recall that during the fifties and sixties, many suits were filed that defied the southern laws of 'separate but equal,' which eventually reached the SC. of course, that's a fed v state issue. perhaps a more parallel case would be all the anti-abortion cases that are being filed to contest roe v wade, though that decision was never made into law as such.
i'll do some digging into precedents on the first question, as well as the facts of the second, and get back to you.
On the second question, I think it is impossible for the bankruptcy courts to be part of the executive branch of government, including the department of homeland security, because bankruptcy courts are Article III courts -- ie part of the judicial branch.
I think the law student may have garbled a quirk of immigration law that has always existed -- namely that immigration courts are part of the executive branch. In other words, they are not real courts; they are administrative courts. Therefore, immigrants always had the right to appeal from a decision of an immigration court to a federal court.
The old immigration and naturalization service has been folded into the department of homeland security, and with it, presumably its administrative courts.
So perhaps what the student meant is that immigration courts are now part of the department of homeland security, which would be correct.
Hamden from DU
ps., or post hamden.
that seems mostly correct as far as the citizens or aliens distinction. however, if i am not mistaken, the bill also gives the president the power to determine who is and who is not an enemy combatant, giving the joe cannon scenario a real chill.
this will not last long. in fact, it may be expedited, as there is a sort of related case now before the DC district court demanding the US bring a US citizen back from iraq for trial here after being tried there and sentenced to death.
the really huge problem there is that a US military team evidently went in, after the judge had opined that there was insufficient evidence to even convict this man, and privately (i.e., no counsel present) required the judge to shift his position. he then issued the death penalty.
it's a bizarre story; this morning on democracynow.
it may, though somewhat unrelated, still force some of these questions before the SC.
pray.
It is my understanding that neither aliens or citizens who are interned have the right to legal counsel under this law. Without access to a lawyer how do you file a writ of Habeus Corpus? Am I wrong on this?
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