Julian: The versions I've seen, including the version the House (and presumably the Senate) approved -- http://makeashorterlink.com/?E11E53DDD -- cut off habeas for all "enemy combatant" aliens, without geographic restrictions (and including, presumably, even POWs). If that's right, it would overrule Quirin (habeas for aliens in the U.S.) and Yamashita (alien in occupied territory), as well as Rasul.
You write: "Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet."
First of all, what about the power to limit habeas rights of aliens in the U.S. or its occupied territories? Can Congress eliminate that, as it appears to have done here? Second, I will concede that the Court has not yet ruled "otherwise," because it hasn't addressed the question directly. But why are you so certain that Congress "has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S.," especially in Guantanamo, over which the U.S. has complete control? If you think Congress could not suspend habeas as to detainees we bring to South Carolina, but could suspend it if we instead bring the same detainees to an offshore island, what possible constitutional sense would such a distinction make?
Oh, and by the way: Your title is "Has the Writ of Habeas Corpus Been Suspended? Nope."
Well, it has been suspended. Today it exists for aliens in the U.S., in occupied territories, and at GTMO (and perhaps elsewhere). Tomorrow it won't. It *might* be that this suspension is not one the Suspension Clause recognizes because the persons in question are aliens -- although you've given no basis for that, and the text of the Clause doesn't provide one -- but a suspension it most surely is. Just ask any of the detainees with petitions currently pending.
1. "And I don't think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered."
Not so. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").
2. "[T]he habeas right . . . certainly exists within the territorial U.S. for . . . legal residents."
I take it you mean here a *constitutional* habeas right. If so, I assume this means you agree the bill is unconstitutional as applied to alien residents of the U.S.
3. "It is simply not clear that the Constitution extends all of its rights, including its habeas rights, outside the U.S.- even to occupied territories. Maybe it should, but the Court has never gone that far."
Agreed -- but then, shouldn't the heading of your post be changed from "Has the Writ of Habeas Corpus Been Suspended? Nope." to "Is Congress's suspension of the Writ of Habeas Corpus Unconstitutional? Yes as to resident aliens, but the Question Remains Unresolved as to aliens outside the U.S."?
Rushing Off a Cliff
Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
On Tuesday night, environmental protesters hooked themselves up to the ship's mooring lines to stop it leaving. They were later arrested by border guards and fined.
Greenpeace said the activists had moved in when they heard the ship, which they have tried to blockade by anchoring a protest vessel nearby, was about to sail.
Trafigura, the Dutch-based oil trading firm which had chartered the ship, issued a statement late on Wednesday denying that the vessel had been impounded and said it had commissioned an international inquiry to examine the Ivory Coast incident.
Thousands of people in Ivory Coast have suffered vomiting, stomach pains and other symptoms caused by toxic fumes from waste from the ship in late August. The incident has stretched the country's health services and forced its cabinet to resign.
Estonia's Environment Ministry said tests of the Baltic waters around the vessel had shown disturbing results.
"Preliminary analysis shows that it contains similar substances as those in the Ivory Coast," a spokesman said.
Trafigura, however, disputed the findings.
"The waste on the Probo Koala in Estonia is not the same waste as discharged in Adidjan," it said in the statement.
The firm has described the waste dumped in Ivory Coast as "chemical slops", a mixture of gasoline, spent caustic soda and water and said it was a normal by-product of cleaning tanks used to transport fuel.
In the United States, Annan, who ends 10 years in office on December 31, and the world body are often viewed as standing in the way of American objectives. Elsewhere, he and the U.N. Security Council are often seen as doing America's bidding.
From: Dear JetBlue
Date: Sep 15, 2006 2:46 PM
Subject: JetBlue and TSA Security Concerns
Re: email received Wednesday,09/06/06 5:20 PM, Speak Up 1437965
When you first wrote us expressing your thoughts on the situation at our terminal in New York's JFK airport involving Raed Jarrar, we provided the information we had at the time. We have since completed our internal investigation of the situation, and we would like to provide you with the results.
As you may recall, Mr. Jarrar was approached by JetBlue crewmembers and Transportation Security Administration (TSA) personnel prior to boarding his JetBlue flight. Their purpose was to talk with Mr. Jarrar and relay their observations of other customers' reaction to his T-shirt, which read "We Will Not Be Silent" in both Arabic and English. At no time was Mr. Jarrar told he would not be able to board his JetBlue flight unless and until he removed the T-shirt. The spirit of the conversation was to inform Mr. Jarrar of the unease or confusion other customers' had toward the T-shirt, which they apparently did not fully read or did not understand.
We agree with Mr. Jarrar that it is his Constitutional right to wear what he chooses. In fact, JetBlue does not have a policy regarding apparel, except in cases where profanity or vulgar images or messages may offend our customers. That guidance of course was not applicable in this situation.
Our crewmembers are responsible for providing safe and secure travel for all customers, however, and anything that causes concern or confusion at the airport or on the flight must be addressed, in a respectful and sensitive manner. Based on our investigation, we feel our crewmembers acted appropriately and with due sensitivity to Mr. Jarrar in addressing this situation. We also believe that TSA personnel acted appropriately and with all due respect toward Mr. Jarrar.
We believe the subsequent media attention of this incident will further sensitize and educate the public on the importance of diversity and acceptance, and as such, we welcome the public's scrutiny of our security measures.
Thank you for the opportunity to provide this information to you directly. We welcome feedback, because serving you is our purpose.
Director Customer Commitment
27 are hanged at Abu Ghraib in first mass execution since Saddam's fall
By Oliver Poole, Iraq Correspondent
August 9, 2006
|From: Dear JetBlue ||Mailed-By: jetblue.com|