We discussed this in my American government class today… basically, there are 2 questions here:
Can Congress suspend habeas corpus? Yes, under certain circumstances (as noted by Lemieux).
Can Congress suspend habeas in areas not in insurrection where the normal civilian government is functioning? Ex parte Milligan says no.
The key question is whether the Court will uphold Milligan, go further than Milligan, or allow this law to stand (and essentially overturn Milligan, at least in part).
My gut feeling from how things shook out in Hamdi is either a or b. But who knows?
Did the Hamdan case deal with the torture issue, as well? This so-called compromise–in addition to doing away with habeas corpus–also gives Congressional approval for the use of torture.
If I recall correctly, the court’s main problem with the torture issue was that Congress had not approved it.
So with this new bill, Congress is effectively supporting the use of torture. Unless I am mistaken, since language relating to the Geneva Convention was purged as a result of the “compromise”, I guess it might not be so clear since the majority in Hamdan alluded to the Geneva COnvention.
Comment by Ratoe — Thursday, September 28, 2024 @ 11:01 pm
I’m no lawyer, but from what I’ve read it does indeed appear to me that this whole thing is “over”. The good guys lost. That happens sometimes. (sigh)
I’ll be voting for the Democrats next election.
Comment by LaurenceB — Friday, September 29, 2024 @ 7:47 am
[...] The way to show one’s “toughness on terror” is to abrogate habeas corpus — the fundamental protection of an individual from the power of government, and specifically the Executive Branch. [...]
You know, if they’d just classify them as POWs, they wouldn’t have to worry about this crap. POWs are not entitled to challenge their detention.
Comment by Adam Herman — Friday, September 29, 2024 @ 9:48 am
[...] And, as I noted in my post last night about suspending habeas corpus, the bottom line is that we are talking not about dramatic actions that governments undertake during a specific crisis when the hot war rages, but rather the codification of actions that will be undertaken when passions have cooled and the immediacy of the crisis has faded and when cooler heads ought to prevail. [...]
We discussed this in my American government class today… basically, there are 2 questions here:
Can Congress suspend habeas corpus? Yes, under certain circumstances (as noted by Lemieux).
Can Congress suspend habeas in areas not in insurrection where the normal civilian government is functioning? Ex parte Milligan says no.
The key question is whether the Court will uphold Milligan, go further than Milligan, or allow this law to stand (and essentially overturn Milligan, at least in part).
My gut feeling from how things shook out in Hamdi is either a or b. But who knows?
Comment by Chris Lawrence (guestblogger) — Thursday, September 28, 2024 @ 9:46 pm
Did the Hamdan case deal with the torture issue, as well? This so-called compromise–in addition to doing away with habeas corpus–also gives Congressional approval for the use of torture.
If I recall correctly, the court’s main problem with the torture issue was that Congress had not approved it.
So with this new bill, Congress is effectively supporting the use of torture. Unless I am mistaken, since language relating to the Geneva Convention was purged as a result of the “compromise”, I guess it might not be so clear since the majority in Hamdan alluded to the Geneva COnvention.
Comment by Ratoe — Thursday, September 28, 2024 @ 11:01 pm
I’m no lawyer, but from what I’ve read it does indeed appear to me that this whole thing is “over”. The good guys lost. That happens sometimes. (sigh)
I’ll be voting for the Democrats next election.
Comment by LaurenceB — Friday, September 29, 2024 @ 7:47 am
[...] The way to show one’s “toughness on terror” is to abrogate habeas corpus — the fundamental protection of an individual from the power of government, and specifically the Executive Branch. [...]
Pingback by Polimom Says » Repeat after me: it’ll all be okay — Friday, September 29, 2024 @ 8:10 am
You know, if they’d just classify them as POWs, they wouldn’t have to worry about this crap. POWs are not entitled to challenge their detention.
Comment by Adam Herman — Friday, September 29, 2024 @ 9:48 am
[...] And, as I noted in my post last night about suspending habeas corpus, the bottom line is that we are talking not about dramatic actions that governments undertake during a specific crisis when the hot war rages, but rather the codification of actions that will be undertaken when passions have cooled and the immediacy of the crisis has faded and when cooler heads ought to prevail. [...]
Pingback by PoliBlog: A Rough Draft of my Thoughts » The Heart of the Problem — Friday, September 29, 2024 @ 11:30 am