If you’re not a lawyer and as confused as I am by the machinations of the clever administration attorneys who determine the fate of the Guantánamo Bay detainees, here is a very clear explanation of the case Boumediene v. Bush, by Marjorie Cohn of Thomas Jefferson School of Law, president of the National Lawyers Guild. The case was decided earlier this year in a D.C Circuit Court of Appeals. The correctness of that decision, which stripped the detainees of habeas corpus rights, is now being appealed in the Supreme Court:
http://jurist.law.pitt.edu/forumy/2007/02/why-boumediene-was-wrongly-decided.php
The judges in the Circuit Court of Appeals case founded their decision on these arguments:
(1) in the absence of a statutory habeas right (which Congress had eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign’s territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it.
Here are some of the important factors that, according to Cohn, make the above argument erroneous:
They [the petitioners] are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
But read the entire article.
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