Saturday, November 12, 2005

Don't like the Constitution? Strip the courts of jurisdiction.

The Senate has voted to strip federal courts of their jurisdiction to hear habeas petitions from prisoners in Guantanamo. Stripping jurisdiction is one way the Congress and the President can violate the Constitution. A prisoner may have a valid claim that they are being held illegally, but unless a court has jurisdiction to hear the claim the Constitution is just a nice idea.

The sponsor, Lindsey Graham, is also dishonest: "It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint." Mr. Graham said. What he meant to say was, "Its not fair ... for the government to be sued in any court in the land by possibly innocent prisoners based on any possible complaint."*

*Note: under this law, prisoners could bring an action if the Department of Defense violates its own rules or procedure. Also, there are unanswered questions regarding whether the prisoners might still have a Constitutional rather than statutory right to file a habeas petition. I think this is unlikely, given the folks now being appointed.

NYTimes
See,
Balkinization
Obsidian Wings
pdf text of the Bill
Graham's speech:

habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States.

from Law.com,http://www.law.com/jsp/article.jsp?id=1129712711507

There were 18,432 noncapital habeas corpus petitions filed by state prisoners in U.S. district courts.

Petitions from Guantanamo are less than 1% of all district court petitions.

Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

If frivolous petitions are filed, the district court rules in the government's favor. That is how the legal system operates. Instead, Graham wants no one to be able to file a habeas corpus petition for any reason (save a narrow exception), because he things some of the claims are not meritorious.

It is impossible to interrogate people with this much court intervention.

That could be rewritten, "it is impossible to abuse people during interrogation with this much court intervention."

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