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November 16, 2005


Dear hilzoy and Katherine,

As one of the six-billion-plus whose rights are in question, I greatly appreciate your efforts. To the many Americans who are either apathetic or downright bloody-minded about this, all I can say is, if you want the support of other nations please remember that lots of people really dislike the idea of being locked up for a long time without any explanation. This kind of thing affects the way we view America. I must say the attorney’s phrase “the country I thought I knew” struck a chord with me.

What Kevin said.

Knowing the frustration of putting effort, sometimes considerable effort, into a long post, and getting few responses, I'd like to say that I've read every word of this post, Hilzoy, and I'm simply speechless in reaction.

Not surprised, at all. But still speechless. For the moment, at least, on these specficis. (It's a mix of horror and rage and anger and sadness, terrible sadness, and the need to again push away the seductive tentacles of despair that attempt to intwine themselves around me, so I go back to the horror and rage and anger and terrible sadness, and then I either keep thinking about it, or try to push it to the back of my head until I can articulate again.)

Thank you so very much.

It's not over.

I just want to echo Gary Farber's sentiment above.

I read this blog quite often (as time allows), though I almost never post a comment, preferring to leave commenting to those who are more skillful and knowledgeable than myself.

Your coverage(and that of the other contributors) of this issue has been nothing short of amazing. I too thank you for the time and dedication you have put into these many posts.

I have forwarded many excerpts to friends who otherwise might not have been informed about the matter.


Gary's post covers my reaction as well - it's not any one thing, but an oscillation around a whole bunch of bad states.

I also want to remind people that this battle *isn't* over. Hopefully the Supreme court can override a law like this, since habeas corpus is a right stated in the Constitution; it isn't just a law.

On the other hand, this is a significant defeat, and we need to (and I certainly have) call our Senators, and call them again, and again, and remind them that this is *important*. These rights are all that stand between the America I too used to know, and a police state. Secrecy is always poison to democracy, and this administration has perverted our military branches and intelligence agencies by OK'ing torture, indefinite imprisonment without charges, and holding people incommunicado.

It will be hard work, but we need to keep the pressure on these swine in Washington.

Thank you for bringing light to the amendment and providing the detail and explanations that make it possible to understand what was really going on.

Let me add my voice and vote of deep appreciation to hilzoy and Katherine.

It isn't just that you've gone above and beyond to keep us informed; you've gone above and beyond in telling us whenand how we can help, and encouraging us to do so.

You also set an example of bravery and grit. By not giving up after so many reverses, you make it hard for the rest of us to.

Bless you both, and thanks.

in fact, it's quite the opposite

I suspect he means they're chained to the ceiling.

(Sorry, just trying to get some black humor out of this. Hilzoy and Katherine, thank you very much. What Kevin and everyone else said.)

Two Uyghur/Uighur detainees featured in sections of a document released to the public thanks to the FoIA action by the ACLU. For those interested in finding out more about their situation, I've transcribed the relevant parts of the pdfs here and another Uyghur's story here.

Something about the dispersion in the 14 Senate nay votes reminds one of the cloture-14 votes with a left-shift. I will withhold judgment until I read the GPO transcript tomorrow.

We are saying these folks: voted for ending most habeas:
Reid (D-NV), Yea
Boxer (D-CA), Yea
Clinton (D-NY), Yea
Feinstein (D-CA), Yea
Obama (D-IL), Yea
Schumer (D-NY), Yea
Jeffords (I-VT), Yea
Inouye (D-HI), Yea

but only Specter broke Republican ranks.

I doubt the US changed into a fear mode in 2005; that was the prewar mood. Tho there are workarounds suggested by some of the respondents in Marty Lederman's thread at Scotusblog I find improbable that 80 senators would expect the courts to wiggle around Bingaman Levin Graham; rather, to me hilzoy's depiction remains imponderable. Given the choice of two bad amendments Senators actually voted.

John Lopresti, that sounded interesting except I can't tell, mostly, what the hell you're trying to say. Could you try that again, please, in English?

Who is your "we," by the way?

John, I can't tell which vote you're talking about. On the initial Graham amendment vote, only five Democrats voted "nay," and more than one Republican voted "yea" (Smith, for instance); on the Bingaman amendment, everyone you named voted "yea" (along with a bunch of others), but that was a vote to restore habeas; and on the compromise amendment many more Democrats than the ones you list voted "Yea," but as Katherine pointed out "Nay" votes were protest votes, and if the amendment had been defeated it would have left the even worse original amendment in place. So I don't see any basis for saying that those eight Democrats voted for ending most habeas.

"except I can't tell, mostly, what the hell you're trying to say. Could you try that again, please, in English?"

I may not understand what John was trying to say, but I will defend to the death his right to be cryptic, elliptical(Marked by deliberate obscurity of style or expression), or even absurdist.

Multi-lingual allusive non-sequitars are the commenting wave of the future. Ben Wolfson and apostropher and their accomplices are my role models.

What is habeas supposed to get these detainees? An order for release? Where do they go if no third party country is willing to take them? The most convenient thing for the administration would be to put them on a plane to China, which they haven't done out of concerns for their mistreatment, a judgement with which the detainees no vigorously agree. So its not the case that the administration has done what's easiest for themselves at every point. The post talks about a "non precedent setting way" of grantining them asylum here, and wisely so, since a binding precedent that anyone who comes into our custody that turns out to be a citizen of a tyrannical regime has to be either tried or granted asylum in the US would be a security and political nightmare.
But by definition I don't see how habeas proceedings produce any "non-precedent setting" solutions. Maybe habeas helps with the conditions of their confinement, but I don't see how it reaches the detainment itself of these men.

Fifth line of comment above should read "no doubt vigorously agree"

just adding to the chorus of truly grateful readers...and wishing officials in the Administration were among us here.

which they haven't done out of concerns for their mistreatment

Uh, in Guantanamo Bay they're chained to the floor, they're not permitted to keep photos of their family, and their family were led to think that they are dead.

I think that coming from an administration which has continued to treat them as if they were dangerous criminals for months after the administration knew they were not, "concerns for their mistreatment" rings false.

What is habeas supposed to get these detainees? An order for release?

If they're being illegally detained, yes.

Where do they go if no third party country is willing to take them?

Since the US caused the problem by buying them off Pakistani bounty hunters in the first place, the US owes them asylum. Simple.

since a binding precedent that anyone who comes into our custody that turns out to be a citizen of a tyrannical regime has to be either tried or granted asylum in the US would be a security and political nightmare.

Perhaps the resulting inconvenience to the US would teach successor administrations (since we already know the Bush administration not only does not learn from its mistakes, it won't admit it's made any) that randomly taking into custody and imprisoning without trial anyone that any thug says is a terrorist is in itself a security and political nightmare.

What is habeas supposed to get these detainees?

Well, for starters, in hilzoy's words: the right to take their case to the courts and make it heard. That's worth having, surely?

"Multi-lingual allusive non-sequitars are the commenting wave of the future."

I was a major, sometimes overwhelming, user of unilingual allusive non-sequiturs once upon a time in my writing history. I started learning around age 17 or so how to get it more under control. It's overly easy to go the other way. (I'm not shy about the not infrequent use of obscure references on my own blog; say, have I mentioned I have a blog?)

(Since it likely isn't clear, since I don't believe I've ever said so, I will note that I'm quite fond of, and sometimes admiring of, the thullenesque thulleninities of thullenisms we are often treated to here, by the way.)

Whoopsie with the wrong thread. (Blush.)

And never mind that last.

"...and wishing officials in the Administration were among us here."

I'd be happy just to have major Democratic activists, officials, and/or politicians, read the relevant posts and best comments.

The Statistical Abstract of the United States shows more than a hundred thousand refugees received each year in the early 2000s. Is anyone asserting that the system absolutely cannot possibly or conceivably ever handle any more?

It would seem to me that we owe people mistakenly seized as enemies of the nation at least as much as we owe people in the witness protection program.

I don't know that someone like RD or Petelli would actually be as glad if everyone mistakenly captured were to just die quietly and never be seen again at all. I don't have a reason to suspect that they would actually find relief or even pleasure in the death of people whose only fault was to get captured without cause. But I do know that their demonstated willingness to regard it all as such a burden and to treat any possible solution anchored in the most basic fair play and justice as a huge load that could cripple our society does, directly, contribute to an environment in which those who would will and like the deaths can get away with it. If we're not willing to treat justice for each person as a thing to take seriously, each day, then we get...well, we get this situation here.

And of course as Teresa Nielsen Hayden rightly said, "Just because you're on their side, doesn't mean they're on yours." They're willing to discard allies at a moment's notice and subject them to degrading assault. They can do it to you, too, the moment you become inconvenient. And support for them gives them the tools to do more to you, if and when.

Wow. Amazing information. This is not how I want our country to act.

Thank you for your post.

What CaseyL said at Nov 16 4:36 p.m., especially about making it hard for the rest of us to give up.

It's tempting enough to do so: The Virginia senator who pretends to care about torture, Warner, voted wrong on all the habeas amendments, despite many calls from constituents and letters from senior military types (many of whom are also constituents). The other senator barely pretends to oppose torture, and probably plans to run for re-election on his "tough on terrorists" votes.

Right, I didn't say I was happen for them to stay there forever. I was expressing doubts that *habeas* petitions were an adequate tool for them. Habeas is first and foremost about getting you out of jail when you shouldn't be there. That's not contested here. The problem is where they go afterwards. If these guys wanted to return to the country where they are citizens, China, they could do it tomorrow. The US would be within its rights to fly them out regardless of the consequences. The fact that it hasn't seems to weigh pretty strongly against the idea that it has no concern at all for these detainees' human rights.

rd: The fact that it hasn't seems to weigh pretty strongly against the idea that it has no concern at all for these detainees' human rights.

The fact that the US is still holding these innocent men in a top-security jail where they are being treated as if they are dangerous criminals, overweighs any pretense that the US has any real concern for their human rights.

The problem is where they go afterwards.

I'd say the US should ask them where they want to go, and then give them all the assistance they need in going there and supporting them once they're there. The US owes these guys big, rd: they were unjustly arrested, imprisoned, and treated without concern for their human rights or dignity, even after the US authorities had established to their own satisfaction that they were innocent.

Sorry for the inadvertent humor evoked from some commenters in what is a serious matter. My take was Bingaman was still a setback, and Graham a disaster; I was dismayed at the centrist non-lawyer Senators who readily accepted the lesser of two distasteful amendments. My position would be favoring a strong habeas, a view aligned with neither Graham nor Bingman. However, congress is for the compromisers.
As a standard visitor to the site might observe, I was fairly new to this website. I agree with other observers who state hilzoy's prose is limpid. I admit a sensation of stun in this particular 'Requiem' post: the hour being well past midnight, the hilzoy article's detail very luridly graphic, and its title galvanized. Hopefully I may learn from the website if I revisit it. I append this note in deference to all the excellence at Obsidian Wings.

Mr Henry, the government hack posing as a lawyer:
"But the detainees are not kept chained in their normal detention facility; in fact, it's quite the opposite."
Quite. When given the extaordinary privilege of meeting their lawyers, the prisoners are chained to the floor. Are we to understand that the rest of the time the floors are chained to the prisoners?

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