Juxtaposition

by Katherine

"Again, these are people, these are enemy combatants, people that have been picked up on the battlefield with ill will or creating acts against the American people."--Senator Bill Frist

***

"They took our land. They killed my mother. You can ask. This is true information. They killed my family. My wife said they came with a weapon and drew it on her. I asked the Red Cross to go and investigate if this was true or not. Ask my family....

I have respect for you because you saved our lives. If you people didn’t come, they would have killed us all. From my village, plus or minus two hundred Shia’s were killed. You can ask yourself. This is not a lie. If you people weren’t here to come and help us, we would have all died of hunger because you give us food. At our house we didn’t have even a little bit of oil. You can ask. Even my children were barefoot...Now my poor family have no food, they don’t have anything, and I was detained…I don’t know what happened to my family. I don’t know what happened to my children....

If the Americans hadn't come, they would have killed us. They took our land. You cannot find one Hazara (ph) who is a supporter of Taliban or Gulbuddin." -- CSRT of Faiz Ullah, ISN 919. Ullah's CSRT found him to be an enemy combatant .

***

"These are not people who ordinarily have been captured who would be covered by the Geneva Conventions. They are not serving in a country's military; they are murderers of the worst sort." -- Senator Trent Lott

***

"When the Recorder was stating the nature of the evidence, he stated that the Detainee was a cook. The Detainee stated that he was not a cook; he was an assistant to the cook. He cleaned dishes, peeled potatoes and tomatoes and got the stuff ready for them. He was not actually a cook....

The Detainee states that he was grocery shopping close to his house and the Taliban was drafting people. While he was in the store, the Taliban came and asked for him, the Taliban came and asked for him. When he stated his identity, they put the sheet around his hands, tied them with the sheet and captured him....

Q: Were your hands tied the whole time?

A: The Detainee states that until they reached Kandahar, his hands were tied....

Q: Were the guards with you all of the time?

A: The Detainee states the guards were with him all the time. They didn't just give him to the driver and tell the driver to take him. There were 2 Taliban in the car with the Detainee.

Q: Were they armed?

A: The Detainee states yes, they were armed." -- CSRT of Dawd Gul, ISN 530. I cannot find an ARB or habeas petition for Gul, but according to the Washington Post's list of Guantanamo detainees, he has not been released.

***

"Senator Susan Collins , a Maine Republican who is considered a moderate, said she would not support Specter's amendment.

'Detainees from Guantanamo have clogged our courts with more than 420 lawsuits challenging everything from their access to the Internet to the quality of their recreation facilities, her office said in a statement that called the lawsuits 'an abuse of our court system.' " -- Farah Stockman, "Legal Residents' Rights Curbed in Detainee Bill," Boston Globe, September 28, 2006.

***

"Dear respected Lawyer,

I am writing this letter to you and I hope you are in the best of health.

My name is Sadeeq Ahmad Tukistani...

I was born in Saudi Arabia in the region of Taif and lived there. However I was imprisoned for three years because of a criminal case and after three years I was exiled from Saudi Arabia to Afghanistan. When I reached Afghanistan, we were captured by the members of Al-Qaeda. We were accused that we have been sent by the Saudi government to assassinate Osama Bin Laden. After interrogation I was handed over to the Taliban and I was put under the intelligence in Qandahar for a period of one and a half year. After one and a half year, they moved me to the Qandahar political prison and I stayed there for three and a half years.

After the government of Taliban fell, and the government of Hamid Karzai took over, they handed me over to the Americans. Now, I have been under the control of the Americans for the past three years and eight months.

Six months ago, I was told by the Americans that I am innocent and I am not an enemy combatant.

I have one problem. For the past 8 years I have no information about my family. My family lives in Saudi Arabia in the region of Taif. I would like to request you some humanitarian help to contact my family at telephone number [redacted]...and bring me their welfare.

I hereby thank you sincerely and please accept my regards: Sadeeq Ahamd Turkistani"

--Letter to counsel from Sadiq Ahmad Turkistani, filed before the D.C. District Court on December 30, 2005.

Turkistani is one of six Guantanamo prisoners captured in a Taliban prison in Kandahar in December 2001.  He later told his lawyers that "Al Qaeda operatives tortured him for over 20 straight days" until he falsely confessed to trying to assassinate Bin Laden "in the hope and belief that they would kill him."

In December of 1998, Osama Bin Laden told a Pakistani newspaper that "Thanks to Allah, the assassination attempt by one Siddiq Ahmad and his two accomplices failed." ("Bin Laden Urges Killing Americans," Associated Press, December 26, 1998.)

In large part because of his habeas corpus case, Saddiq Ahmad Turkistani was transferred from Guantanamo to Saudi Arabia in June of this year. Three of the other prisoners captured with him in the Taliban prison, however, were classified as enemy combatants by their CSRTs and remain in Guantanamo.

***

"My moral compass is very much intact and when people mention moral compasses and the conscience of the Senate, I'm going to sleep very good casting my vote and I think I've got a decent moral compass about what we should be doing to people, what's humane, what's not, what's right, what's wrong." -- Senator Lindsey Graham

***

"In November 2002, a newly minted CIA case officer in charge of a secret prison just north of Kabul allegedly ordered guards to strip naked an uncooperative young Afghan detainee, chain him to the concrete floor and leave him there overnight without blankets, according to four U.S. government officials aware of the case.

The Afghan guards -- paid by the CIA and working under CIA supervision in an abandoned warehouse code-named the Salt Pit -- dragged their captive around on the concrete floor, bruising and scraping his skin, before putting him in his cell, two of the officials said.    

As night fell, so, predictably, did the temperature.    

By morning, the Afghan man had frozen to death.

After a quick autopsy by a CIA medic -- "hypothermia" was listed as the cause of death -- the guards buried the Afghan, who was in his twenties, in an unmarked, unacknowledged cemetery used by Afghan forces, officials said. The captive's family has never been notified; his remains have never been returned for burial." -- Dana Priest, "CIA Avoids Scrutiny of Detainee Treatment," Washington Post, March 3, 2005.

Comments

[zmulls]

We've gone way beyond speechlessness. I can only thank you for continuing to post specifics.

If these stories were actually covered by the news, might the country start to turn.....at least those who aren't longing for the rapture?

[Katherine's Dad]

Izzy and I are proud of you.

Where are the so-called Christians? The hardest test for a Christian from the Sermon on the Mount is to love your enemy. I would think that at least a few of the many 'Christians' in Congress would welcome the chance to meet this test. Yet I have not seen it mentioned in any of the debate coverage.

[Jeff Eaton]

Where are the so-called Christians?

As a Christian, I think this is what disgusts me most. We as a group muster up more rage and righteous anger about three frames of a woman's breast duringthe Superbowl Halftime show than we do about legalizing the torture of fellow human beings.

Words can't even begin...

[Katherine]

hi dad.

Izzy = I.F. Stone (who my parents had me reading in high school).

[john miller]

In this country at least, the term "Christian" has lost all meaning.

What we have seen is a true perversion of that term to countenance actions of the most un-Christian sort.

How would one describe Christ's reaction to what is going on?

Simply "Jesus wept."

[Andrew]

John 11:35, if I recall correctly.

Katherine,

What an interesting coincidence. In yesterday's mail came a copy of "All Governments Lie," a biography of I.F. Stone. I just started it last night.

[Katherine's Dad]

I'm not sure if He would just weep. He was at his angriest when confronting the money changers at His Father's house, and railed against their hypocrisy.

[tomaig]

So you accept without question that what these fellows are saying is the absolute truth?

You're not skeptical at all about these "I was just innocently going out for some goat cheese on the battlefield and all of a sudden I was captured!" stories?

No, of course you're not....

[john miller]

tomaig, your comment might mean something if these people had actually been captured on a battlefield. The majority of them weren't.

[Slartibartfast]

So you accept without question that what these fellows are saying is the absolute truth?

Of course, if you don't even bother to consider it, all the burden of thinking at all is lifted. I can see how that might appeal, but it's not located in the same space as moral high ground. If they truly are all guilty, why not just shoot the lot of them?

[Katherine]

I believe Turkistani because there is extensive corroboration of the fact that he was captured in a Taliban prison, and because he was cleared by his CSRT, which is almost impossible.

In Ullah's case, his story is consistent between his CSRT, ARB, and habeas petition, and consistent with reports of Taliban atrocities against the Hazara in his hometown of Bamiyan. The Hazara apparently are physically distinctive, but obviously I don't know what the guy looks like. They would also speak Farsi/Dari rather than Pashto, which Ullah says he does and is presumably easily verified.

In Gul's case, I know for a fact that the CSRTs have said that being forcibly conscripted is irrelevant to enemy combatant status, as is working as an assistant cook and never firing a shot. And the Taliban definitely forcibly conscripted people. But I can't prove what happened, obviously.

The Salt Pit case--yes, I trust Dana Priest. The CIA inspector general investigated this case, and DOJ looked into it before declining to prosecute.

[Donald Johnson]

Katherine, is it okay if I copy this and distribute copies? Your name (the first one anyway) will be on it. Actually, I might just copy parts of it--some parts might confuse people who aren't following this closely. (CSRT isn't a commonly understood acronym, for instance.) The Afghan man who froze to death, however, is a pretty easy story to understand.

[Katherine]

yeah, but you might as well just use Priest's article, it has more details.

[gwangung]

So you accept without question that what these fellows are saying is the absolute truth?

You're not skeptical at all about these "I was just innocently going out for some goat cheese on the battlefield and all of a sudden I was captured!" stories?

Well, if we could get this into court and actually determine if that's the case or not....

[FL]

What a tempting menu of outrages! It's so hard to pick just one. But I'll try "clogging the courts" as an appetizer.

'Detainees from Guantanamo have clogged our courts with more than 420 lawsuits challenging everything from their access to the Internet to the quality of their recreation facilities, her office said in a statement that called the lawsuits 'an abuse of our court system.'

We've spent something like half a trillion dollars in Iraq, God knows how much fighting terrorism, and we can't afford to keep the courtroom open late to make sure we've got the right guy in a stress position. Ow.

[liberal japonicus]

I'm wondering if a trip could be sponsored to bring Maher Arar to Washington and have him meet with every senator that he could. Make them look him in the eye and say 'we did all we could to stop this bill' (I'm sure that the people who voted for it would duck the meetings) This is making the remarkable presumption that he would want to do this, but I wonder if it would give him some more closure to face the august members of the Senate and tell them what a pack of curs they are.

[Katherine]

lj--I don't think he'd necessarly be allowed into the country. The exec. branch has pretty wide discretion to keep people out.

Someone from Leahy or Markey's office could have him write a letter and read it into the record, if nothing else.

[bob mcmanus]

The bill has been passed, Katherine. If this information and these stories help defeat Republicans, they are useful. From the debate and votes, it appears many professionals think not. I don't know on what issues Republicans are vulnerable. I suspect the war in Iraq is more powerful.

I also think habeas and detainees will motivate turnout only among a very small part of the Democratic base, and will demoralize many. Some can be seen in this thread as being discouraged and thinking third party or withholding their votes.

I would just like this justified in terms of the election, or set aside to be brought near the top afterwards.

[Donald Johnson]

Thanks, Katherine. I might use yours anyway--sometimes shorter is better.

On the "where are the Christians?" question, you generally find devout Christians on both sides of any moral debate, even one as clearcut as this. "Christianity Today" recently admitted it said nothing about the massacres in Guatemala in 1982, preferring to put out articles about the inspiring fact that the military dictator at the time was a born again Christian. They knew their priorities. It shouldn't be this way, but it always is.

[Ara]

The fuller quote bears repeating: "All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out."

[Katherine]

jesus, bob, if you're going to do nothing but criticize me could you try to do so from a position of consistency? I can never keep track if I'm a sell out for opposing the revolution or hurting the Democratic party through insufficient loyalty or whatever it is this week.

[Sebastian Holsclaw]

So you accept without question that what these fellows are saying is the absolute truth?

You're not skeptical at all about these "I was just innocently going out for some goat cheese on the battlefield and all of a sudden I was captured!" stories?

I'm not particularly open to arguments that enemy combatants should get the full benefit of our legal system, since I don't think treating this as a criminal problem is likely to be very effective.

I don't particularly think that the "Geneva Conventions" approach is very interesting because what your average person thinks of as Geneva Convention protections doesn't apply to illegal combatants.

I think that the abuse of the habeas corpus procedure by the defense bar in vast numbers of death penalty cases--transforming it from an important protection into a routine obstruction method--has added to confusion and undermined it when we really need it.

But even coming from that rather conservative direction, I still see an important question needs to be answered by people like you: how would an innocent non-citizen avoid indefinite imprisonment? The Bush administration seems to say "trust us" but cases like Arar suggest that we should not.

Innocent people have in fact been caught up in the current procedures. They have in fact been tortured. No matter how tough you want to be on terrorists, do you believe that the US has no responsibility to distinguish between terrorist and non-terrorist? Does the US have no responsibility to innocent people who are mistaken for terrorists? Should the US administration quash attempts to ensure that fewer innocent people get swept up?

[gwangung]

But even coming from that rather conservative direction, I still see an important question needs to be answered by people like you: how would an innocent non-citizen avoid indefinite imprisonment?

Because, no matter how good they are, no matter how well intentioned, people will make mistakes. Any decent, humane system will have an error-correction system in place.

I don't see one here.

[bob mcmanus]

"jesus, bob, if you're going to do nothing but criticize me could you try to do so from a position of consistency?"

If you look on the previous thread, I told hilzoy I would try it her way for thirty days to six months. It was a temporary suspension of disbelief. I may have been wrong. For the next thirty days the point is to win elections. After that we can reassess.

I am going to go visit some close Congressional candidates and see if they are emphasizing this issue.

[Debra Mervant]

Geez, Sebastian, if a habeas petition is the only recourse standing between the defendant and execution by lethal injection (could that just possibly be qualified as torture ? The people who have attended such executions rarely walk out of them without feeling some sort of squeamishness about such a clean operation), should the defendant pass it up just to avoid "clogging up the courts"? And I'm not sure that there are really enormous numbers of habeas petitions filed on behalf of death row offenders ; that is a myth that the right has carefully constructed to undermine habeas corpus FOR AMERICAN CITIZENS IN OUR OWN COUNTRY. The innocence debate is no different here than it is with respect to the death penalty. Torture, like the death penalty, is wrong whether the victim is innocent or not.

[Andrew]

I can't speak for hilzoy, but I'm reasonably certain that 'her way' does not include suggesting the removal of posts that do not meet certain vague criteria for helpfulness in winning elections.

"Finish him. Your way."

"Oh, my way. Thank you, Vizinni." pause "What's my way?"

"Pick up that big rock and hide behind that boulder. When the man in black's head comes into view around the boulder, hit it witht the rock!"

"My way is not very sportsmanlike."

[Sebastian Holsclaw]

"Geez, Sebastian, if a habeas petition is the only recourse standing between the defendant and execution by lethal injection (could that just possibly be qualified as torture ?"

The "lethal injection possibly qualified as torture" thing is why Republicans find it so easy to play Democrats on the torture issue. The fact that Bush is trying to authorize real, actual, most people would seriously recognize it as torture if they looked, torture means that you don't have to mess everything up by appealing to the (and I'm being generous) borderline cases.

And if the habeas petition is the only thing standing between a prisoner and the death penalty it should still not be used as a delaying tactic. The habeas petition should be used to raise serious and substantive objections--not merely delay the assigned punishment. Treating it as a run-of-the-mill delaying tactic gravely undermines its effectiveness when it isn't just a delaying tactic.

In any case, I think you may have missed my point in raising it.

[bob mcmanus]

I haven't visited individual Campaign sites yet, but DKos in heated argument has dropped the issue and asked its diarists to move on.

MyDD has dropped the issue.

FDL has one post but seems to be moving on.

Thirty days. By not filibustering, the Democratic Senate seemed to me to be indicating that this is a dangerous political issue.

[katherine]

you need to stop, you just talked me OUT of donating to Democratic candidates.

[bob mcmanus]

"include suggesting the removal of posts"

Is that what I suggested? Deleting the post?
Perhaps you need to re-read.

Was my comment of 1:45 really critical, or in any way suggesting the issue wasn't important? It was a question of tactics and priorities, and asking for arguments that this was the useful line of attack at this time.

[Andrew]

I would just like this justified in terms of the election, or set aside to be brought near the top afterwards. [Emphasis added]

That certainly sounds like a suggestion to remove the post for at least the next month.

[Slartibartfast]

Any decent, humane system will have an error-correction system in place.

Any minimally rigorous system will also include provisions for remaining stable when perturbations are taken into account. I think we're, unfortunately, opening all control loops and hoping for the best.

Or, if you're in the hyperventilating mood, evilly plotting to accomplish the worst.

[bob mcmanus]

"you just talked me OUT of donating to Democratic candidates."

Good grief, I have helped move Katherine to the left of me. :)

My original comment was meant to be constructive. As hilzoy said in the last ost, the Dems will be there for us, to the best they are able, if they gain a little power. 1-3 Senators and a filibuster might have been possible.

[Katherine]

as for the election: patrick leahy, john conyers, henry waxman, carl levin, subpoena power. It's not a hard call. I just need to not read stuff I know is just going to make me furious--and, it would help to know about people in close races who had actually gone on record on this, and see where they went on record. (I know about Lamont).

[Katherine]

and I also read that as a suggestion to delete the post.

[bob mcmanus]

"That certainly sounds like a suggestion to remove the post for at least the next month."

There is no direct reference to the post in the comment. The comment references the issue. Your reading remains imaginative.

And I am not sure, Andrew, so will ask. Have you committed to desiring Democratic control of Congress? If not, then your priorities would understandably be different than mine, and might prioritize habeas over elections

[bob mcmanus]

"it would help to know about people in close races who had actually gone on record on this, and see where they went on record. (I know about Lamont)."

I am not sure what this means. Even a Democratic candidate who might take a seat from a Republican, and yet officially supports the President on this issue, would help put Conyers or Leahy into power.

This, like certain Democrats that are anti-abortion like Casey, might be a situation where we would have to hold our nose.

[bob mcmanus]

It might have been the use of the word "top" that confused. I meant top of the agenda, and top is a term of art or something on blogs.

[Katherine]

they would, and yet I am too stubborn to give them a dime, and that's just that.

[Ugh]

FWIW, I didn't read bob's comment as a suggestion to delete the post.

[bob mcmanus]

"and might prioritize habeas over elections"

Omigod quoting myself. But I just thought that I would have trouble understanding, given present circumstances, a way of reconciling a high prioritization of habeas/detainees with continued Republican control of Congress.
...
Katherine, I think we understand each other now. You do what you will. I won't bring it up in one of your posts on this subject again.

[liberal japonicus]

I don't want to drive off Sebastian as well, but that argument sure sounds like habeus is too precious to be used very often, which, though IANAL, sounds exactly opposite my understanding. I'm also wondering if every death penalty appeal, or the large majority of them, are based on habeus, or things like lawyers sleeping in court, or asking that new forensic techniques be used. It's almost like 'look, if you hadn't kept using that habeus thingee, we wouldn't have had to take it away from you' reasoning that you might use with a child when you take away a toy drum. Perhaps my understanding is incorrect, but to me, habeus is one of the pre-eminent rights, and one of those things that the Anglo-American culture can rightly point to as something to be proud of and the way the US has held onto it as an undiluted right where others have not is one of the few reasons I continue to hold onto my American passport.

[Ugh]

We could avoid alot of this nonsense if we would just repeal the death penalty.

[Sebastian Holsclaw]

I'm not saying that habeas corpus ought to be suspended or diluted for citizens. It is an excellent tool when used properly. It doesn't fix everything and shouldn't be used as a delaying tactic. It should be used to raise actual and substantial legal challenges. That it isn't definitely undermines its effectiveness when it would be appropriate. That is true of almost any cry wolf situation. If it is used for important challenges (like innocence or police abuse) it will continue to be well respected because its utility will be obvious. If it is used as a delaying tactic to avoid a penalty that enjoys great popular support, it won't be as respected.

For an analogy, think of how Bush uses national security. Do you believe national security is important? Clearly. Does Bush's overuse of the "national security" scare card cause problems when you want to seriously address national security? Clearly yes. Does that mean we should abandon national security? Well, no. You can properly point out abuses of "national security" without attacking the whole idea.

An even stronger case might be government secrecy. There are clearly times when allowing the government to keep secrets is good. Bush overuses secrecy. Pointing out that many of his uses of of secrecy are illegitimate and have nothing to do with the reasons we allow government secrecy is not an attack on appropriate government secrecy. It is an attack on Bush's misuse of government secrecy.

By totalizing the attack, you just look silly. Government secrecy is useful, but 90%+ of the stuff Bush uses it for has nothing to with that. It makes people not even trust the government with the secrets it probably should keep.

Habeas corpus petitions have been misused by the death penalty bar for longer than I have been alive. For most people, the whole process looks like a useless procedural delaying tactic. It is no surprise that you have trouble publically defending what has come to be seen as a useless procedural delaying tactic when applied to the war on terror. If habeas corpus had been maintained as a procedure of last resort for those hit with serious injustice in the criminal system, it would be easier to defend when it really was appropriate.

That is not an argument against habeas corpus as applied to innocent or unfairly punished people caught up in government incarceration--in the war on terror or any other circumstance. That is the legitmate purpose of habeas corpus. I am merely noting that using it for other purposes has undermined the defense of its legitimate purpose.

[Sebastian Holsclaw]

And further I want to note that the desire to defend its shadier uses is coloring the tactics of the habeas corpus battle such that its defenders are likely to lose.

The issue isn't that terrorists should be able to play fun legal delaying games with the US courts.

The issue isn't that terrorists should be able to file habeas corpus petitions to complain about their treatment.

The issue is that innocent people who have been incorrectly identified as terrorists ought to have some way of getting free.

[LizardBreath]

I am merely noting that using it for other purposes has undermined the defense of its legitimate purpose.

Huh. I'd think that its legitimate purpose, that any human being should have the right, when imprisoned or punished, to appeal to some court that his imprisonment is lawless and unjustified, and demand that his captors give some defense of their decision to deprive him of his liberty, would be compelling enough to remain persuasive regardless.

[LizardBreath]

The issue isn't that terrorists should be able to file habeas corpus petitions to complain about their treatment.

Like torture in violation of the law?

[liberal japonicus]

I'm trying hard to see how my post was 'totalizing (?) the attack'. Perhaps my understanding of habeus is wrong, but I never saw it as a procedure of last resort. I'm also wondering if every death row appeal is a habeus appeal. I don't think anyone is asking people to release convicted murderers, just asking that they be given the opportunity to exhaust all possible avenues before they are executed. Perhaps every death row appeal is grounded in a habeus appeal, but by that logic, every defense action that deals with imprisonment of any kind is grounded in habeus, making it less an option of last resort and more a touchstone. If I'm mistaken, I hope you could explain to me, in non-lawyerly language, why I'm wrong.

I'm also curious about the notion that there are legitimate and illegitimate purposes of laws. While a judge can punish someone for filing a frivolous lawsuit, which I guess is a signal for an illegitimate purpose, I would think that is a very special case.

[bob mcmanus]

"The issue is that innocent people who have been incorrectly identified as terrorists ought to have some way of getting free." SH

I kind of like this, in itself, as a useful line. Though a more limited application than I would prefer. I wonder how many Senators emphasized this on the floor, and if not, why not.

[Debra Mervant]

Sebastian, it boggles the mind to think about all those death penalty cases clogging the courts because of habeas when death row in the U.S. among the states still clinging on to the death penalty has only a maximum of 3000 inmates (population pretty stable, even declining these days as the American public is getting a little leery about the penalty contrary to what you affirm witness the Moussaoui trial and sentence) and not all of them bring appeals based on habeas. You didn't respond to my allegations about current trends to limit habeas through such instruments as the Anti-Terrorist and Effective Death Penalty Act, co-written by Al
Gore, of all people...
It's interesting to note that the torture debate has surfaced at exactly the same moment as American public opinion is cooling down on the death penalty. Wonder what that could mean.

[Katherine]

That was Obama's tack, though not done all that forcefully. He tried.

I fail to see why that stance would've doomed Sherrod Brown. "We shouldn't put innocent people in jail without a hearing for the rest of their lives," followed by reading, say, Turkistani's letter. Why is that political suicide? I just don't buy it. Maybe in a few places in this country, but in Ohio? New Jersey? I don't buy it. I just don't. There aren't a lot of people defending what happened to Arar this week; the National Review has finally decided that the case is "troubling."

[Ugh]

Priming the pump:

Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

[Sebastian Holsclaw]

L_J,

I'm also wondering if every death row appeal is a habeus appeal. I don't think anyone is asking people to release convicted murderers, just asking that they be given the opportunity to exhaust all possible avenues before they are executed. Perhaps every death row appeal is grounded in a habeus appeal, but by that logic, every defense action that deals with imprisonment of any kind is grounded in habeus, making it less an option of last resort and more a touchstone. If I'm mistaken, I hope you could explain to me, in non-lawyerly language, why I'm wrong.

I'm not sure where you get the idea that habeas corpus petitions are supposed to be just a routine thing. From wikipedia:

Latin for "you [should] have the body", in common law countries, habeas corpus is the name of a legal instrument or writ by means of which detainees can seek release from unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.

I would emphasize the "is imprisoned lawfully" and "whether or not he or she should be released. This historically wasn't supposed to be for just routine matters.

Your typical death penalty case will go through a vast (I would say ridiculous) number of appeals. Of those, typically one or two are habeas petitions. But they are used on almost every case. They are not used just in extraordinary cases. And that is not only death penalty cases, there are thousands of other ones as well. It has become a completely routinized part of the criminal sentencing process.

"Tookie" Williams for example went through six habeas corpus applications--four in California Court and two in federal Court. Frankly, at no time should we have been worried that an innocent man was being killed or that he received an unfair trial in his case, but he and his lawyers used the habeas petition six times.

Debra,

Sebastian, it boggles the mind to think about all those death penalty cases clogging the courts because of habeas when death row in the U.S. among the states still clinging on to the death penalty has only a maximum of 3000 inmates (population pretty stable, even declining these days as the American public is getting a little leery about the penalty contrary to what you affirm witness the Moussaoui trial and sentence) and not all of them bring appeals based on habeas. You didn't respond to my allegations about current trends to limit habeas through such instruments as the Anti-Terrorist and Effective Death Penalty Act, co-written by Al
Gore, of all people...

I don't see your question about current trends, so I can't respond to a previous version of it. But as far as trends limiting Habeas (before 9/11), such trends existed because of the blatant abuse the process was being subjected to by defense lawyers and judges who were willing to subvert the law to avoid capital punishment for murderers.

As for the number of petitions, you are missing a few things. First, many capital cases ultimately have multiple habeas petitions. Second, they take a long time to research and deal with. Third, improper habeas petitions are not just limited to death penalty cases--those are just the cases with the highest profile.

[CharleyCarp]

And if the habeas petition is the only thing standing between a prisoner and the death penalty it should still not be used as a delaying tactic. The habeas petition should be used to raise serious and substantive objections--not merely delay the assigned punishment.

I agree with this. I don't agree that public perception of habeas in domestic death penalty cases has played any role in recent events, or last fall. Sen. Graham did his best to trivialize the pending petitions by ignoring the actual relief sought in the petitions, and focusing on some incidental motion or other. That there are incidental motions is too bad, but the only ones that get anywhere at all are those that challenge government misconduct -- of which there is more than enough.

LJ, there are two kinds of appeals in death penalty cases. First, you have direct appeals from the conviction/sentence. Then, later, you have petitions for habeas, which must meet fairly rigid criteria to be successful. I personally think that eliminating the death penalty is the better way to go, but failing that, I think that states ought to appoint top lawyers -- and pay them market rates -- in all capital cases. Instead, we have states cheaping out, and then reaping the consequences through serial chalenges to the many errors that crept in below.

[hilzoy]

I agree with Seb, and also with CharleyCarp, since I think that while a statement like"habeas petitions shouldn't be made frivolously' is true, it's worth asking what we could do to lessen both the fact and the appearance that they are.

[liberal japonicus]

thanks, Seb, CC, Hilzoy, that's very helpful.

[john miller]

Okay I admit to being old fashioned, but I grew up in the fifties, and I remember being taught that the ideal behind our system of justice is that it is better to let 100 guilty people go free than to incarcerate 1 innocent one.

Granted, that is an ideal and has never been put into practice, not perhaps should it be.

But I honestly think overloading the courts with frivolous habeus petitions is worth it if it prevents an innocent person from suffering what has been shown to happen under this adminsitration.

If America is willing to put up with long lines at the airport security, we should be willing to put up with some frivolous habeus cases.

[Katherine]

I'm not sure how you prevent frivolous lawsuits from being filed without screening out meritorious lawsuits. To separate them, you actually have to look at what they say.

I mean, they tried Rule 11, and maybe that ended some frivolous lawsuits, but it also created a little industry of frivolous Rule 11 litigation.

[matttbastard]

Via Marc Cooper: David Corn exposes so-called 'torture-lite'.

[Debra Mervant]

I agree with CharleyCarp on this one. If the states didn't cheap out on the initial trial proceedings, and did things the way they should be done from the beginning (that means not subjecting the criminal justice system to Reaganomics, but really investing in it) then the number of"frivolous" habeas proceedings would (probably) be reduced. But then, abolish the penalty, and at least there are no habeas petitions from death row offenders...
But I suspect that the habeas issue is one of declaring that your dog has rabies in order to have him put down. Is it substantially true that the courts are clogged with frivolous habeas suits, or does someone (some people) really want to convince us of this in order to attack the very priniciple of habeas ?
Charley, Sebastian, I have a hard time not getting emotional about this issue, as in death penalty cases, it does involve real men (and some women) actually getting put down at the end of the process. If any of us were there, in that place, could we say that we wouldn't exhaust all of the avenues available to us ?

[liberal japonicus]

From mattbastard's link

To comment on this item--or read comments about this item--click on the time stamp at the end of the posting...Scratch that. I'm told that someone is actively trying to shut down this site by bombarding it with comments. "I think this is not coincidental with the release of your book," my web wizard says. Nearly 300,000 came in last night from the perp--in a massive attempt to crash the site. Consequently, comments are off, and we're figuring out what to do next.

What does this tell us about the people who support this that they don't want this kind of information to be available?

[pseudonymous in nc]

You just made it onto 'Wait Wait... Don't Tell Me!', Katherine.

[Joe]

As to Seb, the bottom line is concern, showing how extreme the other side truly is. Still, the three issues he puts aside seems imho a bit like strawmen.

(1)What is this "full benefit" business? Is that the bottom line of Katherine et. al.? I think the key is "basic" benefits, and you seem to agree with that.

(2) I don't know who this "average" person is. Clue me in here, seriously, can we torture "illegal" combatants? Can we summarily execute them? In fact, can we summarily declare them illegal? Does the "average" American believe this?

I find this troubling since it is raised in other forums. There seems to be some idea that the antis here want to give POW status to everyone detained. But, correct me if I'm wrong, non-POWs also obtain some basic rights. Likewise, adequate hearings to determine illegal status is necessary.

I know someone close to me who is rather conservative. But, she believes in basic fairness even for alleged killers and child molestors. She's an "average" American in most respects. So, I don't buy this at all.

To the degree they are confused, perhaps "average" Americans need to be informed by "average" members of Congress, who leave a lot to be desired.

(3) Yeah, habeas is abused, but I'm with those who argue it is rather hard to separate the wheat from the chaff esp. since capital punishment is also handed down rather poorly.

The "average" American often thinks criminals get too many rights per se. What one should we remove might throw them into a bit of a loop though. Again, since you believe there needs to be some basic safeguards -- apparently some sort of judicial oversight (since we can't just trust the executive, qed) -- habeas remains essential.

[CharleyCarp]

Joe, as you surmise, no one is trying to get full the US suite of criminal rights for the prisoners at Guantanamo Bay. That's just another of those misdirection lines, kind of like Bonds' floor speech, where he implied that proponents of the Specter Amendment were trying to get the paycheck mandated by the GC for KSM. It's not reality, and they know it's not reality. (It's like accusing Sebastian of wanting to herd all Democrats into camps, or of hoping that women who accidentally become pregnant will die in illegal abortions. Not reality, and not fair.)

The GC and international law have always contemplated that trials for war crimes would use ordinary military rules of procedure. Not civil rules. No one is saying that the Fourth Amendment applies to foreigners abroad, such that evidence obtained in Pakistan without a warrant issued by a US judge is excludable.* But that didn't stop proponents of the bill from arguing on the floor that they were standing up against that straw man. Or, apparently, from getting a provision passed allowing evidence obtained without a warrant from the search of a US citizen's house in the US from being introduced.

Plenty of people are going to be embarrassed about this -- but after 2008.

WRT habeas, the real point in issue is whether there's going to be a meaningful (and imprtially reviewable) process for determining whether people handed over by bounty hunters -- or arrested by Pakistani authorities in Pakistan -- are actually enemy combatants. This is why discussion of WWII and uniforms is misdirection too. What uniform is a goat herd supposed to wear? A student in Pakistan? Why does anyone think that the fact that someone whi is not a combatant isn't wearing a uniform should have any significance? OK, if combatants don't wear uniforms either, that means that one has to look a little deeper to see whether someone is a combatant or not. But the notion that it's OK to hold a goatherd because Osama doesn't wear a uniform is ridiculous, and anyone making it cannot be taken seriously.

If you counted up the number of prisoners actually captured, under arms, by US armed forces, it would be, I'm quite sure, miniscule. And of course, those people would mostly be Taliban privates, possibly conscripts, whose continued detention (after 4.5 years) is pretty much meaningless anyway. WRT Taliban privates, one can argue what is minimally required under the laws of war, or one can argue what would be a sensible policy, given the nature of the war itself.

* Now, as to a person arrested in Pakistan by Pakistani police, and not accused of crimes (or any conduct) against any American, I can see an argument that Pakistani procedures should have been followed. We are holding such people in Guantanamo.