David Kirkpatrick

June 12, 2008

Gitmo detainees have habeas corpus rights

Filed under: Politics — Tags: , , , , — David Kirkpatrick @ 1:57 pm

The Supreme Court has knocked down another of the Bush 43 regime’s effort to rewrite the standards of US law. The ruling affords Guantanamo detainees habeas corpus relief.

From the Volokh Conspiracy link:

In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy’s longest majority opinion ever. Here are the key sections:

   First, in Justice Kennedy’s majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here’s the holding stated in the majority opinion:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

March 1, 2008

Obama, the civil libertarian

Filed under: Politics — Tags: , , , , , , , — David Kirkpatrick @ 12:00 am

Jeffrey Rosen’s TRB column in the February 27, 2208, New Republic is about how Obama would be the first truly civil libertarian president. That column really sums up what I like about Obama. As a libertarian, civil and fiscal, I don’t agree with a lot of his ideas, but I love his honest and strong civil libertarian bent. After the Bush 43 years this approach to personal liberty and privacy would be a welcome change.

And as far as government spending goes, I’m going to go out on a limb and guess he’d be less “liberal” than Bush. Sure Obama’s spending will focus on different areas than Bush’s, but in pure government expansion it’s almost impossible for Obama, or any other “spend thrift liberal,” to match Bush’s woeful record. Plus an Obama presidency might push the GOP to look deep into the dark night and find a core that seems to be lost in Rovian factions and coalitions. The Rove gloat of creating a generation of GOP rule died, oh, about two or three years in.

All that being said, I sincerely hope Obama wins either Texas or Ohio and forces Clinton out of the Democratic nomination race. Of course that would also involve Clinton conceding with grace. An outcome still in serious doubt at this time.

Here is Rosen’s lede:

If Barack Obama were to win the Democratic nomination and the White House, he would be, among other things, our first civil libertarian president. This is clear not just from his lifetime rating on the ACLU’s scorecard (82 percent compared to John McCain’s 25 percent). It is clear from the fact that civil liberties have been among his most passionate interests–as a constitutional law professor, state legislator, and senator. On the campaign trail, he has been unapologetic about these enthusiasms. In New Hampshire, I heard him end a rousing stump speech by promising the cheering crowd, “We will close Guantánamo, we will restore habeas corpus, we will have a president who will respect and obey the Constitution.” Has a political consultant ever urged a candidate to brandish habeas corpus?