[Assam] This Just In/ A Clue About Democracy

[Chan Mahanta]

The following from the NY Times:
http://www.nytimes.com/2008/06/13/washington/12cnd-gitmo.html?_r=1&hp&oref=slogin

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To our friends who mouth off  about but are 
clueless about democracy, below is a clue. It is 
however JUST ONE clue. There is a whole lot more 
to these. It will be interesting to see if it 
sinks in and how much. We will know when we see 
the next round of retorts, if there are.

cm
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Justices Rule Terror Suspects Can Appeal in Civilian Courts



Article Tools Sponsored By
By DAVID STOUT
Published: June 13, 2008

WASHINGTON - Foreign terrorism suspects held at 
the Guantánamo Bay naval base in Cuba have 
constitutional rights to challenge their 
detention there in United States courts, the 
Supreme Court ruled, 5 to 4, on Thursday in a 
historic decision on the balance between personal 
liberties and national security.


"The laws and Constitution are designed to 
survive, and remain in force, in extraordinary 
times," Justice Anthony M. Kennedy wrote for the 
court.

The ruling came in the latest battle between the 
executive branch, Congress and the courts over 
how to cope with dangers to the country in the 
post-9/11 world. Although there have been enough 
rulings addressing that issue to confuse all but 
the most diligent scholars, this latest decision, 
in Boumediene v. Bush, No. 06-1195, may be 
studied for years to come.

The justices rejected the administration's 
argument that the individual protections provided 
by the Detainee Treatment Act of 2005 and the 
Military Commissions Act of 2006 were more than 
adequate.

"The costs of delay can no longer be borne by 
those who are held in custody," Justice Kennedy 
wrote, assuming the pivotal rule that some 
court-watchers had foreseen.

Joining Justice Kennedy's opinion were Justices 
John Paul Stevens, Stephen G. Breyer, Ruth Bader 
Ginsburg and David H. Souter.

The dissenters were Chief Justice John G. Roberts 
Jr. and Justices Samuel A. Alito Jr., Antonin 
Scalia and Clarence Thomas, generally considered 
the conservative wing on the tribunal.

The 2006 Military Commission Act stripped the 
federal courts of jurisdiction to hear habeas 
corpus petitions filed by detainees challenging 
the bases for their confinement. That law was 
upheld by the United States Court of Appeals for 
the District of Columbia Circuit in February 2007.

At issue were the "combatant status review 
tribunals," made up of military officers, that 
the administration set up to validate the initial 
determination that a detainee deserved to be 
labeled an "enemy combatant."

The military assigns a "personal representative" 
to each detainee, but defense lawyers may not 
take part. Nor are the tribunals required to 
disclose to the detainee details of the evidence 
or witnesses against him - rights that have long 
been enjoyed by defendants in American civilian 
and military courts.

Under the 2005 Detainee Treatment Act, detainees 
may appeal decisions of the military tribunals to 
the District of Columbia Circuit, but only under 
circumscribed procedures, which include a 
presumption that the evidence before the military 
tribunal was accurate and complete.

In the years-long debate over the treatment of 
detainees, some critics of administration policy 
have asserted that those held at Guantánamo have 
fewer rights than people accused of crimes under 
American civilian and military law and that they 
are trapped in a sort of legal limbo.

The detainees at the center of the case decided 
on Thursday are not all typical of the people 
confined at Guantánamo. True, the majority were 
captured in Afghanistan or Pakistan. But the man 
who gave the case its title, Lakhdar Boumediene, 
is one of six Algerians who immigrated to Bosnia 
in the 1990's and were legal residents there. 
They were arrested by Bosnian police within weeks 
of the Sept. 11 attacks on suspicion of plotting 
to attack the United States embassy in Sarajevo - 
"plucked from their homes, from their wives and 
children," as their lawyer, Seth P. Waxman, a 
former solicitor general put it in the argument 
before the justices on Dec. 5.

The Supreme Court of Bosnia and Herzegovina 
ordered them released three months later for lack 
of evidence, whereupon the Bosnian police seized 
them and turned them over to the United States 
military, which sent them to Guantánamo.

Mr. Waxman argued before the United States 
Supreme Court that the six Algerians did not fit 
any authorized definition of enemy combatant, and 
therefore ought to be released.