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April 28, 2004

Habeas corpus in flagrante delicto

On Wednesday, the Supreme Court hears the case about “enemy combatant” rights. The issue at hand?

“…whether in the war on terrorism President Bush can order American citizens held indefinitely in a military jail without charges, a hearing or access to a lawyer.”

A young friend of mine has been studying the Constitution as part of her home schooling program. I was honored to be asked to help put together some of the course materials. Every now and then I like to throw something over the wall to her to see what she thinks. I sent her a bit of about the upcoming Supreme Court hearing of the Guantanamo Bay case. She had this to say:

In the Constitution, the articles, it says that all people in the US have the ‘Writ of Habeas Corpus’, which is that you can’t be detained for more than 24 hours without sufficient evidence. Now, if this was the only thing, I could see an argument for the other side, that these people aren’t US citizens, so that wouldn’t apply.

But in the 14th amendment, that all people who can be punished by US law, also get to have the protection of the US law. Since it seems as if we are intent on punishing these people, it seems like they should also have the protection of our laws.

To which I say this: Will somebody get that gal a robe?

The two in question, Hamdi and Padilla, are both US citizens, a trait they share with a young man named John Walker Lindh. Lindh's lawyer said this:

"He was a soldier in the Taliban. He did it for religious reasons. He did it as a Muslim, and history overcame him," his attorney, James Brosnahan, said in July.

It’s possible that Hamdi and Padilla, if given legal counsel, might cite the same reasons. What’s the difference between them and Lindh? Why was Lindh given a lawyer and a trial and even given the chance to “serve out his term in a facility closer to his family, in Northern California” when Hamdi and Padilla have been in the hole, only allowed to receive counsel as the case reaches the Supreme Court?

Please don’t mistake me for thinking these guys should get off the hook. But this clearly selective application of justice smacks of racism. Of fascism, even. A 13 year old girl can look at the Constitution and see that something is not quite right in Guantanamo Bay. Let's hope the court doesn't let down my young friend.

Posted by pam at April 28, 2004 08:44 AM | TrackBack
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Oh, so much to say...

First of all, my favorite law school professor, David Cole, has written a fabulous book entitled Enemy Aliens ( going into both the history of the US treatment of aliens during troubled times, and the current administration's efforts to persecute those who happened to find themselves on US soil when 9/11 occured. It serves up a healthy reminder of how we treated Japanese Americans during WWII and the similarities between that behavior and our making those of Arab descent register if they are going to stay here. (Hello? Has racism every helped?) Check it out.

As for the current cases, let's not forget that while these cases may be the most outrageous, and enraging, the treatment of these men is part of the larger campaign that includes the detention of fighters in Guantanamo (reported some as young as 13) and the circus that is the prosecution of Zaccharias Mousoui. (My own feeling is that the government is scared stiff to have an open trial that shows how inept they are..., especially near an election.)

I found it telling that when a handful of detainees were handed over to the British authorities (right so, as they were British citizens), the Brits released them all within days. Let's remember that we share the same legal system as Britain (we copied it), so it isn't as if they have radically different standards. Oh, wait, they must, becuase while we held them for years, they held them for 24 hours...

Posted by: Marti on April 28, 2004 09:17 AM

Now thank you, Marti, for that link. The fact sheet page on David Cole's Web site should be linked to all over the place. Reading that list is downright scary.

Posted by: paulette on April 28, 2004 11:04 AM
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