"Africa is, indeed, coming into fashion." - Horace Walpole (1774)


it's not dead yet

If you haven't yet had a chance to listen to today's Supreme Court hearings on habeas corpus and Guantanomo Bay, I strongly recommend listening to NPR's coverage here. The justices took the unusual step of allowing recording devices in the Court, so instead of listening to Nina Totenberg reenact the arguments, you actually get to listen to them.

My feelings on this situation are well known to readers of this blog, and one of my closest friends is involved in the defense of the detainees. I think these arguments - particularly the ones about the problem that detainees have no chance to claim or prove their innocence - speak for themselves.


Blogger euphrony said...

The permission to use recording devices is unusual. I actually enjoy listening to Nina Totenberg relate the exchanges - she does such a good job.

This one is tough, I think. They are not the common thing our system deals with, and the American legal system does not seem to like the uncommon. Do you treat them like a normal US citizen? At the same time, as a country that so vocally espouses democracy and freedom, how can we limit the freedoms of others just because they are not citizens?

Any way you look at it, the current situation is intolerable. If the government claims that evidence cannot be disclosed to defendants because it is classified, then the government should also provide a method for representation by lawyers who can be briefed on the classified material. To hold them indefinitely without charge, without even disclosing the reasons for detention, is against the very basis of our legal system.

Thursday, December 06, 2007 8:56:00 AM

Blogger Tauratinzwe said...

Kafka couldn't have written anything more absurd than this. Regarding the distinction between citizens and non-citizens (or US soil or "foreign" soil), have we lost the vision of the Declaration of Independence that "all men are created equal" and have certain inalienable rights? What is excluded from "all"? We are on the path to perdition. Look to Zimbabwe to see how these kinds of laws work themselves out.

Thursday, December 06, 2007 12:48:00 PM

Blogger Michael Westmoreland-White said...

One underlying meta-issue I noticed in the arguments and in the justices' questions is the issue of procedural vs. substantive justice. In my view, both are important. Justice Scalia, however, disagrees. His entire concern centers in his belief that Habeas is a procedure that is reserved (so he seems to think) for citizens. Since the Gitmo detainees are not citizens, he believes they are not entitled to the procedural protections of citizens. The question of the substance of their guilt or innocence doesn't seem to occur to him.
Justice Kennedy, the swing vote, likewise seemed most concerned with whether or not the procedures in place that substitute for Habeas are sufficiently like it.
By contrast, Justices Breyer & Ginsburg focussed on the questions of indefinite detention of people who may be innocent of every wrongdoing. Some had both substantive and procedural concerns, but I thought I heard a clear contrast in emphasis.
Another meta-issue is the reality of the so-called "war on terror." Bush, Scalia and others who support the draconian measures at Gitmo point out that (a) POWs are never given the same rights as ordinary persons at trial, (b) Habeas has been suspended before in times of war. This takes the metaphor of a global war on terror too literally. The justices would never agree to such constitutional suspensions in a war on poverty or even a war on drugs. The "war on terror" is equally metaphorical. Real wars are declared, have beginnings and endings, etc.

Thursday, December 06, 2007 3:04:00 PM

Anonymous the librarian said...

Here's my fluff comment since I haven't listened to the hearing yet.

I LOVE NINA TOTENBERG! I look forward to hearing her read the transcripts. So although I'm interested in hearing the real deal, I will miss Nina changing her inflection when she reads the different judges.

Thursday, December 06, 2007 5:32:00 PM


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