Wednesday, February 14, 2007

Grrrr...on habeas

(Grrrr.....is our occasional attempt to tame pet peeves.)
You’ve heard it before (here and here and here): Post-9/11 detainees don’t deserve a day in U.S. court because WWII captives didn’t get one, either. Like much of what passes for informed comment these days, the premise is wrong, and so the conclusion can’t be right. Let’s put to one side cases like Quirin, in which the Supreme Court examined the merits while professing not to have jurisdiction to do so. (Put aside too the fact that the case involved convictions after trial, not detention without charge.) Foursquare retort to the claim comes from cases like In re Territo, 156 F. 2d 142 (9th Cir. 1946) . There the court did refuse to hear the habeas challenge of an American held after he’d served in Mussolini’s army – for the reason that he was a prisoner of war fully protected by the 1929 Geneva Convention. By no means did it relegate him to a no-law zone where conditions of detention and release lay solely in the hands of the Executive. Ours would be a far different world if post-9/11 captives were given their Geneva rights. Because they were not, habeas review is essential.

1 comment:

naomi norberg said...

See also the recent DC Court of Appeals ruling (Omar v. Harvey, Feb 9, 2007) that an American citizen "enemy combatant" in US custody in Iraq is entitled to federal habeas review.