I don't get it.

The opinion, or what I said about it?

Because I don't get the opinion myself. What I said about it is probably entirely unclear -- anything specific puzzling you?

slightly shorter 1: Where's teh Funny?

So the elimination of habeas corpus for everyone except citizens is now the centrist positition, even among the country's highest courts? Who says the Bush administration achieved none of its goals?

Huh, i really thought that non-citizens didn't have constitutional habeas right. is there a particular case on this?

No, I was just being a jackass. I thought this post needed a comment, but you said everything about it that needed to be said.

Also, YAY.

5: If you're being held in an American jail, your rights pretty much don't depend at all on whether you're a citizen or not. Except for that when they release you, they can release you into DHS custody and you get deported.

4: Nah, it's only a partial success because I can understand LB's post. They still haven't managed to make criticism of Our Dear Leader semantically invalid.

5: Check out this passage from the opinion:

It has long been the practice of judges to ascertain
the "meaning of the term habeas corpus [by reference to] the
common law." Ex parte Bollman, 8 U.S. at 93-94 (1807).
Petitioner cites at least two English common law cases in which
"aliens detained by the Executive at wartime" brought habeas
petitions challenging their designation as enemies. [78 at 20],
citing Case of the Three Spanish Sailors, 96 Eng. Rep. 775, 776
(C.P. 1779); Rex v. Schiever, 97 Eng. Rep. 551 (K. B. 1759). In
dicta, the majority in Rasul cited several other examples of pre-
1789 habeas petitions brought by aliens detained within the
sovereign territory or elsewhere within the sovereign's control.

". I want to start hearing some campaign promises to that effect."

oh, god, LB, I mean I know your hearts in the right place, but a lot of things are going to have to happen before "Democrats promise to let terrorists out of jail!" is going to be a winning platform.

Let's just get into power, make the changes, and avoid shooting ourselves in the foot publicly.

8: Lowering the bar.

Yeah, but can't we do it by making fun of them? "We've still got some Uighur shepherds who we've decided are no threat to us, but we can't actually let them go. We've got a kid who was fifteen when we arrested him. It's been getting up to five years we're holding these people, and we still can't get it together to decide if they're a threat?"

5: Frankly I'd be amazed if there are many rights beside voting and residence that depend on citizenship. Don't forget that the Bill of Rights limits government, it doesn't define citizenship.

12: maybe that and talk about how subverting the legal system for short term goals probably isn't such a great idea.

But you're right, really. Can we have some of our own dog-whistle politics -- code words suggesting that our candidates will do the right thing here? A lot of ostentatious discussion of Magna Carta?

dog whistle works when and only when the media colludes. If the media had jumped on Bush during the debate and said "as everyone knows, a reference to Dred Scott is an accepted way of expressing one's staunch and nonnegotiable determination to reverse Roe v. Wade, so President Bush is clearly signalling to his supporters that he wants to criminalize abortion," then the dog-whistle would have blown up in his face. (I'm picturing trick cigars.)

For the Democrats, they'd do it. Wolf Blitzer would immediately say "Magna Carta is a Democratic code meaning that they intend to set terrorists free".

The Case of the Three Spanish Sailors would make an excellent title for a Sherlock Holmes story.

Or, Encyclopædia Brown.

(with whom I have always felt a strange kinship..)

Thanks, LB, this is really interesting. It's one of those times where I really wish I knew more law, so that I could make sense of the thing myself, but this helps a lot.

I don't know if would make political sense or not, but I'd love to hear some candidate say, more or less, that we all know this is crazy, and it's not exactly helping the US win local support where we need it. But there's a strong resistance to admitting that indeed, this is our war on terror, fellow citizens, so the dissonance will be rationalized away by some war-on-terrror bluster.

Oops, that wasn't very elegant. Apologies. You get the idea, though.

It's one of those times where I really wish I knew more law, so that I could make sense of the thing myself, but this helps a lot.

I rarely say this; but am frequently thinking it as I read LB's (and Hilzoy's, and CharleyCarp's, and Katherine's) posts about this stuff.

I'm glad that it's useful. This isn't an area I know much about (What would such an area be, asked the assembled multitude. Shut up, she explained.) but I can usually pull the guts out of an opinion with some success.

dog whistle works when and only when the media colludes.

Dog whistle politics only work if you're willing to define an Us and a Them, usually in a tendentious manner. At least in myth, Dems past would hate The Man. Now we are at least part of The Man, and we've realized that often enough he has a point. At the moment, we're unwilling to create a new Them, and our old Them is unconvincing even to us.

LizardBreath the Eviscerator is coming! Hide the opinions!

10 see 15 Public education and discussion is very important here. Leahy, like so many other chairpersons, has to be in constant hearing mode.

I honestly don't know how this will play, what Democrats will or even can do. For instance, with members like Lieberman and maybe Ben Nelson (?) I think it will be difficult to get the MCA significantly changed. The clubbishness of the Senate, and the practical matter of having to work with these guys, makes it difficult for Leahy to call McCain and Graham the spineless monsters they are. I would, but he won't.

I suppose a Democratic President could just release many, at discretion, but like so many of the messes that need be corrected, the politics will be challenging. He/She will have to be one tough character to get a second term. Trumanesque.

24:Them is Republicans, especiall Sothron/Texan Republicans. I was bothered today by IIRC Jack Balkin thanking John Cornyn for his bipartisan work on succession. I try never to even think kind thoughts about Republicans.

More sanely, perhaps the parallel is 1958 -1960-then 1964, when full demonization mode creates the Democratic dominance. If 2008 is 1960, then we probably should go for HRC or Clark.

We don't have the votes people. Tim Johnson, God bless him, just makes it slightly more difficult. It was always gonna be hell.

Pelosi and the House will make liberals feel better, and then the Senate will break our hearts. About all we can really do is hearings.

Yes, we never had the votes in the Senate.

I think the proposition that non-citizens being held outside the US don't have constitutional rights is fairly well settled. The real problem with Robertson's opinion seems to be the short-shrift he gives to the question of whether Hamdan's location inside a US jurisdiction (Guantanamo) grants him Constitutional rights. Robertson says that because Hamdan's presence was involuntary, it "is not of the sort . . . that would justify the invocation of a constitutional right to habeas corpus."

because Hamdan's presence was involuntary, it "is not of the sort . . . that would justify the invocation of a constitutional right to habeas corpus."

Wait, that makes no sense to me. If he had walked to Guantamano, he would have a constitutional right to habeas, but since he was taken there by force, he doesn't?

I liked this part of CharleyC's comment at ObWi:

More to the policy end of things, one of the main reasons for the 1679 act was the crown's policy of intentionally placing prisoners beyond the reach of the writ, so that it would not have to justify its conduct in a court of law. This was tyranny then, and it's tyranny now: there is (imo) and should be no place on earth where the American Executive is free of the constraints of the legal document that created it.

(emphasis mine)

I think the proposition that non-citizens being held outside the US don't have constitutional rights is fairly well settled.

On what basis?

Robertson cites Verdugo-Urquidez, which held that the 4th didn't apply to the search of a Mexican national's residence in Mexico, even though the detainee was being held in the United States, because the he had no voluntary connection to the United States.

I say fairly well settled only because I don't remember there being much focus or debate on that particular point when we discussed it in law school. I have not had the opportunity to study it since.

33 -- There's a choice to make, maybe: either Eisentrager has to go, or Guantanamo is US enough for rights to attach. I haven't looked at The Insular Cases lately, but I think they might provide a lever. Justice Kennedy's opinion in Rasul gives a hint where he is on this, which probably gets us to 5 votes.

As for whether Eisentrager is settled law -- sure, in the same sense that Plessy was before Brown, or Korematsu still is.

There's a pretty big gap between 'don't have rights under the Constitution identical to those of citizens within the US' and 'don't have rights under the Constitution at all', isn't there? I'd say the first is well settled, but the second isn't. For example, under Robertson's own reasoning, Hamdan would have habeas rights, regardless of the location where he was held, if he had more of a connection with the US -- say, if he had been a resident alien at some point in the past.

34 -- The wording of the 4th Amendment is pretty different. V-U would certainly be relkevant, I suppose, should I make a motion to suppress evidence Pakistani police obtained about a client, without having a warrant. It doesn't say anything at all about whether the DOD can hold people in secret off-shore locations, much less places where the US exercises the only sovereignty.

When the US government says that it will comply with an order of a Cuban court directing that a prisoner be released, I'll be willing to talk about whether the US is not the sovereign. It won't, and so all claims to the contrary are 'pitiful evasions' as Justice Story described Charles I's attempts the thwart the Writ. (h/t Anderson).

And Eisentrager is distinguishable, on some level, in that it addresses 'enemy aliens' in a context where status as a citizen of a nation with which we were at war was objectively determinable. There isn't a government we are at war with that we can call Hamdan an 'enemy' alien rather than simply an alien.

36,37: I think that's right, which is why its rediculous that Robertson spends all of three sentences addressing the issue of "involuntary presence" before concluding that Hamdan wouldn't have habeas rights even if we were holding him in the territorial U.S. While Verdugo addressed the issue of whether the 4th protected a location outside of the U.S., Hamdan is asking whether Habeas protects an individual within the U.S. This seems to me to be the biggest problem with the opinion.

I don't think you're reading it correctly (although I could be wrong). Robertson still seems to be leaning on the fact that Guantanamo is outside the US; he certainly doesn't say that he would have made the same decision with regard to a prison inside the territorial US.

Robertson says that the detention facility lies "outside the sovereign realm," and then cites Curtis-Wright for the proposition that this means only U.S. citizens could get U.S. Constitutional protection. Then, immediately afterwards, he says that "there is no dispute, moreover, that Hamdan's presence within the exclusive jurisdiction of the United States has been involuntary. Presence within the United States that is 'lawful but involuntary [] is not of the sort that to indicate any substantial connection with our contry' that would justify the invocatino of a constitutional right to habeas corpus," after which he cites Verdugo-Urquidez.

For ready reference, I've put John Marshall Harlan's dissent in one of the Insular Cases as a comment to the Hamdan post on my bloglet. My recollection of the holdings of the IC is that fundamental rights apply to overseas terrories, even where non-fundamental rights might not apply.

38 -- We're at war with 'evil-doers' which term, as to those who have not yet actually done any evil, means minions of Satan. Maybe we should just throw the prisoners into the ocean and see if they float.

See, what's really wrong with Robertson's opinion is that being imprisoned by the United States is sufficient connection with the United States to be entitled to an accounting of the legality of the imprisonment.

41: Sure, but his footnote 15 explicitly limits his holding to enemy aliens detained outside the US.

44: Yep.

CharleyC/LB - Either of you see this:

But the government said yesterday that it would be pointless to discuss accusations of government misconduct based on Mr. Padilla's word if his competence was in question. The government vehemently denies that Mr. Padilla was mistreated in military custody.

Padilla's crazy, so if he says we mistreated him you can't trust him.

I was going to ask a Padilla question anyway: was his recent visit to the dentist, in sensory deprivation conditions, really recent -- that is while he was in civilian as opposed to military custody? I suppose I could look it up, but LB if you already know the answer . . .

Why, yes it does! Pesky footnotes.

48: It was while he was still in the naval brig, I'm pretty sure.

Anyone care to give odds that, the day before some pleading from the feds is due before the Supreme Court in Hamdan's case, they'll suddenly release him, or do something else to moot the case?

Seems to be their modus operandi.

Anderson - at some point, unless the administration releases all the detainees at Gitmo en masse, I would imagine SCOTUS will hear the case, especially if they get tired of instances where the Executive takes actions to moot cases.

51:

that's certainly the case in Padilla's case. His lawyers urged a psych evaluation, and, while prosecutors are generally loathe to give up a conviction on medical grounds, the ADA was like, "we think that's a great idea!"

at some point, unless the administration releases all the detainees at Gitmo en masse, I would imagine SCOTUS will hear the case

I agree, but I would've thought we'd reached that point already, & n.g.

The big worry, of course, is that Bush gets another appointment to the Court, and we're stuck with the evil ghost of the Bush years for the rest of our productive lives.