This is a bit confusing so stay with us. There are signs that George W. Bush made another blunder, by his standards anyway: he may have appointed a competent sensible person to replace Don Rumsfeld i.e. Bob Gates. Gates has already brought unprecedent levels of accountability by firing people over the veterans' healthcare scandals, and yesterday brought word that, in one of his earliest actions on the job, he had argued for closing the Guantanamo Bay detention facility on the ground that it was so tainted that had lost all credibility. According to the New York Times, Gates was supported by Condi Rice but lost the battle against (who else) Dick Cheney and the (soon-to-be) outgoing Attorney-General Alberto Gonzales.
Anyway, the thought that Gates had mounted an attempt to close Gitmo sent National Review's Andy McCarthy into a rage --
Do Gates and Rice know the state of the evidence against each of these guys? Do they know whether, with respect to each one, we have sufficient evidence we can use in American civilian courts if the U.S. courts end up holding that, because the combatants are within their jurisdiction, proceedings against them must accord with the evidentiary rules that apply in our civilian courts?
How could we possibly think about bringing these guys here without knowing such things? Given how much we have bashed AG Gonzales over the last couple of weeks, it is worth noting that the report indicates that he, in conjunction with Vice President Cheney, beat back this foolish idea.
This morning an abject McCarthy returns to the topic --
I owe an apology to Defense Secretary Robert Gates and Secretary of State Condoleezza Rice for the inaccuracies and the strident tone of last night's post regarding their reported support for the closure of Guantanamo Bay's detention facility for alien enemy combatants ... The bottom line is that, thanks to the Military Commissions Act of 2006 (MCA), there is every reason to be confident that the legal rights of the detainees would not be expanded by the happenstance of their being held inside, rather than outside, the United States (which is to say, inside rather than outside the territorial jurisdiction of the federal courts).
... Instead, it emphatically amended the federal habeas corpus statute (28 USC 2241) so that it now says the following:
"Except as provided for in this subsection, and notwithstanding any other law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien’s detention, transfer, treatment, or conditions of confinement."
.... Consequently, from the standpoint of the jurisdiction of the United States courts, it should not matter whether the combatants are held in Cuba, the continental United States, or anyplace else. If they are detained based on a determination by the Defense Department that they are unlawful enemy combatants, they get military proceedings and then limited civilian judicial review in the D.C. Circuit. They do not get to ask the federal district courts to freelance.
As McCarthy explains, the previous legislation governing enemy combatants had explicitly assumed that they were being held at Gitmo; now they could brought to the US for detention and the new Act would still apply.
Here's the problem. When the new act was being debated late last year, many critics claimed that it suspended habeas corpus for a potentially wide class of detainees, including non-citizen US residents. But here is one confident authority, cited in Wikipedia, assuring us otherwise --
First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens).
i.e. there is no way that long-term non-citizen residents of the US could find themselves in detention without any habeas corpus rights.
And who is this confident authority? Andy McCarthy -- who now tells us that any alien could be detained on US territory with no habeas corpus rights.