On 9/12/20, Carl Jarvis <carjar82@xxxxxxxxx> wrote:
It's not a matter of caring. Many of us have cared and spoken out
with letters of concern over the stealing of Cuban land and the
establishment of a Black Hole Prison all decked out in unlawful
Torture. Many of us cared when we discovered our government lied,
over and over, including lies about the lies they told us.
Caring is not the problem. A Corporate Capitalist Empire is the
problem. A government of the Corporations by the corporations and for
the corporations. A nation that writes laws that protect
Corporations. Laws that the Empire breaks at will, while using them
to control the People(Working Class).
I understand the anger and the frustration felt by Linda Greenhouse.
But she's not helping matters by shaking a finger under the noses of
millions of Americans who do care, but are just as angry and
frustrated as she is.
The solution will only come to pass when the Working Class quits pussy
footing around the central problem, and removes the current Capitalist
System and its Government, and calls a new "continental congress" to
redesign a Peoples government where sharing replaces ownership.
Ownership of the land, the tools, the facilities, the factories, and
the workers and their families. Ownership is an entitlement we can no
longer tolerate. Ownership has allowed a very few to take control of
the lives of those Americans whose labor they own. Capitalist have
abused this privilege that has been allowed them by the Working Class.
And yet, Capitalists strain for fewer regulations, promising to share
their gains with their workers. But it seldom happens. The old adage
applies here, Give them an inch and they'll take a mile.
So there is the problem that must be fixed. Capitalists cannot play
by the rules...even the rules that they have set in place. It's time
we grabbed them by the ear, swatted their little behinds and send them
to their room for a long, very long timeout.
Carl Jarvis
On 9/11/20, Miriam Vieni <miriamvieni@xxxxxxxxxxxxx> wrote:
Published on
Friday, September 11, 2020
byThe New York Times
A Court Just Slammed the Guantánamo Gate Shut
Does the public care about the 40 remaining inmates with no obvious end
to
their imprisonment?
byLinda Greenhouse
"The federal appeals court in Washington, D.C., has just slammed the
Guantánamo gate shut," writes Greenhouse. (Photo: Alex Brandon/AP)
"The federal appeals court in Washington, D.C., has just slammed the
Guantánamo gate shut," writes Greenhouse. (Photo: Alex Brandon/AP)
It’s more than 12 years since the Supreme Court cracked open the prison
gates at Guantánamo Bay, ruling that the prisoners held there, the living
embodiments of the post-9/11 war on terror, had the constitutional right
to
petition the federal courts for release.
The decision, Boumediene v. Bush, was an unexpected affirmation that the
rule of law had survived the shock of Sept. 11, 2001, against all odds
and
despite the effort by the administration of President George W. Bush to
treat the U.S. naval base in southeastern Cuba as a black hole where law
couldn’t enter and the “worst of the worst” could never leave.
Now another 9/11 anniversary is upon us, always an occasion to
contemplate
that day and where it has brought the country. But even so, why write
about
Guantánamo now, in the midst of a presidential campaign during which the
island prison is never mentioned, with a new term about to begin at the
Supreme Court, which has turned down every Guantánamo case for the past
decade?
Here’s the reason: The federal appeals court in Washington, D.C., has
just
slammed the Guantánamo gate shut.
Has anyone noticed? Guantánamo once stirred public passions. Now that the
inmate population is down to 40, from the nearly 800 who passed through
the
prison in its 18-year existence so far, do people still care?
"Has anyone noticed? ... Now that the inmate population is down to 40,
from
the nearly 800 who passed through the prison in its 18-year existence so
far, do people still care?"
The decision, Al Hela v. Trump, issued late last month by a three-judge
panel of the United States Court of Appeals for the District of Columbia
Circuit, did not go completely unnoticed; the indispensable Carol
Rosenberg,
who has covered Guantánamo longer and better than any journalist alive,
reported on it for The Times. But in the public policy space it has been
met
with silence.
It’s my simple premise in this column that people should notice and
should
care, one reason being that the decision represents the culmination of
judicial politics as raw as any I’ve ever observed. Conservative judges
have
hated the Boumediene decision from the moment in June 2008 when Justice
Anthony Kennedy announced his opinion for a 5-to-4 majority, over a
dissenting prediction by Justice Antonin Scalia that the decision “will
almost certainly cause Americans to die.”
Justice Kennedy has retired and Justice Scalia has died, but Judge A.
Raymond Randolph is still on the D.C. Circuit, where he has served since
1990. Early in the Guantánamo saga, he wrote three majority opinions for
the
appeals court denying the detainees access to federal court. The Supreme
Court overturned all three. The third was the case that became
Boumediene,
and since that day, Judge Randolph has written or joined a remarkable
series
of opinions that have sapped the Supreme Court decision of much of its
meaning.
Last month’s Al Hela decision, which he joined (the newest member of the
panel, Judge Neomi Rao, appointed last year by President Trump, wrote the
majority opinion), was the final blow. One might even call it a triumph
for
a judge who in a 2010 speech to the Heritage Foundation shockingly
compared
the five justices in the Boumediene majority to F. Scott Fitzgerald’s
characters in “The Great Gatsby,” Tom and Daisy Buchanan, “careless
people
who smashed things up” and who “let other people clean up the mess they
made.” (And I’ll note that Attorney General William Barr is fully on
board
in the war against Boumediene, referring to it in a speech to the
Federalist
Society last year as “the most blatant and consequential usurpation of
executive power in our history.”)
How can a lower court render a Supreme Court decision a nullity? We saw a
recent example in the bold refusal of the United States Court of Appeals
for
the Fifth Circuit to apply to an anti-abortion law in Louisiana despite a
2016 Supreme Court decision that struck down an identical law in Texas.
The
Supreme Court made properly short work of that defiance in its decision
this
summer in June Medical Services v. Russo.
The Guantánamo situation is more subtle and for that reason more
interesting. In one of its first Guantánamo decisions, Rasul v. Bush in
2004, the Supreme Court overturned a decision by Judge Randolph and held
that the naval base, although obviously located in a foreign country, was
functionally part of the United States and for that reason was subject to
the jurisdiction of the federal courts. The justices in that decision
rejected the applicability of a post-World War II decision, Johnson v.
Eisentrager, which held that federal courts lacked jurisdiction over
cases
brought by German prisoners of war being held overseas by the United
States.
The Rasul decision was based on the court’s interpretation of a
jurisdictional statute. The Boumediene ruling went deeper, holding that
the
prisoners’ access to federal court was not simply a statutory right but
was
grounded in the Constitution’s protection of the “privilege of the writ
of
habeas corpus.” Justice Kennedy’s opinion left a major question
unanswered,
however: Now that the Guantánamo prisoners could petition for habeas
corpus,
what rights could they actually assert in their challenges to their
continued detention? What substantive rights did they possess?
In the immediate aftermath of Boumediene, dozens of prisoners filed
habeas
petitions, and federal district judges in Washington granted 38 of them,
an
impressive number given that the number had been zero not long before.
The
Obama administration, in office by then, released about half of the
successful petitioners without a fight. But it successfully appealed
other
cases. The D.C. Circuit in fact has never affirmed a grant of habeas that
the government contested. Case by case, in many with opinions by Judge
Randolph, the appeals court wove around the prison camp a tight web of
rules
favoring the government; for example, accepting gossamer chains of
circumstantial evidence as sufficient proof that an inmate’s designation
as
an enemy combatant was correct.
Decisions of that kind, based on factual evaluations of the prisoners’
claims, made it unnecessary for the appeals court to decide the open
question about how the Constitution itself might apply. The question
lingered in the background of many of the cases. Last year, in Qassim v.
Trump, a three-judge D.C. Circuit panel strongly suggested that a claim
under the Constitution’s due process guarantee would be upheld in the
right
case; the panel vacated and sent back the District Court’s decision
holding
that a due process argument was categorically unavailable to a noncitizen
held outside the country.
Judge Randolph was not on the panel in the Qassim case. But in May of
this
year, he was on the panel in another case, Ali v. Trump, in which the
same
judge who wrote the opinion in Qassim, Patricia Millett, again wrote for
the
majority. As in the Qassim case, her opinion held that the district court
had been right to reject the inmate’s habeas petition, but wrong to do so
categorically. Judge Millett noted that while “circuit precedent has not
yet
comprehensively resolved” the question, “the district court’s decision
that
the Due Process Clause is categorically inapplicable to detainees at
Guantánamo Bay was misplaced.”
This modest opinion, reserving the hard question for another day, was
nonetheless enough to set Judge Randolph off. Concurring only in the
judgment, he refused to sign Judge Millett’s opinion, accusing her of
ignoring what he insisted was clear Supreme Court precedent that made the
due process guarantee unavailable to “a nonresident alien enemy detained
by
the United States outside of our sovereign territory.”
The precedent Judge Randolph cited for this sweeping proposition was the
old
post-World War II Eisentrager case, the very case that the Supreme Court
had
rejected in 2004 when it treated Guantánamo as a functional part of the
United States that came within the jurisdiction of the federal courts.
I’ll
be polite: to accept Judge Randolph’s opinion as an accurate account of
the
state of the law is to ignore the entire trajectory of the Supreme
Court’s
Guantánamo cases.
That brings me to the most recent case, Al Hela. Judge Randolph got lucky
when the panel was designated. Instead of serving with two of the appeals
court’s more liberal members, Judge Millett and Judge Judith Rogers, as
in
the Ali case, he was joined by two conservative colleagues, Judge Rao and
Judge Thomas Griffith. All three agreed that the habeas petition filed by
Abdulsalam Al Hela, a Yemeni tribal sheikh held at Guantánamo since 2004,
was deficient for a variety of standard reasons.
Judge Griffith, who retired from the appeals court last week, argued in a
separate opinion that there was no need to venture further into
constitutional territory. But in her controlling opinion, Judge Rao said
it
was time to decide the due process issue because Mr. Al Hela claimed in
his
habeas petition that the government’s reliance on anonymous hearsay in
the
intelligence reports it used to justify his continued detention violated
his
right to due process.
But no such right applied to him, Judge Rao wrote, concluding that “we
reject Al Hela’s due process claims on the threshold determination that,
as
an alien detained outside the sovereign territory of the United States,
he
may not invoke the protection of the Due Process Clause.” A footnote to
her
opinion contained the astounding assertion that “our court has adhered to
Eisentrager’s holding that the Fifth Amendment’s Due Process Clause does
not
apply outside the territorial United States and therefore cannot be
invoked
by detainees at Guantánamo Bay.”
Judge Griffith, in his separate opinion, properly objected: “But we have
never made such a far-reaching statement about the Clause’s
extraterritorial
application.” The objection was fruitless. Judge Randolph had done his
work
and had the last word, at once cryptic and completely clear in a
concurring
opinion consisting of a single sentence: “I agree with the court’s
decision
not only for the reasons expressed in its opinion, but also for the
additional reasons stated in my opinion concurring in the judgment in Ali
v.
Trump.”
What might happen next is anyone’s guess. It’s not out of the question
for
the full D.C. Circuit to reconsider the panel decision, as it did last
week
when it overturned a panel opinion in the Michael Flynn case, restoring
the
district judge’s discretion to decide whether to yield to the Trump
administration’s demand to dismiss the prosecution of the president’s
former
national security adviser. It’s conceivable the Al Hela case could end up
at
the Supreme Court. I have trouble conjuring five votes there even to
sustain
the Boumediene precedent, let alone to carry it into due process
territory.
While I’ve never been to Guantánamo, I have revisited it regularly during
my
years writing this column. Why care about Guantánamo at this late date?
As
the 9/11 anniversaries have accumulated and the shock of that day has
been
absorbed into our national narrative, I’ve come to think of Guantánamo,
born
in fear and sustained through political cynicism and public indifference,
as
a mirror of ourselves during these opening decades of the current
century,
trapped no less than our 40 remaining “forever” prisoners with no obvious
end to their imprisonment. There have been a few redemptive moments in
this
story, and the Boumediene decision was one of them. If it’s now to be
buried
without even a decent funeral, we should at least take note.