Carl, YOu care and I care. But the fact is that most folks don't. They've
forgotten all about the issue. If you ask them, they'll wonder what you're
talking about.
Miriam
-----Original Message-----
From: blind-democracy-bounce@xxxxxxxxxxxxx
<blind-democracy-bounce@xxxxxxxxxxxxx> On Behalf Of Carl Jarvis
Sent: Saturday, September 12, 2020 2:24 PM
To: blind-democracy@xxxxxxxxxxxxx
Subject: [blind-democracy] Re: [blind-democracy] A Court Just Slammed the
Guantánamo Gate Shut
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.
