Al Odah v. U.S. and Boumediene v. Bush

December 5, 2007 6:37 AM

Al Odah v. U.S. and Boumediene v. Bush go before SCOTUSStreaming on C-Span today. The Center for Constitutional Rights (great podcast) will argue before the Supreme Court today:

Immediately after the Supreme Court’s decision in Rasul, The Center for Constitutional Rights and cooperating counsel filed 11 new habeas petitions in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United Statesand Boumediene v. Bush, the leading cases determining the significance of the Supreme Court’s decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.

posted by ao4047 (29 comments total)

I have a dumb question. One of the arguments against providing habeas at Guantanamo is that it's in a foreign country and therefore the US Constitution doesn't apply.

So let's say I'm a private contractor at Guantanamo. Can I be discriminated against on the basis of race, sex or religion? If I steal office supplies, is it still illegal? If US law doesn't apply, then what law does apply? Does Guantanamo have to follow the rules of Cuban law?
posted by DU at 6:43 AM on December 5, 2007 [1 favorite has favorites]

The supreme court started allowing video now?
posted by delmoi at 6:51 AM on December 5, 2007

One of the reasons Guantanamo was chosen for these detention centers it is a legal black hole when it comes to jurisdiction and rights. Wikipedia entry on Gitmo's legal status. Pretty much a big 'fuck off' to international law and the rest of the world.

One argument has been that the Supreme Court has no jurisdiction over Gitmo since it is a foreign territory - but then Cuban law doesn't apply since Gitmo is a US military base.
posted by ao4047 at 6:52 AM on December 5, 2007

It's audio only, delmoi.
posted by Framer at 6:59 AM on December 5, 2007

DU -- Guantanamo would follow the rules that tend to govern US military bases on foreign soil, which is to say, the Uniform Military Code of Justice.
posted by bl1nk at 6:59 AM on December 5, 2007

...rules that tend to govern US military bases on foreign soil,which is to say, the Uniform Military Code of Justice.

Aren't these the same rules that govern US military basis on US soil? I've never understood how Guantanamo is any different than, say, Fort Bragg. Does the US Constitution apply at Fort Bragg? If so, why not Gitmo? (And if not, WTF? I know the UCMJ is a separate structure from US law, but is it really not still built underneath the Constitution?)
posted by DU at 7:15 AM on December 5, 2007

DU I think you're thinking about this far more than the people in charge do: that's your problem.
posted by chunking express at 7:18 AM on December 5, 2007 [2 favorites has favorites]

I heard the dir. of the Center for Constitutional Rights yesterday on NPR yesterday and he was not very articulate or well-prepared for the interviewer's obvious questions. I sure hope he isn't the one arguing the case before the Supremes.
posted by twsf at 7:25 AM on December 5, 2007

1. I am glad this is getting a hearing at the SCOTUS.
2. I am sad that it needed to go to the SCOTUS.
3. I am scared that the court makeup will make this a political issue, not a judicial one.
posted by edgeways at 7:29 AM on December 5, 2007 [2 favorites has favorites]

that's your problem.

Sorry, what I meant was: RIGHTS FOR TERRASTS ARE YOU KIDING YUO ARE A TRAITOR TO YOUR NATION AND RACE MORAN!
posted by DU at 7:29 AM on December 5, 2007

Exactly. I think if you approach things from that mind set everything makes a lot more sense. Well, as long as you don't think too hard about that mind set. Really, as long as you don't think too hard you're safe.

This is a pretty interesting site: Beyond Guantanamo at the Center for Constitutional Rights. They tried to run an ad on Fox News. That'd didn't go over too well.
posted by chunking express at 7:33 AM on December 5, 2007

I sure hope he isn't the one arguing the case before the Supremes.

He isn't. If you look at the first page of each of the three briefs for respondents here, you'll see that they are represented pro bono by lawyers from some of the country's biggest law firms, including a former Solicitor General.
posted by Partial Law at 7:35 AM on December 5, 2007

Nice to see Roberts considered this important enough to merit a live audio broadcast (which is not typical).
posted by brain_drain at 7:40 AM on December 5, 2007

Also, it's not a live stream. The court is just releasing the tapes as soon as the argument is over, which is about half an hour from now.
posted by Partial Law at 7:45 AM on December 5, 2007

Dear Scotus:

PLEASE do not opine along party lines.
posted by shakespeherian at 7:47 AM on December 5, 2007

Dear Racoon:

PLEASE stop knocking over my trash cans and eating my garbage.
posted by absalom at 8:01 AM on December 5, 2007 [3 favorites has favorites]

Data point: the UCMJ only applies to military personnel, not to civilians. If you're a civilian and commit a crime on a military base, you're prosecuted and punished according to civilian law, not the UCMJ. You can be thankful for that.
posted by Kirth Gerson at 8:08 AM on December 5, 2007

If you're a civilian and commit a crime on a military base, you're prosecuted and punished according to civilian law...

Oh right, I knew this and I even set up my original question to get this answer ("private contractor"), but then I lost my thread somehow.

So at Guantanamo, which civilian law would that be? Cuban or American?

I seriously don't even see how this is even a question. But then, given Bush's performance in re: Iran and the NIE, I guess there's no real argument left for a reality-basis in this administration.
posted by DU at 8:12 AM on December 5, 2007

I know MeFi loves to beat up on the Cato Institution, but they've filed an Amicus Curiae brief for the Petitioners [pdf]. Credit where it's due.
posted by Richard Daly at 8:18 AM on December 5, 2007

PLEASE do not opine along party lines.

If you guys haven't noticed, these indefinite detention cases are all going against the administration. Should be an interesting listen.
posted by anotherpanacea at 8:28 AM on December 5, 2007

I might be a big dork. But I find this riveting.
posted by ao4047 at 9:16 AM on December 5, 2007

DU: one of the justices asked about that hypothetical and the answer seems to be that American civilian law would apply.
posted by jedicus at 9:17 AM on December 5, 2007

1) I should be on the Supreme court.
2) Case closed.
posted by DU at 9:34 AM on December 5, 2007

Listening to it now. Seems like there is "lease" issue with using Guantanamo. We can not be found liable by Cuban law, for what happens on Guantanamo base, because our "lease" with Cuba prohibits it. It does allow our prosecution of Cubans on Guantanamo base though.

Interesting stuff.
posted by zerobyproxy at 9:55 AM on December 5, 2007

Well, I'm going to predict that Alito, Scalia, and Thomas will hold a seance, or consult an ouija board, or whatever bizarre ritual they do to determine the original intent of a factitious group of dead people, and, like magic, they will learn that the Founders were a monolithic bloc who never had differences of opinion and it was their dearest wish that Constitutional rights and guarantees be ignored at the whim of the President. I swear I become physically ill when I hear people babble about "original intent". Like "state's rights" its one of those dogwhistle phrases that means "we're gonna screw the peasants like it was 1399!"

Dunno how the decision will go, but I'll offer any odds you want that Scalia and his two toadies will vote against the Constitution, exactly the same as they have in every other case.
posted by sotonohito at 10:56 AM on December 5, 2007 [3 favorites has favorites]

As long as it's just the 3 of them (and the next Pres isn't Republican), they can vote however stupidly they want.
posted by DU at 11:05 AM on December 5, 2007

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the Constitution and of American traditions.

That's Scalia talking. He may be conservative, but even he is disgusted by the administration's policy in Guantanamo. That's how crazy this whole dark episode in our history is: nobody with any sense agrees with this administration, but no one has the power to stop them, either.
posted by anotherpanacea at 4:36 PM on December 5, 2007

“I seriously don't even see how this is even a question. But then, given Bush's performance in re: Iran and the NIE, I guess there's no real argument left for a reality-basis in this administration”

Yeah, the fact that it Gitmo is in, or is posited to be in, this legally ambiguous area and the fact that the detainees are put there - pretty big red flag that someone is willfully doing something wrong.

“nobody with any sense agrees with this administration, but no one has the power to stop them, either.”

Indeed. I suspect, if the SCOTUS rules against the administration, nothing will happen. Bush will repeat the same rhetoric (these are dangerous people or whatever) - similar to the thing with Iran where the U.S. intelligence community pretty much said flatly Iran ended their nuke program in ‘03 and Bush just went right on with the same thing.
I suspect the next argument will be - does the SCOTUS have power over military bases on foreign soil in a time of war under an emergency terrorist whatever, with a sack of fries, and so forth.

And it’s rightly called power. More an more people have turned away, resigned and outright opposed this administration, many of the folks pushing this suit are ex-military folks, but there is a lock on the halls of power that, more and more, are looking to me to be impenetrable to anything short of open rebellion.
I say that without hyperbole and with full knowlege of the seriousness of such a step. I very much hope it doesn’t become necessary. (I say hope because, despite being damn short on ‘quit’ my whole life, I’m running out of ‘work’ and hope looks to be all I have left) Even then, guns - insurrection - would be a long way off. The new powers to declare martial law scare the hell out of me (in terms of the likelyhood of bloodshed) and really I think all folks want is a political revolution, or counter-revolution really. Just call the Bush administration a mulligan.
posted by Smedleyman at 5:25 PM on December 5, 2007

Yeah, the fact that it Gitmo is in, or is posited to be in, this legally ambiguous area and the fact that the detainees are put there - pretty big red flag that someone is willfully doing something wrong.

Exactly. And that people don't seem bothered by this is all the more disappointing. When Mitt Romney starts going on about how the US needs to be sending more people to Gitmo so they can't get weaselly ACLU lawyers to defend them and people cheer, that kind of sucks.

Also, Mitt Romney is a dick.
posted by chunking express at 6:27 AM on December 6, 2007