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Guantanamo Habeas Corpus- the road to freedom

The U.S. Supreme Court's decision to grant Guantanamo prisoners the right to challenge the legality of their imprisonment has enormous ramifications.  Not the least of these is that David Hicks' incarceration in a South Australian jail is now likely to be wrongful and false imprisonment, and that the government who put him there will most likely be, by the time this goes to court,  the only active participator in the Guantanamo war crimes still holding political power at the time of the overturning of their actions.

Paul Walter's Webdiary debut piece Perverts in the shrubbery was the launch pad for a hot contest of ideas.  Given that this community contains supporters and denouncers of Guantanamo, the opinions regarding this landmark decision should be interesting.


A friend mentioned this 5/4 US decision a little while ago and my immediate reaction was that this was a final, formal repudiation of the last neocon decade, with its vaguely worded, questionably motivated laws as much about setting of precedents and protecting the guilty more than the innocent, with plausible deniability replacing presumption of innocence as the underlying legal principle.

And this, after all, was a conservative high court, stacked with Bush appointees, not something akin to the Mason activist effort of the Australian 1990's.

No more funny legal "spaces" in which to hide people from habeas corpus on nothing more than some arbitrary prejudice or worse still even, corrupt need, of some fallible political authority. No further doing away with of common law rights on the coat tails of a bogus "terrorism" excuse operating as an excuse for the corruption under darkness of a Cheney or Bush; Haliburton or Wackenhut.  Government now should fit in with the law- not the other way round.  Certain principles remain prior to expediency.  Breathtaking.

The thin, fragile, wavery line that distinguishes democracy from something akin to Pol Pot or Pinochet is, at the eleventh hour, reaffirmed by the court.   There are certain positions that are just not negotiable.  That is the point those sceptical of Henson were making as to young people being protected: whatever tinkering happens at the side, the law should have a guaranteed minimum or default as to kid's protection.  Others, of course felt that there were other issues of freedom of speech,  when it was unclear as to actual threat as to the example cited (Henson),  but the argument remains the same.

With Detentions, Gitmo, ( Haneef locally )Hicks etc, there seems a clear-cut and quite malicious transgression of a basic right to legal representation, presumption of innocence and humane conditions of detention; should a case require examination.  Particularly if evidence is not readily available and in effect there is some sort of "fishing expedition" going on, instead. That is, when the authorities are hoping for something to "turn up" in a situation short of serious evidence, in effect on a hunch or more frankly, a bias. In Haneef's case it could be argued (no doubt only by a cynic) that the fellow was detained on trumped up charges, when the authorities knew the allegations were specious, but could bend a deliberately vaguely worded piece of legislation based on British and US precedents, to please their political masters by bending the law, to yield up a pre-election scapegoat, a reason bearing absolutely arguably no relation to "security", whatever.  That is surely a dangerous abuse of the intent and spirit of the law if even remotely true.

There have been complications over time concerning detention of those seeking refugee status in the light of UN laws and procedures concerning refugees. Were these folk held for political opportunist reasons when there was no threat, as part of a populist push to retain power using racist scapegoats, Or was Howard only seeking to ensure that the newcomers were indeed refugees and the government had the right to determine their identities, etc, in the way they did?  Like wise was, or could, Gitmo and the accompanying suspensions of common law justifiable in the face of a real threat, or merely operational as a McCarthyist political gimmick?

With terrorism, do we stick to our guns and refuse to abandon the principles we beleive makes our civilisation the best, even to the point of risking lives through terrorist attacks, and perhaps additionally hope there is maybe a kinder god than us running the universe?  Or does pragmatism have a place?  Should certain legal principles remain unalterable and sacrosanct and does their "bending" set a precedent that can lead to totalitarianism?

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Well, Eliot they are jews

I am simply sick to death of this nonsense.  I am not cheerleading for the Stalinista or the Nazis as neither party or institution exists and have not existed in my lifetime.    I am simply pointing out that we have no high moral ground.

Now the jewish government in Israel have decided to build another 40,000 illegal homes on Palestinian land, homes that Israeli arabs and non-jews are not allowed to buy.

Just because I call them jews doesn't mean I hate them.   It just means the jews are implementing policies against people who cannot protect themselves.

Well, Marilyn

Marilyn, why don't you call them Israelis? It's not hard - try it.

References please

Now the jewish government in Israel have decided to build another 40,000 illegal homes on Palestinian land, homes that Israeli arabs and non-jews are not allowed to buy.

Could you please provide your references for any part of this claim.

While you are about it, could you please provide your references for your repeated claims elsewhere to the effect that 565,000 Jews died in the Holocaust, as opposed to the calculations made by all genuine scholars and historians which are a full order of magnitude more. 

USA is 'freest country in the world' - Noam Chomsky

John Pratt: "Gore Vidal says the US is a fascist dictatorship."

Isn't Gore Vidal one of America's best selling authors and social critics, whom Vidal, whom Newsweek called "the best all-around man of letters since Edmund Wilson"?

Is that what happens in fascist dictatorships? A critic of the regime gets to become a major best selling author - and magazines refer to him as "best all-around man of letters"?

I know. Let's ask Noam Chomsky. I mean, he should have an opinion…

"“I’m lucky to live in the freest country in the world, where freedom of speech is protected right up to the point where we decide to rob a store together and you point your gun at someone and I say ‘Shoot’. Apart from that, you can say whatever you like. Elsewhere there are always laws against ‘subversion’ or 'libel' or ‘contempt of the State’ or something. If you live in a country like that and you do something the government doesn’t like, then you’re stuck.”

- Noam Chomsky, 6 December 2003.

Nope. Obviously, Gore Vidal is wanking himself. Maybe he should try living in Cuba?

Marilyn Shepherd: "In spite of my friend Eliot believing that if Russians killed more German civilians than the other allies that does not give them a high moral ground to stand on."

Perhaps because of your persistent efforts at revising the documented historical record for the benefit of Nazi Germany and Stalinist Russia, fewer people here imagine you have the moral high ground on anything .

Marilyn Shepherd: "While they ignore the crimes the Jews have committed against the Palestinians, crimes they are never charged for."

I have to congratulate you on your forthright use of the word "Jews", dropping all pretence at being an "anti-Zionist" or merely a "critic of Israeli foreign policy".

There's a little there for everyone

Richard Tonkin, naturally the latest ruling is seen straight down the lens of political convenience; thus rendering most opinions on it completely meaningless.

The ruling allows the detainees to challenge their predicament in a Federal Court. What's this mean for them (detainees)? The truth is, for most, probably not that much, if anything at all.

Sure, the detainees now have the right to ask for release, and the military commission be made invalid - the Federal Court equally has the right to rule against them.

For all its historic significance, it remains to be seen what practical consequences the Supreme Court ruling will have. According to Shayana Kadidal, senior attorney at the Center for Constitutional Rights, a nonprofit whose lawyers serve as sole or joint counsel for more than 200 prisoners at Guantánamo, "The impact of this ruling on military commissions trying Khalid Sheikh Mohammed and others may very well be negligible, because federal courts have always been reluctant to stop trials, including military trials, in mid-process."

I'd add ruling against capital punishment as another reluctance shown by the courts - though, I think you get the drift. Any person of the belief that this ruling negates the legality of holding the detainees is going to be sadly disappointed. Any person believing that American courts a bastion of soft liberal tendencies are going to be even more disappointed. The decision of course makes absolutely no judgement on the detainees' guilt or innocence. Now unless one comes from the school of terrorism is all a figment of the imagination; the odds are pretty good that at least someone will be found guilty, and to borrow a phrase: "they'll fry for their sins".

What does it mean politically? Well, that all depends on the luck of the draw - and, naturally, the timing of it. Whilst it's true mitigating circumstances of innocence haven't been public, neither have circumstances regarding guilt. This particular "cone of legal silence" will not persist in an American Federal Court. It doesn't automatically play that this is a good thing for any particular political stance moving into election 2008.

Playing devil's advocate, what does this mean for McCain? It means he gets down on his knees (find a God if he hasn't already got one), and prays. He prays the best (and not brightest) bunch of criminal cretins find their way to the head of the habeas corpus queue.

In the case of such a events taking place the detainees will face the highest political court in the land: the court of public opinion, and trial by media. At such a time, constant references to Obama's voting patterns will find a very monotonous regularity of appearing. References to his middle name (not by McCain of course; most certainly not), will not be going MIA either.

The Habeas Queue

I think you are only part right, Paul Morrella.

Where detainees have been charged or are already under "trial" in the Military Commissions, the courts are very likely, but not guaranteed, to defer to the Military Commissions. Since the body is already being produced in the Military Commission, the issue won't be habeas, but the legality, constitutionally and otherwise, of the "trials". But this is only a handful of the detainees.

But the rest, and particularly the petitioners in these cases, will be queuing at the courtroom doors, and will get a hearing if they aren't freed first. It will remain tied up in the courts if, as is likely, the Executive remains bloody-minded. Lots of new questions to work their way up to the Supreme Court, or at least left for the next administration to cut the knot, if it is game.

McCain will be praying that the worst of the worst get to the head of the habeas queue, where their guilt will be displayed to all, preferably without too much trashing of legal and constitutional principles. No references to torture would be good for him, too. If that happens, he can hope for a profitable backlash against Osama Obama.

But the cases most likely to come up first are those most likely to succeed, and consequently, to embarrass Bush and McCain. That would be in the interest of the detainees and their lawyers, and they are the ones forming the queue. The recent petitioners would be among the first, and it is probable that the reason they were petitioners is that they have the best cases. The Bush administration will probably delay as much as they can, possibly assisted by the courts, and not much is to be expected before the election.

The Opinion is on the Supreme Court website at Boumediene v Bush (647KB PDF). Interesting commentary at What Boumediene Means and Did the Supreme Court Violate or Vindicate the Constitution...

False belief

Paul Walter: “Marilyn, for all their much-vaunted Bill of Rights, they still initiated Gitmo and Rendition with little or no opposition and these policies were arguably more blatant and long-lived even than Woomera.”

Extraordinary rendition isn't unconstitutional (at least the way it's been used up to date). It would only be unconstitutional if an American citizen was the "renditioned" or the rendition took place from the United States or controlled territories. What is unconstitutional is the use of evidence obtained from torture (anywhere) in the legal process. Those that argue that extraordinary rendition is unconstitutional generally refer to international treaties (very hazy area and a whole other subject).

There is a strange belief that crops up in net land from time to time – and I've no idea how it took hold. It's a false faith that all people (non American citizens) are protected by the Constitution if an American agency, government, citizen etc is involved in something untoward, irrespective of location.

They're not.

Jokers Wild

I've been thinking about this for a long time.  For the casual reader, I refer you to From Guantanamo to Damascus- Moe Davis's Road.

Hicks' Adelaide lawyer David McLeod, last Friday:

"If a detainee now, having been told that he has got access to the US courts, brings an action disputing the lawfulness of his detention, the lawfulness of the military commission process and is successful, and the Supreme Court strikes down the military commission Mark 2, then Hick's conviction would be invalid," Mr McLeod said.

"And everything that happened to him subsequently would be invalid.

"So his return to Australia in chains, his incarceration for seven months, the application of the commonwealth and state confiscation of profits of crime legislation would not apply because he has not been convicted."

The house of cards is about to fall on the strength of a "wild card" that the Bush Administration has done its damnedest to keep outside of the rules of the game.   I can imagine that while there are a couple of players left at the table that many will be doing their damnedest to expedite an outcome before the US elections.  Hicks has become one of the candles that the American democracy has held next to its own integrity.  For his conviction to be overturned will be an internationally significant event, and damaging to the Republicans' chances (if any, given that nobody attacks Iran) of retaining the White House.

After the Taliban attack in Afghanistan last week, I'd reckon that fear of Guantanamo prisoners being sent there is well and truly allayed.

Bush and Cheney, IMHO, have three alternative paths to take:  Delay the habeas corpus proceedings till they're out of office, do a minor mea culpa, or hope like hell that Iran is invaded "in time".  Sorry, a fourth: let the perpetrators be impeached in time for a pardon.  Have we forgotten Scooter Libby so soon?

If the Bush poker-faces have left the table and the Rann Government of South Australia are the only ones who haven't folded when the final hand is dealt ...?

No Hoper Hitchens

Never trust a leftie who turns to the dark side and becomes a fellow traveller of the far right.

Don't forget our former PM's hideous stand on the "black arm band historians" and his attempt to keep indigenous Australians in permanent poverty courtesy of the wacky Keith Windschuttle.

Hitchens is a terrific writer but like all former radicals, most of the Neocons, once they switch allegiance disaster follows. Hitchens was all for the Iraq invasion. I doubt the clergy could make a difference by speaking out against Mugabe – Pope Paul spoke against the Iraq invasion and was ignored.

The real problem is the US has neutered the UN and its authority. Our own Lord Downer and Howard played no small part in this when they came to power, constantly taking swipes at the UN with Downer basically saying it had become "irrelevant". Until it was needed as an excuse to invade Iraq.

The damage done by Bush/Blair and the Neocons is almost incomprehensible. Court clowns like Howard assisted with him and Blair selling their souls to the Murdoch media empire for power.

If the clergy spoke out in vast numbers (and plenty do) they would be ignored by the Aussie media that considers a nightclub incident or a Footy Show gaffe major news. The reduce the suffering of the people of Zimbabwe, or almost anywhere else, to just a sideline tale which readers, weary from their own personal daily struggles, don't really absorb.

The US constitution has served its country well. The forced resignation of Nixon is an example. It remains to see whether the people there will rise to demand the return of its power. As it is, the majority of Americans (hovering around 70%) do want the Bill of Rights to work, do want Bush impeached as he should be under the Constitution, and want their troops out of Iraq. But the media dominates and simply ignores the majority of the people. It now creates the news rather than reports it.

This has been a bête noir of Noam Chomsky for years (sorry, Eliot Ramsey) who has commissioned universities to conduct far more extensive polls than any of the professional ones, that always reveal that the US public is far more liberal than thought and leans to the left on most issues. But their wishes are simply ignored while far right Christian groups dominate those in power assisted by a compliant media.

As for an Australian Bill of Rights: as the banker Bob Carr doesn't want one, it's the first indication we do need one. Carr, who never really gave up power just installed his puppet Iemma to facilitate the electricity sell-off.

Listening to this ratbag on Radio National last Thursday was a treat. Here is man who reads a lot of history books and believes he's now an intellectual along the lines of Gore Vidal. One of his reasons for not having a Bill of Rights was that he was in contact with some UK Nu Labour MP's who say that if we had such a Bill, then when young kids go astray as they are in the UK in masses (it hasn't yet occurred to Nu Labour that their Thatcherite policies of decimating UK manufacturing and along with it, whole communities of large British cities that they may be part of the problem) that older people will say "we can't do anything about them because of their "rights"!

Some intellectual – it came down to the opinions of a few British MPs who have probably never been near a disadvantaged community in their life, for Carr to form his opinion. Even worse, he claimed it would remove power from politicians to judges to enforce a Bill of Rights.

Of course it would – that's the whole point, Bob Carr!

Our policy goes back to 1994

Sorry Paul, but the High Court deemed administrative detention on executive order legal in the case of a young Chinese boy way back in 1994 and it has just been added to and made worse since Ruddock took away the time limits of detention.

Administrative detention is also legal in Israel and has been for decades and is arguably the most abused because their target is also the "exception" people. Britain now has admin. detention for asylum seekers and "terror" suspects".

The US now has the body that oversees these things stating clearly that habeas corpus relieve is for every person under US control. Full stop. No exceptions.

We still have the exceptions. Refugees who dare to come to an island on boats as if they are the first people in history to ever do so, people like Dr Haneef locked up for 12 days without charge, Dr Al Haque kidnapped by ASIO, although he finally got cleared he had no right to a habeas corpus hearing to see if his detention was necessary or legal.

Even now the ALP don't have the guts god gave them to stop this nonsense - instead they are trying to find ways to lock up innocent people for a shorter period as if locking up a person for three months is any less against the Magna Carta and the rule of law than locking them up for 5 years.

The child in the case of Lim in 1994 in Brennan's court ended up in detention for 5 years, 5 months and 20 days.


Marilyn Shepherd, not quite with you.

"The US now has the body that oversees these things".

Do you mean the US Supreme Court or the UN?

No point if you can’t have international problems and various like considered at the Hague, etc, if nations can't be compelled to accept the legal opinions or judgements.

A different kettle of fish if an individual nation’s highest court smacks down Gitmo or something along the lines of Haneef locally; then there is some chance of the thing, whatever, being enforced.

Anyway, keep writing. Am as thick as a brick, as you well know and you'll probably have to explicate further, as you have done in the past, I am not fully in sync with what it is that you are proposing.

State of Exception

This is particularly interesting because it shows that America's constitution cannot make exceptions, but ours can. We have a non-constitution really because no "alien" is included and if we want to make laws to keep families apart, or lock them up for life, or call the birth canal a migration channel we can and do.

interesting point.

This point of Marilyn's rings bells, it actually goes back to the basis of a query of Scott Dunmore's concerning "constitutional reform" on a recent thread of Richard Tonkin's.

Marilyn, for all their much-Vaunted Bill of  Rights, they still initiated Gitmo and  Rendition with little or no opposition and  these policies were arguably more blatant  and long-lived even than Woomera. 

It must be that both sets of structures have faults and strong points and to protect  habeas corpus etc, we need to look both at  Westminster and  Franco/US systems.

Any one who specialises on these sorts of things out there?

"Vote for us or starve" - the last days of democracy

THE scale of state-sponsored crime and terror in Zimbabwe has escalated to the point where we are compelled to watch not just the systematic demolition of democracy and human rights in that country but also something not very far removed from slow-motion mass murder a la Burma.

The order from the Mugabe regime that closes down all international aid groups and humanitarian non-governmental organisations is significant in two ways.

It expresses the ambition for total control by the state and it represents a direct threat - "vote for us or starve" - to the already desperate civilian population.


Mugabe has done and is doing all these things, and I haven't heard a squeak from the papacy. A man of his age is perhaps unlikely to be caught using a condom but one still has to hope that Mugabe will be found red-handed in this way because it seems that nothing less is going to bring the condemnation of the church down on his sinful head.

It is the silence of Mandela, much more than anything else, that bruises the soul. It appears to make a mockery of all the brave talk about international standards for human rights, about the need for internationalist solidarity and the brotherhood of man, and all that.

There is perhaps only one person in the world who symbolises that spirit and he has chosen to betray it. Or is it possible, before the grisly travesty of the run-off of June 27, that the old lion will summon one last powerful growl?

Christopher Hitchens is a columnist for Vanity Fair and Slate (www.slate.com), where this column originally appeared. His latest book is God is Not Great: How Religion Poisons Everything.

Mugabe's contempt for democracy is open for all to see. Christopher Hitchens is right: where is the outcry from church and from the African Union? As we watch another African nation on the slippery road to a failed state, how many will die?

As leaders in Zimbabwe and Burma thumb their noses at the rest of the world have they taken their lead from the likes of Bush and Howard who have set the example by attacking human rights and the rule of law in the world's so-called leading democracies? Are we seeing the last days of democracy?

Gore Vidal says the US is a fascist dictatorship

Madrid - It will take the United States a century to recover from the damage wreaked by President George. W Bush, US writer Gore Vidal said in an interview published on Saturday.

"The president behaved like a virtual criminal but we didn't have the courage to sack him for fear of violating the American constitution," Vidal told the El Mundo newspaper.

The author, a trenchant critic of the US-led invasion of Iraq, said it would take the United States "100 years to repair the damage" caused by Bush.

"We live in a dictatorship. We have a fascist government ...which controls the media," he said.

With our troops fighting alongside US troops it is time to reflect on what type of government we are fighting with and what we are fighting for.

Our media is controlled by a few who have benefited from the capitalist system and are not likely to write articles that suggest that we may have moved towards fascism.

Many in the US are worried, and we should also be worried. Is our democracy all that is cracked up to be, when political leaders like Bush and Howard can put it at risk? Leaders who have shown contempt for the law and are willing to use their power to destroy our hard won human rights.

It is time we had a bill of rights protected by the courts.

What freedom?

Bush will simply re-write the law to overturn this decision. I'm convinced that Bush, Blair and Howard are the spawn of the devil and have set us down roads that are almost going to be impossible to return from.

The lunatics are running the asylum and I don't think they can be budged. Just watching the last week's inane madness about a nightclub incident dominating the media here I've given up ever believing that we are ever going to be reading the truth on anything anymore. Even once serious journalists have fallen prey to prattling on about it.

The US, UK and Australia seem to go in tandem. I'm not sure whether Rudd will be given the chance to bring needed change, I doubt Obama will make a difference, and God only knows what is happening in the UK which is turning into A Clockwork Orange as we watch.

We are so tied to the US courtesy of the former idiot in Kirribilli we will probably sink with them.

As Gore Vidal said a few days ago, "the next most interesting thing from watching the creation of a democracy is to witness one as it ends".

Human rights

Remember, they were things consecrated by slave owners.     Now used by lawyers who don't own slaves: INALIALABE or UNaniable?

Declaration of human rights

Agreed by the UN General Assembly on 10 December 1947 stipulates that all human rights are inalienable.

In spite of my friend Eliot believing that if Russians killed more German civilians than the other allies that does not give them a high moral ground to stand on.

The interesting part of this decision is that in Al Kateb four of our dishonourable high court judges deemed that human rights are alienable for a small group of people who arrived in Australia on a boat without a visa, which they agreed they did not need anyway, were deemed not to have been persecuted enough and could not be deported to any country.

So they must stay locked up for life if necessary for the purposes of "quarantine" from the citizenry.  Of course they said it was tragic that this should be so, but maybe when Israel stopped the occupation and Palestine had a state or hell froze over or Al Kateb died he could be deported whole or in a box.

 But until such time it was deemed he should stay locked up.  Which makes Australia the most barbaric high court in the world, not even Israel or the US have brought the proposition of jail without trial or release even if it means for life.

What those High Court judges didn't know about where the three Palestinian families with 11 children who had been in detention for years who faced a life of detention without committing any crime.

Border protection they called it.  Yet the people were already here.   Flown from an outpost island on an Australian jumbo jet without papers, in breach of quarantine, in breach of the Migration Act and under guard.

To be locked up like animals in a cage.

At least those five Supreme Court judges saw the truth - human rights are inalienable.

They are not handbags to be interchanged to match the weather or the day or the circumstance.

The world agreed they are inalienable, that no state should take them away.

 What makes this worse for us here is that it was Australia's Doc Evatt who insisted on article 9 which forbids arbitrary detention without a trial.

I suspect Hicks will be cleared although we can guarantee that Leigh Sales won't soften her harsh rhetoric about his so-called crimes, even though she is well aware he has committed none.

Sami Al Haj was sent home under a plea deal after years in Gitmo for the crime of working for Al Jazeera and legally trying to enter Pakistan.    He was almost dead and will most surely sue, as will many hundreds of others.

Which reminds me of a story in the Age Good Weekend magazine of the Simon Wiesenthal nazi hunter centre.   They hunt humans through the centre, even old men they cannot prove committed any crime, even in Australia.

While they ignore the crimes the Jews have committed against the Palestinians, crimes they are never charged for.

This is a good decision and I would like to request that those five judges come to Australia to overturn the horrendous Al Kateb.

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