Organize the South

Yesterday I posted a letter from Rep. Phil Gingrey (R-11th District GA) on his outrage over the Supreme Court ruling in Boumediene v. Bush. Gingrey is a supporter of habeas corpus except when it applies to everyone. Below are two articles I pulled off of Portside. Good comments.

Supreme Court Deals Death Blow to Gitmo
By Jonathan Hafetz

June 12, 2008

Today's ruling by the Supreme Court in Boumediene v. Bush delivered a dramatic blow to the President's lawless detention policies and overturned an effort by the previous Congress to eliminate the centuries-old right of habeas corpus. The ruling means that prisoners at the US military base at Guantanamo Bay, who have been held for more than six years without charge, will finally have the opportunity to challenge the accusations against them in a court of law. More broadly, the ruling rejects the premise on which Guantánamo is based: that the President can create a lawless enclave simply by incarcerating people outside the mainland United States.

Boumediene marks the culmination of the quest for due process that began in 2002, when the first habeas corpus petitions were filed by Guantanamo detainees in federal court. In 2004, the Supreme Court ruled in Rasul v. Bush that the detainees had a right to habeas corpus under a statute that dated to the nation's founding. The Administration, however, then sought to block any of the cases from going forward, arguing that the detainees had no rights to enforce beyond filing a piece of paper called "habeas corpus" and that any rights they did have were satisfied by the summary military proceedings it had hastily put in place after the Supreme Court's decision.

Congress, in turn, twice tried to eliminate habeas rights for detainees. The Supreme Court rejected the first attempt in 2006, ruling in Hamdan v. Rumsfeld that the legislation did not apply to pending cases. So Congress tried again with the Military Commissions Act of 2006 (MCA), which made explicit that the elimination of habeas rights applied to all Guantanamo cases, past, present and future. The issue before the Supreme Court in Boumediene was whether the MCA violated the constitutional guarantee of habeas corpus, known as the "Suspension Clause."

The first question the Court addressed in Boumediene was whether the Guantanamo detainees had a right to habeas corpus. The Administration had argued that because the prisoners were foreign nationals held outside the sovereign territory of the United States, they had no rights under the Constitution. As a result, the President and Congress were free to deny them any access to the courts at all.

The Supreme Court rejected this argument in no uncertain terms. As Justice Anthony M. Kennedy explained in his 5-4 opinion for the Court, formal constructs like "sovereignty" do not and cannot dictate the presence or absence of constitutional rights because they are "subject to manipulation by those whose power it is designed to restrain."

Boumediene thus sounded a death-knell to the idea of Guantanamo itself: that the President can imprison people indefinitely without court review simply by bringing them to a US enclave on an island in the Caribbean. Instead, Kennedy's opinion adopts a more flexible and pragmatic approach under which the Constitution's applicability to those beyond America's shores depends on a practical assessment of the circumstances. And under that approach, the application of fundamental constitutional rights at Guantanamo, where individuals have been detained for more than six years in territory under total US control, is a no-brainer.

The ruling that the Guantanamo detainees are protected by the Constitution, however, did not end the case. The government had also argued that the process Congress created in 2005 in place of habeas corpus satisfied all the rights Guantanamo detainees had. This process had two parts: first, the summary military hearing, known as a Combatant Status Review Tribunal (CSRT); and second, limited review of the CSRT's decision by the court of appeals in Washington, DC, pursuant to the Detainee Treatment Act of 2005.

The Supreme Court made clear that Congress can create a constitutionally adequate substitute for habeas corpus without running afoul of the Suspension Clause if that substitute provides what habeas corpus provides. But the Court also ruled that Congress had unmistakably failed to provide an adequate substitute for habeas corpus for Guantanamo detainees.

The reason, the Court explained, was that the habeas itself requires an opportunity for a prisoner to see the allegations against him, to respond to those allegations with the assistance of counsel, and to a determination by an independent judge. The CSRT, by contrast, relied primarily on secret accusations denied prisoners the assistance of counsel and an opportunity to submit evidence showing their innocence, and lacked neutrality. Any court review limited to such a sham hearing, the Supreme Court said, was tantamount to no review at all.

In another decision issued today, the Court reaffirmed the right of American citizens to habeas corpus no matter where they are held. The Court ruled in Munaf v. Geren that two American citizens detained in Iraq have a right to habeas corpus. In so doing, the Court rejected the government's argument that the President could avoid the reach of habeas corpus by claiming that the United States was holding the prisoners under "international authority"--in that case, a UN Security Council Resolution. While the Court agreed with the government that the prisoners could not obtain review of their transfer to Iraqi custody, it made clear that American citizens have the right to habeas corpus as long as they are held by their government, no matter where they are detained or what label is attached to their detention.

Today's ruling in Boumediene does not require the release of any prisoner at Guantanamo. Instead, it merely mandates that the 275 prisoners who are still there must receive what they should have received long ago: an opportunity to challenge their imprisonment in court. In a country committed to justice and the rule of law nothing less is acceptable. While it has taken almost seven years to vindicate this most modest principle, late is better than never.

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Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice. Mr. Hafetz is counsel in several leading post-9/11 detention cases.

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Justice 5, Brutality 4
New York Times Editorial
June 13, 2008


For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label "unlawful enemy combatants" and throw into never- ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantanamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush's attempts to turn Guantanamo Bay into a constitutional-rights-free zone.

The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it."

Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantanamo Bay and claimed that since the base is on foreign territory, the detainees' habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantanamo, which is under American control, is effectively part of the United States.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantanamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried - and failed horribly - to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees' habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution - invasion or rebellion - do not exist.

The court ruled that the military tribunals that are hearing the detainees' cases - the administration's weak alternative to habeas proceedings in a federal court - are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.

It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as "most fundamentally a procedural right." Chief Justice Roberts thinks the detainees receive such "generous" protections at their hearings that the majority should not have worried about whether they had habeas rights.

There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States - a reminder that the composition of the court could depend on the outcome of this year's presidential election. The ruling is a major victory for civil liberties - but a timely reminder of how fragile they are.

I get periodic updates from Rep. Phil Gingrey. He's allegedly my representative from the 11th District in Georgia. I'm reprinting his last update since it talked about habeas corpus. Specifically, Gingrey talked about how the US Supreme Court's ruling that all people in the US, whether a citizen or not, have the right to challenge their own detention. Gingrey is opposed to this right. Apparently 800 years of habeas is more than enough for him. I will also be posting some analysis of the decision in the next day or so.

Rep. Gingrey's office sent an email in response to a letter my wife and I sent earlier this week. In our letter we asked a series of questions. Gingrey didn't answer any of them. He also didn't say whether or not he would vote to override the presidential veto. Perhaps we need to send another. Rep. Gingrey's response email is below.

Thank you for contacting me with your concerns regarding the current state of the State Children’s Health Insurance Program (SCHIP), or as it is called in the state of Georgia, PeachCare. I appreciate having the benefit of your views and welcome this chance to respond.

Georgia’s PeachCare program provides medical insurance for 270,000 children whose family income is less than 235 percent of the federal poverty level. This is a testament to the strength of the PeachCare program in the state of Georgia and how important it is for Congress to act in order to ensure the program’s solvency.

As a physician for nearly 30 years, I am a strong supporter of the SCHIP program. Sadly, loopholes in the SCHIP program have been exploited in recent years, compromising the mission of the program. For example, many states have filed waivers with the federal government to ask permission to use SCHIP funds to cover new populations for which the program was not intended – including single, childless adults. This practice undermines the financial integrity of SCHIP and takes money away from states like Georgia.

I voted to pass a continuing resolution that will fund the SCHIP Program through November 16 this year. I am also co-sponsoring an 18 month extension bill of the SCHIP bill, H.R. 3584, that will ensure that our nation’s children – including the children in Georgia covered under the PeachCare program – will not go one single day without health insurance.

Rest assured I plan on being a leader in the effort to reauthorize SCHIP. I will advocate for commonsense reforms to strengthen the program and make sure funds will be available to provide healthcare to—first and foremost—the population this program was intended to help: low-income children.

Thank you again for taking the time to contact me. If you feel that I may be of additional assistance on this, or any other matter of importance to you, please do not hesitate to contact me. You may also contact me via my email at gingrey.ga@mail.house.gov, or log your ideas and opinions on my website: www.house.gov/gingrey.

October 8, 2007

Rep. Phil Gingrey, M.D.
119 Cannon House Office Building
Washington, DC 20515

Dear Rep. Gingrey:

We have recently moved into the 11^th district into a nice neighborhood. My wife and I have a modest home, friendly neighbors, and weeds in the yard.

My wife and I don’t have children. I’m a small-business owner and my wife is about to become one. We’ve mostly worked in the non-profit industry. We have a keen interest in health care since the financial burden is so great. We are particularly interested in the SCHIP legislation and the presidential veto. We would like you to vote to override this veto. Frankly, we are disappointed in your statements on this program. The news room on your website (gingrey.house.gov) has a press release with comments you made on the House floor. The title reads, “Gingrey blasts Democrat’s plan to expand SCHIP to cover wealthy families and illegal immigrants on their way to socialized medicine.” We hoped, as a doctor, you would focus on getting as many people as possible quality health care.

We read the entire release on website. We understand you oppose health care for “illegal immigrants.” Why is that? Is it better to cut off some people from the health system? What if these people have an infectious disease? Even a cold or the flu? Wouldn’t excluding them actually put everyone at risk? Should we exclude other people from this basic human right (Article 25 of the Universal Declaration of Human Rights)? At any rate, the legislation actually doesn’t change the fact it’s against federal law for “illegal immigrants” to sign up for SCHIP program. Given this is a non-issue, why do you use it? We hope it’s not because you use the term “illegal immigrants” as a manipulative device to avoid real issues.

The press release also says the legislation is “a measure which would expand the State Children’s Health Insurance Program (SCHIP) to cover children of families with income levels up to $80,000.” We went to factcheck.org to find out. Here’s what they said:

The Urban Institute estimated that 70 percent of children who would gain coverage are in families earning half that amount, and the bill contains no requirement for setting income eligibility caps any higher than what's in the current law.

The income ceiling in Georgia is $48,528. The highest income ceiling is in New Jersey and is $72,275. Factcheck.org also cites a study by the Urban Institute that about 70% of children projected to benefit from the legislation are in families earning less than 200% of the federal poverty level ($41,300 for a family of four). The link to the study is http://www.urban.org/publications/411545.html. Doesn’t this mean your statement is wrong?

We like factcheck.org, so we studied the site for a while. We found some interesting bits of information. For example, in your press release you said, “Rather [the legislation] diverts precious resources from those who need it the most in order to cover adults and already privately insured children. In fact, the extra $35 billion the Democrats are asking American families to pay for is aimed at a population where 77% of the children already have private insurance coverage. These children would simply be transferred from private insurance coverage to a taxpayer funded, government controlled healthcare entitlement program.”

We searched factcheck.org but couldn’t find anything that supports your claim. We did find out about something called the “crowd-out effect.” This is a phenomenon in which government programs targeting the uninsured are used by those with (or those who could have) private insurance. The SCHIP legislation you voted against has a crowd-out rate of 32% according to the Congressional Budget Office (CBO). The CBO also stated that this is probably the best percentage one can achieve with this kind of legislation.

Where did you get the 77% figure? It wasn’t on factcheck.org. We searched the Internet and couldn’t find anything to substantiate your claim. We did find a page on the Center on Budget and Policy Priorities citing an analysis by Jonathan Gruber that 77% of the Bush administration’s health tax proposals would go to those already insured. The link to that is http://www.cbpp.org/7-16-07health.htm.

We have one more question. In your press release, you describe the SCHIP legislation as “implementing a major tax increase on working class Americans.” As working class people, we deeply oppose major tax increases on working class people so this statement delighted my wife and me. We’re wondering then why you voted against the original House bill CHAMP (Children’s Health and Medicare Protection Act). This legislation would have funded SCHIP expansion, in part, by cutting Medicare Advantage subsidies. According to the Congressional Budget Office, private insurance companies are paid 12% on average more than what it really costs to cover the same beneficiaries. The CBO estimates overpayments will be about $54 billion over the next five years. Wouldn’t opposing subsidizing giant corporations cheating working-class people out of our hard earned tax money be a good way to oppose major tax increases on working-class people? If “illegal immigrants" ran the corporations taking billions of dollars from taxpayers, would you support reducing the Medicare overpayments?

We apologize this letter is so long. We hope to hear from you soon. If you like, stop by the house and we’ll make you some homemade Indian food.

Sincerely,

Dan & Rita