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Regarding Habeas and the Detainees

By       Message Eliot Gould     Permalink
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The American character is one of a peaceful progress. As a nation we have been blessed with a concept of liberty that cherishes and maintains 'individual rights" over the rights and prerogatives of government. One only need read the "Bill of Rights", and its history and foundations to come to clear understanding of the blessings of liberties which we have inherited-- and to which Government ( state , Federal or local) adhere.

Of course "not always" .we are fallible as men and society, just as we are fallible as individuals. But our truer character is not one that sustains on hatred, passions of immediacy or the dissolution of justice and the rule of law. Besides the stresses and unreality which hatred lends, it consumes the societies.

One place where we have lost our direction character is provision of the due process requirements with the detainees in Guantanamo Bay. And provision of the procedural process is the type which may be reviewable in a manner as justice be served. The detention of a class of persons currently detained is substantially without recourse or remedy to the individuals being detained in spite of rulings such Hamdi v Rumsfeld (US Ct ) while about half the original class of detainees have been expatriated to other nations, almost 400 detainees remain in the Guantanamo Bay facility

Detention has been continuous and isolated from activities and events, other than the most localized and personal of observations-- and certainly removed from 'global network of terrorists' and the value of any military or other intelligence is relative to the
Length in time of the detention ( now over 5 years). Many of the detainees are well within any definition of "enemy combatants and have latent skills, and concepts of potential harm to the United States and its inhabitants. It is for that reason they were trained in Al Quaida camps, with arms and violence. Certainly the Potential harm to the United States must be taken into account in the judicial determination. And simply freeing the whole class upon a legal habeas question is not an option of honor and safety.

But the legal habeas question must be attended if the United States upholds the very nature and character of principles over policies. Habeas corpus lay at the very core of the
value of the Bill of Rights, included and assured by the Constitution of the United States.
It is the individual's right to question the authority and execution of arrest and detention
Of a government agency or division. The Hamdi decision pointedly provided that " it is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times we must preserve our commitment to the principles for which we fight abroad"...(O'Connor, J)

In fact, it has been long since the United States has returned to normalcy. Plane fly
Regularly over the skies. People have returned to work and the nation's schools and universities are open. The press and media provide free opportunity to be supportive or
critical of the Administration of government. Elections have been held throughout the nation continuing the 'great experiment" of liberty and justice. As a nation, America is not just about military might and patriotism that springs from hearts as we see our children carrying forward a mission without definition, without consensus, without understanding. We are inventors. And improvers. Engineers and Teachers. Students and those of Good Faith who have long come to recognize the potency of principles over policy . We have come to recognize the stability which results from investing in the lands and people. We are a responsible people, able to build energy needs, design public health systems, and raise the harvest of grains and agriculture. We are storytellers and poets; song birds and those that can build new cities, places of respect, learning.
But we cannot do that without the core of that which has made us. And that is our principle of freedom and liberty. And the understanding that no man is either above or
beneath the law. No matter how heinous the crime or intent. No matter the political charge or partisanship; no matter, wealthy or impoverished. We have returned to normalcy and must employ the core of our principles. And habeas lay at the center.
Ours is a heritage and destiny in the assurances of Constitutional due process. Not the type which for whatever circumstances the wind blows allows the cherishment to be blown in that wind. This nation is the promise to its people -and the people of the world-
of a safe and prosperous world; of the rule law and the conduct of nations to effectively
combat the scourges which have beset mankind-- hunger, disease, poverty. And it is under principles and the value of who we are. Habeas lay at the core of that.
According to Senator Specter of the Judiciary Committee there has been testimony which provides the current tribunal system many occasions hearings were conducted without account for language barriers and interpretation, absent an attorney, or mechanism of adversary conduct a defense.
What is less than testimony is interrogation techniques-- in the suspension of the basic values which are commonly understood in American homes and communities. The military objective of human intelligence or evidential intelligence in the immediate in the immediate aftermath of September 11th events culturally superceded the qualitative value
in assurance of substantial rights. It is certain that the techniques now deemed a "failure of leadership" were justified in the command structure which would provide information that would "save American lives'. The intent was to break them down, and gather the information. If they died so be it. These were justified tactics to a strategic war on terror carried on in the operations of foreign environments.
Now America should task to remember herself, not as the empirical nation in scourge of war and pestilences, but as the preserving force of freedom and democracy in a world of uncertainties. Great challenges have been before the nation over the last century. Warfare extended to a world war-- in fact two world wars, each threats to the whole of the nation which no foreseeable comparative now exists. The nation faced two scores of
Immediate threat from soviet block nations in a "cold war' of ideology and realistic world of nuclear detonation. Throughout there has been genocide, and acts of anarchy, criminal killing sprees. There have been despots, and juntas, and revolutionaries--and world armies far away. These conditions did not begin anew on September 11, 2001.And a global war on terror without the rule of law substantially changes the worldview of America from preserving freedoms and liberating peoples to voiding the very principles which have brought the greatness in the nation forward. And been the root of generations who have found themselves serving and defending the country. And habeas lay at the center.
An adjudication process can provide ample mechanism to lawfully detain and otherwise determine the outcomes of the detainees. Simply, did the individual take arms up against the United States? In doing so was such alleged acts by conspiracy or by an act or order of a foreign government? A factual documentary evidentiary trail reflecting
" Deft was found in proximity of (Al Quaida base camp) on (October 23, 2001) or Deft is not native to provincial area where found and was armed and combative until surrender and capture." and supported in such manner as to be in adversarial procedures , with communication for legal assistance and reviewable process is not unthinkable in these days of normalcy. Habeas lay at the core of our values. Without the core of that which has made us - our principle of freedom and liberty with the understanding that no person is either above or beneath the law. No matter how heinous the crime or intent. No matter the political charge or partisanship; no matter whether wealthy or impoverished. We have returned to normalcy and must employ our principles.
And that justice be served.

 

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www.eliotgould.com
Eliot Gould , 52, is currently active in New Mexico's political scene. A native of Chicago,and active in Chicago politics,Gould studied the Presidency at Center for the Study of the Presidency, with extensive writings upon Lincoln and Wilson.

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