SOME THOUGHTS ON THE HABEAS CASES


I've been taking stock since the decision in Coalition v Bush.  Not much has
changed, but here's what I think:

1) Matz's opinion was a vacuous mess.  The coalition said they would appeal, and
I hope they do.

2) Standing is a weak basis on which to deny access to the court on fundamental
questions of human rights, and Matz didn't actually use that as his ground for
dismissal. The DC habeas suit (Rasul v Bush) is much stronger in this regard.

Regardless of anything else, I think it's clear that the prisoners themselves
MUST have standing before the law.

3) Jurisdiction is where Matz took his stand. Here I think it's equally clear
that somebody MUST have jurisdiction, and that whoever does cannot be the
executive branch of the US government.  The prisoners are entitled to due
process of law, and they are being denied it in violation 18 USC 2441.

4) Matz ultimately rests his opinion on the status of sovereignty in Guantanamo.
His reasoning is vacuous, amounting to this: "Johnson v Eisentrager says I can't
have jurisdiction over a territory not under US soveriegnty. There is a treaty
on the books that says Cuba has 'ultimate soveriegnty', therefore Gauntanamo
isn't under US soverienty and I can't have jurisdiction."

It's all so very cut and dried except for one important detail: just exactly
what is sovereignty, and just exactly how does one go about having it lawfully?
The truth of the matter is that the concept as it is used here is pure nonsense.
Matz's reasoning is the logical equlivalent of saying that Madonna is really
truly a virgin because her name is Madonna and she had a big hit song called
'Like a Virgin'.

There are many theories of sovereignty, and a great many legal precedents that
touch on the matter, but there is nothing that remotely resembles a sound
theoretical concept such as any reasonable person would agree to.  To the extent
that the word is meaningful, it is a description of facts, not the product of
reasoning from sound principles.  Legal decisions are fundamentally analytic,
and you can't analyze a figment.

By taking shelter merely in the letter without an honest examination of the
facts, Matz went beyond reversable error: it is very difficult for me to ignore
the inference that the ruling was a result of deep seated indifference and
prejudice.

And here we are. The same question will rise in the DC case. I think Matz should
be overruled on appeal, which is not to say I think he will be. However it goes,
it will wind up in the Supreme Court.

As for the sovereignty of Gauntanamo, it's absolutely clear that the United
States has it and is excercising it. Anyone who says different is either a
deluded fool or a liar.

More on that later.

Regards,

Charly