Posted by
Asp on Friday, June 20, 2008 9:13:25 PM
The US Supreme Court has held that Gitmo detainees have a right to challenge their detention in civilian federal court that has no jurisdiction over the detainees. What does this mean?
Suppose that a Saudi Arabian is detained on the battle field in Afghanistan fighting for the Taliban. He goes into US Federal Court to challenge his detention. What crimes might he be accused of? What defenses might he present?
He was in possession of an banned assault weapon which he obtained in violation of the Brady Law: no mandatory background check , no mandatory waiting period, no purchased from a licensed gun dealer. He has killed, or attempted to kill people including active duty American military personnel. Do any of these laws apply to Afghanistan? I would argue no.
These are all civilian laws and he was taken into custody by American military personnel in violation of Posse Comitatus, which forbids the federal military from the enforcement of civilian law. US civilian courts have no jurisdiction just as US civilian courts have no jurisdiction over a bank robbery committed in another country by a non US person. He was (probably) not read their Miranda Rights prior to interrogation. The interrogation was illegal. Under Fruit of the Poisonous Tree, any evidence obtained is banned from use in any trial. There may be no admissible evidence against him.
No jurisdiction, illegal detention, violation of Miranda Rights, no evidence against the detainee: all charges must be dropped and the detainee must be released. But where to?
If he is released to Afghanistan, he will certainly be persecuted or prosecuted by the anti-Taliban government. If he is released to Saudi Arabia, he may well be persecuted or prosecuted as well. Are there any other countries that would take him and not persecute or prosecute? At this point he should apply for asylum. And I would not be a bit surprised if the courts granted his asylum request which would then lead to the granting of Legal Permanent Residence here in the United States. Far fetched?