So the Party of No has suddenly become the party of simpering “Judicial Activists”. Those paragons of the rule of law – represented by their Sharia-like interpretation of the Constitution – Sen. Lindsey Graham (R-Nelly Bottom) and Jon Kyle (R-Independent  Duchy  of Arizona), are yapping about repealing the 14^th Amendment (the one giving citizenship to babies born in this country).

There’s no legitimate argument that numerous administrations and Congresses from both parties haven’t ignored immigration reform. Performance on the issue has been on par with the handling of Katrina and is well past due. But rewriting the Constitution to do something you’re too weak-willed to do honestly is a tad disingenuous. You can’t just constantly carp about a strict interpretation of the Constitution 250-years removed from its writing and then just argue to rewrite it if something is giving you political heartburn.

Many people don’t think women are capable of anything, including voting. Why not just repeal the Franchise? Heck, “We’re at war dammit! Let’s repeal the First Amendment because the teabagger’s public statements are offensive.” And that whole habeas corpus thing is a real patriotism buzz kill. Let’s get rid of that too. This is not a case of racism, it’s a case of “Stupidism”.

It’s time for the immigratirati to take a dip in the Rio Grande and start dealing with the problem rationally instead of like Lou Dobbs on a Red Bull bender. It’s this type of squeaky wheelism that built the Fence to Nowhere – America’s very own Maginot Line. This thinking led to an Arizona law that essentially requires police to do what they were already able to do voluntarily and does nothing to solve the problem.

The people of this country want solutions to problems, not a bunch of bickering over who is an opportunistic crapweasel looking for votes or who is a racist. There are a number of actions that could be taken with simple discussions by honest negotiators. Others would take a little negotiation. And, there are still others that will only be done by inflicting pain. But have no question. We do have a place to start.

So Gov. Tea Brewer get on with something useful. Jon and Lindsey, stop trying to throw the (immigrant) baby out with the bathwater. And Messiah, get off your duff, corral those cats that pass for a political party, and fix the problem.

We the people thank you.

Cross posted at The Omnipotent Poobah Speaks!

Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alert bloggers, they get barely a mention in the news.

In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.

If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.

Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.

The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.

Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.

In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.

The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”

The judge concludes:

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.

In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.

The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.

Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.

Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.

The case of Mohamed Odaini is yet another reason to listen to them.

Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.

For months now, certain commentators and legislators have been arguing that Congress needs to pass a new law authorizing the indefinite detention without charge or trial of suspected terrorists and their supporters.

On its face, that would seem to violate some basic tenets of the U.S. Constitution. But the U.S. government is already detaining hundreds of suspects captured abroad at Guantanamo Bay and elsewhere. The question is whether Congress should expand that authority and define it in more detail.

Writers such as Benjamin Wittes of the Brookings Institution and lawmakers such as Senator Lindsey Graham of South Carolina argue that even though hundreds of people have been detained over the last eight years at Guantanamo Bay, the law that justifies their detention or mandates their release isn’t clear, and Congress needs to step in and make new rules.

In fact, as a new report issued today by 16 former federal judges makes clear, that’s nonsense. The people in the best position to decide when military detention is legal are already doing just that. The new report, published by Human Rights First and theConstitution Project, explains exactly how that process is working – and demonstrates that it’s actually working very well. Responding to a series of habeas corpus petitions, where Guantanamo detainees have asked the federal court to review the legality of their detentions, federal district court judges in Washington, D.C. have already issued written opinions concerning 50 different detainees that set out the legal standard for indefinite wartime detention, and which cases do and do not meet it.

The claim by Wittes and Graham that judges are somehow overstepping their bounds and usurping the role of Congress reflects a fundamental misunderstanding of how the federal courts and judges work. In fact, the courts are doing just what they’re supposed to do: interpret the law.

The reason judges are so well-situated to explain the contours of U.S. detention authority is because, according to judicial rulings, the right to detain arises out of existing laws, including the Authorization for Use of Military Force against Terrorists, or AUMF, passed by Congress in 2001; the traditional law of war; and the U.S. Constitution.

Traditionally, a government at war can detain fighting members of the enemy’s forces, under humane conditions, until the war is over. Although that authority is less clear when the government is fighting a loose coalition of insurgent forces around the world rather than another country, the Supreme Court has said that at least in some circumstances, pursuant to the AUMF, the United States can detain enemy fighters seized on the battlefield.

It’s the Supreme Court’s rulings on the subject, combined with the law of war and the mandates of the U.S. Constitution, that highly experienced federal judges have been applying to the habeas corpus cases that have come before them. Applying those rulings, they’ve developed a clear and consistent body of law that explains what kind of evidence the government needs to have amassed against a suspected insurgent to justify his military detention.

Under the D.C. District Court’s rulings, for example, Fouad Al Rabiah, a 43-year-old, 240-pound, Kuwaiti Airways executive with a long history of volunteering for Islamic charities who’d been discharged from compulsory military service in Kuwait due to a knee injury, and who suffered from high blood pressure and chronic back pain, did not meet the requirement of being “part of” or having “substantially supported” al Qaeda, the Taliban or associated forces. Although seized while attempting to leave Afghanistan in 2001, by the time of Al Rabiah’s hearing, even the government had decided the witnesses who claimed he’d helped al Qaeda weren’t credible. The government’s own interrogators didn’t believe his “confessions,” which the court determined had been coerced and were “entirely incredible.”

On the other hand, Fawzi Al Odah, also Kuwaiti, did meet the law’s detention standards. The same judge found that he’d attended a Taliban training camp, learned to use an AK-47, travelled with other armed fighters on a route common to jihadists, and took directions from Taliban leaders – all making it more likely than not that he was a member of Taliban fighting forces.

Still, despite the courts’ careful analysis in these cases, Congress could step in and write its own new law on indefinite detention. But how can any one statute possibly address all the vastly different factual scenarios, many spanning several countries and decades, that constitute the government’s claims that any particular individual is detainable? What’s more, any new law will still have to meet the requirements of the U.S. Constitution, and the Supreme Court gets the ultimate say on that. Any new statute passed by Congress, then, would likely be challenged as soon as it’s applied, causing more confusion about what the law really is until the U.S. Supreme Court weighs in on that new statute several years later.

The federal judges of the D.C. District Court and Court of Appeals are already way ahead of that game. In addition to the trial court opinions, the appellate court recently issued its own opinion setting out the law of detention and the government’s constitutional authority. That decision may be appealed to the Supreme Court, whose opinion would set out the binding standard that every judge and future U.S. administration will have to follow.

The upshot of all this is that if Congress legislates some new detention standard now, it will actually take a lot longer to get a clearly-defined and binding law that guides the government than it would if Congress just let the courts continue to play the role they’re supposed to: deciding the legality of government detention.

Wittes, Graham and others may secretly be hoping that Congress will legislate in this area anyway and try to expand the government’s indefinite detention authority beyond Guantanamo Bay to reach even suspects arrested on U.S. soil. But that would create a whole new constitutional firestorm, resulting in exactly the opposite of what they say they’re after: a clear and reliable statement of the law.

The D.C. Circuit Court of Appeals on Friday morning issued a stunning ruling: that the United States government may seize suspected terrorists outside the United States, send them to the U.S.-run Bagram detention center in Afghanistan, and thereby deprive them of the right to challenge their detention in federal court.

The question came up in the case of Maqaleh v. Gates, which involves two Yemenis and a Tunisian, one of whom was arrested in Thailand, and all of whom were flown from outside Afghanistan to Bagram by U.S. authorities and imprisoned there. They've been there, without charge or trial, for the past seven years.

The D.C. court relied heavily on the fact that these three men, all suspected of ties to terrorism, are being held in a battlefield prison in a theater of active war. But as American University law professor Steven Vladeck points out, the only reason they were "in theater" is because the U.S. government had decided to move them there. So this case stands for "the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas."

The case isn't necessarily over, because the detainees could ask for rehearing or appeal to the Supreme Court. But in the meantime, it highlights the absurdity of the United States' claim that the entire world is a battleground and suspected terrorists seized anywhere can be held by the U.S. government as enemy belligerents without the opportunity to challenge that in an impartial federal court. Although the laws of war do allow detention of some belligerents captured on a battlefield in an international conflict, there's nothing in U.S. or international law that authorizes capture of alleged enemies anywhere in the world to be brought to a battlefield where the U.S. is fighting local insurgents, for purposes of their indefinite detention.

The United States continues, however, to detain more than 800 prisoners at Bagram, on very shaky legal ground. To be sure, the U.S. military does eventually offer them some form of a hearing to decide whether they're actually "belligerents" fighting U.S. forces. But as Human Rights First has pointed out before, the procedures in those hearings -- although improved during the Obama administration -- still don't come near providing real due process.

For one thing, the 800 + detainees at Bagram have no right to a lawyer. Although they are assigned a "personal representative" by the military to represent them, there are only about eight such representatives available to represent more than 800 prisoners, and none of them are lawyers. Meanwhile, their own ability to collect evidence and call witnesses is limited to whatever is deemed "reasonably available" by the military. On top of that, much of the evidence used to justify detaining the suspects has been classified; the suspects themselves never actually get to see it. So how can they defend themselves, or even inform their "personal representative" of the relevant facts, if they don't know what evidence is being used against them, or the credibility of whoever provided it?

In Boumediene v. Bush, the U.S. Supreme Court ruled that similar proceedings provided at Guantanamo Bay were wholly inadequate, and that prisoners there have a right to challenge their detention in federal court. Although the D.C. Circuit Court decision on Friday acknowledged this, it ultimately decided the case based on other considerations, such as the practical difficulty of providing habeas corpus rights to hundreds of detainees held in Afghanistan.

Setting aside the broader issue of who's a belligerent and who gets to decide, Friday's decision underscores the importance of the Obama administration providing a meaningful way for Bagram detainees to challenge their detention.

Improving those procedures isn't only a matter of the United States meeting its obligations under international law. It also has very practical implications.

The U.S. military has said repeatedly that its strategy in Afghanistan depends on winning the "hearts and minds" of the Afghan people. Only by providing legitimate public proceedings that afford detainees a meaningful ability to challenge their detention can the United States ever hope to win that critical battle.

This post has been updated.

Buried in a recent Washington Post article is an interesting fact that Harry Shearer points out in a blog on the Huffington Post today: that in at least one recent Guantanamo detainee case, the US Justice Department did not deny that the detainee was tortured. It just argued that the court should accept his statements as reliable anyway. The DOJ lost that argument, and Saeed Mohammed Saleh Hatim won his petition for habeas corpus.

Dick Cheney may like to call those interrogations "enhanced," but in everyday parlance they're what the DOJ is implicitly acknowledging: tortured.

There are two important implications of this.

The first is that, not surprisingly, Dick Cheney and the Washington Post's newest columnist, Marc Thiessen, who've been going around claiming both that "torture works" and that "we did not torture" are just flat-out wrong on both counts. Torture doesn't "work" if you can't rely on the information you get out of it. And even the Department of Justice - and the U.S. Military Commissions, for that matter - have acknowledged that the U.S. did indeed "torture."

The second implication follows up on the point I made recently about the still-unreleased report on the ethics investigation of those DOJ attorneys who authorized detainees' torture. If even the Department of Justice is not denying detainees' claims that they were tortured, doesn't that suggest that further investigation on the part of DOJ is required? After all, the U.S. government has committed, in signing onto the U.N. Convention Against Torture, to investigate and prosecute torture committed by its own government.

Of course, Attorney General Eric Holder has agreed to undertake a "preliminary review" of the actions of some CIA operatives who may have participated in abuses. But a recentdecision of the U.S. Court of Appeals for the Armed Forces calls the limits of that investigation into question. On Friday, the court agreed to hear an appeal from Charles Graner, Jr., the army private who was sentenced to 10 years in prison for abusing prisoners at Abu Ghraib. Graner, who was accused of stacking naked prisoners in a human pyramid and ordering them to masturbate while other soldiers took photographs, claimed the trial judge was wrong not to let jurors see the legal memos from the Department of Justice that approved the "enhanced interrogation tactics" Dick Cheney is still so proud of. Apparently Graner's lawyer thinks they would show his client was just following orders - or at least plausibly interpreting them to permit Graner's bizarre conduct.

Which brings us back to the role of those Justice Department lawyers. If the military's highest court thinks there's a plausible argument to be made that those memos justified some of the most degrading and obviously illegal conduct you can think of, then how can the Justice Department continue to refuse to criminally investigate the role of those lawyers?

The issue has been set aside for more than a year now while the government claims its Office of Professional Responsibility is still completing its about-to-be-issued report. But that claim is becoming less and less plausible. If that report isn't released soon, the Justice Department's inaction will look more and more like a coverup.