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Compromise Over Detainee Jurisdiction:
From the Washington Post today:
  A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.
  The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.
  Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.
  This is an important development, but it's somewhat difficult to know exactly what it means without looking at the text of the compromise bill. If anyone has a link to the text or the text itself, I hope you'll consider posting it in the comment section so the rest of us can take a look.
Medis:
I'd like to see the text as well, but Page 2 of the linked article does contain a lot more detail about the compromise.
11.15.2005 10:25am
Markusha:
Here it is:

Text of the proposed compromise
Is it just me or Section (e)(2) is very confusing?

Alternative Bingaman's amendment is here:
Bingaman's amendment
11.15.2005 10:38am
Hattio (mail):
I just glanced at this quickly, but am I reading it right that only those in Gitmo are covered? Is it too cynical to suggest that the population of Gitmo will start to decrease shortly after passage?
11.15.2005 10:47am
Medis:
At a first read it seems pretty tight to me. The habeas exception is only granted for alien DOD detainees held at Gitmo, and those detainees can get judicial review of both their status hearings and military trials under the DOD's own procedures, other federal law, and the Constitution. I think the trick will be to make sure they are getting reviewable hearings and trials in the first place, but I take it Congress is claiming an oversight role with respect to those issues.
11.15.2005 10:57am
Medis:
Hattio,

But the habeas exception also applies only to alien DOD Gitmo detainees.
11.15.2005 10:58am
corngrower:
Hold a minute. The President is under no obligation to sign this, even if the house would pass it. Last I checked, this sort of stuff rests with the Executive Branch. Not Judicial, nor Legislative. And we wounder why nothing gets don in Congress
11.15.2005 11:11am
Brian G (mail) (www):
Is that all? Why aren't we giving them a whole team of lawyers to challenge every level of their detentions? And, why aren't we limiting them to 60 days in jail with full citizenship, a job, car, and free house in Dearborn after giving them a full apology on behalf of that evil Bush and his henchman Rumsfeld?

Excuse me for not caring one second about the so-called constitutional rights of scum we pick up off the battlefield. hey should consider themselves lucky our fine men and women didn't kill them to begin with.
11.15.2005 11:11am
PersonFromPorlock:
Wasn't it the government's claim a while back that Gitmo was outside of US civil law because it was 'really' Cuban territory? In that case, what difference does any change in US law make to the detainees?

Incidentally, and solely because I have a low sense of humor, I would love to see some detainee's lawyer take his client's case to a Cuban court.
11.15.2005 11:17am
Medis:
corngrower,

"The Congress shall have power to . . . define and punish piracies and felonies committed on the high seas, and offenses against the law of nations . . . declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water . . . make rules for the government and regulation of the land and naval forces . . . [and] make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

Oh, and "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
11.15.2005 11:19am
mummifiedstalin (mail):
Brian G,

Don't forget the point here is that they aren't all soldiers. Under your logic, we would have let a number of innocent sheep farmers rot in Gitmo for years just because they happened to be picked up near the battlefield...and we still took 3 years from that group that finally got let go. Is three years from an innocent person's life enough to satisfy your sense that they should have just been killed even though they weren't fighting us?

I have no problem with a little legal wrangling to be sure that people we accuse of being enemy combatants really are.

This is a response to the shameful situation at Gitmo where we assumed that people were "scum" without any legal process to determine whether or not they in fact were "scum." If the tribunals determine that they really were combatants, then all bets are off. But I have *never* understood the resistance to at least bringing charges of guilt. Apparently the fact that they were near a battlefield is enough for us to do whatever we want with them.
11.15.2005 11:19am
Jack John (mail):
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have.
11.15.2005 11:21am
mummifiedstalin (mail):
"Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have."

Legally correct. Morally? Again, what is wrong with simply bringing official charges rather than assuming guilt? Even if they are terrorists, why is it wrong to be sure that they *are* terrorists before keeping them indefinitely?

I still don't understand the logic of resistance to this.
11.15.2005 11:24am
Medis:
Jack John,

I don't see any limitation of habeas to citizens in that clause. But regardless, whether or not habeas extends automatically to non-citizens, certainly the prior clauses I quoted authorize Congress to make laws respecting the rules for military detentions and military trials of citizens and non-citizens alike.
11.15.2005 11:26am
Jack John (mail):
This all seems in keeping with Eisentrager to me. All one would have to do is set up shop elsewhere.
11.15.2005 11:26am
Jack John (mail):
Jack John,

I don't see any limitation of habeas to citizens in that clause.


There are plenty of clauses of the Constitution that do not explicitly contain the disclaimer: "By the way, this does not apply to non-citizens." That doesn't mean our Constitution is universal law that applies to everybody anywhere in the world. Such a reading is just wrong.
11.15.2005 11:29am
mummifiedstalin (mail):
So if the Constitution doesn't dictate how we treat them, what does?

I don't mean that as an argumentative question, but a legal one. Where is the legal authority for their treatment found?
11.15.2005 11:32am
Jack John (mail):
Morally?

Proven murderers get habeas appeals for reasons of procedural fairness, not for reasons of morality. I have never heard before that it is a moral duty to waste money.
11.15.2005 11:33am
J..:
we still took 3 years from that group that finally got let go

I believe they are still inprisoned, but that the military has agreed to release them if they can find a host country. (Though, perhaps those countries have already been identified, I don't know.)

(Note that this was largely after one of their lawyers, Sabin Willett [a noted bankruptcy lawyer/author in Boston], finally was allowed to interview some of them AFTER they were granted the right to counsel, and only then AFTER he conducted a barage of press interviews to generate publicity. Note, too, that the 22 total released constituted ~4% of the Gitmo population.)
11.15.2005 11:34am
xx:
"Such a reading is just wrong."

Why? The parts of our Constitution that, as a matter of logic, must apply only to U.S. Citizens do in fact contain express terms limiting them to citizens. E.g. the right to vote. Why assume that the founders just forgot to include those limitations in the other clauses?
11.15.2005 11:35am
Jack John (mail):
Where is the legal authority for their treatment found?

That's kind of silly. In the absence of an explicit bar, e.g., Congressional statute or a treaty, the President, in matters of foreign affairs, can do whatever the $%^&he wants. This is why other nation-states have armies.
11.15.2005 11:36am
mummifiedstalin (mail):
"Proven murderers get habeas appeals for reasons of procedural fairness, not for reasons of morality. I have never heard before that it is a moral duty to waste money."

But my problem is that the people at Gitmo had never had any charges of *anything* proven? The fact that these were *proven* murderers makes your analogy precisely inapplicable to my problem with this situation.
11.15.2005 11:36am
madisonian (mail):
I wonder, Jack John, whether you are able to provide any historical evidence that the word "privilege" in article I, section 9, was intended, or would have been understood, to apply only to citizens of the United States. Do you think, for instance, that a resident alien detained within the United States has no constitutional entitlement to use the writ to challenge his detention?
11.15.2005 11:37am
Jack John (mail):
Citizens do in fact contain express terms limiting them to citizens. E.g. the right to vote.

Hmm, what you refer to isn't in the Constitution. It's in amendments to the Constitution that were drafted after the Founding. You can't treat the amenders and the Founders as the same group of persons and simply merge their linguistic habits; that is why sovereign immunity (at least for awhile under federalism doctrine), could not be abrogated by Art. I, but could be under the Reconstruction Amendments.

Besides, there is no federal right to vote, as Bush v. Gore noted. Ability to vote is subject to the whimsy of state legislatures. If the vote is granted, it must be granted equally. You have a right to equal treatment in the provision of the vote; but there is no per se right to vote in the Constitution.
11.15.2005 11:40am
Jack John:
Do you think, for instance, that a resident alien detained within the United States has no constitutional entitlement to use the writ to challenge his detention?

Depends what you mean by "resident". How is that being determined? Are you backdating current INS policy to the Founding? If so, your question makes no sense. Are you talking about an ambassador or a consul? Who is holding him; federal or state authorities? Not enough facts.
11.15.2005 11:42am
mummifiedstalin (mail):
"That's kind of silly. In the absence of an explicit bar, e.g., Congressional statute or a treaty, the President, in matters of foreign affairs, can do whatever the $%^&he wants. This is why other nation-states have armies."

Well, I guess that's my question. The real debate here, then, isn't legal, right? It's about other things: presidential prerogative, military strategy (intelligence reasons), politics, and ethics. Appeals to habeas aren't legal appeals but moral appeals to intuitions about how detainees of any sort should be treated.

My question was really about on what grounds arguments for their treatment can be made.
11.15.2005 11:44am
Jack John (mail):
The fact that these were *proven* murderers makes your analogy precisely inapplicable to my problem with this situation.

Hmm, no it doesn't. The point was that heabes appeals are provided for reasons of procedural fairness. In other words, even where we can prove the person does not deserve any reciprocal moral duty from us, we still give them habeas. So habeas simply isn't a matter of morality.
11.15.2005 11:44am
corngrower:
The logic is simple. The executive branch has the constitutional power to do exactly what it is doing. Remember these detainees are not, not innocent goat farmers. I seem to remember trying to release some detainess from Gitmo to their native countries and were met with oposition from the ACLU. Because they would most likely be murdered in their native country. More people have been let out of Gitmo than have been kept there. so what is the crisis?

Medis

Good research if it pertained. Yes congress can set rules, before the fact. Its a law thing. You seemed to not be able to find the part about the President being commander in chief and setting the rules for combat on an as need basis. And habeas shall not be suspended...Unless..
I seem to remember four hijacked airplains killing more than 3000 of our citizens on our soil. Soundstome like the invasion of public saftey requirerment has been met. BTW a huge bypartisan vote of conress agreed. You may not want to bring up that habeas argument again
11.15.2005 11:49am
Jack John (mail):
The real debate here, then, isn't legal, right?

No, it is legal. In the absence of these proposed laws, the President can treat these guys like crap. And after they are passed, he can move them to black sites and continue to do so. I don't forsee us, say, joining the ICC or signing a "No Black Sites" treaty any time soon.
11.15.2005 11:51am
mummifiedstalin (mail):
"Hmm, no it doesn't. The point was that heabes appeals are provided for reasons of procedural fairness. In other words, even where we can prove the person does not deserve any reciprocal moral duty from us, we still give them habeas. So habeas simply isn't a matter of morality."

Granted. But can you tell me, then, why it is legally and/or morally acceptable to hold people only on suspicion without charge in *this* case? Particularly when there have been so far 22 people who, after a lot of pressure, were determined not to have been enemy combatants? What is the best argument offered to hold potentially innocent people in this case?
11.15.2005 11:51am
Medis:
Jack John,

Saying that habeas applies to unlawful detentions of non-citizens by the United States does not convert the Constitution into universal law, because it is still limited to detentions by the United States.

Regardless, none of this is relevant to statutory habeas. Again, Congress is clearly authorized to regulate military detentions and trials of citizens and non-citizens alike, and in Rasul the Supreme Court held that statutory habeas did in fact extend to non-citizens held overseas (at least where the US exercises exclusive jurisdiction). And insofar as this compromise modifies the holding of Rasul, it does so only with respect to the exact same non-citizens who will be subject to the later provisions.
11.15.2005 11:53am
Medis:
corngrower,

I don't understand your reply. You originally wrote, "Last I checked, this sort of stuff rests with the Executive Branch. Not Judicial, nor Legislative." I pointed out that the Constitution does in fact authorize Congress to pass laws regulating this subject matter. You reply, "Yes congress can set rules, before the fact. Its a law thing."

So how is that consistent with your original claim?
11.15.2005 11:59am
Jack John (mail):
Medis,

Had you drawn your argument as narrowly as you have done now in the beginning, we would not have been arguing. I would note, however, that it is quite easily to simply render the detainees into the custody of someone else abroad, in which case the US would not have exclusive jurisdiction. In think Rasul is a very narrow decision and does little, if anything, more than reasonably apply Eisentrager to current facts.
11.15.2005 12:00pm
jvarisco:
Is this within the power of Congress? Are they not effectively reversing a SC decision? What stops the SC from simply invalidating it?
11.15.2005 12:00pm
Jack John (mail):
It is one thing to recognize that Congress can regulate the military's acts where the United States has control of the jurisdiction; it is another to assert that non-citizens necessarily have certain free-standing rights because Congress can so regulate the military.
11.15.2005 12:03pm
Jack John (mail):
Granted. But can you tell me, then, why it is legally and/or morally acceptable to hold people only on suspicion without charge in *this* case?
Because the Supreme Court said it was ok in laying out its "some evidence" standard.
11.15.2005 12:04pm
Syd (mail):
corngrower:
The logic is simple. The executive branch has the constitutional power to do exactly what it is doing. Remember these detainees are not, not innocent goat farmers.


How do you know that some of them aren't?
11.15.2005 12:05pm
madisonian (mail):
Depends what you mean by "resident". How is that being determined? Are you backdating current INS policy to the Founding? If so, your question makes no sense. Are you talking about an ambassador or a consul? Who is holding him; federal or state authorities? Not enough facts.

Okay, JackJohn, here are the additional facts you requested. By "resident," I mean someone who has lived (perhaps legally, perhaps not) in the United States for a number of years, but has not been naturalized as a citizen. He is being held in the United States by the federal government, who has not charged him with a crime. He files a habeas petition to challenge his detention. What result?

In any case, you still haven't addressed whether the strong version of your thesis (i.e. non-citizens have no right to habeas protected by article I, section 9) has any historical support.
11.15.2005 12:07pm
Jack John (mail):
How do you know that some of them aren't?

So long as we have "some evidence," that is all we need. Hey, that's what O'Connor said.
11.15.2005 12:07pm
Medis:
Jack John,

Originally, the only thing I did is quote the Constitution. But in any event, I think we are agreed that Congress has more than enough authority to pass this law. Rendition is another issue, of course, although I would not be surprised to see Congress address that issue as well in the near future.

jvarisco,

Rasul was a statutory interpretation case, so Congress is free to change the statute. Interestingly, though, I would actually take passage of this amendment to imply that Congress was ratifying the holding of Rasul, while at the same time carving out an exception.
11.15.2005 12:10pm
Jack John (mail):
In any case, you still haven't addressed whether the strong version of your thesis (i.e. non-citizens have no right to habeas protected by article I, section 9) has any historical support.

Actually, I did. First, I never set forth any thesis; I challenged some claims that Medis made. He clarified his argument and I agreed with his revision. Perhaps it was unclear, so I'll post the colloquy in order.

Medis:

Jack John,
Saying that habeas applies to unlawful detentions of non-citizens by the United States does not convert the Constitution into universal law, because it is still limited to detentions by the United States.

Regardless, none of this is relevant to statutory habeas. Again, Congress is clearly authorized to regulate military detentions and trials of citizens and non-citizens alike, and in Rasul the Supreme Court held that statutory habeas did in fact extend to non-citizens held overseas (at least where the US exercises exclusive jurisdiction). And insofar as this compromise modifies the holding of Rasul, it does so only with respect to the exact same non-citizens who will be subject to the later provisions.


Jack John:


Medis,

Had you drawn your argument as narrowly as you have done now in the beginning, we would not have been arguing. I would note, however, that it is quite easy to simply render the detainees into the custody of someone else abroad, in which case the US would not have exclusive jurisdiction. I think Rasul is a very narrow decision and does little, if anything, more than reasonably apply Eisentrager to current facts.

It is one thing to recognize that Congress can regulate the military's acts where the United States has control of the jurisdiction; it is another to assert that non-citizens necessarily have certain free-standing rights because Congress can so regulate the military.
11.15.2005 12:13pm
Medis:
Jack John,

I don't see how I have changed my "original" argument. In response to your claim about habeas, I noted that nothing in the text of the Constitution rules out the possibility that constitutional habeas would apply to non-citizens, and I further noted in another reply (the one you quote) that such an interpretation would not convert constitutional habeas into "universal law."

But as I have also argued, Congress in any event is authorized to pass laws regulating this subject matter, which is an independent and sufficient answer to corngrower's original claim. I take that is what you have in mind as my "narrow" argument, but it has been my main argument all along.
11.15.2005 12:20pm
Jack John (mail):
Originally, the only thing I did is quote the Constitution. But in any event, I think we are agreed that Congress has more than enough authority to pass this law.

I never said that Congress lacked the authority to pass this law! I objected to your method of reading the Constitution and the use of constitutional habeas to imply that alien detainees have free-standing habeas rights at the constitutional level.

Rendition, however, I do not believe is a seperable issue. It goes to the President's foreign affairs power in the absence of Congressional regulation to the contrary. It also goes to the extent to which one can construe Eisentrager to stand for the proposition that alien detainees have free-standing habeas rights. Eisentrager leaves open the option of simply removing the detainees from U.S. control/jurisdiction -- i.e., rendering them to, e.g., Egypt. If detainess had free-standing rights, then Eisentrager would have been wrongly decided -- at the constitutional level -- for leaving that option on the table. I don't think it was.
11.15.2005 12:20pm
Jack John (mail):
nothing in the text of the Constitution rules out the possibility that constitutional habeas would apply to non-citizens

Nothing in the text supports this claim, either, and Eisentrager can easily be read against this conclusion. Not to mention the fact that if Congress thought this issue were constitutional, they wouldn't be fixing it at the statutory level.
11.15.2005 12:24pm
madisonian (mail):
Jack John:

Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have.

Perhaps I'm misreading, but this seems like a claim that aliens are simply outside the scope of the Suspension Clause. If you've backed off from that claim, so be it. If you haven't, I've yet to see any evidence that in 1789 the common law writ of habeas corpus would have applied only to citizens. Forgive me if I've missed something.

One more thing: your characterization of Rasul would perhaps be accurate if Justice Kennedy had spoken for the Court, but Justice Stevens' opinion seems far broader. As I read that opinion, it holds that the statutory predicate to Eisentrager -- that 2241 did not apply outside the territory of the United States -- is simply no longer good law. It's hard to see that holding as merely an application of Eisentrager to "current facts."
11.15.2005 12:25pm
Medis:
Jack John,

There is really nothing more boring than arguing about who said what in the past, so I'm going to stop doing that.

As for rendition, I don't think that issue is really answered one way or another by Rasul. To be sure, Rasul is only about statutory habeas, but it does not place a sharp limit on when statutory habeas applies. Rather, the general rule seems to be that "the reach of the writ depend[s] not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.'"

So, in a rendition case, we would have to ask and answer this "practical question." I'm not sure how that would come out, and it certainly seems like it could depend on the facts of the case.
11.15.2005 12:37pm
Justin (mail):
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have."

Jack, you know you really should check out Crooked Timber's and other's (Obisidian Wings, particularly) on the subject, with sharp detail pointed out to the root of habeus corpus in the British Magna Carta, which absolutely applied to noncitizens.
11.15.2005 12:37pm
Jack John (mail):
As I read that opinion, it holds that the statutory predicate to Eisentrager -- that 2241 did not apply outside the territory of the United States -- is simply no longer good law.

Good point. This gives me an opportunity to clarify. I don't think Stevens' view is actually the law. In other words, I agree that there is language suggesting that in the opinion (hey, I said "little, if anything"), but I don't think the court really held that. Let me put it this way: Lawrence v. Texas can be read very broadly, but lower courts applying it afterwards narrowed it. I haven't seen any indication that Stevens' view has been taken seriously by lower courts or by other branches of government. I mean, do you think Kelo is the law? As for the "current" facts play-on-words, I simply mean that Eisentrager was decided many years ago and Rasul was decided more recently.

Perhaps I'm misreading, but this seems like a claim that aliens are simply outside the scope of the Suspension Clause.

No, it was a challenge to Medis to prove up his claim made in sacrastic tone. I wasn't making a positive case; I was pointing out that he hadn't made a strong case that his reading was, well, right. One could easily make the argument that aliens are outside the scope of the Suspension Clause by reading the word privilege to be synonmous with the word privilege in the privileges and immunities clause, for instance, which is a dead letter, and thus open to all sorts of absurd interpretations, e.g., by Clarence Thomas.

I later did make the claim that the Constitution does not provide aliens with free-standing habeas rights, but I believe that because I think Eisentrager was rightly decided and because the Suspension Clause is directed toward Congress: it is a limitation on the exercise of Congressional power to regulate, not a grant of individual rights to aliens. That would be an over-reading of the clause.
11.15.2005 12:59pm
Medis:
Jack John,

Stevens' opinion in Rasul got 5 votes, and district courts have subsequently been granting habeas review to alien Gitmo detainees. One of those cases, Hamdan, has now worked its way back up to the Supreme Court. I think that makes Rasul as much good law as any Supreme Court opinion.
11.15.2005 1:15pm
Aidan Maconachy (mail):
I'm glad to see this torture issue being addressed in a substantive fashion, because Abhu Ghraib gave notice that behavior of this type not only violates the fundamental human rights detainees but also seriously damages the reputation of the U.S.

However, I think it is naive to believe that military culture doesn't include "ways and means" that in the past have resulted in the crossing of fine lines, or even been in the outright disregard of legal standards.

When torture and related activities are pushed further underground, they becomes impossible to monitor. So it begs the question, how much of this is window dressing? And do people really believe that with the passing of this legislation, physical coercion of suspects in U.S. custody will actually end? Excuse me for remaining dubious.
11.15.2005 1:15pm
Medis:
Aidan,

It probably won't all come to an end. But a lot of people (including people inside the military) seem to think that the current conditions are far worse than they have been in the past, and a major contributing factor has been the lack of clear rules.
11.15.2005 1:24pm
corngrower:
Well I will admitt that I am confused. If congress has the ability to address the issue. The executive branch has the athourity to address the issue. The judicial branch does not have the athourity to address the issue. Who gets to decide?

This is plainly an executive branch thingy. My original point is that a law before the Senate now, would have to be passed by the House, and then the President would have to sign away his Constitutional athourity and sign it. A resolution passed by the Senate would only cover the Senate
11.15.2005 1:38pm
Jack John (mail):
And Medis, I understand the difference between Stevens' functional analysis in Rasul and Eisentrager's territorial analysis. I would note 1. Rehnquist's majority opinion in Padilla seems to rebut this argument (i.e., it is not the law), as Stevens seems to think in his dissent in Padilla, and 2. under EITHER analysis one can simply move the detainees into a facility under the functional control of someone else in someone else's territory, e.g., an Egyptian prison with Egyptian guards.

I would also note that the Magna Carta may have been a source for writing the Constitution, but writing a Constitution and interpreting it are two different things. We do not live in Britain. The suspension clause is a limitation on Congressional power, i.e., a way to prevent a tyrannical legislature, like the one Britain had, given that it had no written constitution.
11.15.2005 1:49pm
Medis:
corngrower,

Obviously, the President could refuse to sign it, in which case Congress could pass it anyway if they had a sufficient number of votes.

On the larger issue: the Constitution clearly authorizes Congress to regulate the conduct of wars. It also clearly authorizes the President to act as Commander in Chief. You seem to think there is necessarily a conflict here, but I don't see why.

In general, the President must faithfully execute the laws of the United States, but that does not put him into conflict with Congress simply because Congress makes the laws that the President must execute. Rather, it just means that Congress has a major role to play in specifying the actual duties of the President.

Applying this basic dynamic to war in particular, when acting as Commander in Chief, the President will have to faithfully execute the laws that Congress passes with respect to war. But again, that does not somehow put him into conflict with Congress. Rather, it simply means that Congress is specifying some of his actual duties as Commander in Chief.

And that is the basic structure of government the Constitution contemplates.
11.15.2005 1:52pm
Jack John (mail):
One of those cases, Hamdan, has now worked its way back up to the Supreme Court. I think that makes Rasul as much good law as any Supreme Court opinion.

You are ignoring Rehnquist's rejection of Stevens' functionalist approach in Padilla and the fact that Hamdan, as decided by the panel with Roberts on it, engaged in no such functionalist analysis. The question, also, was whether Rasul was read narrowly or broadly, not whether courts merely cited to it. My point is that Rasul is being cited to, but it is being applied as if Eisentrager is still the law.
11.15.2005 1:52pm
Jack John (mail):
And you can't possibly believe that Alito will vote for Stevens' functional analysis approach.
11.15.2005 1:55pm
Jack John (mail):
Oh, and Kelo got 5 votes too.
11.15.2005 1:55pm
Jack John (mail):
I will note that the conflict between corngrower and Medis is that corngrower thinks that in the absence of Congressional regulation, the President has indepdent power to do things. And to the extent that Congress has not historically exercised a power and the President traditionally and customarily has, it seems like a bit of a power grab for the Congress to start taking away power from the President under the guise of "specifying his duties." The President does not have a duty to Congress. He has a duty to the nation. He is an independent agent of the Constitution. It is true that Congress writes the laws, but, then again, it is the President who must sign them into law, or give them effect. He does have the veto. And it is the President who must execute them. The conflict is in Congress trying to assert what corngrower sees as an executory role. Not that I agree with corngrower...but his argument has merit.
11.15.2005 2:00pm
xx:
Jack John:

"Hmm, what you refer to isn't in the Constitution. It's in amendments to the Constitution that were drafted after the Founding."

It's the third sentence of the Constitution, dude. Not exactly buried.

"Besides, there is no federal right to vote, as Bush v. Gore noted."

This is a non-sequitur. "right to vote" is shorthand for rights governing permissible restrictions on the right to vote, and, in my opinion, a fair term to use on an internet chat board, in much the same way that I might say that censorship by a state government violates the First Amendment on a chatboard, even if that's not literally true.
11.15.2005 2:11pm
Medis:
Jack John,

As far as I know, neither Rehnquist nor Stevens cite Eisentrager or Rasul in Padilla. That is not surprising, because Padilla is a venue case, and just doesn't reach the relevant issue in Rasul and Eisentrager.

Judge Randolph's opinion for the DC Circuit in Hamdan specifically notes that Rasul had overruled this aspect of Eisentrager. He goes on to note, however, that Rasul did not overrule the holding of Eisentrager with respect to the Geneva Conventions.

I don't see how you are getting any undermining of Rasul out of these cases.
11.15.2005 2:11pm
Jack John (mail):
"right to vote" is shorthand for rights governing permissible restrictions on the right to vote, and, in my opinion, a fair term to use on an internet chat board,

Well, no. I took you to mean "a federal right to vote" because you said there was a right to vote in the federal Constitution. That is what I argued against. I noted that the equality provisions at issue in Bush v. Gore are in the 14th Amendment, which post-dates the Constitution. It isn't a non-sequitur; it's what we were arguing about.
11.15.2005 2:15pm
Medis:
Jack John,

Sorry, I forgot to address one point. Whether rendition places someone outside of the control of the United States for the purposes of statutory habeas seems to depend on the exact facts of the case. So, while it may be true that rendition in some cases could moot application of statutory habeas, that is not necessarily true in all cases. And the United States may not be able to get what it wants in all (or even many) cases by giving up control of its detainees.
11.15.2005 2:15pm
Jack John (mail):
Jack John,

As far as I know, neither Rehnquist nor Stevens cite Eisentrager or Rasul in Padilla. That is not surprising, because Padilla is a venue case


If you read Padilla, you'd note that Rehnquist and Stevens are having an argument about what kind of political philosophy to read into the Constitution when the answer isn't clear. Rehnquist clearly rejects Stevens "functionalist" approach, based on the analyzing the prerorgatives of the Crown. If you can't see it, I can't help you. But it really isn't hard to see.
11.15.2005 2:18pm
Jack John (mail):
Medis: Whether rendition places someone outside of the control of the United States for the purposes of statutory habeas seems to depend on the exact facts of the case.

No. That presumes the court gets review. The court doesn't have any jurisdiction if the detainee is in someone else's territory and under the functional control of someone else. And the same principles apply to venue within the United States. See Padilla.
11.15.2005 2:20pm
Jack John (mail):
Judge Randolph's opinion for the DC Circuit in Hamdan specifically notes that Rasul had overruled this aspect of Eisentrager.

I don't think that's an accurate reading of what is written there.
11.15.2005 2:21pm
Medis:
Jack John,

That strikes me as the equivalent of saying that every time Scalia or Thomas dissent on originalist grounds, all of their majority opinions which rely on originalist reasoning become bad law. The fact is that the Court simply does not address this issue in Padilla, because it was not presented by the case.
11.15.2005 2:22pm
Jack John (mail):
And, hey, what's with only addressing half of my statement? I said:


I haven't seen any indication that Stevens' view has been taken seriously by lower courts or by other branches of government. I mean, do you think Kelo is the law?


You're ignoring Senator Graham's amendment to the budget!
11.15.2005 2:25pm
Medis:
Jack John,

On rendition:

Right, the question is whether given the facts of a particular rendition case, the United States nonetheless retains sufficient control to trigger the application of statutory habeas. All I am suggesting is that this is fact-specific inquiry.

Here is the relevant language from Hamdan:

"This aspect of Eisentrager is still good law and demands
our adherence. Rasul v. Bush, 124 S. Ct. 2686 (2004), decided a different and 'narrow' question: whether federal courts had jurisdiction under 28 U.S.C. § 2241 'to consider challenges to the legality of the detention of foreign nationals' at Guantanamo
Bay. Id. at 2690. The Court’s decision in Rasul had nothing to say about enforcing any Geneva Convention. Its holding that federal courts had habeas corpus jurisdiction had no effect on Eisentrager’s interpretation of the 1929 Geneva Convention. That interpretation, we believe, leads to the conclusion that the 1949 Geneva Convention cannot be judicially enforced."

That seem perfectly clear to me.
11.15.2005 2:27pm
Jack John (mail):
That strikes me as the equivalent of saying that every time Scalia or Thomas dissent on originalist grounds, all of their majority opinions which rely on originalist reasoning become bad law.

Hmm, no, it isn't. They are addressing specifically how to determine what the functionality of the Crown is. My point is that such analysis, in constitutional precedent, is so narrowed by Padilla that applying it on the basis of Rasul to future cases would yield a result consistent with Eisentrager. You are simply evading my point by pretending I do not understand that the factual matrices of the cases were different.
11.15.2005 2:27pm
Jack John (mail):
Medis,

How does that langauge support your claim that Rasul overruled Eisentrager?
11.15.2005 2:29pm
Medis:
Jack John,

I'm not sure what your reference to Kelo is supposed to show. Obviously, you can't mean that all 5-4 decisions are not good law, so I'm not sure what is the special relationship between Rasul and Kelo, as opposed to Kelo and any other Supreme Court decision.
11.15.2005 2:30pm
Jack John (mail):
By contrast, it supports my contention that future courts have narrowed Rasul.
11.15.2005 2:30pm
Jack John (mail):
Medis,

I think you perfectly well understand my argument and are running from it. You know perfectly well that the Congress does not respect Kelo and many congresspersons think it is unconstitutional. That fits quite well with my prior statement: "I haven't seen any indication that Stevens' view has been taken seriously by lower courts or by other branches of government. I mean, do you think Kelo is the law?" I don't think Dred Scott was "the law" when it was decided, because it was wrongly decided. Your claim that a decision "got 5 votes" simply doesn't prove that it was rightly decided. That the decision isn't taken seriously is an indication that it was wrongly decided, that's all.

Furthermore, your quotation to Hamdan only proves my point that Rasul has been narrowed by further courts, not interpreted broadly. Hamdan preserved one part of Eisentrager. Rehnquist's majority opinion in Padilla so narrowed the usage of Stevens' functional analysis (which is used more broadly in Rasul) that one cannot say with certainty that it is the law. My point is that one could apply Rasul in the future using its functional analysis as narrowed by Padilla -- and that is what looks likely, as the SCOTUS nominee on deck ain't no Stevens, and lower courts have not been kind to Rasul, as your quote proves.
11.15.2005 2:36pm
Jack John (mail):
Furthermore, Republican congresspersons just passed Graham's amendment and rejected Bingaman's admendment to that!
11.15.2005 2:38pm
Jack John (mail):
The gears are turning toward getting rid of whatever remains of Rasul.
11.15.2005 2:39pm
Medis:
Jack John,

On Padilla:

I really don't understand your claim. I guess you think it is obvious, but I don't see how Padilla addresses the issues in Eisentrager and Rasul, and apparently neither did Rehnquist or Stevens. Indeed, the issue in Padilla is incredibly narrow: they all agree on the general rule (the immediate custodian rule), and the only issue is whether given the circumstances and timing of Padilla's transfer, the "special circumstances" exception to this general rule applies.

On Hamdan: What do you think Randolph means when he writes, "This aspect of Eisentrager is still good law"? What is the other aspect of Eisentrager that is not still good law?
11.15.2005 2:39pm
Jack John (mail):
On Hamdan: What do you think Randolph means when he writes, "This aspect of Eisentrager is still good law"? What is the other aspect of Eisentrager that is not still good law?

If I say I like oranges, it does not mean I hate apples.

On Padilla: Here, I will go find a good quote. Hold on to your panties.
11.15.2005 2:42pm
Tom Holsinger (mail):
Congress is filling a power vacuum created by Bush's failure to act by having military tribunals try and sentence some of the the unlawful combatants held at Guantamano, or to defend the Executive branch from encroachment by other branches in violation of constitutional separation of powers.

I am far more distressed by this proposed amendment to the defense appropriations bill than by the Supreme Court ruilng in Rasul v. Bush because Congress really does have jurisdiction here. Rasul v. Bush is vulnerable to defiance by the Executive branch because the majority was plain wrong on the law, violated separation of powers and, more importantly for public relations purposes, the Court contradicted itself that same day in either the Hamdi or Padilla decision on the geographic jurisdiction of the district courts in question. If Hamdi (or Padilla - I can't keep those decisions straight) had to refile his habeas petition in the district court jurisdiction where he was being held, the holding in Rasul v. Bush was wrong because Guantamano was not in the geographic jurisdiction of any district court.

So the President can prove, to the public, that the Supreme Court overreached itself on the law in Rasul v. Bush as well as violating separation of powers.

But Congress does have jurisdiction in this matter. This proposed amendment is constitutional, though disastrously unwise.

The only reason Congress is acting is that President Bush has utterly failed to assert Executive branch perogatives here. He won't defend his office, so the other branches of government are encroaching on it with impunity.
11.15.2005 2:42pm
Medis:
Jack John,

As I suggested above, Congress could actually reverse Rasul by statute at any time. Rather than doing that, however, they apparently just decided to create a narrow exception instead.

I think that actually undermines your view that Congress does not see Rasul as good law.
11.15.2005 2:43pm
Medis:
Jack John,

I don't understand your answer to my question about Hamdan. Randolph did not simply cite Eisentrager, but rather distinguished two different aspects of it.

But I suspect everyone else is finding this really boring, so I will stop.
11.15.2005 2:47pm
AnonLawStudent:
Has anyone given serious thought to the immense difficulty of proving allegations against an individual combatant? Should the United States be required to bring home two or three infantryman from Afghanistan so that they can testify "We were getting shot at from that building; when we went in, these two were the only people there?" This would be enormously disruptive to military operations. Not to mention the real world fact that, once the utility of taking prisoners is decreased sufficiently, we will likely see a dropoff in the number of prisoners and a corresponding increase in the enemy body count... Not nice, but that's the way the world works.
11.15.2005 2:48pm
Tom Holsinger (mail):
I just discovered that the lead editorial in today's Washington Post agrees that the real problem here is President Bush's abject failure to "perform his office" in this regard (the Post is next after Volkh on my list of IE favorites). Compare the first sentence from my post above with the Post editorial excerpt following it:
Me:

"Congress is filling a power vacuum created by Bush's failure to act by having military tribunals try and sentence some of the the unlawful combatants held at Guantamano."

The Post:

"If the administration were willing to set its detention policies on a better legal footing, a lot of the litigation would go away.

The military commissions provide an example. The administration announced the tribunals on the theory that war crimes suspects could not be tried in federal court or in the general courts-martial in which the military routinely tries soldiers accused of crimes. The commissions, as then-White House counsel Alberto R. Gonzales put it in an op-ed article, "can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals."

Four years later and thousands of miles from Afghanistan, not a single suspect has been tried. Only nine are facing charges. The commissions suffer from basic problems of fairness and of being a system built on the fly. They have, in all significant respects, failed."

11.15.2005 2:53pm
corngrower:
Medis;

So, I'm a little foggy. Congress can enact laws taking constitutuinal power away from the President? So, for instance can the President overrule the Judicial branch by Presidential decree? I guess my Jr High Social studies that taught me about three Brances of Govt not being able to Control each other is sooo 1970s. Can congress pass a law that takes away the athority of the President to appoint judges? I guess they could. Only one more than 1/2 of the House would have to agree and then 2/3 of the senate could overide a presidential Veto. I guess that the Republicans are in the cat bird seat to take over the govt next year. All they need are enough senators in the next election and Kaput the constitution no longer matters.
11.15.2005 2:54pm
Tom Holsinger (mail):
corngrower,

The general rule is that any two branches of the federal government can gang up on the third. A President can defy the Supreme Court, and challenge it to find him in contempt, if Congress refuses to take any action against the President on the matter.
11.15.2005 2:59pm
Jack John (mail):
No, Medis, I agree with Tom Holsinger, above. And it was Padilla, not Hamdi. Here is a quote from Rehnquist's majority opinion:


While Endo did involve a petitioner challenging her present physical confinement, it did not, as Padilla and Justice Stevens contend, hold that such a petitioner may properly name as respondent someone other than the immediate physical custodian. Post, at 7-8 (citing Endo as supporting a "more functional approach" that allows habeas petitioners to name as respondent an individual with "control" over the petitioner). Therefore, Justice Stevens concludes, the Government's alleged misconduct [which Justice Stevens classifies as a ‘secret transfer’] "justifies treating the habeas petition as the functional equivalent of one filed two days earlier."



Rehnquist is explicitly rejecting a functional approach to the cases, which was central to Rasul.

Tom makes this point more succinctly than I have:


the Court contradicted itself that same day in either the Hamdi or Padilla decision on the geographic jurisdiction of the district courts in question. If Hamdi (or Padilla - I can't keep those decisions straight) had to refile his habeas petition in the district court jurisdiction where he was being held, the holding in Rasul v. Bush was wrong because Guantamano was not in the geographic jurisdiction of any district court.


That's right, Tom. The geographic, or territorial approach, used in Padilla was from Eisentrager. The functional approach used in Rasul was rejected in Padilla, see the quote above.

On Hamdan: My point is that Hamdan is not overruling Eisentrager. It is narrowing Rasul. My point is not that Rasul did not claim to overrule Eisentrager; it is that Padilla narrowed Rasul, for the reasons above.

I would also note that the "secret transfers" that Stevens refers to in Padilla would have the same effect in a Rasul-type case with a rendition -- the Court, in Stevens' view, would treat the person as being within the functional control of the US because he was in US custody before he was rendered.
11.15.2005 3:00pm
corngrower:
AnonLawStudent. Yes. The law of unintended consequence. Catch em beat em shoot the in the head. Yes, Congress poking around where they dont belong will solve the prisnor issue. We dont have to hold them just beat them and kill em
11.15.2005 3:04pm
Jack John (mail):
No, Medis, you suggested that the Suspension Clause says that aliens have a constitutional individual right to habeas. That would be consistent with Stevens' functional approach. There is no proof that anyone in Congress agrees with it.
11.15.2005 3:11pm
Medis:
Anonlawstudent,

Status hearings and military trials in accordance with the Geneva Conventions have long been held during times of war, and the Brits have in fact been holding status hearings for all their detainees in this war. It isn't that hard in practice.

Tom,

Padilla actually limits its holding to avoid the conflict. The Court states: "Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." This all makes sense, because the motivating concern in Padilla is forum shopping. But that is not a problem when the detainee is outside the United States.

corngrower,

I don't understand your post. My point was that in providing laws on some subject, which the President must then faithfully execute, Congress is not taking power away from the President. Rather, when it makes laws, Congress is specifying the duties of the President as the executor of the laws.

And of course that is not an affront to the Constitution--indeed, it is how the basic structure of the Constitution works. This basic analysis does not change just because we are talking about Congress making laws to regulate war, as opposed to other laws within its enumerated powers.

Indeed, during the Revolutionary War, General Washington asked for, and received, Articles of War from Congress. As President, he asked the First Congress to ratify the Articles of War. By doing so, General, and then President, Washington was not trying to give up his role as Commander in Chief. Instead, he was asking Congress to play its part in regulating war.
11.15.2005 3:12pm
Jack John (mail):
This all makes sense, because the motivating concern in Padilla is forum shopping.

That is a mistatement of the case. By contrast, Rehnquist notes that there IS conflict and that the conflict poses an open question of law to be decided in future cases:


I would not decide today whether these habeas rules function more like rules of personal jurisdiction or rules of venue. It is difficult to describe the precise nature of these restrictions on the filing of habeas petitions, as an examination of the Court's own opinions in this area makes clear. Compare, e.g., Ahrens v. Clark, 335 U. S. 188 (1948), with Schlanger v. Seamans, 401 U. S. 487, 491 (1971), and Braden, supra, at 495. The precise question of how best to characterize the statutory direction respecting where the action must be filed need not be resolved with finality in this case. Here there has been no waiver by the Government; there is no established exception to the immediate-custodian rule or to the rule that the action must be brought in the district court with authority over the territory in question; and there is no need to consider some further exception to protect the integrity of the writ or the rights of the person detained.



So the question is still, does Stevens' functionalist approach apply in future cases. The indications suggest the answer is: NO. Read the bolded part.
11.15.2005 3:16pm
Jack John (mail):
No district court with authority = no review = no right.
11.15.2005 3:20pm
Medis:
Jack John,

Just FYI, I believe that you are quoting Justice Kennedy's concurrence in Padilla.
11.15.2005 3:22pm
Jack John (mail):
Nope, I'm not.
11.15.2005 3:24pm
Tom Holsinger (mail):
Medis,

Rasul tried to distinguish Eisentrager by saying that the latter concerned the constitutional habeas right as opposed to the statutory one, but the statutory one is quite specific about having to file within the geographic jurisdiction of the district court where the petitioner is being held. No federal statute that I know of gives the D.C. District Court habeas jurisdiction over the entire world outside the 50 states or the territories, all of which have their own district courts.
11.15.2005 3:25pm
Houston Lawyer:
Is there any provision in US law that prevents the military from remanding these prisoners over to jurisdictions (such as Iraq, Afghanistan, Egypt or Jordan) where they may tried for their crimes (under whatever procedures that may exist in such jurisdictions) and punished according to local law? At the end of WWII we returned countless thousands of refugees and prisoners of war over to the Soviets, who promptly shot them or sent them to the gulag. Are we in any way morally obligated to protect the terrorists in our custody from the legal consequences of their actions in the countries where they committed illegal acts? I would think not.

This whole Gitmo thing has become such a sideshow and the proposed legislation will just add more clowns to the three-ring circus.
11.15.2005 3:25pm
Medis:
http://straylight.law.cornell.edu/supct/html/03-1027.ZC.html

For future reference, the use of "I" is a real tipoff.
11.15.2005 3:25pm
Kirk Huntington (mail):
Medis,

I have read this debate with some interest, but your latest attempt at evasion strikes me as quite ridiculous, in all candor. What difference does it make if the last paragraph "Jack John" quoted is from Kennedy's concurrence? Jack John earlier quoted from Rehnquist, who expressly rejects Stevens' functionalist approach. Rehnquist, God bless him, is dead, but that rejection is still the law.

Let's say it does make a difference? Is it one in your favor? Kennedy, in contrast to Rehnquist, is alive, and voted with Rehnquist specifically because he believed that "there is no established exception ... to the rule that the action must be brought in the district court with authority over the territory in question." That is an even stronger case for Jack John's position: because Kennedy is now the swing vote on a closely-divided court.

I mean, give it up, man.
11.15.2005 3:31pm
Medis:
Tom,

Actually, the statute doesn't use the word "geographic".
11.15.2005 3:33pm
Jack John (mail):
Tom: No federal statute that I know of gives the D.C. District Court habeas jurisdiction over the entire world outside the 50 states or the territories, all of which have their own district courts.

But Tom, if the Suspension Clause vests aliens with a constitutional right to habeas, and our constitution's habeas provision is UNIVERSAL LAW, then it does! This is why I said to Medis earlier: our Constitution does not set out universal law. Sigh.
11.15.2005 3:34pm
Al Maviva (mail):
Wow. Lot's of big brains here. Maybe somebody can answer this question for me.

The U.S. military captures an AQ fighter on the battlefield. The big brains seem to be in agreement that it's wrong to hold the person indefinitely. Okay, I'm cool with that. What should we do with the person to dispose of his case?

1) A trial in U.S. courts is forbidden under the Geneva Conventions. Assuming the person has status as some kind of lawful combatant - something the big brains seem to believe - then we can't put him in the courts. It's not like providing scientific and sporting equipment admonitions in the Conventions, it's a clear "though shalt not."

2) Okay, fine. Let's repatriate them. But consider that most of the nations that the AQ fighters come from - including America, apparently if I believe the big brains - will torture the AQ fighters if they are repatriated. That's against the UN Convention Against Torture etc., which has been encoded into U.S. law.

So what do we do with them? Seriously, what do we do? Do we put them into the immigration system and let them amble about Manhattan? Treat them as political asylum seekers, since most countries in the world would persecute them for their political views? I'm being a little flip here, but I'd like to know what the big brains suggest.
11.15.2005 3:40pm
Jack John (mail):
Is there any provision in US law that prevents the military from remanding these prisoners over to jurisdictions (such as Iraq, Afghanistan, Egypt or Jordan) where they may tried for their crimes (under whatever procedures that may exist in such jurisdictions) and punished according to local law?

If you follow Steven's functionalist approach, yes. You can pretend that because we had them before we gave them to someone else, they are still within our control. If you think that Padilla rejected Stevens' functionalist approach, that Hamdan further narrowed Rasul, that the Congress is further gutting what is left of Rasul, and that Alito would reject Stevens' functionalist approach as well, then the answer is NO.


At the end of WWII we returned countless thousands of refugees and prisoners of war over to the Soviets, who promptly shot them or sent them to the gulag. Are we in any way morally obligated to protect the terrorists in our custody from the legal consequences of their actions in the countries where they committed illegal acts? I would think not.


Yes, and we did that under Eisentrager. Ahem.
11.15.2005 3:41pm
David M. Nieporent (www):
What difference does it make if the last paragraph "Jack John" quoted is from Kennedy's concurrence?
Because statements from concurrences don't represent the law?
That is an even stronger case for Jack John's position: because Kennedy is now the swing vote on a closely-divided court.
That would be fine, if the question under discussion were "What's your prediction as to how the Supreme Court is likely to rule on this question in the future?" Medis appears to be addressing the question of what the law currently is. Any district court judge who decided to ignore Rasul based on Jack John's argument that Padilla had somehow circuitously overruled it by taking a different "approach" to a different issue before it would be slapped down by the Court of Appeals.
11.15.2005 3:41pm
Jack John (mail):
What should we do with the person to dispose of his case?

Render them to a country that tells us they won't torture him. And trust that country. Wink. Nod.
11.15.2005 3:42pm
Jack John (mail):
D. Nierpont: Because statements from concurrences don't represent the law?

That would be true if we were talking about a piece of the concurrence that didn't agree with Rehnquist's decision. But what I quoted was this: "there is no established exception to the rule that the action must be brought in the district court with authority over the territory in question." If there is no established exception, there is no established exception. That's a statement of fact about what is the state of the law, even though it is not a legal holding. Either is it true or not. My argument is that it is true.

I think you would agree, no?

BTW, Holmes famously argued that the law is made up of predictions, so it's not some loony view.
11.15.2005 3:46pm
Medis:
Kirk,

I wasn't trying to address the substance of Jack John's post. As I previously noted, I don't think Padilla reaches the relevant issue in Rasul, and thus I don't think the dispute between Rehnquist and Stevens in Padilla is particularly relevant to that issue. I really was just noting for Jack John's information that he had started quoting from Kennedy's concurrence.
11.15.2005 3:48pm
Jack John (mail):
Medis appears to be addressing the question of what the law currently is. Any district court judge who decided to ignore Rasul based on Jack John's argument that Padilla had somehow circuitously overruled it by taking a different "approach" to a different issue before it would be slapped down by the Court of Appeals.

Hmm, I never said all of that! I think the Supreme Court, or any other court could say that the functionalist approach is not the way to read the cases, and cite Padilla to that effect. That would not dispose of the case; it would only answer the question of what appraoch to take. They could also cite to Hamdan to say that Rasul's application is not as broad as was originally thought, and so cannot be relied upon broadly. Finally, they could argue that it was further gutted by Graham's bill, if it passes, and so is no longer good law, at all.

Medis is not addressing what "the law is" -- Medis is someone who posited that the Suspension Clause gives aliens individual constitutional rights. What a crock.
11.15.2005 3:51pm
Kirk Huntington (mail):
Medis: I wasn't trying to address the substance of Jack John's post. As I previously noted, I don't think Padilla reaches the relevant issue in Rasul, and thus I don't think the dispute between Rehnquist and Stevens in Padilla is particularly relevant to that issue.

1. Then bringing it up is irrelevant...?
2. Everyone who can read can see that Padilla and Rasul do not share the same facts. Jack John says that. You are doing yourself and your own argument a disservice by evading the question. Jack John has made clear that the question is not whether courts cite to Rasul, but how broadly they interpret it. He (?) has made a strong case that it is interpreted narrowly for specific reasons, and will likely be interpreted narrowly in the future. Congress seems poised to erase it from our precedent, which means Padilla's rejection of the functionalist approach will stand. In that world, the piece of Eisentrager that was salvaged by Hamdan and the approach in Padilla that was borrowed from Eisentrager suggest, as others here have impliedly argued, that Eisentrager would be, well, resurrected, in totality. That would be the practical impact of Graham's bill. So it is quite disingenous to say that Rasul is good law: Justices have narrowed it, judges have narrowed, and Congress is seeking to eradicate it. As Jack John says, all indications suggest it was wrongly decided on the day it was decided, just like Dred Scott. Why don't you respond to that?
11.15.2005 4:00pm
Tom Holsinger (mail):
Two points to note are that the Supreme Court does not deem itself bound by its own rulings. This is apparent when comparing the geographic jurisdiction rulings in Rasul and Padilla.

What is more important is that the Court no longer bothers to overrule its past decisions when it contradicts itself like this. Rather it just "grandly ignores" such conflicts, as Judge Posner has noted.

This practice has the effect of making the Supreme Court and the law less predictable. The Defense Department chose Guantamano as a location for holding unlawful combatant foreign prisoners in the belief that the location was not subject to habeas jurisdiction, relying on Eisentrager for the constitutional writ of habeas corpus, and the plain wording of the habeas statute for the statutory writ.

The holding in Rasul came as a most unwelcome surprise for the Executive branch. It was a straightforward power grab by the Supreme Court. It should have elicited defiance by the Bush administration but, as we have repeatedly seen, the Bush administration runs from a fight and can be bullied.

This has now led to Congress getting in on the act - if the Supreme Court can trample on separation of powers at the Executive branch's expense, so can Congress. The Graham amendment is a perfect example.

Walter Russell Mead noted in his Special Providence that a failure of executive branch will in prosecuting a war effectively will cause a major drop in public support for the war. This Bush administration is getting there. You can find an early edition chapter of Mead's chapter on the Jacksonian tradition at Steve den Beste's web site below, followed by my excerpts of its most pertinent parts to this legal discussion:

http://denbeste.nu/external/Mead01.html


"For the first Jacksonian rule of war is that wars must be fought with all available force. The use of limited force is deeply repugnant. Jacksonians see war as a switch that is either "on" or "off." They do not like the idea of violence on a dimmer switch. Either the stakes are important enough to fight for—in which case you should fight with everything you have—or they are not, in which case you should mind your own business and stay home. To engage in a limited war is one of the costliest political decisions an American president can make—neither Truman nor Johnson survived it."

"... While projected casualty figures like these
[for the invasion of Japan] led a number of American officials to argue for modification of the unconditional surrender formula, Secretary of State James M. Byrnes told Truman that he would be "crucified" if he retreated from this formula—one that received a standing ovation when Truman repeated it to Congress in his first address as president. Truman agreed—wisely. His efforts to wage limited war in Korea cost him re-election in 1952. Similarly, Lyndon Johnson’s inability to fight unlimited war for unconditional surrender in Vietnam cost him the presidency in 1968; Jimmy Carter’s inability to resolve the Iranian hostage crisis with a clear-cut victory destroyed any hope he had of winning the 1980 election; and George Bush’s refusal to insist on an unconditional surrender in Iraq may have contributed to his defeat in the 1992 presidential election. For American presidents, MacArthur is right: there is no substitute for victory."
11.15.2005 4:02pm
Medis:
Al Maviva,

Just an aside, but the Geneva Conventions allow trials for both ordinary crimes and war crimes. So your AQ detainee could well be subject to a trial and conviction for some crime.
11.15.2005 4:03pm
Brian G (mail) (www):
Yeah, they are all innocent sheep farmers. I have a little more confidence and respect in the ability of our troops than many here have obviously.
11.15.2005 4:07pm
Olen Jackson (mail):
Good Law: A case, statute, regulation, or other legal authority that retains its value as precedent. For example, a case that has never been reversed or overruled is likely to be “good law,” although many cases lose their precedential value over time by being distinguished or criticized in subsequent decisions. Note that if a subsequent decision negatively impacts only one point of law in a case, then only that particular point will become bad law, while other points of law in the case may remain “good law.”

Rasul probably doesn't have full precedntial value, folks.
11.15.2005 4:09pm
Medis:
Tom,

I've already addressed the substance of Jack John's claims about Padilla and Hamdan--not to his satisfaction, or yours apparently, but I don't see much point in just repeating my arguments. To briefly summarize, I don't think either Padilla or Hamdan narrows Rasul in anyway, nor do I think they resurrect any relevant part of Eisentrager. I also think this latest amendment to the habeas statute actually ratifies the holding of Rasul while carving out a limited exception.
11.15.2005 4:10pm
Jack John (mail):
Medis then: I wasn't trying to address the substance of Jack John's post.

Medis now: I've already addressed the substance of Jack John's claims about Padilla and Hamdan

Uh, when? You just said you weren't trying to.
11.15.2005 4:13pm
Kirk Huntington (mail):
Medis: I also think this latest amendment to the habeas statute actually ratifies the holding of Rasul while carving out a limited exception.

Then why did the Senate reject the Bingaman adendment to it (which was drafted to save Rasul)? And why is the Bush administration (which hates Rasul) happy with the Graham amendment?
11.15.2005 4:16pm
Medis:
Olen,

Again, I don't see how any subsequent case has overruled any part of Rasul. In Padilla, there just isn't any overlap of actual issues, and as I have noted before, they don't even cite to Eisentrager or Rasul in Padilla. And Hamdan talks about how much of Eisentrager survived Rasul, not the other way around.
11.15.2005 4:17pm
Medis:
Jack John,

Before that post, of course.

Kirk,

I am referring to the Graham-Levin compromise.
11.15.2005 4:19pm
Tom Holsinger (mail):
Al Maviva,

We're not talking about lawful combatants. The subject is only the unlawful variety. They have no rights under the Geneva Convention save not to be treated too harshly, and to really expedient military trials of the sort Skorzeny's Nazi commandoes got during the 1944 Battle of the Bulge. My late uncle Virgil was an MP captain in the 1st Army at the time and was briefed on the procedure to follow for such expedient trials, which he repeated to me 40 years later:

The first priority was limiting the damage by the German commandoes (finding some means others are likely around), and the second was to obtain any useful intelligence. Only when those missions were performed was terminal action to be taken with captured commandoes, and then higher ups had to approve convening of a tribunal of available officers. Everyone knew the tribunals would have one outcome.

There was no formal court, i.e., no one from JAG would participate unless one happened to be available by happenstance, there was no formal prosecutor and certainly no defense advocate. The commanding officer of the group holding the prisoner(s) would designate certain officers (at least three and generally no more than six) who weren't percipient witnesses to sit on the tribunal and often chair it himself (his choice). The only requirements for the tribunal were that it had to have a presiding officer, the members had to be officers who weren't witnesses, and they had to keep a written record of the proceedings.

The tribunal's ranking officer was supposed to question the witnesses, and the other members of the tribunal could too but didn't have to. The nominal purpose of the questioning was to establish that the accused was not a member of the American forces and was in violation of the rules of war, notably by being an enemy combatant wearing an American uniform. The accused had an opportunity to speak for himself on the charges.

Conviction was a certainty as otherwise the tribunal would not be formed at all. Then the accused would be shot by firing squad.

Something between 10 and 30 of Skorzeny's commandoes were tried and executed by American forces in this fashion during the Battle of the Bulge.

These expedient World War Two trials of captured German soldiers found to be unlawful combatatns is appropriate precedent for the kind of expedient military tribunal which the prisoners at Gitmo could get. I expect more formalities as a practical matter.

Note that merely being an unlawful combatant merits the death penalty for the Gitmo prisoners, as was the case with Skorzeny's captured commandoes during The Bulge.
11.15.2005 4:23pm
Olen Jackson (mail):
Medis: In Padilla, there just isn't any overlap of actual issues,

I mean, that depends on your reading of the cases. It is pretty clear in Padilla that you can't read the cases in a functionalist way. If you don't read Rasul in a functionalist way, then it is... Eisentrager. That's a pretty basic argument.

Why should we trust your read of the "actual issues"? You did say something or other about aliens having fundamental rights because of the Suspension Clause, which makes not one iota of sense.

You also did just claim that the Graham amendment "ratifies" Rasul; but the facts refute that claim. It is true that the Bush administration is pleased with the Graham amendment because it smashes Rasul apart. It is also true that there is a letter of 350 legal scholars who want to save Rasul who were urging Congress to adopt Bingaman's amendment, which the Senate rejected earlier today. I'm afraid the facts do not support your claims or your interpretations. Check out balkin.blogspot.com.
11.15.2005 4:23pm
Jack John (mail):
Medis: Jack John, Before that post, of course.
That is a lie. You outright said you weren't trying to respond to my arguments. THEN, you said you had already responded to them, with no responses to the substance of my claims in between. You evaded my arguments, as more than one person on here has pointed out. If it quacks like a duck, and looks like a duck, and call itself Medis...
11.15.2005 4:26pm
Medis:
Olen,

As a general principle, you might want to double-check Jack John's characterizations of my prior statements.

On Padilla: as I have noted before, I don't think you can read Padilla as rejecting "functionalism" in every other Supreme Court case. The issues in both Padilla and Rasul are narrow, and they do not overlap. A rejection of a "functionalist" approach in one such case is not a rejection of a "functionalist" approach in another such case, nor vice-versa.

On the latest amendment: again, I direct your attention to the Graham-Levin compromise, as opposed to the original Graham Amendment.
11.15.2005 4:29pm
Kirk Huntington (mail):
1. The Bingaman amendment was submitted to save Rasul even after the Graham-Levin compromise was on the table. So it can't be true that the Graham-Levin compromise saves Rasul. That's just wrong. I'll also note that the Bush administration has not withdrawn its support of the Graham amendment.

2. Levin's additions to Graham are minimal at best. The review is predicated on the sentence: if death or over 10 years, then gotta review. If less than 10 years, discretion, but still the presumption that the government is right. Which means the court will in all likelihood defer so long as the detainees are held less than 10 years. That is not an ratification of Rasul. That's effectively no review -- all you have to do is render them elsewhere in 9 years, or declassify them as enemy combatants and you can detain them indefinitely.
11.15.2005 4:34pm
Olen Jackson (mail):
As a general principle, you might want to double-check Jack John's characterizations of my prior statements.

I did. I think he's right and you're wrong. It seems I am in good company.


On Padilla: as I have noted before, I don't think you can read Padilla as rejecting "functionalism" in every other Supreme Court case.


I don't think Jack John makes that argument at all. Are you calling me stupid for being persuaded by his arguments?
11.15.2005 4:37pm
Jack John (mail):
I don't think you can read Padilla as rejecting "functionalism" in every other Supreme Court case.

You might want to watch mischaracterizing other people's statements, Medis.
11.15.2005 4:38pm
madisonian (mail):
Jack John:

Your claim that Justice Kennedy's opinion in Padilla is inconsistent with Rasul doesn't hold up. The two opinions (issed on the same day, after all) can readliy be reconciled. When the habeas petitioner is held inside the U.S. (as in Padilla), the ordinary "immediate custodian" rule applies. But, under Rasul, there is an "established exception" to that rule for those held outside the United States; such prisoners can sue a custodian higher up the ladder (such as the Secretary of Defense). Indeed, this is exactly the point that Kennedy makes in his concurring opinion: "When an exception applies, see, e.g., Rasul v. Bush, post, p. ___, courts must still take into account the considerations that in the ordinary case are served by the immediate custodian rule, and, in a similar fashion, limit the available forum to the one with the most immediate connection to the named custodian." Kennedy is not rejecting Rasul's functionalist approach; he is simply saying that it doesn't apply where the prisoner is held within the United States. His observation does nothing to case doubt on, or otherwise diminish, the holding of Rasul.
11.15.2005 4:39pm
Medis:
Kirk,

1. I don't follow your argument. Why can't two different amendments have some overlapping attributes?

2. The original Graham Amendment provided only for review of status hearings, and then only for compliance with DOD procedures. The Graham-Levin compromise allows for review of final decisions of military commissions as well, and under both kinds of review includes compliance with federal law and the U.S. Constitution. I think it is obvious how much narrower this becomes as an exception to habeas review.
11.15.2005 4:44pm
Medis:
Olen,

Of course I am not calling you stupid, nor for that matter was I characterizing Jack John's views. Instead, I was actually describing my own argument. But as I have noted to Jack John, there is nothing quite so boring as arguing about what someone has said in the past.
11.15.2005 4:48pm
madisonian (mail):
But as I have noted to Jack John, there is nothing quite so boring as arguing about what someone has said in the past.

Tell that to Scooter Libby and Pat Fitzgerald!
11.15.2005 4:51pm
Jack John (mail):
Jack John:

Your claim that Justice Kennedy's opinion in Padilla is inconsistent with Rasul doesn't hold up.

I don't think so. He certainly says that the functionalist approach does not apply within the United States. He then says that "courts must still take into account the considerations that in the ordinary case are served by the immediate custodian rule, and, in a similar fashion, limit the available forum to the one with the most immediate connection to the named custodian."

Let's read that mocre carefully. When there is no properly named custodian, i.e., the facility where the detainee is held is under the control of, e.g., Egypt, and that facility is in Egypt, then Rehnquist's majority opinion controls. Rehnquist's majority opinion, which is the law, rejects the functionalist approach. Where there is no forum with any immediate connection to a properly named custodian, then it is unclear whether the functionalist approach applies. The suggestion is that the answer is NO. Nothing in Kennedy's concurrence suggests that the answer is YES. That is why it is a concurrence, and why he did not join Stevens in dissent.

Under Stevens' functionalist approach, if you rendered the detainee to Egypt, and he is held in Egypt now in a prison controled by Egyptians, we can pretend that Rumsfeld is the properly named custodian, because Rumsfeld once had control over him. Do you think Kennedy's concurrence signs onto that? No way.
11.15.2005 4:52pm
Medis:
madisonian,

Excellent point. Although I suspect much of the trial will be less than dramatic.
11.15.2005 4:52pm
Olen Jackson (mail):
I think it is obvious how much narrower this becomes as an exception to habeas review.
Where is the proof that this is an EXCEPTION to habeas review. Where is the proof that habeas review is the RULE for alien detainees held outside of the United States and outside of the functional control of American officials? Is it in the Suspension Clause, as you claimed before...just like Jack John said you did?
11.15.2005 4:55pm
Medis:
Jack John,

There are two different issues in your hypothetical rendition case. One is whether given the facts of the case, the detainee is under the control of the United States for the purposes of the habeas statute. The other issue is in what District Court may the detainee bring his petition.

Why do you think that Padilla, rather than Rasul, controls the first question?
11.15.2005 4:57pm
Kirk Huntington (mail):
Kirk,

1. I don't follow your argument. Why can't two different amendments have some overlapping attributes?


The Bush administration doesn't think they do. Neither do 350 law professors. Neither did the Senate, which rejected one and accepted the other. Maybe your argument makes sense in your own head. But not to everyone else.
11.15.2005 4:58pm
Tom Holsinger (mail):
madisonian,

You've mixing apples and oranges. Constitutional habeas corpus is not the same as statutory habeas corpus. The distinctions Justice Kennedy was making apply to constitutional habeas corpus, but not to statutory habeas. Medis' explantion is rather simple - the statute does not explicitly forbid extra-territorial jurisdiction, so it must impliedly permit it. That's not legal reasoning.

The majority holidng in Rasul v. Bush, like too many Supreme Court rulings in the past 10-20 years, played fast and loose with the law to achieve the results which the majority desired. This reduces respect for the law and the Court.

And it produces fear, uncertainty and doubt. The Supremes have, in Thomas Moore terms, been trampling on the law to get at the Devil, and in the process convincing more and more of the public that judicial independence has become judicial arbitrariness and even tryanny.

And, in my opinion, that whole process started with Roe v. Wade. That was issued when I was in law school and, while I then and still do agree with the outcome as a reasonable compromise, the reasoning was terrible. I still support legalized abortion on the terms set in Roe, but IMO Roe v. Wade was wrongly decided and needs to go.

I see a continuing pattern of error, steadily increasing arbitrariness and even misconduct extending from Roe v. Wade to Rasul v. Bush. The latter was the last straw for me - I feel the Supreme Court has gone off the rails.
11.15.2005 5:03pm
Jack John (mail):
Why do you think that Padilla, rather than Rasul, controls the first question?

I think that like anyone else who understands the case well enough to argue address the substance of my argument, e.g., madisonian, recognizes how the cases intertwine. Stevens understands it, and seeks a uniform functionalist approach for both cases. Kennedy likewise sets up a doctrine that deals with both cases. Reading the cases as though they do not bear on each other is simply incoherent, which, as madisonian and Tom noted, is why they were issued on the same day. Depending on your view of things, it's Rehnquist's masterful way of gutting Rasul by implication, or the Court avoiding the belief that such a sub silentio overruling had occurred, as madisonian believes Kennedy was explaining in his concurrece. But you simply can't ignore the issue. It is there. To do so is to succumb to incoherence.
11.15.2005 5:03pm
Medis:
Olen,

Both the Graham Amendment and the Graham-Levin compromise amendment modify the habeas statute, adding a subsection (e) to Section 2241 which provides that the courts shall not have jurisdiction to hear habeas petitions from alien DOD detainees at Gitmo. As I have suggested, insofar as the Graham-Levin compromise then affords considerably more judicial review to alien DOD detainees at Gitmo, it narrows the sense in which subsection (e) is an exception to habeas review.

I might note, once again, that we are talking about statutory habeas.
11.15.2005 5:08pm
Jack John (mail):
Ah, thanks, Tom. I thought Medis was making a constitutional argument. Now that I realize he is just misreading the statute and the cases, I will stop arguing with him.
11.15.2005 5:08pm
Jack John (mail):
I might note, once again, that we are talking about statutory habeas.

Well, you started off by mentioning the Suspension Clause. Have you now dropped that argument?
11.15.2005 5:09pm
Medis:
Hmm ... it seems an entire chorus of commentators is prepared to offer arguments in my name, and then point out to each other how bad they think those arguments are.

Well, carry on gents.
11.15.2005 5:10pm
Tom Holsinger (mail):
I agree with Medis about the functional distinction between the original Graham amendment and the current Graham-Levin (Levine?) compromise (my emphasis on Medis' points below). I suspect we completely disagree on the latter's desirability. I feel the current compromise version is absolutely disastrous - the term for it is "lawfare".


"2. The original Graham Amendment provided only for review of status hearings, and then only for compliance with DOD procedures. The Graham-Levin compromise allows for review of final decisions of military commissions as well, and under both kinds of review includes compliance with federal law and the U.S. Constitution. I think it is obvious how much narrower this becomes as an exception to habeas review."
11.15.2005 5:12pm
Kirk Huntington (mail):
I still think that Levin's additions to Graham are minimal at best. The review is predicated on the sentence: if death or over 10 years, then gotta review. If less than 10 years, discretion, but still the presumption that the government is right. Which means the court will in all likelihood defer so long as the detainees are held less than 10 years. That is not an ratification of Rasul. That's effectively no review -- all you have to do is render them elsewhere in 9 years, or declassify them as enemy combatants and you can detain them indefinitely.

You're assuming that Graham and Levin honestly want review. Levin might. Or maybe Graham just wants cover for the administration and is willing to agree to terms that allow cover.
11.15.2005 5:13pm
Medis:
Kirk,

I agree that with respect to final military commission judgments, in practice a lot will depend on how the DC Circuit exercises its discretionary review. But I would again note that this entire category of review did not exist under the original Graham Amendment. I'd also note that the additional grounds for review of status hearings could be quite significant.
11.15.2005 5:19pm
madisonian (mail):
Jack John:

For a judicial refutation of your argument, you may want to check out Judge Bates' decision in the Abu Ali case, holding that the federal court in DC had jurisdiction to entertain a habeas petition brought a detainee held in Saudi Arabia by the Saudis, who were allegedly acting at the behest of the USG.

http://www.dcd.uscourts.gov/04-1258.pdf

That said, I agree with you that in most cases a prisoner handed over to a third country will probably be precluded from filing a habeas petition in the United States. That result flows not from Padilla, but instead from the language of section 2241, which requires that the petitioner be in custody "under or by color of the authority of the United States." If the US had custody over the detainee, but then truly relinquished custody to a third country, such that it is no longer involved in the detention, the habeas statute should not apply. On the other hand, however, if (as in Abu Ali), the USG is secretly managing the detention of a prisoner who is formally being held by another country, the "by color of" language in section 2241 would seem to allow a US court to hear a petition. In such a case, Rasul, rather than Padilla should control (as Judge Bates concluded), because the circumstances of the detention would call out for an exception to the "immediate custodian" rule.
11.15.2005 5:22pm
Kirk Huntington (mail):
If it depends in practice on how the DC Circuit exercises its review, then it does come down to predictions, much as Jack John was saying. If we assume that the military commissions simply assign sentences of 9 years, or do not classify persons as "enemy combatants," to evade status review hearings, and have free reign to change living conditions in degrading, inhumane, and cruel ways (which cannot be challenged), and then shuffle these people off to Egyptian jails with Egyptian guards controlled by Egypt after Egypt assures us these people won't be tortured...how exactly has a different legal regime been established than the one under Eisentrager? if Rasul was supposed to change things, how have things changed? Get it now?
11.15.2005 5:23pm
Jack John (mail):
because the circumstances of the detention would call out for an exception to the "immediate custodian" rule.

Thanks, someone understands my argument. Yeah, the "calls out" part is the problem I have. That's a judicial determination, whether there is "calling out" isn't it? And that depends on how much judges respect Rasul, right? And if they don't, they can refuse to find an exception and say the case is more like Padilla than Rasul, right? So, really, the background rule is Eisentrager, except for judges who share Stevens' view of things. That's my point.
11.15.2005 5:27pm
madisonian (mail):
You've mixing apples and oranges. Constitutional habeas corpus is not the same as statutory habeas corpus. The distinctions Justice Kennedy was making apply to constitutional habeas corpus, but not to statutory habeas.

I don't think so, Tom. Kennedy's concurring opinion in Padilla is clearly addressed to statutory habeas (i.e., the meaning of sections 2241 and 2242). The first sentence of the opinion makes this quite clear: "Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court's holding."

It's certainly possible to read Kennedy's concurring opinion in Rasul as being about constitutional habeas, but the meaning of that opinion was not what Jack John and I were debating.
11.15.2005 5:31pm
Jack John (mail):
It's certainly possible to read Kennedy's concurring opinion in Rasul as being about constitutional habeas, but the meaning of that opinion was not what Jack John and I were debating.

Well, not directly. But I have been arguing that you can read the statute only so far because there is a constitutional backdrop of permissibility that is quite expansive. I certainly didn't say you can read one case without examining its implications in the other; I said the exact opposite. Tom wasn't totally off. Be fair.
11.15.2005 5:33pm
Medis:
madisonian,

Very interesting find. I also found it quite ambiguous on what would happen if the petitioner was not a citizen, at least after a quick read.
11.15.2005 5:46pm
Tom Holsinger (mail):
Responses to Kirk, Medis and madisonian:

Kirk,

There is an enormous difference between judicial review of whether the military tribunal used the military standards in determining whether an unlawful combatant is properly classified as such, and judicial review of sentences of the prisoners for war crimes. As you implied, the only plausible sentence is a death penalty as otherwise we'd just hold them for the duration of hostilities, i.e., indefinitely until Congress says otherwise.

Medis rightly spotted the crucial distinction between a tribunal's finding of unlawful combatant status, and its imposition of a sentence upon him. The latter entails a review of more than just compliance with the tribunal's own procedure, i.e., the merits.

Medis,

And you are quite correct in noting that the "compromise" entails review of a finding of unlawful combatant status on the merits, i.e., more than mere compliance with the tribunal's own procedures.

madisonian,

You carefully avoided mentioning two points in the Abu Ali case. He is a U.S. citizen who was arrested in Saudi Arabia at American behest, and the habeas writ sought was constitutional, not statutory.

Do you have an explanation for these omissions which might save your credibility?
11.15.2005 5:46pm
Jack John (mail):
Tom,

Kirk does say "do not classify persons as 'enemy combatants,' to evade status review hearings". I think his point is that the military can avoid hearings on the merits by playing with classifications, i.e., the new rules are just more complicated hoops to jump through.
11.15.2005 5:49pm
Medis:
Tom,

I already noted the citizen issue, but why do you think it was a constitutional claim? The court does discuss constitutional habeas in Part II C, but expressly notes its jurisdiction in this case is statutory, and thus that it need not decide the constitutional issue. Indeed, the first sentence of Part II C is "The relevant text of the habeas statute, therefore, fully supports jurisdiction here."
11.15.2005 5:50pm
Jack John (mail):
Tom,
I would tend to think that it is an open question whether an alien under Abu Ali facts gets constitutional habeas, but the indication, as I have been arguing, is no.
11.15.2005 5:51pm
Medis:
Just an aside on status hearings: although we haven't talked about it much, the first part of the Graham-Levin compromise requires the SoD to report on status hearing procedures to Congress.
11.15.2005 5:53pm
Jack John (mail):
Medis,

Tom isn't I think saying that the case was decided on the baiss of constitutional habeas. He's saying that the petition was made on that basis. The courts are always open to hear constitutional habeas from a US citizen, unless habeas has been suspended, even if the case is decided on another basis, right?
11.15.2005 5:55pm
Kirk Huntington (mail):
Re: procedures hearings

When is the last time half of America tuned in to C-SPAN to watch a congressional hearing? Please. The status review procedures hearings will be full of lies and equivocations and no one will be watching, anyway. The military will just come up with procedures that shield it from scrutiny, and Republicans will back it so long as it churns out voters.
11.15.2005 5:57pm
Medis:
Jack John,

I didn't see anything in the opinion describing the nature of the petition. As far as I can tell, the government raised the jurisdictional issue, the petitioner responded with unspecified legal arguments, and the District Court held that it had statutory jurisdiction.
11.15.2005 6:00pm
Jack John (mail):
the petitioner responded with unspecified legal arguments

If he didn't raise constitutional habeas, please explain why the court would bring it up. Courts, well, non-activist courts, are in the habit of not raising issues, esp. constitutional ones, unless raised by the parties. Are you calling the Abu Ali court an activist one?
11.15.2005 6:02pm
madisonian (mail):
You carefully avoided mentioning two points in the Abu Ali case. He is a U.S. citizen who was arrested in Saudi Arabia at American behest, and the habeas writ sought was constitutional, not statutory.

Do you have an explanation for these omissions which might save your credibility?


Well, let's see. (1) If you were to actually read the court's opinion (paying special attention to pages 20-36), you would see quite plainly that the habeas writ sought by Abu Ali was, first and foremost, statutory. Although the court went on to address constitutional considerations as well, the opinion makes clear that this was unnecessary because "[t]he relevant text of the habeas statute . . . fully supports jurisdiction here." (p.37).

(2) Yes, Abu Ali was a U.S. citizen, but it's hard to see why that matters for purposes of a statute that (as Justice Stevens points out in Rasul, makes no distinction between citizens and non-citizens. See Rasul, 542 U.S. 466, 481 ("[T]he statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship.").

So, I think my credibility's still in tact.
11.15.2005 6:04pm
Jack John (mail):
-- The bill would appear to eliminate review -- on habeas, anyway -- for detainees found not to be "enemy combatants" by the Combatant Status Review Tribunals but who nevertheless remain in detention, and detainees who have not been evaluated by such tribunals but who are being held indefinitely.

-- The bill would appear to cut off habeas petitions for GTMO detainees contesting the conditions of their confinement (e.g., that they have been tortured or subjected to cruel, inhuman, and degrading treatment).

-- The bill appears to be limited to detainees at Guanatanamo, which ironically enough might give detainees elsewhere around the world greater habeas rights than GTMO detainees would have.

-- By eliminating all habeas peititons for GTMO detainees, would the bill end the Rasul/Al Odah and Hamdan cases? The final paragraph appears to be intended to preserve such cases, but it is very oblique.

-- If those cases are preserved, do they need to be re-filed in the U.S. Court of Appeals for the District of Columbia Circuit, under the new procedures -- and then only after a conviction?
11.15.2005 6:08pm
Jack John (mail):
This is not a ratification of Rasul.
11.15.2005 6:08pm
Medis:
Jack John,

As noted, the District Court clearly states that its constitutional discussion is unnecessary. I'm not sure why the District Court discusses it anyway. As a general matter, however, I know that district courts in controversial cases like to cover all the possible arguments because they know there is likely to be an appeal, and they want to avoid a remand in case the COA takes a different view on their central argument.

In any event, using your logic, the petitioners must have raised statutory jurisdiction as well.
11.15.2005 6:09pm
madisonian (mail):
If he didn't raise constitutional habeas, please explain why the court would bring it up. Courts, well, non-activist courts, are in the habit of not raising issues, esp. constitutional ones, unless raised by the parties. Are you calling the Abu Ali court an activist one?

I imagine that his lawyer raised both. Who really cares? The point here is that the court's decision clearly rest, first and foremost, on an analysis of the habeas statute. Just like Padilla and just like the Court's opinion in Rasul. I think these points are really incontestable.
11.15.2005 6:11pm
Medis:
madisonian,

For the purposes of our prior discussion of Padilla, I think it is most interesting how the District Court actually sees Padilla as supporting Rasul, insofar as Padilla recognizes foreign detentions as an exception to the immediate custodian rule (an exception which did not apply to Padilla).
11.15.2005 6:16pm
Jack John (mail):
I think it is most interesting how the District Court actually sees Padilla as supporting Rasul

when talking about US citizens.
11.15.2005 8:41pm
Tom Holsinger (mail):
I have to eat my words. They go well with crow.

Here's the crucial language from the Braden case (410 U.S. 498 at 497) cited in Abu Ali showing how the "within the jurisdiction" language in 28 U.S.C. 2241 has been so altered by Congressional amendment over the years as to create a clear statutory purpose justifying the distinction the Supreme Court made between its Rasul and Padilla decisions as to which district court statutory habeas petitioners must file in:

"But developments since Ahrens have had a profound impact on the continuing vitality of that decision. First, in the course of overruling the application of Ahrens to the ordinary case where a prisoner attacks the conviction and sentence of a federal or state court, Congress has indicated that a number of the premises which were thought to require that decision are untenable. A 1950 amendment to the habeas corpus statute requires that a collateral attack on a federal sentence be brought in the sentencing court rather than the district where the prisoner is confined. 28 U.S.C. 2255. Similarly, a prisoner contesting a conviction and sentence of a state court of a State which contains two or more federal judicial districts, who is confined in a district within the State other than that in which the sentencing court is located, has the option of seeking habeas corpus either in the district where he is confined or the district where the sentencing court is located. 28 U.S.C. 2241 (d). 12 In enacting these amendments, Congress explicitly recognized the substantial advantages of having these cases resolved in the court which originally imposed the confinement or in the court located nearest the site of the underlying controversy. 13 And Congress has further [410 U.S. 484, 498] challenged the theoretical underpinnings of the decision by codifying in the habeas corpus statute a procedure we sanctioned in Walker v. Johnston, 312 U.S. 275, 284 (1941), whereby a petition for habeas corpus can in many instances be resolved without requiring the presence of the petitioner before the court that adjudicates his claim. 28 U.S.C. 2243. See also United States v. Hayman, 342 U.S. 205, 222 -223 (1952)."

I was wrong. Medis and madisonian are correct.

The holding in Rasul v. Bush erred in several ways, but lack of geographic jurisdiction under the habeas statute was not one of them.
11.15.2005 8:50pm
Tom Holsinger (mail):
Before going on, the ruling in Abu Ali states, on page 12 of the *.pdf file link provided by Madisonian, that the petitioner asserted his constitutional habeas corpus right, plus various statutory ones.

Madisonian,

The various concepts and standards of extra-territorial jurisdiction for criminal offenses agree on one thing - every government can assert criminal jurisdiction over its own citizens for offenses committed in foreign countries. There is considerable disagreement about extra-territorial criminal jurisdiction over non-citizens for offenses committed abroad.

I.e., there is quite a bit of law around governing the relationships between governments and their citizens abroad. If the U.S. Government can assert criminal jurisdiction over American citizens abroad for offenses committed against non-citizens abroad, American citizens can claim Constitutional protection from detention abroad by their government. And both do.

Consider that you might err by reasoning from domestic cases concerning the applicability of 28 USC 2441 to non-citizens as well as citizens. It might be better to start by reasoning from international law.

I've been over this subject before. Here is a shameless link.
11.15.2005 9:05pm
Jack John (mail):
This case has nothing to do with aliens captured on battlefield and detained under the rationale of the Executive's War Powers. The case does not agree with your interpretation. Indeed, it reads Rasul only insofar as it applies to citizens.


Petitioners have provided evidence, of varying degrees of competence and persuasiveness,
that: (i) the United States initiated the arrest of Abu Ali in Saudi Arabia; (ii) the United States has
interrogated Abu Ali in the Saudi prison; (iii) the United States is controlling his detention in
Saudi Arabia; (iv) the United States is keeping Abu Ali in Saudi Arabia to avoid constitutional
scrutiny by United States courts; (v) Saudi Arabia would immediately release Abu Ali to United States officials upon a request by the United States government; and (vi) Abu Ali has been
subjected to torture while in the Saudi prison. The United States does not offer any facts in
rebuttal.
Instead, it insists that a federal district court has no jurisdiction to consider the habeas
petition of a United States citizen if he is in the hands of a foreign state, and it asks this Court to
dismiss the petition forthwith.
The position advanced by the United States is sweeping. The
authority sought would permit the executive, at his discretion, to deliver a United States citizen to
a foreign country to avoid constitutional scrutiny, or, as is alleged and to some degree
substantiated here, work through the intermediary of a foreign country to detain a United States
citizen abroad.
The Court concludes that a citizen cannot be so easily separated from his constitutional
rights. Earlier this year, the Supreme Court confirmed the fundamental right of a citizen to be free
from involuntary, indefinite confinement by his government without due process. See Hamdi v.
Rumsfeld, 124 S. Ct. 2633, 2647 (2004); id. at 2661 (Scalia, J., dissenting); see also Rasul v.
Bush, 124 S. Ct. 2686, 2692 (2004).
Abu Ali was not captured on a battlefield or in a zone of
hostilities
-- rather, he was arrested in a university classroom while taking an exam. The United
States has therefore not invoked the executive's war powers as a rationale for his detention --
instead, the United States relies on the executive's broad authority to conduct the foreign affairs of
the country as a basis to insulate Abu Ali's detention from judicial scrutiny.
11.15.2005 9:06pm
Jack John (mail):
I don't know why you would read this case as applying to alien detainees in Guantanamo, who were captured on the battlefield and are held there under authority of the Executive's War Powers.
11.15.2005 9:09pm
Jack John (mail):
What liars.
11.15.2005 9:09pm
Jack John (mail):
Tom: Consider that you might err by reasoning from domestic cases concerning the applicability of 28 USC 2441 to non-citizens as well as citizens. It might be better to start by reasoning from international law.

Exactly.
11.15.2005 9:10pm
Tom Holsinger (mail):
Jack John,

The Abu Ali ruling is pertinent only to show that the habeas statute is not limited to persons within the geographic jurisdiction of the place where they are being held. There is a clear practice of permitting the U.S. District Court for Washington D.C. to issusue habeas writs for persons held outside the geographic jurisdiction of any district court in the states or American territories.

I personally feel that at least the constitutional habeas writ should be so available to American citizens, and Abu Ali certainly alleged adequate constitutional violations. The totality of the circumstances showed that he was being held at the behest of the U.S. government.

Ali was not held as an enemy combatant by the Saudi government, nor was he "captured in arms". I don't have a problem with the ruling in his case.

I feel there are "bright line" differences between citizens and non-citizens, non-combatants and combatants, lawful combatants and unlawful combatants, and between persons "captured in arms" and not "not captured in arms".

Our domestic and foreign enemies try very hard to blur those distinctions. There might be a reason for that.
11.15.2005 11:08pm
CharleyCarp (mail):
Three quick points: (1) those arguing about a distinction between statutory and constitutional (shouldn't it be common law) habeas should address Chief Justice Marshall's opinion in ExParte Bollman; (2) those who want to talk about the impact of Graham/Levin should take into account that every prisoner in Gitmo has already had a CSRT under the old procedures; and (3) the claim that Gitmo prisoners were captured "on the battlefield" is only even remotely true if "on the battlefield" means "everywhere."

For extra credit, someone ought to address The Case of Seven Spanish Sailors, 96 Eng. Rep. 775 (K.B. 1779), and Rex v. Scheiver, 97 Eng. Rep. 551 (K.B. 1759). And don't forget the case that launched the American Revolution (you really thought it was about taxes on tea?), Sommersett's Case, 20 State Trials 1 (1772).
11.15.2005 11:16pm
CharleyCarp (mail):
I feel there are "bright line" differences between citizens and non-citizens, non-combatants and combatants, lawful combatants and unlawful combatants, and between persons "captured in arms" and not "not captured in arms".

Our domestic and foreign enemies try very hard to blur those distinctions. There might be a reason for that.


The government has tried hard to blur the distinction between "captured in arms" and "not captured in arms." Look at the facts on this one -- you can start with Judge Green's little old lady from Switzerland -- and you'll see who the real domestic enemy is here.

The government keeps its stats to itself, but when all's said and done, it will become very clear that a great many of the prisoners in Gitmo were not seized on, near, going towards, or going away from any battlefield, and a great many were not and have never borne arms against the United States. Way more likely, in addition to the tourists and wannabees, what we have down there are people who went ot take part in the Afghan civil war as an adventure, and fled to Pakistan as soon as the US got involved in that war. Pick up such a guy standing unarmed on a street corner -- begging for enough money to get home -- in Peshawar 2 months after he's fled Afghanistan and you might want to call him something, but captured under arms on the battlefield ain't it.
11.15.2005 11:26pm
Tom Holsinger (mail):
Carp,

I don't care if the prisoners at Gitmo were captured in arms or not - the only question about holding them indefinitely, for me, is if they are our enemies. Note that we hold no one at Gitmo whose own governments wanted them back. The definition of enemy combatants is pretty loose, and even General Order No. 100 of the federal army in the Civil War permitted trial in military courts, and execution, of civilians in zones of ongoing military operations who were found to be aiding the enemy.

Unlawful combatants under the GC may be executed at the captor's discretion just for the status of being unlawful combatants. Only those whose status as an enemy combatant is questionable need to have their status as such determined by a "competent tribunal" under the GC. As a pratical matter the U.S. has traditionally given enemy unlawful combatants far more procedural and substantive due process rights than required by the GC, and that is still more true of the current administration.

The discussion at hand, however, concerns the Lindsay Graham amendment as modified by his compromise with Senator Levin. There seems to be considerable agreement on what it means, even from me. I've just been howling that it is bloody dangerous and wrong. And I hope it dies in the House.

We were side-tracked for some time by my interjection that there was a geographic distinction between constitutional and statutory habeas corpus. madisonian convinced me that I was wrong.
11.16.2005 12:31am
Tom Holsinger (mail):
The Graham-Levin amendment would give full Constitutional protection to enemy unlawful combatants. The section on Scope of Review by the D.C. Circuit Court of appeals includes the following:
"(ii) whether subjecting an alien enemy consistant to such standards and procedures" [the ones used by military tribunals in trying and sentencing unlawful combatants] "is consistent with the Constitution and laws of the United States."
11.16.2005 2:40pm
Lowell Gattesburg (mail):
What is an enemy unlawful combatant? Or do you mean unlawful enemy combatant? What is the difference between an unlawful enemy combatant and a lawful enemy combatant? And do the protections apply to lawful enemy combatants, but not to unlawful enemy combatants? If they apply to both lawful and unlawful enemy combatants, and neither kinds of enemy combatants are prisoners of war, what is the difference? Is the burden of proof different?
11.16.2005 3:28pm
Tom Holsinger (mail):
Lowell,

Those portions of the Geneva Conventions ratified by the U.S. draw sharp distinctions between lawful and unlawful combatants. Unlawful combatants may be executed on capture (or later) at the captor's discretion, can be treated far more harshly than lawful combatants, etc. American law and practice over the past hundred years give unlawful combatants far more protection than do the Geneva Convention protocols applicable to us.

Your other questions are too confusing to answer.
11.16.2005 3:48pm
Gary Farber (mail) (www):
May I please commend to everyone's attention these following most excellent posts, from a lawyer, and a professor of ehtics: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13.


And also: 14, and, finally, this.

Thanks.
11.16.2005 5:22pm