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The Message of the MCA:

In a WSJ op-ed, John Yoo argues that Congress sent a message to the Supreme Court with the passage of the Military Commissions Act: Mind your own business and leave the war on terror alone. In this regard, Yoo argues, the law was, above all else, a "stinging rebuke" to the Supreme Court, particularly insofar as it limited federal court jurisdiction over certain claims. "In the struggle for power between the three branches of government, it is not the presidency that 'won.' Instead, it is the judiciary that lost."

Marty Lederman comments on the Yoo op-ed here. Among other things, Lederman notes:

John unabashedly celebrates [the legislation's court-stripping provisions]. But he doesn't give much of a justification for it, except that he does not like the idea of the courts reviewing the legality of the Executive's actions in wartime. There is a certain irony in this, given the source: This is, after all, the lawyer who has most aggressively promoted the view that notwithstanding all of its war-related article I powers, Congress is entirely disabled from regulating the Executive's wartime decisions. And yet he not only thinks that Congress can strip the courts of their constitutional functions in wartime -- he positively revels in it.
Both the Yoo article and Lederman commentary are must reads for those interested in this subject.

More commentary from Ann Althouse here.

Related Posts (on one page):

  1. DOJ Moves Quick with MCA:
  2. The Message of the MCA:
anonVCfan:
one man's separation of powers is another man's tyranny...?
10.19.2006 12:58pm
JonC:
Lederman writes:


Presumably, John would agree that if these detainees were being held a few hundred miles away, in Florida or in South Carolina, they not only would have had traditional habeas rights, but also would enjoy substantive constitutional rights of due process with respect to their treatment in detention and their ability to challenge their detention.


I'm just a 2L, so I have to ask some honest questions of the more knowledgeable commentators here: why doesn't Verdugo-Urquidez foreclose this aspect of Lederman's argument? Also, didn't the court in Rasul hold that the detainees had only statutory habeas rights, as opposed to constitutional habeas rights?

Also, a comment: Yoo seems to have exaggerated the extent to which the judiciary is stripped of authority to review detentions, and Lederman's response seems correspondingly exaggerated as well. The 2005 DTA said, and the 2006 MCA re-affirmed, that detainees can appeal the findings of their Combatant Status Review Tribunals to the D.C. Circuit Court of Appeals. This may not look like traditional habeas, but it affords detainees access to the U.S. federal court system. Perhaps that's less than Prof. Lederman is comfortable with, but it is simply not, as he writes, an "eliminat[ion] [of] any judicial checks on the Executive's conduct of the conflict against Al Qaeda."
10.19.2006 1:06pm
A.S.:
Interesting article and response. While I generally substantively agree with Yoo, Lederman makes some good points. However, I don't understand the final sentences in the text Orin quotes from Lederman's post. Presumably Yoo thinks that both Congress and the Courts should stay out of the day-to-day business of fighting wars. So why should Yoo not revel in Congress prohibiting the Courts from doing so? Is it because the President needed Congress to do so, even while the President may want Congress to stay out of other day-to-day war fighting matters? So what? After all, the President may likewise some day want the Courts to help prevent Congress stay out of day-to-day war fighting matters - e.g., by ruling in favor of the President with respect to the "Article II claim". I see nothing interesting or unusual about asking one branch to help keep a second branch away from an area in which the second branch doesn't belong, while simultaneously asking the second branch to help keep the first branch away from that area as well...
10.19.2006 1:10pm
PersonFromPorlock:
From the article:

[The new law]...strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.

In the next Clinton administration, I can imagine Mr. Yoo indignantly denying he's an "alien enemy combatant" -- to himself, in his cell.
10.19.2006 1:12pm
rmark (mail):
I don't know of any current declaration of war as defined under the constitution.
10.19.2006 1:19pm
Steve:
This may not look like traditional habeas, but it affords detainees access to the U.S. federal court system.

Only to that small minority of detainees who are tried before a military tribunal. Nothing in the statute obligates the Executive to give anyone a trial if they don't want to; they are enemy combatants, and can be simply left to rot until the cessation of hostilities (whenever that may be).
10.19.2006 1:26pm
JonC:
Steve: I think you're incorrect on this point. The DTA requires the military to give every detainee at Guantanamo a Combatant Status Review Tribunal-- sensibly enough, for the purpose of reviewing whether they are in fact properly held enemy combatants. Detainees who object to the findings of the CSRT can appeal to the D.C. Circuit, which is empowered under the DTA to assess whether the detention is illegal or unconstitutional-- see DTA section 1005(e)(2). The MCA didn't change that.
10.19.2006 1:30pm
Anderson (mail) (www):
Also, didn't the court in Rasul hold that the detainees had only statutory habeas rights, as opposed to constitutional habeas rights?

They didn't have to reach that issue. They will now.
10.19.2006 1:49pm
Anderson (mail) (www):
JonC, could you provide a quote/link/cite for the statutory language (1) requiring the feds to provide a CSRT, and (2) explaining what recourse a prisoner has if the feds don't actually do that?

Thanks!
10.19.2006 1:54pm
JonC:
Anderson: the text of the DTA is available here. Specifically, I'm looking at section 1005(a)(1)(A) and section 1005(d) (which requires an annual report from the DoD on the detainee review process).
10.19.2006 2:12pm
josh:
My understanding (and it could be entirely incorrect) is that the new law gives the Preznit the discretion to grant "enemy combatants" a CSRT -- kind of an ex post authorization of the detention of Padilla.

While I think PersonFromPorlock's comment was a little hyperbolic, I agree with the point. What honestly are the Powerline's of the world going to say when a Dem Preznit has this power?

There seems to me to be two troubling aspects of the law regardless of partisan background:

(1) it simply seems problematic to grant the executive the authority to decide whether to grant "enemy combatants" process, based solely on his or her say-so, in a conflict that has no cognizable, foreseeable beginning, middle or end. The POwerline boys have described this as being a supporter of "terrorists' rights," but (surprise) I find it a little more complicated that that. After all, the gov't absolutely knew that Canadian citizen Mahrer Arar was a terrorist that needed to be extraterritorially rendered to Syria to be tortured ... until it turned out he was not. Oops. Reportedly, we have captured thousands of terrorist suspects and similarly sent them to the Guhlag for interrogation. As an Illinoisian who has witnessed 13 of our 20-something death row inmates freed after wrongful convictions since the death penalty found constitutional in the 1970s (not from successes in the legal system, but usually from efforts of private citizens such as journalists), I have concerns about this type of questionable cretainty by the government as to guilt. This is entirely the purpose of habeas corpus.

(2) What will the pundits feel when a Dem executive starts exercising this authority? Will the unquestionable support for wartime action -- the day-to-day operations reserved solely to the executive, as A.S. writes -- be the same? Somehow, I doubt it.
10.19.2006 2:25pm
Mark Field (mail):

I have concerns about this type of questionable cretainty by the government


I assume this was a typo, but it's brilliant.
10.19.2006 2:36pm
JonC:
Here's also a DoD release on the operation of CSRTs (issued post-Rasul, but pre-Hamdan and pre-DTA).
10.19.2006 2:37pm
Mark Field (mail):
JonC, I just re-read the DTA section you cited. While it requires a report regarding the procedures used by the CSRT's, I don't read it as requiring any actual hearings. Nor do I see any time frame for such hearings. Moreover, the torture bill expressly (Sec. 948a) makes a distinction between UECs who are such by conduct and UECs who have been determined to be such by a CSRT (or similar body). That seems pretty clearly to permit indefinite detention for the first category; again, there is no requirement in the new law that any prisoner be given a CSRT hearing.
10.19.2006 2:45pm
logicnazi (mail) (www):
Jesus Christ that Yoo article was ridiculous!

I'm not going to go into the policy question of whether the president should be able to detain and prosecute before military commissions without any (effective) judicial oversight. While I think anyone holding this view is deeply mistaken it is something a reasonable person could believe. However, Yoo's comments about the court's actions are pure inflammatory rhetoric unsupported by any facts.

For instance consider this quote:

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged.


If it was a stunning attempt to rewrite the law of war then we must assume that it was obvious that the law of war did not cover individuals picked up in the conflict in Afghanistan. Yet many reasonable people think that the article 3 provisions do apply. I think the context makes it pretty clear they do apply but at the very least you have to admit that it is a reasonable position that they do apply. So even if you ultimately disagree with the court's interpretation of article 3 it's just absurd to claim they are radically rewriting some generally understood provision. At worst the court is misinterpreting an unclear and vague provision.

As a quick aside I need to point out the absurdity of arguing the conflict with al queda is international in character and hence article three does not apply. If this argument worked then article three would not to the north Vietnamese revolutionaries either as they would have been captured as part of a global war on communism. Obviously the Geneva convention does not intend to deny protection to revolutionary groups inside a country because the capturing power view their defeat as necessary to some greater global goal. In other words the people picked up in Afghanistan were part of a conflict internal to Afghanistan whatever our other motivations for detaining them may be. The only place I think this provision is unclear is in the application to cross-border action by sub-national groups. So I can see a serious argument (tho not convincing) that Pakistani fighters who crossed into Afghanistan to fight might not be covered but surely it does apply to native afghans.

Back to Yoo's point. Even if you believe that this decision was a radical reinterpretation of the laws of war it still wasn't a 'stunning power grab.' If the supreme court had been making a 'stunning power grab' they would have ruled that the constitution or treaty obligations blocked the suspension of habeas corpus or other similarly dramatic conclusions. Instead the court specifically grounded it's ruling in statute thereby choosing to give congress the opportunity to overrule the conclusion. Hardly sounds like a stunning power grab to me.

Moving on Yoo says:


In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents.


Really? So the court ruled that the law banning new habeas petitions from Guantanamo inmates was unconstitutional? Given that the court let stand laws preventing any new challenges from being brought it hardly sounds like they are opening their doors.

Moreover, if one actually goes and reads the opinions of the majority it is clear there are reasonable (I believe correct) arguments that this is perfectly in line with precedent. Sure Scalia disagrees but at the very least there are reasonable arguments on the majorities' side. As Lederman has previously gone into greater detail regarding the precedents I see no reason to go any farther.

However, even if you think that precedent argues against this recent decision this hardly gives Yoo what he wants. Precedent obviously requires the court strike down abortion laws yet I think most people who oppose the decision in Hamdan think the court ought to reverse Roe v. Wade. So even if you think it obviously overrules previous precedent this hardly shows the court is acting recklessly or grabbing power.

As an aside I think the bar on using international law in future decisions is a clear violation of separation of powers no matter what you think of international law. Even Scalia strongly opposes this sort of congressional interference in the courts.

Overall this article by Yoo just isn't the sort of thing an serious scholar would write. It deliberately distorts the facts and ignores the complexities of the issue. In short this is a political tract which deliberately misrepresents the situation to garner public support for his favored outcome. Given that Yoo has descended to this level I think we should regard his remarks the same way would regard comments from the white house press secretary or the DNC, i.e., as deliberate political spin rather than serious analysis.
10.19.2006 2:53pm
logicnazi (mail) (www):
Also a quick comment on this comment by Yoo:


The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it."


Well there is neither a Rebellion or Invasion at the current point so this is only relevant if the public safety requires it.

Does the public safety require it? Well to get this result you must assume that the courts would free dangerous terrorists from Guantanamo if they had habeas corpus rights. Given that Hamdan is still in custody our best evidence suggests this is entierly false.

Moreover, even if we released ever single person in Guantanamo it is doubtful they would pose a serious threat to public safety. We know who they are and could easily just have them followed or monitored. It might cost money or resources but the constitution doesn't allow habeas corpus to be suspended because it might cost money to watch potential law breakers.

Finally it is unclear if terrorism is a serious threat to public safety in the first place. Only a couple thousand people died in 9/11. Even if another 9/11 happened every 10 years or so it would still kill far less people than drunk driving does or exceding the speed limit. Does Yoo think congress could suspend habeas corpus and authorize the summary execution of drunk drivers or speeders? If not how can the threat of terrorism qualify?

Basically Yoo's argument proves far too much. The exact same argument can be applied to any group of people we suspect are bad but cannot prove.

Consider individuals who joined communist (or socialist) political parties in the US during the cold war. Or even more specifically government employees who did so. Surely the threat that these individuals might spill important defense information to the soviets was much greater than that possed by a particular terrorist (the Soviets could kill us all). Sure you might argue that the government could just take away their jobs and not detain them. However, we could just kick potential terrorists out of the US. In both cases there is the possibility that the freed individual will organize others to undermine US security. It is very hard to see how terrorism could justify a suspension of habeas corpus but Soviet spies could not.

So if Yoo is right presumably congress could have authorized the indefinite detention without trial of anyone (and certainly government emplyees) they decided was a communist sympathizer.

It sounds nice rhetorically but the arguments just don't make sense.
10.19.2006 3:11pm
Anderson (mail) (www):
Mark Field: I don't read it as requiring any actual hearings

Me either, but thanks to JonC for the link.

Even the reporting seems a bit bogus. DOD has to report the # of reviews ... but out of what total? Perhaps that total is reported elsewhere? And what, exactly, would that report produce?

As I was explaining to my Republican sister-in-law, the ENTIRE REASON FOR HABEAS CORPUS is to prevent just this kind of indefinite detention. The French word for "dungeon" is "oubliette," from their word for "forget." As in, drop someone in the oubliette and forget about 'em.

That is what the Congress has authorized the President to do, in 2006. Astonishing.

(Also, a query re: "alien enemy combatants": DOD picks up Anderson, declares him an AEC, and denies him habeas. "But I *am* an American!" says Anderson. Exactly what recourse does Anderson have?)
10.19.2006 3:24pm
JonC:

DOD picks up Anderson, declares him an AEC, and denies him habeas. "But I *am* an American!" says Anderson. Exactly what recourse does Anderson have?)


My understanding is as follows: if you are detained in the U.S., you can contest your detention through the normal habeas process. If you are picked up on the field of battle outside the U.S., and end up at Guantanamo, you can contest your detention at a CSRT (which, I agree, it seems may not be strictly mandated by the DTA, although I understand they are provided to every detainee per DoD policy, in accordance with the guidelines laid out in the DTA). You can then appeal the CSRT's judgment to the D.C. Circuit, and then seek cert review from SCOTUS. I concede that the DTA should have explicitly spelled out that CSRT's are required for every detainee, but it seems that is the procedure that takes place now anyway.
10.19.2006 4:08pm
Steve:
Even the reporting seems a bit bogus. DOD has to report the # of reviews ... but out of what total? Perhaps that total is reported elsewhere? And what, exactly, would that report produce?

It's also worth noting that Bush has routinely used signing statements to eviscerate virtually every reporting requirement Congress seeks to impose.

(Also, a query re: "alien enemy combatants": DOD picks up Anderson, declares him an AEC, and denies him habeas. "But I *am* an American!" says Anderson. Exactly what recourse does Anderson have?)

Well, he could petition for habeas, and seek to establish to the court that he is, in fact, a citizen, and thus entitled to habeas relief. If your point is that DoD could drop his habeas petition in the trashcan rather than mail it out, I think that argument could be made regardless of the statutory scheme. At some stage, the prisoner must always rely on someone's good graces to process his habeas petition.
10.19.2006 4:19pm
Anderson (mail) (www):
if you are detained in the U.S., you can contest your detention through the normal habeas process.

Undoubtedly I have that right, but if DOD is saying I'm an alien, I don't see how I get to exercise it.

the DTA should have explicitly spelled out that CSRT's are required for every detainee

Well, if they hadn't been rushing it through so Congress could go home &campaign on how Tuff On Terror they are, little details like that might've been fixed. As it stands, though, *any* process for the AEC's we hold is strictly at the pleasure of the Executive.
10.19.2006 4:21pm
Mark Field (mail):
Let me add to logicnazi's comment about this passage:


"The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it."


Congress may very well have the power to curtail the Court's appellate jurisdiction (see below), but the habeas provision constitutes an obvious limitation on that power. If not, then the habeas provision is (potentially) a nullity. Even McCardle doesn't go as far as the current statute, since that involved only the elimination of the Court's appellate jurisdiction -- the District Courts could still hear the writ petition. A statute which purports to eliminate all jurisdiction to hear habeas cases seems clearly to violate the habeas clause (unless the conditions precedent are met, which they indisputably are not).

Frankly, I don't understand the accepted view that Congress can deprive the Court of appellate jurisdiction. I know that the courts have always construed Art. III, Sec. 2, cl. 2 that way. I don't read it like that. To me, it simply allows Congress to modify whether that appellate jurisdiction consists of law or fact. In other words, we should read it as if the Court "shall" have appellate jurisdiction, but Congress can regulate whether the Court reviews the facts or simply the law. This reading eliminates what otherwise appears to be a conflict with the language of Art. III, Sec. 1 vesting all the judicial power in the Court and the similarly inconsistent provision of Art. III, Sec. 2 stating that such power shall extend to all cases in law and equity arising under, etc.
10.19.2006 4:31pm
farmer56 (mail):
This is simple

Judges rule on law. The legislature makes law. The legislature just made a law. The courts ar bound to that law.

These murderers are not covered by the Geneva Convention. They wear no uniform and only represent those of the world that beleive that murdur is a way to attain poer
10.19.2006 4:55pm
steveh2:
Two questions.

1. Doesn't article III, sec. 2, cl. 2 apply only to the Supreme Court's appellate jurisdiction? Seems to me that even if Congress has the power to strip appellate jurisdiction from the Court, the "judicial Power" -- which extends to all cases under the Constitution and the Laws of the United States -- is still vested in the Supreme Court AND in such inferior courts as Congress may establish. (On further review, this appears to echo the last part of Mark Field's post.)

2. Would it be possible for state courts to issue habeas, at least where a prisoner is detained within one of the states? Or does the Supremacy Clause or some other authority operate as a complete bar?
10.19.2006 4:59pm
Mark Field (mail):

Would it be possible for state courts to issue habeas, at least where a prisoner is detained within one of the states?


I'm sure federal preemption applies here. If I get a chance, I'll see if I can find a cite.
10.19.2006 5:14pm
farmer56 (mail):
hebeas is part of the bill of rights. States must comply.
The confusion rests in a non-indetified combatant is covered under the Geneva Convention. POW = person in uniform. terrorist= any thug with a bomb or gun or knife(see beheading a news guy on camera)

As to the above..... Only the Supreme court exists under the Constitutional structure. ALL other courts serve under the discretion of the legislature. All other courts were created by congress, and, can just as easy be elimintated
10.19.2006 5:45pm
steveh2:
Re: farmer56. I recognize that Congress could eliminate the federal courts entirely (except the Supreme Court). My question is whether Congress can keep the federal courts in existence but divest them of part of the "judicial Power." The Constitution says that the judicial Power "shall" be vested in the inferior courts Congress establishes.

Mark Field: I recognize that if a federal statute says "the feds can keep someone indefinitely", then a state statute or constitution could not supersede that. But could a state court hold that the federal constitution supersedes the federal statute? Art. VI, sec. 2 says that "Judges in every State shall be bound" by the Constitution.

Also, if Congress stripped fed courts of habeas jurisdiction, could state courts exercise it over federal officers, and apply federal constitutional principles in determining whether a plaintiff was being held lawfully?

I think this is a real long shot, at best. Seems to me that the states do not have power to criminally prosecute federal agents for their official actions (like the Ruby Ridge thing), and the same principle would probably apply to state habeas.
10.19.2006 6:06pm
farmer56 (mail):
Steveh2'

the congress can eliminate the courts. We agree Why cannot congress pass laws to eliminate laws enacted by Judges?
Your question eludes me. congress can eliminate an entire court??? but not write legislation to overturn a ruling?

Seperation of powers........ To me.. It seems all power rests with judges, and the other two branches of government just get to suck dust. Because judges truly RULE.
10.19.2006 6:21pm
Mark Field (mail):

I recognize that if a federal statute says "the feds can keep someone indefinitely", then a state statute or constitution could not supersede that. But could a state court hold that the federal constitution supersedes the federal statute? Art. VI, sec. 2 says that "Judges in every State shall be bound" by the Constitution.


I'm not sure I can answer your precise question because nobody has ever before claimed the right to detain someone indefinitely. Well, at least no one since Charles I tried it before the Petition of Right slapped him down.

Subject to that limitation, state courts cannot issue writs of habeas corpus to prisoners in federal custody. Once they learn that a prisoner is in federal custody, state courts can proceed no further. In re Tarble, 80 US 397 (1871).


Also, if Congress stripped fed courts of habeas jurisdiction, could state courts exercise it over federal officers, and apply federal constitutional principles in determining whether a plaintiff was being held lawfully?


I doubt it, but I can't rule it out. Part of the rationale of Tarble was that federal courts could grant relief if justified. Your not-so-hypothetical eliminates that rationale. It's a long shot, but if I were defense counsel in the right case, I might try it.
10.19.2006 6:36pm
josh:
farmer56

It's as "simple" as you want it to be, I guess.

"Judges rule on law. The legislature makes law. The legislature just made a law. The courts ar bound to that law." That kinda goes against the last two hundred years of the operation of the three branches since Marbury v. Madison, but ... um ... ok. Somebody should explain to the southern states that they can segregate again.

"These murderers are not covered by the Geneva Convention. They wear no uniform and only represent those of the world that beleive that murdur is a way to attain poer." Maher Arar is not and was not what you claim him to be, and you have absolutely no evidence on a case-by-case basis to support your hyperbole other than what the government has told you. Thanks for writing words that best describe the purpose behind the hundreds-year-old concept of habeas corpus. I've got a Democratic Party campaign ad I'd like you to appear in.
10.19.2006 7:02pm
Mark Field (mail):
steveh2:

First let me give another cite: Ableman v. Booth, 62 US 506 (1858).

The more I think about the situation, the less likely it is that a state court could issue such a writ. The indefinite detention problem doesn't help -- the whole purpose of suspending the writ is precisely to allow indefinite detention.
10.19.2006 8:00pm
JunkYardLawDog (mail):
Habeas is a criminal law procedure. It was never intended to apply to the British soldiers captured and held captive during the war of 1812. The war against Al Qaeda and terrorism is a real war. Its not a criminal action. Criminal rules, rights, and procedures don't apply to enemy combatants. Never have.

What can be done if the President goes nuts and starts picking up random people and alleging they are alien enemy combatants? A rather ridiculous worry compared to the much more likely to happen terrorist explosion in a mall or building or stadium. Oh well, why worry about the real world when the pretend world of hysterically unlikely possibilities is much more fun to play in. More dangerous to our children in the real world, but hey liberals got to play right.

Anyway, back to what can be done if the President goes nuts and starts randomly imprisoning citizens and calling them alien enemy combatants.

1. They do have a right of habeas review if they are or claim to be a citizen.

2. The President could be impeached and removed from office.

3. Congress could pass legislation amending the detainee acts recently passed.

4. The people could vote the President out of office within 4 years at a minimum.

5. The people who work for the President could refuse to carry out his directions to randomly pick up innocent people and imprison them.

The list of what could be done goes on and on and on.

Now before somebody pulls that Canadian guy out of the arse and says wait a minute it isn't far fetched it happened (supposedly) to that guy. Well:

1. That canook wasn't a citizen.

2. His own government told the USA he was a terrorist. (Most libs love to forget that one).

3. He wasn't picked up as part of a crazy immoral plan to intentional imprison innocent people, political enemies, etc.

4. He was a mistake. A piece of walking collateral damage in war time. Hey sh*t happens in war. Usually the collateral damage is DEAD. This guy was lucky. He isn't DEAD collateral damage.

You can't fight an antiseptic mistakeless war, except in the minds of some liberals who would rather surrender than fight to begin with. Mistakes happen. If too many mistakes happen congress can act and the people can act at the ballot box. These are political questions totally outside the authority and proper province of the courts. As Yoo said when he copied me, because I've said it here and elsewhere ever since Hamdan came out, Hamdan was and is the largest single breach of separation of powers ever committed, and it was committed by the JUDICIAL BRANCH in violation of their duty to uphold the constitution (including the constitution's separation of powers) and represents one of the single largest power grabs by any branch of government in the history of the country.

Says the "Dog"
10.19.2006 8:18pm
Ricardo:
It seems to me that Lederman ignored Yoo's point on POWs and habeas corpus. Lederman cites cases where alien detainees prosecuted by military courts were granted habeas review but that clearly is not what Yoo is talking about. Instead, he is talking about German and Japanese POWs captured by the U.S. who wished to challenge their detentions.

Were there any cases of Axis soldiers challenging their detentions in U.S. courts and what happened to these challenges? That is what is relevant here.
10.19.2006 10:02pm
Mark Field (mail):

Were there any cases of Axis soldiers challenging their detentions in U.S. courts and what happened to these challenges? That is what is relevant here.


No, this is exactly backward. The argument about Al Qaeda has been, from day 1, that it is not a formal military organization and that its "soldiers" therefore don't qualify for POW status. Their situation is, instead, quite similar to that of the saboteurs in Quirin. If the saboteurs got to use the writ, there's no reason why others shouldn't.

Of course, if the Administration wants to grant POW status to all those captured, then we can revisit the issue.

I'm holding my breath.
10.19.2006 10:38pm
Ricardo:
Mark,

I certainly won't argue with you about the shifting goalposts being employed by this administration.

However, first of all not all enemy combatants are "Al Qaeda." At issue are not only Guantanamo detainees and any future terrorists the President decides to designate enemy combatants, but also irregular fighters picked up in Afghanistan and Iraq some of whom are held in U.S. military custody in those countries. It seems to me that the government should have the option of either holding them as ordinary POWs with full Article 3 rights or prosecuting them for war crimes.

If the government prosecutes them, then there may be limited jurisdiction for U.S. courts (I recall this issue did come up with convicted Japanese war criminals). If the government decides not the prosecute, I see no reason to give them any more due process rights than uniformed soldiers.

Of course, this is not exactly what the government wants and I am hardly a supporter of the Administration's detention policies. The government would rather simultaneously deny Common Article 3 rights and not bother prosecuting detainees. I would just like to see the level of debate raised beyond all-or-nothing positions on this issue.
10.20.2006 12:04am
Ricardo:
Just an additional thought: it would be useful to look into the laws the U.S. applied when dealing with Viet Cong prisoners. Some of them were probably handed over to Republic of Vietnam officials to be disposed of, but they were certainly illegal combatants by any definition.
10.20.2006 12:15am
Mark Field (mail):

It seems to me that the government should have the option of either holding them as ordinary POWs with full Article 3 rights or prosecuting them for war crimes.


I agree.


If the government decides not the prosecute, I see no reason to give them any more due process rights than uniformed soldiers.


If they're given POW status, I have no real problem with this. However, the open-ended nature of the "war" Bush claims to be fighting makes POW status problematic in certain respects. I'm not sure Geneva makes adequate provision for The Forever War.
10.20.2006 1:04am
chris s (mail):
"However, the open-ended nature of the "war" Bush claims to be fighting makes POW status problematic in certain respects."

Mark, all wars are open ended while they're being fought. I suppose your fallback may be 'how do we know when this one is won?' but it applies equally to something like the civil war, where the Confed govt crumbled but resistance in one form or another continued for yrs.

you seem to be suggesting that AQ types should get the best of both worlds - better than POWs (who face indefinite detention), and better than common criminals (who don't have GC protections). if so, this seems exactly backwards - while we should do whatever is necessary to be sure that someone actually is a AQ type before designating him an enemy combatant, once we do that we should give him fewer rights than the honorable POW or citizen criminal.
10.20.2006 11:06am
Thorley Winston (mail) (www):
No, this is exactly backward. The argument about Al Qaeda has been, from day 1, that it is not a formal military organization and that its "soldiers" therefore don't qualify for POW status. Their situation is, instead, quite similar to that of the saboteurs in Quirin. If the saboteurs got to use the writ, there's no reason why others shouldn't.


You may want to actually try reading the holding in Qurin before using it to bolster your argument:

Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order and that the Commission was lawfully constituted; that the petitioners were held in lawful custody and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied.

Orders of District Court affirmed and leave to file petitions for habeas corpus in the Supreme Court denied.


Quirin then supports the administration's position.
10.20.2006 11:55am
Mark Field (mail):

Quirin then supports the administration's position.


Your own quote shows that the petitions to the district court were denied on the merits. Thus, the writ was available to them. That's the opposite of the Administration position here, which denies the prisoners even the right to seek the writ.


Mark, all wars are open ended while they're being fought.


This is kind of a semantic game, isn't it? Nobody knew exactly when WWII would end, but they knew what kinds of events would cause it to end. There's a difference between something that's "unknown" and something that's "indeterminable".


it applies equally to something like the civil war, where the Confed govt crumbled but resistance in one form or another continued for yrs.


Confederate prisoners were all released after Lee, et al. surrendered. What comparable event would cause the release of the prisoners we're holding?


you seem to be suggesting that AQ types should get the best of both worlds - better than POWs (who face indefinite detention), and better than common criminals (who don't have GC protections).


No, I specifically said it should be one or the other. I think treating them as criminals is exactly right. Let's give them trials and show the world what scumbags they are, then lock them up forever. I'm prepared to consider POW status, but only if the "war" is given some definition.
10.20.2006 1:27pm
Anderson (mail) (www):
If your point is that DoD could drop his habeas petition in the trashcan rather than mail it out, I think that argument could be made regardless of the statutory scheme.

I think my point was more that if I were named Muhammed al-Anderson and didn't "look American," then DOD might well make a mistake, and there's no avenue for me to compel them to fix it.
10.20.2006 1:33pm
chris s (mail):
Mark, treating them as criminals implies Miranda warnings, speedy trial guarantees, and the rest. it also assumes our main goal is punishing them rather than preventing attacks in the first place. how much consolation will anyone take if KSM is tried and convicted? you may say that the same holds true for a murder, but attacks like 9/11 pose a far graver threat than that posed by common criminals.

as for what event would signal the end of all this, obviously there won't be a treaty signing in Tokyo Bay. but the Red Brigades and Baider Meinhof Gang (sp?) eventually faded away, and presumably AQ et al will as well. when they do, KSM et al could be released if we so choose, or tried at that time.
10.20.2006 1:59pm
Mark Field (mail):

Mark, treating them as criminals implies Miranda warnings, speedy trial guarantees, and the rest.


I doubt Miranda would apply under the circumstances, but speedy trials? Sure.


it also assumes our main goal is punishing them rather than preventing attacks in the first place.


This doesn't follow. Police try to deter and detect crimes in advance.


how much consolation will anyone take if KSM is tried and convicted?


I'm guessing no less than they felt when Goering was convicted or when Milosevic is.


you may say that the same holds true for a murder, but attacks like 9/11 pose a far graver threat than that posed by common criminals.


We've tried other terrorists for similar crimes, though with less loss of life. Lockerbie?


the Red Brigades and Baider Meinhof Gang (sp?) eventually faded away, and presumably AQ et al will as well. when they do, KSM et al could be released if we so choose, or tried at that time.


If we convict them, we can hold them for life. Why on earth would we release them just because Al Qaeda disbanded? That would be like releasing Charles Manson because his "family" no longer exists.
10.20.2006 2:27pm
Chimaxx (mail):
but attacks like 9/11 pose a far graver threat than that posed by common criminals


How so? Sure it's a graver threat than your local pickpocket or dope dealer, but why is it a graver threat than, say, the Oklahoma City bombing? Because it killed 3000 instead of 168? Okay, but is that difference in the magnitude of the number killed sufficient to write a Mack-truck-sized loophole in our basic constitutional legal protections? Auto accidents kill 40,000 people a year, and we haven't felt the need to gut basic protections to solve that problem.
10.20.2006 6:28pm