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DOJ Moves Quick with MCA:

The Justice Department has notified a federal district court that it no longer has jurisdiction over nearly 200 habeas cases concerning detainees due to the passage of the Military Commissions Act.

Related Posts (on one page):

  1. DOJ Moves Quick with MCA:
  2. The Message of the MCA:
AppSocRes (mail):
It seems to me that this is a no brainer.

Habeas Corpus is suspendable under Article I section 9 of the Constitution of the United States of America:
"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." I'd say the US was invaded on 9/11 and a due concern for public safety would require that certain foreign enemies of the US be detained without HC.

Congress clearly has the right to tell the courts to butt out from any further consideration of this issue. This is clearly stated in Article II Section 2 Paragraph 2: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

The restriction of HC is limited to non-US citizens, so I'm not worried about tyranny yet. Those who believe that the 14th Amendment is divine writ may think all of the Constitutrion should apply to all persons, but I think that's a bit more of an intellectual stretch than most Americans would find acceptable.
10.20.2006 10:16am
bchurchhowe (mail):
AppSocRes,

With such a broad interpretation of "invasion", we might as well strike the HC clause from the Constitution all together, as an antiquated example of "pre 9/11 thinking". What standards of victory do you think we should use, so we know when this "invasion" has been repelled? Do you think it's likely we can return to the normal Constitution protections in the next 10 years? 50 years?

As far as US citizens, MCA does not explicitly forbid suspension of HC for US citizens-- and the president has already claimed that power under his extreme interpretation of the AUMF and Article II.
10.20.2006 10:53am
andy (mail) (www):
hmm, isn't the better argument not that we're being "invaded" right now (cuz we're not), but rather that alien/noncitizen terrorists are simply not protected by the constitution, so the anti-suspension clause does not apply to them?
10.20.2006 11:18am
Steve:
Yes, that is the better argument. The argument that we're in a state of "invasion" should be left to nutters like Hugh Hewitt, who thinks he's on the front lines of the War on Terror because he broadcasts from the Empire State Building.
10.20.2006 11:34am
Justin (mail):
Freedom's just another word for nothing left to lose.... :)
10.20.2006 11:42am
Jose Reyes (mail):
It's unlikely that a court would deem the "invasion" issue justiciable. See Joseph Story, Commentaries ("[A]s the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, . . . the right to judge, whether exigency had arisen, must exclusively belong to that body.")
10.20.2006 12:21pm
Anderson (mail) (www):
but rather that alien/noncitizen terrorists are simply not protected by the constitution

I see you're new to this subject.

(1) Whether or not someone is a terrorist is precisely the issue that's in dispute when that person files a habeas petition, denying that he's a terrorist &demanding to be set free. We have wrongly detained people as "terrorists" before. You can't understand the issue without understanding this point.

(2) Aliens are entitled to various constitutional rights; the Supreme Court was clear on this as early as the second half of the 19th century. Historically, the 1789 understanding of habeas rights included aliens' having those rights; the English common law, a century before, had recognized that the sovereign can't imprison a man indefinitely b/c he's a foreigner.

(3) The Habeas Clause is not *meant* to "apply to" terrorists, aliens, whoever; it applies to Congress and limits Congressional power.

I could go on, but I'd get into matters that are in dispute.
10.20.2006 12:24pm
andy (mail) (www):
"Historically, the 1789 understanding of habeas rights included aliens' having those rights;"

So, if we caught OBL in afghanistan or something, the US would be obliged to take his habeas petition to the US courts?

Are you sure this is not a feature of the "living" constitution (not being facetious-- really am curious whether the con., originally understood, would have granted HC privileges to terrorists on foreign soil).
10.20.2006 12:35pm
Anon1ms (mail):
Another sad day for America
10.20.2006 12:36pm
Mahan Atma (mail):
"So, if we caught OBL in afghanistan or something, the US would be obliged to take his habeas petition to the US courts?"

And if it was really OBL, is there any doubt but that the writ would be denied?

Now you answer me: If the U.S. locks up an innocent person, how are they supposed to challenge their detention w/o habeas?
10.20.2006 12:40pm
Mahan Atma (mail):
^^^ And I might add, the chance of locking up innocent people is apparently a lot greater than capturing Bin Laden.
10.20.2006 12:41pm
Elliot Reed:
And I might add, the chance of locking up innocent people is apparently a lot greater than capturing Bin Laden.
Especially if we're in the business of locking up people who aren't terrorists, but who we're holding because we think might know something useful about terrorists and we want to use our torture techniques to get it out of them. There are certainly people we're holding who fit this category, and it's completely unjustifiable.
10.20.2006 12:47pm
andy (mail) (www):
"If the U.S. locks up an innocent person, how are they supposed to challenge their detention w/o habeas?"

I'm not concerned right now with whether the constitution is "perfect," but rather whether the constitution, as originally understood, protects foreigners on foreign soil.

Perhaps it is a *good* idea to give OBL habeas rights. I don't know. But constitutional interpretation cannot come down to "We might lock up an innocent person; ergo, the constitution *must* have a right to HC for foreign terrorists on foreign soil." Of immediate concern is whether MCA is constitutional-- I don't doubt that several of its provisions are questionable, unfair, or stupid, but that does not tell us whether it harmonizes with the constitution (unless the constitution is "living," of course).
10.20.2006 12:52pm
Mark Field (mail):

Those who believe that the 14th Amendment is divine writ may think all of the Constitutrion should apply to all persons, but I think that's a bit more of an intellectual stretch than most Americans would find acceptable.



isn't the better argument not that we're being "invaded" right now (cuz we're not), but rather that alien/noncitizen terrorists are simply not protected by the constitution, so the anti-suspension clause does not apply to them?


The Fifth Amendment also states that "No person ... shall ... be deprived of life, liberty, or property without due process of law."


I'd say the US was invaded on 9/11 and a due concern for public safety would require that certain foreign enemies of the US be detained without HC.


The Supreme Court already rejected this argument in Ex Parte Milligan:

"It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be 'mere lawless violence.'"


It's unlikely that a court would deem the "invasion" issue justiciable.


As the quote above demonstrates, the Supreme Court also rejected this argument in Milligan.


So, if we caught OBL in afghanistan or something, the US would be obliged to take his habeas petition to the US courts?


If we could try Herman Goering, I see no reason why we couldn't try Osama. Assuming, which I doubt, that he were to be captured alive. Of course, as long as Bush is President it's a pretty big assumption that he'll be captured at all.
10.20.2006 12:56pm
AppSocRes (mail):
As others have pointed, out Habeas Corpus was traditionally regarded as a legal remedy available to all persons. Even if it was not originally available to all, the current broad interpretation of the 14th Amendment makes it clear that HC is now, regardless of their citizenship. The "rights and priveleges" clause in that amendment applies to all persons, while other clauses clearly refer to citizens. So clearly the amendment protects HC for all persons not just citizens. Non-citizenship does not seem to be a valid reason for suspending HC for certain classes of persons.

However, the atrocity of 9/11 and the continued irruption of other attempted terrorist actions against US citizens on US soil is certainly an "invasion" in the sense that term has often been used in international law. The post bellum Fenian invasion of Canada was not state sponsored, was temporary, had no real military objective except a kind of terrorism, and was referred to by all parties in the dispute as an invasion. Canada did temporarily suspend HC as a result.

I strongly suspect that the writers and signers of the Constitution would have regarded a military action on US soil that killed 3,000 persons and caused billions of dollars of damage as an invasion. As long as representatives of the parties that committed this act are present on US soil and are attempting to continue their operations we are still being invaded.
10.20.2006 1:01pm
Chumund:
andy,

You might need to define "on foreign soil".

That was one of the issues in Rasul--although we are technically leasing Gitmo, we also exercise exclusive legal control over the base. So, are the people being held in Gitmo really "on foreign soil"?

And in light of this issue, you might need to provide more details in your hypo. Plausibly, people captured on a foreign battlefield and being held in an active combat area might be considered outside the scope of habeas, at least temporarily. But if those people were, say, brought back to be held inside the United States, perhaps indefinitely, arguably the fact that they were captured elsewhere might not make a difference for the purposes of habeas analysis.

So, OBL is captured in Afghanistan--but then what? Suppose he was brought to the United States. Would he then be subject to habeas? Why or why not? And if so, what about places like Gitmo--are they more like a detainment camp in a combat zone, or more like a brig in the United States, for the purposes of habeas? Those are some of the relevant issues.
10.20.2006 1:07pm
Hoosier:
"I would tax all foreigners living abroad." (Monty Python's Flying Circus)

I agree that it's a problem, Mahan. But why is it a /constitutional/ problem if they are not Americans, and not in the US?
10.20.2006 1:08pm
Hoosier:
Mark--

Who's the "we" in "we" tried Herman(n) Goering?
10.20.2006 1:10pm
Anderson (mail) (www):
Note the common misimpression that a habeas petition is a get-out-of-jail-free card. It isn't.
10.20.2006 1:13pm
Nom (mail):
The misplaced concern about "innocents" not being able to challenge their detention baffles me. After all, our troops can shoot at these same people or drop bombs on them with no review by any court whatsoever, no chance to dispute whether they are really the enemy. Does anyone really argue that there is some constitutional problem with that?

Holding detainees is simply part of war, not a criminal proceeding. It is much closer to the situation of troops being able to kill foreigners who may be innocent than it is to being like a routine prison sentence.
10.20.2006 1:18pm
Houston Lawyer:
Note the common misimpression that those we detain have no right to have a court to review their status. What they don't have is the right to go cherry picking federal judges to hear their review.
10.20.2006 1:20pm
Just an Observer:
FYI, Lyle Denniston at SCOTUSblog has an update on the state of play in the D.C. Circuit: New briefs ordered on detainee law
10.20.2006 1:25pm
Anderson (mail) (www):
Note the common misimpression that those we detain have no right to have a court to review their status.

Please explain the source of this alleged right? I thought we'd established the other day that the alien unlawful enemy combatants don't even have a right to appear before a Combatant Status Review Tribunal. I would love to know that I'm mistaken on this.
10.20.2006 1:29pm
Jose Reyes:
Mr. Field, I don't think Milligan settles the question.

Such a reading of Milligan would conflict with what has long been the prevailing view as expressed by Justice Story, William F. Duker's treatise, and dicta from Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101 (1807) ("If at any time the public safety should require the suspension of the [writ], it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide.").

At least three current justices (Stevens, Scalia, Thomas) have taken this view of the Suspension Clause, and none has disagreed. Hamdi v. Rumsfeld, 542 U.S. 507, 578 (Scalia, J., dissenting); id. at 594 n.4 (Thomas, J., dissenting).
10.20.2006 1:30pm
Anderson (mail) (www):
Nom:

The police can shoot at somebody who's shooting at them, but once they've slapped the cuffs on him, they're not allowed to shoot him.

Does that puzzle you as well?
10.20.2006 1:31pm
Anderson (mail) (www):
("If at any time the public safety should require the suspension of the [writ], it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide.").

The problem with that version of the Habeas Clause, Jose, is that it (1) professes to restrict the Congress and then (2) makes the Congress the sole interpreter of its restriction.

The Founders were power-savvy guys, and concerned enough about suspending the Great Writ that they put the Habeas Clause in there in the first place. Scalia may be able to pretend that the Founders "intended" the reading you suggest, but they would've had to have been pretty stupid.

(Not suggesting that *Jose* is stupid--he's citing valid authorities, who in this instance would appear to've been, well, stupid.)
10.20.2006 1:36pm
Mahan Atma (mail):
"But constitutional interpretation cannot come down to "We might lock up an innocent person; ergo, the constitution *must* have a right to HC for foreign terrorists on foreign soil."

So rephrase the question: Is it constitutional to lock up an innocent person and deny them habeas?
10.20.2006 1:39pm
Nom (mail):
Anderson:

perhaps you failed to notice my distinction between criminal matters and war. Police officers are subject to constitutional restraints on their acts of violence (i.e. shooting at a suspect is limited by the Fourth Amendment). No such limitations apply on the battlefield.

The Constitution says nothing about the propriety of shooting someone, or the quantum of proof needed before doing so, on a battlefield. Also, killinng innocents in war is accepted and no one is financially or criminally liable when a civilian is killed. That is not the case in police work.

If it is ok to kill an innocent or blow his arms off or destroy his house with no repercussions, why is it not ok to detain that innocent person for five, ten, or fifty years? Innocents caught up in detention, like those killed or maimed, are regrettable collateral damage, inevitable in war.
10.20.2006 1:40pm
Mark P. (mail):
The inferior federal courts are purely the creation of Congress. Their jurisdiction can be restricted by Congress in any way that Congress deems appropriate. Even if the opponents of MCA think that Congress has no power to limit HC under the current circumstances, do they really think that the Supreme Court is capable of giving trials to hundreds of people claiming that they are detained unlawfully? Without the district courts and the courts of appeals to sift through these cases, can one, nine-member court expect to do the job alone? No way.
10.20.2006 1:41pm
Mark Field (mail):

Who's the "we" in "we" tried Herman(n) Goering?


The Allies at Nuremburg.


I strongly suspect that the writers and signers of the Constitution would have regarded a military action on US soil that killed 3,000 persons and caused billions of dollars of damage as an invasion. As long as representatives of the parties that committed this act are present on US soil and are attempting to continue their operations we are still being invaded.


Again, the Supreme Court rejected this in Milligan. The basic rule is, and has always been, that if the courts are open and functioning, the writ cannot be suspended.


Congress clearly has the right to tell the courts to butt out from any further consideration of this issue. This is clearly stated in Article II Section 2 Paragraph 2: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."


The habeas clause clearly limits this congressional with respect to the Great Writ.
10.20.2006 1:45pm
Mahan Atma (mail):
"The inferior federal courts are purely the creation of Congress. Their jurisdiction can be restricted by Congress in any way that Congress deems appropriate."

That's open to debate.
10.20.2006 1:48pm
Mark Field (mail):

Even if the opponents of MCA think that Congress has no power to limit HC under the current circumstances, do they really think that the Supreme Court is capable of giving trials to hundreds of people claiming that they are detained unlawfully? Without the district courts and the courts of appeals to sift through these cases, can one, nine-member court expect to do the job alone? No way.


If Congress can't limit the writ, then I see no reason why the District Courts couldn't hear the petitions. The number of prisoners (so far) is trivial compared to the number of cases District Courts hear in a given year.

If, for some reason, the SCOTUS had to hear them all, it could do what it does in all cases of original jurisdiction and appoint special masters.
10.20.2006 1:49pm
Houston Lawyer:
The Military Commissions Act of 2006 limits the review of status to the procedures set forth in Sections (2) and (3) of of Section 1005(e) of the Detainee Treatment Act of 2005, which provides in part:

"2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-

(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant."

Consequently, the DC Circuit has the authority to review these matters.
10.20.2006 1:56pm
Nom (mail):
"The inferior federal courts are purely the creation of Congress. Their jurisdiction can be restricted by Congress in any way that Congress deems appropriate."

That's open to debate.


Not really. Otherwise the monetary limitations imposed by Congress on diversity suits would be unconstitutional. Since the Judiciary Act of 1789, COngress has never given lower courts full jurisdiction that would be permitted under Article III. See Sheldon v. Sill, 49 U.S. 441 (1850).

The Court stated in Lockerty v. Phillips, 319 U.S. 182 (1943):" The COngressional power to ordain and establish inferior federal courts includes the power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."
10.20.2006 2:00pm
A.S.:
Are there any VC posts in which EV, OK, or one of the other Conspirators analyze McCardle, Yerger, Felker, etc. in the context of stripping habeas jurisdiction? I found a pretty cursory post, but nothing in any detail. Anybody know of any?
10.20.2006 2:00pm
dejapooh (mail):
Is that the nose of a camel I see in the flap of our tent?
10.20.2006 2:01pm
Chumund:
Nom,

I don't think there is much doubt that just as the military could shoot a person on a battlefield without legal proceedings, they could also detain a person on a battlefield without legal proceedings. As a sidenote, though, that doesn't mean there is no applicable law on the battlefield--under certain circumstances, for example, someone in the military might be charged with murder for an unlawful killing, even if it occurred on the battlefield.

Anyway, the problem with your reasoning is that you are extending it beyond the battlefield ("If it is ok to kill an innocent or blow his arms off or destroy his house with no repercussions, why is it not ok to detain that innocent person for five, ten, or fifty years?"). The answer to this question should be obvious. Consider, for example, a parallel question: "If it is ok to kill an innocent on a battlefield, why is not ok to kill that innocent person five, ten, or fifty years later?" If you think that is too extreme, how about: "If it is ok to kill an enemy soldier on a battlefield without judicial proceedings, why is it not ok to kill a POW without judicial proceedings?"

I think if you supply yourself with answers to these questions, you will be able to see the flaw in your initial reasoning.
10.20.2006 2:01pm
Chumund:
Houston Lawyer,

But do detainees have a right to a determination of status by a CSRT?
10.20.2006 2:04pm
Gabriel Malor (mail):

Aliens are entitled to various constitutional rights; the Supreme Court was clear on this as early as the second half of the 19th century.


This is incorrect. See Abu Ali v. Abu Ali v. Ashcroft, a 2004 DC Circuit court summarizing the law on aliens and habeas:


The [Supreme] Court explained [in JOHNSON, SECRETARY OF DEFENSE v. EISENTRAGER] that it was "confronted with a decision whose basic premise is that these [non-citizen] prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus." 339 U.S. at 777. The Court explained that the right to habeas rests on an "ascending scale," with citizens at the highest point and the rights of aliens descending from there on the basis of several variables. "With the citizen we are now little concerned," the Eisentrager Court noted, "except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens." Eisentrager then concluded that a military prisoner is not "constitutionally entitled to the writ" where, as in that case, "(a) he is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."


As others have noticed, it depends on where the prisoner is located. If they're on US soil, they come within the jurisdiction of the courts to see their habeas petition. If they are not, then the courts have no jurisdiction.
10.20.2006 2:08pm
Nom (mail):
Chumund,
I am not arguing that there are no rules of war on the battlefield - only that there are no rules in the U.S. Constitution regarding conduct on the battlefield. Even cold-bloodedly shooting a POW ten years after capture does not raise any constitutional questions. Rather, only statutory law would apply.

Anderson had tried to argue by analogy to police actions, which are governed by Constitutional rules. Just to make clear, a soldier intentionally killing someone he knows to be an innocent raises no issue under the U.S. Cosntitution (I use the extreme example just to make clear the breadth of the rule). Obviously, statutes passed by Congress are another matter.
10.20.2006 2:15pm
Mahan Atma (mail):
"Not really. Otherwise the monetary limitations imposed by Congress on diversity suits would be unconstitutional."

I didn't say Congress couldn't limit the lower courts' jurisdiction at all, I'm questioning the notion that Congress can do anything it wants with it.

For example, could Congress say the lower courts cannot hear any claim arising under the 14th Amendment? That's not quite the same as raising the monetary requirement on diversity suits, is it?

If you don't think this is still an open question, either you haven't taken a class in Fed Courts, or your professor lied to you.
10.20.2006 2:17pm
Nom (mail):
Mahan:

there have certainly been a deluge of law review articles on the permissable scope of jurisdiction-stripping which argue that SCOTUS precedent is wrong. But no cases have held that. I have binding SCOTUS caselaw saying Congress has complete discretion, you have law review articles by law professors. That does not make it an "open question." Law profs, strong believers in judicial supremacy, may not like the law (which has no contradictory caselaw on the side of the professors, which is all that matters), but that does not make it an "open question."

Even lefty Chemerinsky's federal courts book cites no caselaw for your proposition, only academic articles.
10.20.2006 2:25pm
Mark Field (mail):

The Court stated in Lockerty v. Phillips, 319 U.S. 182 (1943):" The COngressional power to ordain and establish inferior federal courts includes the power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."


This is a fair statement of the way that clause has always been read. That doesn't mean you're right about the lack of debate, though. I posted my reading of the clause here.
10.20.2006 2:32pm
Chumund:
Nom,

You claim that "Even cold-bloodedly shooting a POW ten years after capture does not raise any constitutional questions. Rather, only statutory law would apply."

But this is not at all obvious ... for example, depending on the circumstances, it arguably could be a violation of the Fifth and Eight Amendments. Indeed, I think if this POW also happened to be a U.S. citizen being held in the United States, it would almost certainly raise constitutional issues.

More importantly, this proposition does not flow logically from your analogy: the fact that a certain person could be shot on the battlefield without violating the U.S. Constitution does not imply that this person would not have constitutionally-protected rights under different circumstances. Indeed, it doesn't even imply that this person has no constitutionally-protected rights on the battlefield. All it implies is that whatever constitutionally-protected rights this person may have, they don't include the right not to be shot under those particular circumstances.

So, the upshot is that your analogy really isn't very helpful. The obvious point is that constitutional rights are a complicated function of a number of variables, including things like the circumstances of the relevant actions, and therefore you can't use an analogy which includes very different circumstances (e.g., on the battlefield versus not) to determine the relevant constitutional rights.
10.20.2006 2:34pm
Elliot Reed:
I am not arguing that there are no rules of war on the battlefield - only that there are no rules in the U.S. Constitution regarding conduct on the battlefield. Even cold-bloodedly shooting a POW ten years after capture does not raise any constitutional questions. Rather, only statutory law would apply.
The Fifth and Fourteenth Amendments have a guarantee of due process of law, and the 8th Amendment forbids cruel and unusual punishments (which iirc has been interpreted to include punishments disproportionate to the offense). There's no explicit exception for the military. Obviously these amendments don't grant rights enforceable on the battlefield, but I'm not aware of any authority that says they don't restrain the military at all. I believe those amendments give less protection to people captured on the battlefield and in military custody than to people captured by the police, but I don't see the case that they don't do anything at all in those circumstances.
10.20.2006 2:34pm
Nom (mail):
Mark:

There is an academic debate as to the correctness of the Supreme Court's reading of the doctrine, but there is no authority for their position.

I can argue for bizarre theories, and write articles on them, but if the courts don't adopt them, the doctrine really isn't open for debate. The law profs are only engaging in academic masturbation on this issue.
10.20.2006 2:38pm
Archon (mail):
Why is it that when you argue about habeus corpus liberals suddenly become strict constructionists and demand that "invasion" be strictly defined? Can't "invasion" also have a modern interpretation seeing that the constitution is a living document? I mean due process = right to abortion, so why can't invasion = muslim terrorists flying planes into American buildings killing 3,000 people.
10.20.2006 2:39pm
Gabriel Malor (mail):
Archon, the Article I Section 9 prohibition is irrelevant when it comes to aliens. See my above comment. We have never fully extended habeas to aliens.

See Johnson v. Eisentrager and Ex Parte Quirin. All this talk about what constitutes invasion completely misses the point.
10.20.2006 2:41pm
Nom (mail):
Chumund and Elliott:

The Constitution does not apply outside the U.S., and the detainess are being held outside the U.S.:

See this case.
10.20.2006 2:45pm
Mahan Atma (mail):
"...there have certainly been a deluge of law review articles on the permissable scope of jurisdiction-stripping which argue that SCOTUS precedent is wrong. But no cases have held that."

I disagree. For example, there are cases that put limits on jurisdiction-stripping when it completely eliminates the ability to obtain due process. See US v. Mendoza-Lopez, 481 US 828.

But part of the reason why there is little case law in this area is because in general, the people who have made laws in this country have had the wisdom not to provoke such constitutional crises.

Too bad we can't say that about the current crop of legislators...
10.20.2006 2:45pm
wm13:
The invocations of Milligan above are very misplaced. Milligan (at least that part) doesn't survive Quirin. It isn't really intellectually honest to pick one oddball case from over a century ago and pretend that it is the law, although it may fool the rubes.
10.20.2006 2:49pm
Nom (mail):
This is what SCOTUS has said when asked to apply the Constitution to aliens outside the U.S.:

b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" [494 U.S. 259, 260] refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Pp. 264-266.

(c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of the United States against arbitrary action by their own Government and not to restrain the Federal Government's actions against aliens outside United States territory. Nor is there any indication that the Amendment was understood by the Framers' contemporaries to apply to United States activities directed against aliens in foreign territory or in international waters. Pp. 266-268.

(d) The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269.

(e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the proposition that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with, this country. See, e. g., Plyler v. Doe, 457 U.S. 202, 212 . Respondent, however, is an alien with no previous significant voluntary connection with the United States, and his legal but involuntary presence here does not indicate any substantial connection with this country. The Court of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed that, but did not expressly address the question whether, the Fourth Amendment applies to illegal aliens in the United States. Even assuming such aliens - who are in this country voluntarily and presumably have accepted some societal obligations - would be entitled to Fourth Amendment protections, their situation differs from that of respondent, who had no voluntary connection with this country that might place him among "the people." This Court's decisions expressly according differing protection to aliens than to citizens also undermine respondent's claim that treating aliens differently under the Fourth Amendment violates the equal protection component of the Fifth Amendment. Pp. 269-273.

(f) The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its [494 U.S. 259, 261] borders. The rule would apply not only to law enforcement operations abroad, but also to other foreign operations - such as Armed Forces actions - which might result in "searches and seizures." Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp. 273-275.
10.20.2006 2:50pm
Anderson (mail) (www):
See Jennifer Van Buren, from her comment at Balkinization:
While many share this view, few Americans know that the very reason the administration chose Guantanamo was in order to avoid a so-called habeas corpus challenge. This is not speculation. It was revealed in a 2002 essay by a student at the National War College who claimed he was privy to both classified and unclassified material. According to the student, Col. Daniel F. McCallum, Guantanamo was chosen, at least in part, because it presented a "minimal litigation risk." McCallum states baldly:

The litigation risk faced by DOJ was access to federal courts for the purpose of filing a writ of habeas corpus. Habeas corpus requires judicial review of the detention of a person to determine if the detention is lawful. An important factor in assessing this risk is that this only applies to citizens and foreign nationals if they are held within the United States.

For Guantanamo, "since the property belongs to Cuba, DOJ assessed the litigation risk as minimal," and "[c]onsidering the strained foreign relations we have with Cuba, [the Department of State] assessed the minimal negative impact acceptable" writes McCallum.
Right, it "belongs to Cuba," and that's why we're so scrupulous about enforcing Cuban law there.
10.20.2006 2:51pm
Mahan Atma (mail):
"The Constitution does not apply outside the U.S..."

Verdugo-Uquidez isn't quite that expansive...
10.20.2006 2:55pm
Elliot Reed:
Nom, I haven't taken the time from Verdugo-Urquidez, but Wikipedia tells me that it found that the Fourth Amendment does not apply to nonresident aliens in a foreign country, not that "the Constitution does not apply outside the U.S." Verdugo-Urquidez doesn't apply to U.S. citizens or residents, and it's far from clear that it applies to anything other than the Fourth Amendment. Furthermore, Guantanamo may well not be outside the U.S. for these purposes.
10.20.2006 2:55pm
JerryW (mail):
With such a broad interpretation of "invasion", we might as well strike the HC clause from the Constitution all together, as an antiquated example of "pre 9/11 thinking". What standards of victory do you think we should use, so we know when this "invasion" has been repelled? Do you think it's likely we can return to the normal Constitution protections in the next 10 years? 50 years?

Rent control was instituted in NYC as an emergency provision because of WWII. Obviously the takings clause of the Constituion was being violated. It is now 60+ years. WWII is long over. When can we return to our normal Constitutional protections?
10.20.2006 2:57pm
Nom (mail):
The passage above, from U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), deals with the argument that Lopez-Mendoza somehow means anything here. It gives it the back of the hand.
10.20.2006 2:58pm
Chumund:
Nom,

You should note at least two things about Verdugo-Urquidez.

First, as we discussed above a bit, it is not clear exactly what defines "inside" versus "outside" the United States, and where a place like Gitmo might fit.

Second, note that your point (b) specifically contrasted the language of the Fourth Amendment with the language of the Fifth Amendment (as an aside, interestingly the Eighth Amendment is even broader, and contains no limiting term whatsover as far as who it protects). This again just shows the inherent danger with drawing analogies in this area--in this case, the scope and application of the Fourth Amendment need not be the same as the scope and application of other Amendments in the Bill of Rights, let alone the Constitution in general.
10.20.2006 3:01pm
Nom (mail):
This is the nub of Verdugo_Urquidez:

The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that extraterritorial aliens are entitled to rights under the Fifth Amendment - which speaks in the relatively universal term of "person" - has been emphatically rejected. Johnson v. Eisentrager, 339 U.S. 763, 784 . Pp. 268-269.



This makes clear that even where "person" is used (as in the due process clause), it does not apply to aliens outisde the U.S. It also shows that merely the fact that we exercise sovereign power somewhere does not make that US teritory. Rasul, holding that Gitmo was US territory subject to habeas, was only about statutory interpretation, not the Constitution. That statute has now been amended.
10.20.2006 3:04pm
Nom (mail):
As for cruel and unusual punishments, "punishment" has always been interpreted as meaning the sentence handed down by a criminal court (or conditions subsequent to such a sentence). It does not apply to civil confinement, which is what battlefield detention nis (i.e. the detainees are not being held to punish them, but are being held as the insane, or sexual predators are to prevent them from harming others).
10.20.2006 3:08pm
andy (mail) (www):
Why is it that when you argue about habeus corpus liberals suddenly become strict constructionists and demand that "invasion" be strictly defined?

i'd be interested in an answer to this as well.
10.20.2006 3:09pm
Archon (mail):
Andy,

I doubt either you or I will see an answer to this question because the only answer would be hypocrisy and no liberal will bone up to that.
10.20.2006 3:12pm
Chumund:
Nom,

As an aside, of course the discussion in Verdugo-Urquidez of the Fifth Amendment is dicta, and not part of the holding in the case. I might also note that Kennedy and Stevens wrote concurrences, although Kennedy did join the court's opinion as well.

Anyway, where are you getting a definition of "territory" out of that dicta? All it implies is that the relevant part of Mexico was not part of U.S. territory, but of course Mexico is not the same as Gitmo.
10.20.2006 3:19pm
Kovarsky (mail):
I think as someone explained above, the suspension clause (art I section 9) talks about invasion or rebellion to identify situations where courts can't function, and martial law is the only means of governing. while 9/11 counts as an invasion, it is not a blank check for congress to suspend habeas during any resultant war. people who argue otherwise don't understand the suspension clause or the history of the english writ.

that being said, up to st. cyr, we've gradually acknowledged that congress can suspend the writ. and it is indeed a grayer area that they may suspend the writ for aliens.

what is absolutely, positively, crystal clear is that congress may not base a decision to suspend the writ for US citizens on a characterization of the 9/11 "invasion," because courts are functioning just fine. and what people fail to realize is that congress has ratified legislation that attempts to strip courts of jurisdiction over us CITIZENS that the president designates as unlawful enemy combatants.

although i think this speaks powerfully to executive arrogance and congressional spinelessness, i'm not overly concerned about it because i think the part of the legislation that allows the executive to define whether a citizen is an "unlawful enemy combatant," without review, will be struck down.
10.20.2006 3:27pm
A.S.:
Why is it that when you argue about habeus corpus liberals suddenly become strict constructionists and demand that "invasion" be strictly defined?

Hehe. The 9/11 attack is included in the penumbra of "invasion"... but, as Griswold tells us, penumbras are good enough for the Constitution!
10.20.2006 3:31pm
A.S.:
and what people fail to realize is that congress has ratified legislation that attempts to strip courts of jurisdiction over us CITIZENS that the president designates as unlawful enemy combatants

This, of course, is completely false. Why would you say that?
10.20.2006 3:33pm
Anderson (mail) (www):
Why is it that when you argue about habeus corpus liberals suddenly become strict constructionists and demand that "invasion" be strictly defined?

Hm. Why do conservatives suddenly become an eerie blend of David Souter and John Yoo?

Liberals are generally interesting in narrowly construing the government's rights against our lives and liberty, less on property.

Conservatives, *real* conservatives, also believe in limiting gov't power. Or used to, back when we had real conservatives, not advocates for executive tyranny. Burke! thou shouldst be living at this hour ...
10.20.2006 3:33pm
Nom (mail):
Chumund,
I cite cases holding certian provisions of the Constitution don't apply to aliens outside the US, and language indicating it applies to others. You cite no cases that actually apply a constitutional provision to an alien outside the US. (Verdugo dismissed your interpretation of Lopez).

As to Gitmo, Verdugo made claer that past cases have held even territories we have sovereignty over (such as Gitmo, under your view) does not mean the Constitution applies there:

The view that every constitutional provision applies wherever the Government exercises its power is contrary to this Court's decisions in the Insular Cases, which held that not all constitutional provisions apply to governmental activity even in territories where the United States has sovereign power. See, e. g., Balzac v. Porto Rico, 258 U.S. 298 .
10.20.2006 3:35pm
Archon (mail):

Liberals are generally interesting in narrowly construing the government's rights against our lives and liberty, less on property.


Yes by liberally construing the bill of rights and making up rights that fall within the catch all 9th Amendment and "due process".

If the Courts can make up rights out of thin air, why can't they liberally construe "invasion"?


Conservatives, *real* conservatives, also believe in limiting gov't power. Or used to, back when we had real conservatives, not advocates for executive tyranny. Burke! thou shouldst be living at this hour ...


Real conservatives believe in limiting the governments power in some instances (i.e property rights, freedom of speech, etc.), but don't endorse the concept of limiting the government's power through the use of unelected tyrants who are literally ruling America. The idea that any branch of government can establish policy without a meaningful check or balance (the amendment process is hardly a meaningful check) runs counter to the very basic principles established in our constitition.
10.20.2006 3:40pm
Chumund:
Nom,

To be clear, I actually consider these to be questions that the Supreme Court has not definitively answered.

Anyway, I find that one needs to read complex cases like Verdugo very closely. With respect to mere territories, the Court stated, "The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not EVERY constitutional provision applies to governmental activity even where the United States has sovereign power." (emphasis added)

That, of course, is not the same thing as saying NO constitutional rights apply to territories where the United States has sovereign power. And indeed, the Court went on to state, "Only 'fundamental' constitutional rights are guaranteed to inhabitants of those territories." So, the Court implied that some constitutional rights DO apply to inhabitants of territories where the United States exercises sovereign power--namely "fundamental" rights.

Moreover, the Court had a somewhat nuanced view of the broader question with respect to constitutional rights even outside U.S. "territory": "If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the view that EVERY constitutional provision applies wherever the United States Government exercises its power." (emphasis added)

So, the Court was simply arguing for the proposition that not EVERY constitutional provision applies to U.S. government actions in foreign nations, drawing on its holding that not EVERY constitutional provision applies in territories. But it certainly wasn't saying that NO constitutional provisions apply to U.S. government actions in territories (just the opposite, in fact), and also not quite stating, even in dicta, that NO constitutional provisions apply to U.S. government actions in foreign nations.

Which, again, all just shows why these are complex and often unanswered questions, and therefore one should be cautious about overstating any claims.
10.20.2006 3:51pm
Kovarsky (mail):
AS,

to be fair, one can mount an argument that the suspension of habeas was not for us citizens, since the habeas-suspending provisions do use the word aliens, although that provisions use of the term is at odds with the much more conspicuous definition of unlawful enemy combatants subject to unreviewable military commission findings, that is the centerpiece of the legislation:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful
enemy combatant’ means—
‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or the Secretary of Defense.
10.20.2006 3:53pm
Kovarsky (mail):
and AS,

that was not an accident of draftsmanship, the language was deliberately changed in conference.
10.20.2006 3:56pm
Chumund:
By the way, my personal generalization is that people who generalize about what "conservatives" or "liberals" think are usually just making thinly-veiled partisan arguments. In contrast, those without strong partisan allegiances generally acknowledge that "conservatives" and "liberals" can both hold a lot of diverse views--and indeed, in many important ways these terms can overlap (e.g., particularly in a country like ours, one can be both a conservative and a liberal).
10.20.2006 3:56pm
anon-y-mouse (mail):
Anyone who reads the law as passed can see that it was intentionally written to create a loophole to allow the Bush administration to "disappear" any American Citizen they deem, at their sole discretion, to be an "unlawful enemy combatant."

While the definitions sections expressly define "alien unlawful enemy combatant" and describe the rest of the section as applicable to them, many later sections and subsections simply use the term "unlawful enemy combatant," without any "alien" restriction. This is an intentional loophole.

Assume as a thought experiment the Bush administration starts disappearing inconvenient political opponents who are U.S. citizens. Other than an original writ filed directly with the supreme court by their next friend (which the Bush administration will argue lacks standing because noone will have proof that the persons have been abducted by the government), what remedies would such a U.S. citizen have remaining under the law as it now stands?

I don't mean this as hyperbole. I want to know what remedies a U.S. citizen would actually have.
10.20.2006 4:00pm
Kovarsky (mail):
AS,

I should also add:

‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILITARY
COMMISSION PROCEDURES AND ACTIONS.—Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction
S. 3930—25
to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter


Of course, Section 2241 of Title 28 is habeas, so if the Military Commissions have jurisdiction over the claim, it can't be reviewed collaterally.

if you read the jurisdictional grant to the commission, it does use the word alien, But then why the hell did they change the definition of "unlawful enemy combatant?"
10.20.2006 4:06pm
Kovarsky (mail):
anon-y-mouse,

a US citizen would likely have a due process right to challenge his designation as an unlawful enemy combatant. in other words, the legislation's provision making the president's determination of that status unreviewable cannot be challenged as effectively as an alien, but the due process clause would probably require review of that determination in the case of a U.S. citizen. that's why i said, above, that i'm not that concerned.

but we're in full agreement about how contrived and insidious the wording of the legislation is.
10.20.2006 4:09pm
Gabriel Malor (mail):
Anyone who reads the law as passed can see that it was intentionally written to create a loophole to allow the Bush administration to "disappear" any American Citizen they deem, at their sole discretion, to be an "unlawful enemy combatant."

That's a lie and directly contradicted by the text of the law:

Sec. 6 (a) `(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who-- `(A) is currently in United States custody; and `(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

You folks keep claiming that the act strips habeas corpus from citizens. That is plainly not the case.
10.20.2006 4:11pm
JunkYardLawDog (mail):
Anderson,

Are you trying to say there was something wrong with the USA choosing Gitmo for whatever reason they may have had? Wasn't there a prior to Rasul/Hamdi case from SCOTUS that held habeas didn't apply in Gitmo because it wasn't USA territory, and then the current court ignored that prior precedent so it could make a power grab on how to conduct battlefield operations and detentions?

Says the "Dog"
10.20.2006 4:13pm
Anderson (mail) (www):
Gabriel, would you mind correlating your comment with Kovarsky's comment two spots up?
10.20.2006 4:14pm
A.S.:
Kovarsky,

I suggest you read Hamdi, which directly addresses the due process rights to which US citizens determined to be UECs are entitled.

The Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker".
10.20.2006 4:20pm
anon-y-mouse (mail):
i'm not sure how a us citizen would get their due process claim before a u.s. court. the d.c. circuit reviews the military tribunals, but no detainee need be given a military tribunal and on my first few readings the military tribunals appear to only apply to aliens.

if the removal of jurisdiction from us courts is effective, then a us citizen can be disappeared, and so long as no military tribunal is used, they have no remedy at all save an attempt to directly seek review in the supreme court through an original jurisdiction great writ. but for that, they would need:

(1) to show that their attempt is not barred by the suspension clause (i.e. the tensions discussed above between Ex Parte Milligan and the WWII cases)

(2) they have standing -- they're next friend can show that they are actually being held by the government (which, absent an admission by the administration, will be an impossible hurdle to overcome)

(3) that the determination that they are an "unlawful enemy combatant" is subject to any judicial review at all given the total executive discretion in interpreting that language (and existing cases on terrorist designations under treasury anti-terror rules seem to support this pure executive discretion theory)

(4) if it is subject to review, that their is some factual or legal basis that makes their status as a detainee inconsistent with "clearly established federal law." Given that the law is intensely unclear on each the points above, even if you were "actually innocent," or, in the classic hypothetical situation of a rogue executive imprisoning political opponents, there is no clearly established rule that you can point to to overcome these three points. Of course, you could point to the Magna Carta as clearly established law incorporated into the original constitution, bill of rights, and 13th and 14th amendments, but that's a really thin thread to justify your freedom on.

Thus, my original concern from my (hopefully) absurd hypothetical still stands: if a rogue executive disappears political opponents who are U.S. citizens, what remedies do they have? By my reading, they have none whatsoever except for an original jurisdiction writ, and even there they can only go forward if the government admits they are holding the person.
10.20.2006 4:25pm
Gabriel Malor (mail):
Anderson,

It is a principle of statutory interpretation that where a statute is susceptible to multiple interpretations, courts should avoid the interpretation that makes the statute unconstitutional.

Since we know that denial of habeas corpus to citizens is unconstitutional (see Ex Parte Quirin, Hamdi v. Rumsfeld) the Kovarsky's ambiguity is interesting, but irrelevant.

Habeas corpus cannot be denied to US citizens short of Congressional action in times of invasion or rebellion when the civilian courts cannot operate (Ex parte Milligan, Hamdi v. Rumsfeld).

Habeas corpus can be denied to aliens so long as they are outside US territory (Johnson v. Eisentrager, Abu Ali v. Ashcroft).
10.20.2006 4:27pm
Anderson (mail) (www):
Gabriel, you may be right, but I think we can fairly expect the present Administration to fight for as expansive a reading of the MCA as it can get. They don't shy away from ambiguities, they drive trucks through them.

If we've got people in VC threads arguing that Congress has suspended the Habeas Clause, you can bet that Addington et al. will argue as much.
10.20.2006 4:30pm
anon-y-mouse (mail):
Gabriel,

I would appreciate it if you did not denigrate your own credibility by labeling my argument as a "lie" without factual support.

As noted by other posters, section 950j(b) bars any court review of the procedures, rulings, etc. by military tribunals, and hence of detainment under the act, unless expressly permitted somewhere else in the act. You'll notice it is not limited to aliens:


11 ``(b) PROVISIONS OF CHAPTER SOLE BASIS FOR RE-
12 VIEW OF MILITARY COMMISSION PROCEDURES AND AC-
13 TIONS.--Except as otherwise provided in this chapter and
14 notwithstanding any other provision of law (including sec-
15 tion 2241 of title 28 or any other habeas corpus provi-
16 sion), no court, justice, or judge shall have jurisdiction to
17 hear or consider any claim or cause of action whatsoever,
18 including any action pending on or filed after the date of
19 the enactment of the Military Commissions Act of 2006,
20 relating to the prosecution, trial, or judgment of a military
21 commission under this chapter, including challenges to the
22 lawfulness of procedures of military commissions under
23 this chapter.


As an added bonus, under section 950r if you represent or try to provide legal assistance to someone, then congratualations!!! you too are subject to a military tribunal, since you're assistance interferes with the trial and punishment of someone under the law!
10.20.2006 4:33pm
MKM:
You have to read Verdugo together with Reid v. Covert and Rasul, to get a sense of the lay of the precedent, and pay close attention to the concurrences in all three cases.

In Reid v. Covert, involving (if I recall right) trial of a U.S. citizen on a military base, the Court recognized that constitutional rights of citizens apply to extraterritorial military bases as well as to "territory" like the Phillipines or Puerto Rico, in effect treating the two kinds of extraterritorial possessions similarly for purposes of applying the Constitution extraterritorially. In Reid, the Court split between a plurality, which reasoned that the Fifth and Sixth Amendment's protections apply in all cases to trials of citizens held on military bases, a concurrence by the second Justice Harlan, who agreed the constitution applied extraterritorially in some cases, but opted for a case-by-case inquiry into the practicality of applying constitutional protections.

In Verdugo, the Court considered Fourth Amendment claims by a Mexican national seized in Mexico by U.S. police. The plurality, in an opinion written by Rehnquist, rejected his Fourth Amendment claim based on a territoriality limitation on the reach of the Fourth Amendment. The plurality left open the extent to which certain fundamental rights apply extraterritorially, as the Insular Cases had suggested, although suggested fundamental rights apply only to persons inhabiting territorial-like U.S. possessions. Kennedy concurred, citing Reid and the Insular Cases, to stress that, contra the plurality, he did not believe there was a strict territoriality limit on the Cosntitution's reach. Kennedy emphasized that, at a minimum, due process rights apply abroad, and that the court must engage in due process scrutiny on a case by case basis, employing a Mathews like balancing test that assesses the practicality of applying due process protections to a given case.

In Rasul, finally, Justice Stevens cited to Kennedy's Verdugo concurrence--suggesting that the plurality there concurred with Kennedy that due process protections not only apply extraterritorially, but apply to Guantanamo. Kennedy, of course, supplied the fifth vote--and we know where he stands on the matter after Verdugo. Futhermore, in his Rasul concurrence, Kennedy suggest that claims it was impractical to hear habeas challenges weren't convincing, given the length of time the prisoners had been held and the distance from any combat zone.

Put all this together, and its clear there's a majority on the Court for the proposition that some due protections apply to Guantanamo. Those protections may inform the scope of "constitutional habeas" (that is, the habeas guaranteed by the Constitution, rather than by statute) and limit Congress's power to suspend constitutional habeas. In Milligan, the Court seemed to suggest that the Fifth and Sixth Amendment do impose some external limit on Congress's suspension power when persons are not simply detained but subject to trial. However, to date, the Court hasn't determined the scope of constitutional habeas or the extent to which due process limits suspension.

To be sure, Eisentrager, Quirin, and Yamashita all reject the proposition that "enemy combatants" have general fifth amendment and sixth amendment rights to challenge the features of military commissions. But in each case, the accused had not challenged their enemy combatant status and the court operated on the assumption that they had jurisdiction to hear the habeas appeals. As a result, none of these cases squarely foreclose a claim that due process entitles Guantanamo detainees to challenge the jurisdictional facts that give rise to military tribunals jurisdiction under the MCA: i.e. including whether the Combat Status Review Board's classification of the person as an "alien" or an "enemy combatant" is accurate.
10.20.2006 4:35pm
anon-y-mouse (mail):
Gabriel,

My only other point is that, even if habeas is available, since the government need never disclose it has disappeared a U.S. citizen, and no requirement that they ever give them a military tribunal, there is no way for them or their next friend to file a petition since they cannot prove standing.
10.20.2006 4:36pm
Mark Field (mail):

There is an academic debate as to the correctness of the Supreme Court's reading of the doctrine, but there is no authority for their position.

I can argue for bizarre theories, and write articles on them, but if the courts don't adopt them, the doctrine really isn't open for debate.


I think you're defining "debate" a little too narrowly. The way legal doctrines change is that they get raised and debated even though they aren't (yet) law. Obviously there are limits to this, but it can take quite a while for such debates to find final expression in case law. Just look at Harlan's dissent in Plessy, for example.


Why is it that when you argue about habeus corpus liberals suddenly become strict constructionists and demand that "invasion" be strictly defined?


Think of us as the conscience of conservatives. We'd all happily stand back if and when the true strict constructionists stepped forward to defend a principle that goes back to Edward Frickin' III:

"For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. Wherefore Edmond earl of Kent being taken at Pontefract, 15 Edw. II. and condemned by martial law, his attainder was reversed 1 Edw. III. becaufe it was done in time of peace." Blackstone. The Act of Parliament to which Blackstone referred said, in relevant part, "when the King's courts are open, it is a time of peace, in judgment of law".


The invocations of Milligan above are very misplaced. Milligan (at least that part) doesn't survive Quirin.


I think you have this backward. Scalia said of Quirin that it "was not our finest hour".
10.20.2006 4:37pm
Kovarsky (mail):
gabriel, you may want to tone down your, well, tone.

of course that provision doesn't expressly strip habeas from citizens. just like the legislation doesn't expressly say the us is not bound by the geneva conventions. instead it just says that a prisoner can't assert the geneva conventions as an offense in court.

but just because that provision doesn't suspend habeas doesn't mean that some other provisions, or combination thereof, can't, which is the point that several other people on this thread, and a number of very well respected constitutional scholars, have made.

as i said earlier, they all point to the change in the definition of "unlawful enemy combatant" that appears at the top of the legislation, which was altered sometime in conference and, by all reports, for the express reason that it enlarges the definition to include u.s. citizens.

i don't really want to get into the specifics with you, since you seem like one of those people that's just going to call me a liar, a left-winger, and a number of other names that you've probably snaked from powerline recently. but here's one example where the definition of unlawful enemy combatant becomes problematic, and it should illustrate my point, although you can feel free just to call me a liar (i'll do it for other people's benefit):

section 948(d)(a) reads, "‘‘(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien"

section 948(d)(b) excludes from military commission jurisdiction authority to try lawful enemy combatants

but what about citizen unlawful enemy combatants? they aren't made part of the group expressly excluded either. a closer reading of the jurisdictional provision reveals that "any offense made punishable under this subchapter" OR (OR OR OR OR OR) a violation of the law of war committed by an alien. Writing that jurisdictional grant in the disjunctive pretty clearly leaves room for miliatry commission jurisdiction over citizen unlawful combatants.

but i'm sure you trust the president not to exploit loopholes that he deliberately creates, right?

and then there are two more habeas provisions; you only cite one. that one, indeed only suspends habeas for aliens. but here's some statutory interpretation 101. the authority for a government act can come from more than one place. the other provision, excerpted in an above post (i'm not doing all your work for you), suspends habeas for ANYONE over which the military commission has exercised jurisdiction. so the upshot is that if the military commissions try a citizen unlawful combatant, that person cannot resort to habeas relief.
10.20.2006 4:39pm
Anderson (mail) (www):
Scalia said of Quirin that it "was not our finest hour".


Ah, I was confusing Quirin and Eisentrager earlier today (at OTB perhaps). Anyway, I recall thinking after Hamdan that the futures market on Eisentrager must've plummetted.
10.20.2006 4:40pm
Mark Field (mail):
Excellent summary, MKM.
10.20.2006 4:41pm
Kovarsky (mail):
Gabriel,

So your point is now that the unconstitutionality of the provision is "irrelevant" because it is capable of a constitutional interpretation.

That seems a far cry from the "lie" you've been accusing me and others of perpetuating.
10.20.2006 4:43pm
Kovarsky (mail):
Gabriel,

Furthermore, the court need not resort to the doctrine to which you allude, since the as-applied-to-citizens provisions/combinations thereof may be severed pursuant to the legislation's severability provision.
10.20.2006 4:44pm
kelvin mccabe (mail):
Okay - so if 9/11 was an invasion - was the first world trade center bombing an invasion as well? Does the fact that the towers didnt collapse on the 1st try make it different from the second more successful attempt? And if blowing up a building is all it takes to invade - Was Timothy McVeigh and unknown associates "invading from within" when they blew up the Murrah building?

I think the problem with the "invasion" justification for suspending the writ, is precisely in the undefined limits of when it started, and more so on the undefined limits of when it will end - (as someone upthread noticed). This is a global war on terror - one that has no conceivable end so long as there are pissed off radical muslims somewhere in the world who intend to harm U.S. interests, here or abroad.

Even if we define the beginning of the invasion as 9/11 - -(although it seems there is reason to conclude the so called- "invasion" began earlier -such as the bombings of the Cole or our embassies in Africa since these are considered u.s. soil) there is no way to define the end of the invasion - so its unlike anything the founders were likely thinking at the time of writing the constitution. Invasions, in the good ol days of the founders, were done by armies. Usually with state actors supporting them. Example, France (french army) invades the USA. At some point, either france or the u.s. wins and its over. The point here is simple, strict constructionism sometimes doesn't work because there are some things that were simply NOT THOUGHT OF (or in the collective conscience)at the time of writing the constitution but have since become part and parcel of modern life. It is intellectually dishonest to try to state unequivocally what the founders meant by a certain word, as it was used in 1789, and how they (the founders)would apply the same word to something completely foreign to their frame of thinking in the year 2006. It is nothing but rank speculation. That being said, I would speculate that had the founders been around to see what happened to u.s. citizen Jose Padilla for four years, another declaration of independence would be in the final draft phase by now. :) Cheers for the weekend --
10.20.2006 4:56pm
Kovarsky (mail):
kelvin,

whatever your take on whether 9/11 was, at that time, an invasion, no credible authority thinks that we are current subject to the sort of invasion or rebellion that would authorize congress to invoke the suspension clause.

that's why even the people on this thread that argue the legislation has no constitutional problems do so on the grounds that the 2006 legislation's suspension provisions could not be read as applying to citizens, because the country is not subject to the conditions necessary to justify suspending the writ for those to whom it constitutionally "applies."

this issue of whether it "applies" to citizens or to aliens is a little misleading since, if you read article I, section 9, it just says congress can't suspend the writ except in cases of rebellion or invasion. it is not, like many of the first ten amendments, cast as a "right" that attaches to citizenship, personhood, etc.
10.20.2006 5:07pm
Gabriel Malor (mail):
Kovarsky, I'm saying that you have made an interpretation under which the provision is unconstitutional. Fortunately for all of us, there is an interpretation of the provision that is constitutional (and, I would argue, much more obvious textually) and "where a statute is susceptible to multiple interpretations, courts should avoid the interpretation that makes the statute unconstitutional."

Just the mere fact that you're calling it unconstitutional does not make it so. Your interpretation would be unconstitutional. Mine would not. I wonder which way the courts will go. That's why I called your interpreation irrelevant. I did not call the constitutionality of the provision irrelevant.

Furthermore, your argument that the statute is unconstitutional because it's possible to read a disjunction in section 948d(a) as allowing the prosecution of citizen enemy combatants without any recourse to civilian courts suffers from the same problem. The Court has already foreclosed that possibility. See, e.g. Hamdi v. Rumsfeld. Ergo, no court will allow your interpretation (which would I admit make it unconstitutional) when a constitutional one is obviously available.
10.20.2006 5:10pm
anon-y-mouse (mail):
Gabriel,

The problem with your argument re interpreting the statute in a "constitutional" manner in order to save it, vs. Kovarsky's "unconstitutional" interpretation, is that there is no way to enforce the protections you claim are available to us citizens under your interpretation but are not available under Kovarsky's.

assuming your interpretation is correct, and that the courts are open for a us citizen to challenge their detention, how do they get into court when (1) the government has no obligation to admit they have been detained making it very hard for them to have standing in court to challenge a detention that may or may not exist, and (2) anyone who attempts to provide them legal assistance faces potential liability themselves under section 950r?
10.20.2006 5:18pm
Kovarsky (mail):
Gabriel,

I'm going to take a step back, because I think you're missing my point a bit. I have said from the beginning (check) that a court would not enforce the habeas suspension against a us citizen. I do not need you to quote the doctrine of constitutional avoidance. I am an appellate lawyer, and I do habeas litigation specifically.

My point has been that the administration has tried to do something quite insidious by

(1) rewriting the definition of unlawful enemy combatant that plainly includes citizens

(2) "suspending" habeas in 2 different parts of the provision - one, meant to grab your attention, that applies only to aliens; the other, which applies to any matter subject to the jurisdiction of a military commission

(3) defining the jurisdiction of the military commission such that the ONLY express exclusion is for lawful enemy combatants, and the enumerated jurisiction applies to "crimes under this chapter" OR war crimes committed by aliens.

This is not paranoia. It is precisely the way the administration "honored" the geneva conventions by cosmetically accepting them but by barring prisoners from asserting them in court.

And although I disfavor the term "lie," your characterization of Hamdi is incorrect. That opinion reads, in relevant part:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

not only are you incorrect because these criteria do not equate to a requirement that such a detainee have access to a civilian court, but read the caveat in Hamdi several paragraphs below:

Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

If the argument is that Congress has attempted to suspend the writ for citizens, then it is actually your argument about Hamdi that is - what was that term you used - irrelevant.
10.20.2006 5:28pm
Anderson (mail) (www):
Gabriel, you've made some good points, but I think it's about time you retracted that "lie" remark above. What say you, sir?
10.20.2006 5:47pm
Kovarsky (mail):
Yeah, just to echo Anderson. I don't mean to be so terse, but I also don't take kindly to being called a liar. I don't expect an apology, but I do hope expressions and terms like "you are a liar, you are just stupid, this is just silly, this is absurd, sheesh, score political points, meme, liberal, and conservative" would slowly work their way out of discussion.
10.20.2006 5:50pm
Gabriel Malor (mail):
Indeed you are right, Kovarsky:

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention.

It seems that the Court is open to the idea of military commissions for civilians after all!
10.20.2006 5:52pm
Gabriel Malor (mail):
Anderson, you have my sincere apologies. I was offended by anon-y-mouse's tone, despite his protestation that he was not just being hyperbolic. I let my irritation at the preposterousness of the much anticipated "disappearings" get the better of me.
10.20.2006 5:56pm
Kovarsky (mail):
Gabriel,

It seems that the Court is open to the idea of military commissions for civilians after all!

Cute, and I'm not sure if you're serious, but the Court is saying that citizens have habeas corpus rights, unless congress suspends habeas corpus for citizens.

And Congress can only suspend habeas corpus for citizens in times of invasion and rebellion.
10.20.2006 6:03pm
Anderson (mail) (www):
I've raised the "disappearing" possibility myself -- it's far from the main reason that we have to worry about this law, but the fact that it's even debatable is spooky.

See this (via How Appealing) from U.S. Bankruptcy Judge Leif Clark, who sounded off to NPR:

I also quibble with his contention that U.S. citizens still have the right to habeas review. I've read the law. The president can form his own tribunal, which can determine who is an "enemy combatant" (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review. Moreover, persons targeted by this tribunal would not even have access to the military tribunal trial created under this law.

How easy it would be for a president to use such a law to make his political enemies simply disappear. Can this be America?


If a federal judge can be worried about the "disappearing" bit, maybe we shouldn't treat it as utter craziness?

(And as I keep telling people, this is the same Leif Clark whose "Order Denying Motion for Incomprehensibility" made the rounds a while back.)
10.20.2006 6:08pm
anon-y-mouse (mail):
Gabriel,

The point of my original post was to request an explanation from you and others why the "disappearing" scenario is wrong. To be hit back with an accusation of spreading lies is what I found offensive. My concern, and the concern of many others from both ends of the political spectrum, is that this type of power in the executive, with no accountability, and with no justiciable boundaries as to the bases for being declared an enemy combatant, or who can be so declared, permits this vvery scenario for the first time in our recent history. I would welcome any reasonable arguments that I'm wrong, and I hope I'm wrong, but everything I have studied so far leads me to believe that, right or wrong, this is how the administration will read the law.
10.20.2006 6:28pm
Gabriel Malor (mail):
Okay, I'm glad you got my humour Kovarsky. I agree with both of your statements, by the way. In fact, it is because I believe that both those things are true that I shrug off interpretations of the Act that would lead to a different conclusion.

You seem more worried about such applications, and as a lawyer dealing in habeas petitions, it's probably a good thing for you to keep an eye on. I, on the other hand, foresee no impending habeas problems of my own and I am therefore more willing to wait and see how the Administration operates under the Act before I condemn it.

Anderson, Judge Clark seems like quite a character. I wonder how many habeas petitions he sees over at the Bankruptcy Court...
10.20.2006 6:28pm
Kovarsky (mail):
I break with the people that think the president would use this to make "political enemies" dissappear. I think the more accurate description is that he's obtained the power to impose horrifically harsh sentences in very borderline cases, and has eliminated the possibility of review for those cases.

i do not think this is john adams using the alien and sedition acts to punish his political enemies, but it is nonetheless a grotesque and deliberately deceptive arrogation of power. i worry about the effects on professors, war protestors, and arabs-americans generally. it is very disquieting.
10.20.2006 6:30pm
A.S.:
See this (via How Appealing) from U.S. Bankruptcy Judge Leif Clark, who sounded off to NPR:

I also quibble with his contention that U.S. citizens still have the right to habeas review. I've read the law. The president can form his own tribunal, which can determine who is an "enemy combatant" (not just an alien enemy combatant), and the decision of that tribunal would not be subject to habeas review.


Apparently Mr. Bankruptcy Judge Clark hasn't read Hamdi, which holds precisely the opposite.

Oh well. Bankruptcy Judges aren't required to read such decisions anyway.
10.20.2006 6:39pm
Kovarsky (mail):
AS,

What in hamdi contradicts that holding, and please be specific. I've already above-cited the language that I think you are talking about, and explained why that's a misrepresentation of what hamdi actually says.

So please elaborate on why MR Bankruptcy judge is so stupid and you are so smart.
10.20.2006 6:42pm
Anderson (mail) (www):
I wonder how many habeas petitions he sees over at the Bankruptcy Court...

I suspect that Judge Clark's confidence in never having to hear a habeas petition, was a big part of his feeling like he could speak out on the subject.

As Howard Bashman notes, Judge Clark may be in trouble for speaking out:

The outburst surprised other judges and could subject Clark to disciplinary action, lawyers said. Clark was unavailable to comment Monday.

Chief Judge Edith H. Jones of the 5th Circuit said this is the first time in her eight-month tenure she has heard of a bankruptcy judge commenting publicly on a legal issue.

"This is a very novel situation," Jones said in an interview. She said she wasn't sure how the situation would be handled, if at all, but that she planned to look into it.

"I do not want to be saying anything definite at this point," Jones said.

She added that judges aren't completely barred from public commentary.

"Judges can comment generally on topics that pertain to issues of justice," Jones said.

The Canons of Judicial Ethics, which govern the conduct of the federal judiciary, restrict what judges can say publicly, including barring them from political activity, such as endorsing a candidate.


(Note: Preview's still not working for me -- it used to load like a shot, but now stays hung up. Anyone else?)
10.20.2006 6:49pm
Kovarsky (mail):
judges comment on things like this all the time. the fact that he's not going to hear a habeas case is pretty much a game over circumstance.
10.20.2006 6:57pm
Anderson (mail) (www):
Well, he can recuse himself from all Gitmo bankruptcy petitions he receives.
10.20.2006 7:14pm
Chuck C (mail):
Is the following section only in my copy of the bill?

"Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter."

Since the entire bill is chapter "47A Military Commissions",
I would think that U.S. citizens are not covered by anything in this chapter at all.
10.20.2006 7:16pm
A.S.:
Kovarsky,

I confess I have attempted to understand your argument above and have failed.

The President can find anyone (citizen or non-citizen) to be an unlawful enemy combatant. The legislation expressly says that only non-citizens are subject to military commissions, and that non-citizens may not challenge that through habeas. US Citizens are thus not subject to the military commissions set up by the legislation. Per Hamdi, they must be given access to means to challenge their detention in front of a neutral decision maker. Since citizens are not subject to the military commissions, what neutral decision makers do we have to effect this requirement of Hamdi? A District Court. (The only other possible means I could see would be a regularly constituted court martial, in accordance with the UCMJ.)

So where does you alleged habeas stripping for US citiznes come in?
10.20.2006 7:20pm
Kovarsky (mail):
well, i'm sick of arguing this point because i've literally parsed the whole statute over the course of this thread. i'm not going to start at the beginning again. here's somthing chemerinsky posted within the last hour.

here's an excerpt:

The Act violates some of the most basic principles of American constitutional law and basic human rights. For example, under the new law the president can authorize the indefinite detention of individuals without due process ever being provided. The Act says that those detained in Guantanamo Bay, Cuba, cannot file a writ of habeas corpus in any federal court challenging their detention. Their only opportunity for federal court review is after a proceeding in a military tribunal.

But there is nothing in the Act requiring that individuals be charged or tried in such forums. The result is that the federal government could hold a person for the rest of his or her life without ever providing a hearing and with no court ever reviewing the matter.

Even when a person receives a hearing in a military forum and can obtain federal court review, the federal court is not allowed to hear any claims by the detainee based on the Geneva Conventions or other international law. The Act thus deprives federal courts of their power provided by the Constitution to hear claims arising under treaties.

Moreover, under the Act, the president can indefinitely detain American citizens as enemy combatants, including for assisting terrorist activity. No other federal law in American history ever has given a president such power.

It is not hyperbole to say that this Act is among the worst adopted in American history in its disregard for the Constitution.
10.20.2006 7:21pm
Kovarsky (mail):
Chuck,

I'm not responding to your snide remark; it's contained above; you can read the thread or not.

AS,

So where does you alleged habeas stripping for US citiznes come in?

i've got to leave, but i'll try my best to get back on in a bit and re-explain. as i've said before, i think the problem is more that us citizens can be detained indefinitely... that's the short answer, but probably not an edifying one. i'll get back as soon as i can.
10.20.2006 7:31pm
srp (mail):
I don't understand Kovarsky's concern. He cites the following

section 948(d)(a) reads, "‘‘(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien"

to suggest that a loophole has been created allowing US citizens to be tried by military tribunals. When I read this passage, the phrase "committed by an alien" seems intended to apply to the part before the OR ("any offense made punishable by this chapter") as well as the part after ("the law of war"). That reading maintains the natural parallelism--the clauses before and after the OR both refer to the ACTIONS covered and the modifier afterward "when committed by an alien" applies to the PERSONS covered in either case.

Is there some legal-fu that renders the above (natural) reading incorrect?
10.20.2006 7:47pm
Gabriel Malor (mail):
No, srp, there is not. Kovarsky is just concerned that the government will try and apply it so that the "committed by an alien" part only applies to the second part of the disjunction.

It's his interpretation, and it's only an interpretation. As I've been arguing, it's unlikely that any court would honor that interpretation.
10.20.2006 8:37pm
andy (mail) (www):
"The Act thus deprives federal courts of their power provided by the Constitution to hear claims arising under treaties. "

well, that doesn't make much sense. if congress abrogates a treaty, then the fed courts have no power to hear claims arising under that treaty-- that treaty is no longer the law of the land. this guy teaches conlaw?
10.20.2006 9:30pm
A.S.:
as i've said before, i think the problem is more that us citizens can be detained indefinitely...

The thing is, Presidents have ALWAYS had the power to hold US citizens indefinitely as enemy combatants. That's been clear since Ex Parte Quirin. This law does nothing to change that power. In Quirin, the US citizens held by FDR as enemy combatants were afforded habeas proceedings. Hamdi affirmed that US citizens held as enemy combatants had a right to due process.

The only thing this law does is to provide a statutory definition of what constitutes an unlawful enemy combatant. This had been up to the President before, and now Congress has weighed in too. But the fact that Congress had provided that statutory definition does not mean that any of the rights of UECs, or the President with respect to holding UECs, set forth in Quirin or Hamdi have been changed.
10.20.2006 9:54pm
Mark Field (mail):

if congress abrogates a treaty, then the fed courts have no power to hear claims arising under that treaty-- that treaty is no longer the law of the land. this guy teaches conlaw?


Congress did NOT abrogate Geneva, it just said that courts could not hear claims based on Geneva. IOW, the treaty is still the law of the land, but there is no remedy under it.


In Quirin, the US citizens held by FDR as enemy combatants were afforded habeas proceedings.


The petitioners in Quirin were all German citizens, though one tried (not very persuasively) to argue that he wasn't:

"The following facts appear from the petitions or are stipulated. Except as noted they are undisputed.

All the petitioners were born in Germany; all have lived in the United States. All returned to Germany between 1933 and 1941. All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship."
10.20.2006 10:27pm
jrose:
A.S.,

I don't agree that the MCA is unconsequential with reagrds to detainment of citizens.

Firstly, Hamdi was decided by only a plurality (of which two are no longer on the Court) which found the AUMF satisfied 18 U. S. C. §4001(a). The MCA more clearly satisfies 18 U. S. C. §4001(a).

Secondy, the statutory definition of an unlawful enemy combatant is inter alia "a person ... who has been determined to be an unlawful enemy combatant" by the executive branch. That definition, 1) turns the keys completely over to the executive and 2) might make it damned-near impossible to reverse such a designation in front of neutral decision maker.
10.20.2006 10:56pm
Just an Observer:
I cannot see that the definition of "unlawful enemy combatant" in the Military Commission Act applies to detention at all.

That definition is expressly limited to a specific context:

‘‘§ 948a. Definitions
‘‘In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means ...


and "this chapter" is entirely concerned with the trial of certain combatants before the authorized commissions for charged offenses.

Any attempt to construe that definition beyond that context to the detention of combatants, citizens or not, is completely unsupported by the text. The act provides no new authority for detaining such persons in the first place, whether they be citizens or not. Such detention is already occurring, and has been upheld in Hamdi v Rumsfeld.

Of course, this administration's lawyers may be brazen enough to misconstrue the new act's definition to apply to pretrial detention. I cannot believe any court would agree with them, but since alien detainees are denied habeas review, it is hard to see how they would ever get that question before a court. Theoretically, citizens could do so.
10.20.2006 11:28pm
A.S.:
JaO makes, I think, a good point. The definition of UEC is provided in the statute for purposes of who is subject to trial. It may not apply with respect to other matters, such as who the Preident may seize and detain.

This, of course, says nothing as to whether the President has the power to detain UECs in the first place. Thta power does not derive from any statute, but rather from the Constitution itself.

As the Supreme Court held in Quirin: "An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. ... the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful..." Ex Parte Quirin, 317 US 1, 28-31 (1942) (emphasis added).

Accordingly, the right of the President to capture and detain unlawful enemy combatants has long been recognized and has been directly affirmed by the Supreme Court. There is no question, then, that the President can detain UECs; the only question before us now is what procedures are afforded to those persons determined to be UECS to challenge such determinations.
10.20.2006 11:44pm
A.S.:
Also, as to Mark Field's post about whether any of the Nazis in question in Quirin really were US citizens... Mark Field seems to have left out the next sentence from his quotation: "for reasons presently to be stated we do not find it necessary to resolve these contentions."

Why is it that the Supreme Court found that it was not necessary to figure out whether any of Nazis in question were actually US citizens? Because the Supreme Court found that US citizens could be unlawful enemy combatants to the same extent that non-citizens could! "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war." Quirin at 38-39.

So the Supreme Court has held that being a US citizen does not give anyone a Get-Out-Of-UEC-Status-Free card.
10.20.2006 11:50pm
Just an Observer:
A.S.,

It makes me a little nervous that you and I agree about what the text means. I still worry that your buddies at this DOJ would not shrink from opining that "night" means "night and day" so long as there is no judge to say otherwise.
10.21.2006 12:07am
Brendan (mail):
Not being a lawyer, I find the discussion pretty interesting. w.r.t. the disapearing bit, if the goverment uses its power to grab you and hide you away, w/o telling anyone, and the people involved say nothing, you are gone.

it seems a bit circular to say, under an interpretation the courts would not uphold (b/c its not constitutional) people could be snatched away, and then not allowed to challenge, so the courts couldnt strike it down (or protect them)

the real problem is the snatching and hiding, if they do it, the court wont have the chance to protect them, regardless of what interpretation prevails.

finally assuming why something got added in, and assuming evil intentions on the part of the president, while possibly justified, does not really fit into that argument, others can just as easily argue that bush has been perfectly reasonable in his applications to date and is a good man, running a great administration, so the bad interpretation and actions will never come about.
10.21.2006 12:52am
Mark Field (mail):

Also, as to Mark Field's post about whether any of the Nazis in question in Quirin really were US citizens... Mark Field seems to have left out the next sentence from his quotation: "for reasons presently to be stated we do not find it necessary to resolve these contentions."

Why is it that the Supreme Court found that it was not necessary to figure out whether any of Nazis in question were actually US citizens? Because the Supreme Court found that US citizens could be unlawful enemy combatants to the same extent that non-citizens could!


Your post is disingenuous to the point of dishonest. Your original assertion was that the prisoners in Quirin were "US citizens". I simply corrected your factual error. Now you're attempting to recast my post into something I never said. Nice.
10.21.2006 12:57am
Kovarsky (mail):
AS works at DOJ? That makes sense.
10.21.2006 2:12am
jrose:
JaO,

I'm not so sure about your claim that the definition of "unlawful enemy combatant" is limited to the context of trials provided for in Chapter 47A. The trials apply only to alien unlawful enemey combatants. Yet, the definition of unlawful enemy combatants is not limited to aliens. For what purpose are citizens designated unlawful enemy combatants?
10.21.2006 9:43am
Just an Observer:
jrose,

I am just going by the text of the definitions section, and that definition is limited to the chapter that pertains to trials and commissions. Nothing in the act pertains to detention authority, as far as I can see.

I can't explain why the definition of "unlawful enemy combatant" is not limited to aliens. In fact, it is hard to see why the term of art even needs to be there for the chapter to be interpreted. Overall, I find myself in agreement with the cautious observation Marty Lederman expressed in a post while the bill was being considered:

NOTE: I should clarify that what I wrote yesterday remains true: The bill itself does not state, in so many words, that all "unlawful enemy combatants" may be detained until the end of hostiltiies. Indeed, it doesn't offer much of a reason at all for defining "unlawful enemy combatant." Thus, the bill could -- and perhaps should -- be construed not to establish any detention authority. But many in Washington this week fear that the Administration will read the new definition to implicitly establish a new detention authority. If -- but only if -- the bill did so, it would be an indefensible delegation to the Executive on a vital question of suppressing individual liberty. That's the (conditional) thrust of this post.


By my reading, the text doesn't authorize detetion, and the definition "in this chapter" does not pertain to anything but trial by military commissions. But no one fully trusts this administration not to try construing the language to mean what it does not say.

That, unfortunately, is what the state of the law has come to under this administration. This DOJ, by its record on other "war on terror" issues, has demonstrated its willingness to push the envelope until a judge actually forces restraint. Since government lawyers can no longer be trusted to apply the law in good faith, when there is no prospect for judicial review we can't really know what they will construe the statute to mean.

I think that realistically the danger of overexpansive detention is much greater for aliens -- even legally resident aliens -- than for citizens, because they have explicitly lost access to habeas corpus. When there is no mechanism to get in front of a judge, this administration is wont to grant itself whatever powers it can get away with.

Kovarsky,

I do not have any personal knowledge of whether A.S. works at DOJ, or some administration-affiliated political apparatus. But his online persona's comments over time have been such a reliable reflection of their talking points that I perceive him to be a surrogate representative. Perhaps this is coincidence.
10.21.2006 12:27pm
CaseyL (mail):
Whether a US citizen could be disappeared under the MCA might be answerable using a thought experiment.

You are an American citizen.

You have been grabbed by the US government and taken to detention.

You cannot contact your friends, relatives, employer or legal counsel.

You do not know what, if any, charges are being brought against you. You don't know why you're being detained. Maybe you gave money to a charity that the government has decided is a terrorist organization. Maybe you've written a story detailing illegal actions by the Administration or the armed forces. Maybe you're an influential critic of the Administration.

You're held without charges, without counsel, without access to the outside world.

Now: what do you do?
10.21.2006 4:58pm
Kovarsky (mail):
As CaseyL's thought experiment reveals, I think W just read Kafka's "the trial" and drew the wrong conclusions.
10.21.2006 5:22pm
Anderson (mail) (www):
FROM THE DESK OF THE SECRETARY OF DEFENSE:

Get me the file on this "Franz Kafka." He's a genius!
10.21.2006 6:51pm
Kovarsky (mail):
RESPONSE TO THE SECRETARY:

We can't find franz. He was locked up for being a subversive some time ago. Something he said about dehumannizing bureaucracies.
10.21.2006 8:00pm
A.S.:
Now: what do you do?

Bring an action for habeas corpus relief in the nearest district court, in accordance with Hamdi.
10.22.2006 1:05am
A.S.:
By my reading, the text doesn't authorize detetion, and the definition "in this chapter" does not pertain to anything but trial by military commissions.

As I noted above, and as explicitly affirmed in Quirin, detention is authorized by the Constitution. It would be odd for the statute to purport to authorize something that had already been authorized by the Constitution.

The only question, to me, is whether the class of persons that the Constitution authorizes the President to detain as UECs is the same as, or is more or less inclusive than, the class of persons the statute defines as UECs and authorizes the President to try in a military commission. They are, as JaO points out, not necessarily the same. That being said, though, I'd find it likely that a court would find the two groups to be coterminus.
10.22.2006 1:13am
A.S.:
I do not have any personal knowledge of whether A.S. works at DOJ, or some administration-affiliated political apparatus. But his online persona's comments over time have been such a reliable reflection of their talking points that I perceive him to be a surrogate representative. Perhaps this is coincidence.

Hehe. Does DOJ need securities lawyers? You people amuse me.

I do have an expansive view of executive power, especially in wartime. In that respect, my views and the Administration's views are in accord. I am not sure that my views are similar to the views of the Administration in other areas of law though.
10.22.2006 1:17am
jrose:
A.S.,

The MCA only subjects alien UECs to the Act's trials, while Hamdi covers citizen UECs. Those two classifications are not coterminous. But, maybe the definition of UEC in the MCA (which is not limited to aliens - why is that so) is.
10.22.2006 12:24pm