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D.C. Circuit Detainee Decision:

Today a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that federal courts lack jurisdiction over the habeas corpus petitions filed by Guantanamo detainees. Judge Randolph wrote the majority decision for himself and Judge Sentelle. Judge Rogers dissented. I have not had time to read the decision yet, but it is available here.

UPDATE: For some initial commentary, see these two SCOTUSBlog posts by Lyle Denniston here and here, and Marty Lederman's initial thoughts on Balkinization.

Neil (mail):
The opinion rests on the assumption (I call it this because it is not explained in any length), that the Guantanamo Bay facility is beyond the jurisdiction of any court of the United States, because the U.S. leases the land from Cuba.
Interestingly, the Government also argues that Cuba has no jurisdiction at Guantanamo Bay, but this assertion is not addressed in the opinion (that I noticed, please correct me if I am wrong).
2.20.2007 10:45am
New World Dan (www):
Neil,

I've seen that Cuba argument repeated many times. Have there been any proceedings in Cuba regarding detainees? I have a vague recollection of Cuba denying that they had any authority over the detainees, but I could just be imagining that.

Otherwise, that's a pretty heavy decision (especially the dissent). Too much for non-lawyer me to take in during a 15 minute quick read. Kudos to Judge Rogers for the dissent, as near as I understand it. :)
2.20.2007 11:01am
Just an Observer:
FYI, here is Lyle Denniston's report at SCOTUSblog: Circuit Court orders end to detainee cases:

The D.C. Circuit Court on Tuesday ruled that Congress had taken away the federal courts' authority to hear habeas challenges to the detention of foreign nationals at Guantanamo Bay, Cuba. The Court also ruled that this did not amount to an unconstitutional suspension of the writ of habeas corpus. The Court was divided 2-1 on the constitutional issue in its 59-page decision ...
2.20.2007 11:30am
PersonFromPorlock:
Gee, and here I thought the Constitution was the foundation of the government and that it required or permitted the government to do some things, and required it not to do some things, and almost never mentioned territory or citizenship... and that was the whole scope of the US government.

Apparently there's some Platonic 'ideal' of government that 'real' goverment can cite to avoid such carping restraints.
2.20.2007 11:48am
elChato (mail):
The dissent's insistence that the Suspension Clause is "a limitation on the powers of Congress" and does not confer "an individual right" seems artificial.
2.20.2007 12:23pm
Houston Lawyer:
I find it interesting that the courts have addressed this issue before with respect to saboteurs following WWII. Also interesting that British Case law arising after the Declaration of Independence is cited. The historical difficulties of applying habeas petitions outside of the home jurisdiction are also instructive.
2.20.2007 12:41pm
Richard Riley (mail):
Neil, the majority opinion at pages 20-21 discusses the juridical status of Gitmo and cites case law and a statutory provision to support the conclusion that Cuba, not the United States, has sovereignty there. Right or wrong, the majority does address the question directly.
2.20.2007 12:53pm
Mark P. (mail):
Aside from footnote 5, the Court engages in little discussion of the Exceptions Clause of Art. III. I find that a little strange. Maybe they think that Ex parte McCardle resolves the issue unambiguously (at least regarding the inferior federal courts), but I suspect that SCOTUS is going to have to deal with this when the case comes to it.
2.20.2007 1:04pm
Duffy Pratt (mail):
It looks like the majority is trying to re-instate its opinion in Rasul, under the guise of the Suspension Clause. The SCt over-ruled the D.C. Circuit in Rasul, holding that the writ extends wherever the Court has jurisdiction over the jailers.

Now, the DC Circuit again says that the writ never extended as far as an alien on land outside the US leased from a foreign government. Somehow, this conclusion is now wrapped up with the Suspension clause, although the court only analyzes cases that have nothing to do with the Suspension clause.

If two faces on the SCt had not changed in the interim, I would be expecting another reversal. Now, I hope the Court either denies cert, or comes up with some way to affirm on grounds that at least make a lick of sense.

My favorite passage in this case was where the court affirmed that it was absolutely certain that, in 1789, the writ would not have extended to an enemy on foreign territory that the government had leased from a foreign country. What it doesn't mention, is how anyone in 1789 could have imagined leasing a base like Guantonomo. Under the originalist ideas they are trying to pursue, the base itself was unthinkable.
2.20.2007 1:07pm
M. Simon (mail) (www):
The question is: Do POWs have habeas rights?

I'm not aware that they do. Of course I'm no legal beagle.
2.20.2007 1:11pm
John (mail):
The decision turns on two points: (1) aliens in territory not subject to U.S. "sovereignty" have no constitutional right to habeas corpus, and (2) that Congress withdrew any statutory right they may have had (and that Hamden ruled they did have). Both points seem well supported in the opinion, and the dissent concedes the second.

As a prior commenter notes, there is ample authority that the U.S., whatever its control over the site at Gitmo, has no "sovereignty" over it. As the majority said, and as prior cases have said, to rule otherwise would suggest that the U.S. has sovereignty over various areas controlled on the battlefield, and that would lead to absurd results, including insuring everyone in the area a variety of Constitutional rights, such as free speech, "reasonable" searches and seizures, etc. Not a good interpretation if the nation is ever to be able to wage war!
2.20.2007 1:12pm
JorgXMcKie (mail):
PersonfromPorlock, it's probably much like that "equality" clause in the XIV Amendment where you can't see the "all pigs are equal, but some are more equal than others" that allows preferential treatment for some.

Besides, isn't the Constitution supposed to be a 'living document'? Just think of this as growth. In addition, the majority even uses some international law. What more could one want? (Boy, that shoe sure seems to pinch when it's on the other foot, doesn't it?)
2.20.2007 1:16pm
Gabriel Malor (mail):
The dissent faces two problems.

First, Judge Rodgers seems to be saying that once Congress granted statutory habeas corpus, the Suspension Clause prevents Congress from revoking statutory habeas corpus. This is obviously nonsensical; if Congress has the power to create a law, it has the power to revoke or amend a law. DC District Court Judge Robertson, in the most recent Hamdan case, came to the same conclusion when he found that the MCA was not a suspension of the writ of habeas corpus because it did not reach constitutional habeas petitions (i.e. those within the historical reach of the writ of habeas corpus), only statutory habeas petitions.

Second, she concludes that the MCA is "void" and that it "has no effect on the jurisdiction of the federal courts to consider these petitions and their related appeals". But then she must somehow make the argument that either the language of sec. 2241 as it existed before the MCA reaches Guantanamo Bay or that the Guantanamo Bay detainees would have come within the historic reach of the Writ. Rasul makes clear that the pre-MCA 2241 reaches Guantanamo Bay detainees through their next-friends, so she's fine there. But is not so clear that the historic, common-law Writ would reach enemy aliens.
2.20.2007 1:23pm
Duffy Pratt (mail):
John:

In Rasul, the S.Ct. held that the habeas statute extended to these detainees.

Congress amended the statute twice to say that it didn't apply to Gitmo. It's clear that that is what Congress was trying to do.

The question here should have been: Did Congress have the power to make this amendment? The Constitution says that Congress can only suspend habeas corpus in times of invasion or rebellion?

Did the D.C. Circuit address that question? No. Instead, they said that aliens simply don't have the "right" to bring a habeas petition when they are located outside of U.S. Sovereignty. The whole line of reasoning in the case has absolutely nothing to do with Congress' power under the suspension clause.

This time, however, since Alito and Roberts are on the court, my guess is that the D.C. Circuit will all of a sudden have gotten it right.
2.20.2007 1:30pm
rothmatisseko (mail) (www):
John, since when is GITMO a battlefield?

The minute someone is renditioned (and certainly once they're detained), they're pretty much away from the action.
2.20.2007 1:36pm
Gabriel Malor (mail):
M. Simon, your question isn't relevant for purposes of this case (not least because it is unclear whether the plaintiffs are POWs or unlawful combatants, but also because the federal courts just don't care what your convention status is when considering whether you can petition them). However, you are mistaken when you write that POWs do not have rights.

They have quite a lengthy number of rights under the Geneva Convention (III) relative to the Treatment of Prisoners of War. They also possess all the rights that they otherwise (as aliens) would possess under the US Constitution.
2.20.2007 1:45pm
Bob from Ohio (mail):
Why are the 9/11 attacks not an "invasion" that permits suspension of even the constitutional writ?
2.20.2007 1:57pm
Gabriel Malor (mail):
Duffy Pratt, your conclusion is incorrect. You correctly identify the issue here: "Did Congress have the power to make this amendment [to the habeas corpus statute]?" But then get lost: "The Constitution says that Congress can only suspend habeas corpus in times of invasion or rebellion."

The reason for your confusion is that you do not recognize that there are two parts to the habeas "right." First, the Constitution provides a constitutional protection against suspension of habeas corpus. The Court in St. Cyr noted that the constitutional protection extends at least to the common law writ as it existed in the late 1700s. Second, there is a statutory habeas "right" that was created by the earliest Congress and has been subsequently modified multiple times over the last 200 years.

The court in this case (and various courts in other cases) has recognized that suspension only occurs when Congress suspends the constitutional habeas protection, i.e. the historical habeas right at common law. When this constitutional "right" of habeas is infringed by a law of Congress, the courts will invalidate it based on the Suspension Clause unless it is made in response to invasion or rebellion.

However, when Congress simply modifies the statutory habeas right, the Suspension Clause is of no issue. Congress has the power to take away what Congress has granted. That's the answer to your question. Does Congress have the power to amend its own laws? Of course. Duh.

The constitutional habeas right is more difficult. That issue goes directly to the extent of the historical writ. This is why the courts are focussed on the jurisdiction, sovereignty, and identity questions.
2.20.2007 1:59pm
John (mail):
Duffy Pratt--

I think the "Suspension" that can only occur during rebellion or invasion is of the Constitutional right to habeas. Thus, it was important to determine whether these guys had such a right, and the court said they didn't--they only had the statutory right which Congress repealed. Accordingly, the Suspension clause was not violated.

rothmatisseko--

GITMO is not a battlefield, but the sovereignty issue is the same for it as for a battlefield, or at least very similar--either the U.S. has sovereignty over foreign lands that it physically controls, or it doesn't. The court held, as others have in the past, that that is not enough for sovereignty to attach.
2.20.2007 2:07pm
JosephSlater (mail):
Do I understand correctly that under the logic of the majority opinion, the case would have turned out differently if the folks were held in, say, a detention center in southern Florida as opposed to Cuba? And that the habeus right turns on an interpretation of how much "sovereignty" the U.S. actually has over Gitmo?
2.20.2007 2:16pm
Terry:
Yes, the constitutional habeus right turns on the unlawful combatants being held in Cuba. If they were in the US they would have the constitutional habeus right. It seems that was why they were transferred to Gitmo in the first place.
2.20.2007 2:32pm
David M. Nieporent (www):
The dissent's insistence that the Suspension Clause is "a limitation on the powers of Congress" and does not confer "an individual right" seems artificial.
I agree. His argument seems particularly puzzling when applied to his analysis of Eisentrager.
2.20.2007 2:33pm
Ugh (mail):
One would think the focus of the writ would be on the executive's control over the individual, not the place where the executive choose to exercise that control over the individual - otherwise it means nothing.
2.20.2007 2:38pm
David M. Nieporent (www):
And when I say his argument seems puzzling, I mean her argument seems puzzling.
2.20.2007 2:41pm
Byomtov (mail):
One would think the focus of the writ would be on the executive's control over the individual, not the place where the executive choose to exercise that control over the individual - otherwise it means nothing.

Yes. One would think that. And to this non-lawyer there is a considerable difference between territory controlled by force during combat and territory controlled under a long-standing lease.

Does the Constitution really permit the establishment of a "habeas-free zone" in any place outside the US, regardless of how much real control the US has over it?
2.20.2007 2:51pm
Wowsa:
ElChato and Nieporent, you ought to explain what you mean when you say:

The dissent's insistence that the Suspension Clause is "a limitation on the powers of Congress" and does not confer "an individual right" seems artificial.

Artificial like having the Suspension Clause in Article I of the Constitution artificial?

The majority opinion is silly, and written so poorly that I have no doubt that it will be struck down pretty one-sidedly, even with Alito and Roberts having been added. It devotes virtually all of its considerable length to a discussion of whether the detainees may have habeas rights, using misleading quotes (e.g., omitting "at a minimum" from the Supreme Court dicta it cites in re the Constitution guaranteeing the right of habeas as it existed in 1789) and cases involving non-habeas claims. This lengthy discussion of whether or not habeas reaches the detainees is destroyed in 4 simple sentences of the dissent:


This court need not make the final inference. It has already been made for us. In Rasul, the Supreme Court state that "[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus." 542 U.S. at 481. By reaching a contrary conclusion, the court ignores the settled principle that "carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative."


The DC Circuit has clearly surpassed the Ninth Circuit as far as laughability, and I suspect this decision will be reversed 6-3 or 7-2 (Alito and Thomas).
2.20.2007 2:53pm
Dave in the Corn (mail):
The question about whether people on a battlefield seems entirely misplaced, because by definition a battlefield is " an area of contention, conflict, or hostile opposition" (dictionary.com). Sovereignty is defined as "supreme and independent power or authority in government as possessed or claimed by a state or community".

Thus, if sovereignty is the power claimed by a state or a community over a specific area, and a battleground is an area of contention, it would thus be impossible to claim sovereignty over a battlefield. Thus, in the battlefield, there would be no claim for constitutional rights.

However, the large point is to where they are now. Not in a battlefield, but in a place where the U.S. claims a "supreme and independent power or authority."
2.20.2007 3:00pm
Duffy Pratt (mail):
Of course, if the U.S. has no sovereignty in Gitmo, then Congress didn't have the power to confer any statutory rights there either.

I'm willing to accept the idea that the Court has inserted some sort of Constitutional right to habeas, by implication. If so, then the entire case turns on the Courts conclusion that in 1789, the writ would not extend to an alien on a base in foreign territory, leased by the U.S. government. So I guess the challenge should be to the Constitutionality of Gitmo. Anyone want to justify the federal lease of a permanent military base on foreign soil according to a 1789 understanding of the Constitution?
2.20.2007 3:03pm
David M. Nieporent (www):
Anyone want to justify the federal lease of a permanent military base on foreign soil according to a 1789 understanding of the Constitution?
Sure. Article II, Section 2.

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,"
2.20.2007 3:17pm
Mark Field (mail):

One would think the focus of the writ would be on the executive's control over the individual, not the place where the executive choose to exercise that control over the individual - otherwise it means nothing.


You have good instincts. The Habeas Corpus Act of 1679 specifically prevented the transfer of prisoners outside of the Kingdom in order to avoid habeas relief.

For those interested, Marty Lederman has posted his preliminary thoughts at Balkinization.
2.20.2007 3:18pm
Greg D (mail):
Do POWs have rights? Well, lawful ones do. We give them those rights because we want their superiors to give those same rights to our POWs.

So, do their superiors treat our POWs as if the POWs have rights? No. In fact, they video murdering them, and release the videos (two Geneva Convention violations in one!).

Do we punish them from mistreating our POWs? No. In fact, you people seem to think it's just fine for them to murder our POWs, and that we should reward them for this by giving their POWs rights no POWs have ever had before. It must be amazing to live inside your heads.

So, I'm curious. You think that enemy combatants, captured outside the bounds ot the US, should nevertheless have full US rights. Does that include 1st Amendment rights? Do they have the right to communicate with their terrorist allies overseas? You know, pass intelligence to them?

How about 2nd Amendment rights? Do they have the right to keep and bear arms?

How about other Geneva Convention rights? Does the US government have to pay them, like it would with normal POWs?

IOW, do you people ever bother to think about what you're saying, or is it just a matter of spouting off whatever you think will hurt Republicans, and / or the US, the most?
2.20.2007 3:33pm
David M. Nieporent (www):
Artificial like having the Suspension Clause in Article I of the Constitution artificial?
Well, yes. Like the majority, I don't get your point. Nobody is denying that the Suspension Clause is a restriction on the power of Congress; the artificiality is the distinction between "restriction on the power of Congress" and "individual right." As the court points out, the First Amendment is explicitly a restriction on the power of Congress. ("Congress shall make no law...") But most people would describe the restrictions listed therein to be individual rights.

As for your prediction about laughability, the Court will IMHO clearly uphold this decision, and it won't be close. Rasul had a purely statutory basis; Stevens went out of his way to emphasize that the court was not making any constitutional finding. Plucking a random quote about "consistent with" out of Rasul to try to claim the court made some sort of constitutional binding dictum is cherry-picking. (Regardless, it certainly isn't binding on the Supreme Court.) Kennedy's concurrence was based upon the notion that there were no tribunals at all.
2.20.2007 3:34pm
David M. Nieporent (www):
Mark:
You have good instincts. The Habeas Corpus Act of 1679 specifically prevented the transfer of prisoners outside of the Kingdom in order to avoid habeas relief.
It did not. It prohibited the transfer of "inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed," overseas. It didn't prohibit the transfer of foreigners already overseas.

Moreover, I don't see how this supports the idea that it applies to the executive rather than the prisoner at all, given that it prohibited the transfer of people to places such as Scotland, which (though it had its own Parliament) was under the Monarchy.
2.20.2007 3:43pm
Gaius Obvious (mail):
Ross, 140 U.S. 453 (1891)

"By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. ... The constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree; the laws of neither one being obligatory upon the other."
2.20.2007 3:43pm
Wowsa:
Nieporent:

As others have noted elsewhere, the Court's dicta in Rasul, while limited to S.2282, were consistent, as the dissent's cite indicates, with the idea of a Constitutionally based right of habeas, independent of any Congressional determination. The fact that the Court already stated, for statutory purposes or not, that the claim of habeas for the Gitmo detainees was consistent with the historical reach of habeas , seems pretty dispositive.

As for the Article I claim, I think the point is that the limitation imposed by the Suspension Clause isn't limiting Congress (or the States or the Federal Govt) from legislation or acts vis-a-vis individual rights, but vis-a-vis the powers of the Supreme Court of the United States. The problem presented by the dissent isn't that Congress is purporting to deny habeas rights to the detainees; it's that Congress is purporting to deny habeas jurisdiction (which exists in the Constitution, independent of any Congressional powers or legislation purporting to enable or deny it) to the Supreme Court. The Constitutional historical discussion engaged in by the dissent appears to effectively portray that point, that habeas is about Constitutional powers first and foremost, specifically the ability of the Court to hear habeas petitions, and only ancillarily about individual rights. And that, my flippant friend, is why the Court will knock it down overwhelmingly. Because the dissent cleverly (and accurately) portrayed this legislation as a Congressional imposition on the Court's Constitutionally granted powers, and this Court, among both its left-leaning and right-leaning members (with the exception of Thomas, and possibly Alito) has been very consistent in jealously guarding its powers.

Also, in re your comment concering Art II's treaty provision, that still doesn't answer the gentleman (or woman)'s question. Art II's treaty provision still doesn't anticipate a permanent quasi-occupation of a permanently leased territory, with complete sovereign power by the US but deemed "non-sovereign" for selective purposes by Congress, and occupied exclusively by the military, for any number of reasons including that in 1789 the idea of a standing army, let alone a standing army utilizing a permanent base on foreign soil, was unthinkable.

The fact that the US would consider any annexation or invasion of Guantanamo to be an act of war, I think, is determinative of US sovereignty over Gitmo.
2.20.2007 3:46pm
Not Greg D (mail):
Greg D-
Do you let your kids use the "two wrongs make a right" argument on you?
2.20.2007 3:59pm
madisonian (mail):
The fact that the US would consider any annexation or invasion of Guantanamo to be an act of war, I think, is determinative of US sovereignty over Gitmo.

Why does that follow? An attack on any U.S. military base would be an act of war against the United States, but that doesn't mean that the U.S. has asserted sovereignty over Italy (despite the presence of Aviano AFB), Germany (despite Ramstein AFB), or Japan (Misawa AFB). Similarly, the U.S. would view an attack on one of its aircraft carriers on the high seas to be an act of war, but it doesn't follow that the U.S. considers the high seas part of its sovereign territory.
2.20.2007 4:01pm
Duffy Pratt (mail):
The D.C. circuit takes the language "at a minimum" and concludes that the minimum is all there is to the reach of the writ. No case has held that. St. Cyr mentioned the "at a minimum" language in passing. It relied on Felker, which assumed without deciding, that the suspension clause applies to the writ as it exists today. Felker is a very slim reed to put the entire weight of this opinion on. It doesn't say anything about what the extent of the "constitutional" scope of a right to habeas is. Nor does any other case on which the D.C circuit relies.
2.20.2007 4:04pm
MS (mail):
Bob from Ohio,

Because all the invaders were killed over five years ago.
2.20.2007 4:04pm
David M. Nieporent (www):
for any number of reasons including that in 1789 the idea of a standing army, let alone a standing army utilizing a permanent base on foreign soil, was unthinkable.
What possible relevance could that have to Guantanamo Bay Naval Base? And it isn't "deemed" "non-sovereign... by Congress." It is non-sovereign, by the very treaty that created it.

The fact that the US would consider any annexation or invasion of Guantanamo to be an act of war, I think, is determinative of US sovereignty over Gitmo.
If I lived in an apartment, I'd consider your uninvited presence in my kitchen to be trespassing, but that wouldn't make me the owner of the apartment.


As for your argument, I think it no more convincing than the majority did, but I also think it pointless to sit here and pronounce what the opinion of the Court will be, when neither of us have any way of proving it. (I do think it pretty obvious that Scalia, who rejected Rasul in the first place, will not suddenly vote to constitutionalize an absurd statutory reading. So I think it pretty ridiculous to even begin to suggest it would be a 7-2 decision, Thomas and Alito dissenting.)
2.20.2007 4:13pm
Duffy Pratt (mail):
This is from Rasul:


Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,11 as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run,12 and all other dominions under the sovereign’s control.13 As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” King v. Cowle, 2 Burr. 834, 854—855, 97 Eng. Rep. 587, 598—599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.” Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).


The D.C. Circuit seems to have ignored this gloss on the history of the writ when they concluded that historically it would not have applied to this situation. Like I said, it looks like the D.C. Circuit disagrees with Stevens on his view of this history, and is now betting that Steven's view will be in the minority given the new makeup of the court.
2.20.2007 4:17pm
jrose:
The majority in Rasul focused only on statutory habeas in distinguishing Eisentrager. But even if we throw that distinction out in light of the MCA, doesn't that leave Kennedy's concurrence - which distinguished Eisentrager because "Guantanamo Bay is in every practical respect a United States territory" - as likely to gain 5 votes (unless there is someone who believes the District Court's power to hear an appeal as authorized in the MCA meets the habeas requirement)?
2.20.2007 4:19pm
Mark Field (mail):

It did not. It prohibited the transfer of "inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed," overseas. It didn't prohibit the transfer of foreigners already overseas.


Perhaps my point wasn't clear. The original post suggested that the point of the Writ must be to command the holder of the person, not the place where the prisoner was held. The language of the 1679 statute supports that interpretation.

It's quite true that the statute originally applied only to citizens. Subsequent case authority (prior to 1789) extended the availability of the writ to aliens. There seems to be no disagreement that aliens held in the US can use the Writ. Thus, the only remaining question is whether aliens can be kept outside of the "US" for the sole purpose of avoiding the Writ. That seems dubious in light of the intent of the 1679 statute.


Ross, 140 U.S. 453 (1891)

"By the constitution a government is ordained and established 'for the United States of America,' and not for countries outside of their limits. ... The constitution can have no operation in another country.


This decision has been superceded, at least to some degre, by Reid v. Covert.
2.20.2007 4:51pm
Oren (mail):
IMO, Leahy will repeal the court-stripping bits in one of the must-pass spending bills (which cannot be filibustered per the republican's special budget rules). Then all these claims will be reinstated and we will back at square one except having wasted thousands of lawyer-hours.

Seems like a glorious waste of time just to deny them a day in court.
2.20.2007 5:01pm
Roark (mail):
"You have good instincts. The Habeas Corpus Act of 1679 specifically prevented the transfer of prisoners outside of the Kingdom in order to avoid habeas relief."

The HCA of 1679 refers not to generic "prisoners" but rather to the "King's subjects", a distinction those who, for reasons known only to themselves, think POWs (much less enemy combatants) should have habeas rights, never cease to blur. There is no hint anywhere that the historical Writ would apply to combatants, legal or otherwise, and the founders would have found such a notion laughable.
2.20.2007 5:26pm
Rattan (mail):
Mark Field has provided an excellent example of exemplary introspective decision making by the Supreme Court in Reid v. Covert. It reassuring that it is possible that the Court may decide to not extend the destructive fallout from the 9/11 attacks to include severe self-inflicted injuries on our own Constitutional rights and protections. However, in view of the mediocrity dominating the present Supreme Court, one can only hope for a thinker to finally emerge from that wasteland.

The Supreme Court may rise to the occasion and actually act as a limitation on the power of the Congress and an Executive. So far they have only brought havoc and mismanagement to Iraq and Afghanistan instead of the promised rule of law.
That said, most of the people arguing that denying routine rights to foreigners (or alleged foreigners) is fine have probably never experienced the Kafkasque reality that people like me have seen first hand. These are serious matters that should not be shunted aside in procedural niceties. Consequences are like those that hounded Ann Frank's family and that of Jews everywhere as they scrambled unsuccessfully to escape the likely doom, except the doom was far worse than they believed possible while powers like the US waited for their $5000 deposits and security clearences from the Nazis for processing visas. These are not acceptable precedents to make and respect.

If Congress has two distinct powers for suspending the right to the Writ, then the distinction needs to be a bright line one that cannot be confused by any reasonable mind to avoid compromising the very Constitution that established the Republic. There is no independent basis for the statutory Writ that is exclusive of the 'historical' writ. The only reasonable understanding is that the Congress may add to the Writ's availability, but cannot suspend it. The words do not prohibit adding to it, they prohibit suspension of the writ without restriction on the form of the writ. The entire argument that the statutory writ is suspendable is bogus and does no favors to anyone -- not the imprisoned, their jailors or the ordinary public. It also makes lawyers look bad. Indeed, there is no evidence of any benefit to the public to date from all of these convoluted attempts to avoid ordinary public trials for crimes against the public. It makes no sense to celebrate compromising of our rights for what is at best a rumor of a threat without an airing of the evidence and charges-- and this is called a public trial.
2.20.2007 5:43pm
DrGrishka (mail):
Oren,

First of all, spending bills (appropriations) can be filibustered. Budget bills (revenue raising) cannot. Second, although the budget bills cannot be filibustered, they are subject to a point of order with respect to non-germane amendments. A point of order takes 60 votes to break. Certainly, a habeas provision is not germane to a budget bill.

Third, the budgetary rules were designed by Mike Mansfield and Bob Byrd, not by Republicans.
2.20.2007 5:59pm
Oren (mail):

The HCA of 1679 refers not to generic "prisoners" but rather to the "King's subjects", a distinction those who, for reasons known only to themselves, think POWs (much less enemy combatants) should have habeas rights, never cease to blur. There is no hint anywhere that the historical Writ would apply to combatants, legal or otherwise, and the founders would have found such a notion laughable.


The founders would likewise have thought the notion of women/blacks/reds/yellows/children (perhaps not all of the forgoing) having due process rights to be likewise laughable. Remember that for a large portion of our history, a red man could be neither witness nor victim in our courts. Nor could a woman accuse her husband of rape or abuse, lest she be deemed 'hysterical'.

Today, we continue this proud tradition. May it serve us well.
2.20.2007 5:59pm
DrGrishka (mail):
Rattan,

Mediocrities on teh Supreme Court?! Really? This Court possibly has the most intellectual firepower of any Court in the Republic's history. Scalia, Alito, Roberts, Stevens, Ginsburg, Thomas and Breyer are each brilliant. (Souter and Kennedy not so much). To suggest that they are mediocre is simply bizarre.

The rest of the argument is equally bizarre. You admit that Congress can add to the writ, but then claim that they cannot take back those additions. That is rather strange. Second, POWs have never been required to have a "public trial." They can be held simply because they are POWs.

As for Ann Frank, I do not get your point at all. Yes, US (together with the rest of the "civilized" world) acted despicably in refusing to offer any help to those seeking to escape the Nazis. But what's your point? Are you suggesting that Supreme Court should have ordered issuance of visas? And if you are suggesting it, on what possible constitutional basis?
2.20.2007 6:05pm
Oren (mail):
DrGrishka,

You are 100% correct on all three points. All that aside, I have faith in Leahy's parliamentary prowess - I'm not sure about the specifics (and shouldn't have opened my yap about them in the first place!)

I suppose the game is whether Leahy can get it onto a bill important enough that Bush won't veto it.
2.20.2007 6:18pm
Just an Observer:
I think the prospects for getting a veto-proof amendment to the MCA are not high.

Another speculative legislative possibility, which would originate in Chairman Murtha's House Appropriations subcommittee, is language that would force the Guantanamo facility to be shut down by means of funding restrictions. That might not be good news for the inhabitants, who might then find themselves sent somewhere with even more tenuous connections to U.S. courts.
2.20.2007 6:41pm
AntonK (mail):
Released from Gitmo, Headed to Iraq

Fahd al-Utaibi a/k/a Naif Fahd Al Aseemi Al Utaibi arrived in Saudi Arabia May 18, 2006 from Guantanamo, along with 14 others released by the US. He is currently on trial in Yemen for forging travel documents in order to join the jihad in Iraq.

And Armies of Liberation provides a link to this Human Rights Watch report warning that Fahd and the other 14 detainees had been "deprived of access to justice for years in U.S. military detention, [and] they may face continued incarceration with no legal process in Saudi Arabia." If only.
2.20.2007 7:10pm
Mark Field (mail):

The HCA of 1679 refers not to generic "prisoners" but rather to the "King's subjects", a distinction those who, for reasons known only to themselves, think POWs (much less enemy combatants) should have habeas rights, never cease to blur.


That was NOT my point. I understand that. I said so specifically. The point is this: Parliament had learned from sad experience that the Executive would try any dodge to avoid the writ of habeas corpus. It wrote a provision into the Act of 1679 precisely to put an end to those dodges. Assuming the Writ was so understood in 1789, and further assuming that the understanding in 1789 constitutes an irreducible "core" meaning of the Writ, then holding the prisoners in Gitmo rather than the US might well be seen as just such a dodge as Parliament intended to prohibit.


There is no hint anywhere that the historical Writ would apply to combatants, legal or otherwise, and the founders would have found such a notion laughable.


This is simply false, as both the majority and dissent make clear.
2.20.2007 7:49pm
PersonFromPorlock:

The constitution can have no operation in another country.

If we take the plain meaning of that, the entire US government "can have no operation in another country." Since that's absurd, I maintain that our government can never leave the constitution behind: it defines the powers and limits of official actors abroad just as it does at home.
2.20.2007 8:09pm
Roark (mail):
jrose:

The majority in Rasul focused only on statutory habeas in distinguishing Eisentrager. But even if we throw that distinction out in light of the MCA, doesn't that leave Kennedy's concurrence - which distinguished Eisentrager because "Guantanamo Bay is in every practical respect a United States territory" - as likely to gain 5 votes (unless there is someone who believes the District Court's power to hear an appeal as authorized in the MCA meets the habeas requirement)?

For SCOTUS to overrule the D.C. Circuit in this case would require them to find that the statutory reach of sec. 2241 (that it found in Rasul extends to Gitmo) turns out to be irrelevant. Whadaya know, the detainees had a constitutional guarantee to the Writ all along. This would be a stretch even for this court notwithstanding its penchant for discovering hitherto unknown "rights" buried like so much pirate's treasure in the soil of the Constitution.

Between Rasul, Hamdan and Hamdi this court has made an absolutely undecipherable shitpile of jurisprudence, which is the predictable outcome when the majority tries to find rationalizations for their desired result rather than justification in the rule of law.
2.20.2007 8:24pm
DWPittelli (mail) (www):
Dave in the Corn: "where they are now. Not in a battlefield, but in a place where the U.S. claims a "supreme and independent power or authority."

For the US to be making such a claim, wouldn't it have had to renounce the lease, which grants Cuba formal sovereignty, and refused to pay the rent? (As I understand it, Cuba refuses to cash the rent checks, but we attempt to pay them, to maintain the lease.)
2.20.2007 8:44pm
Duffy Pratt (mail):

For SCOTUS to overrule the D.C. Circuit in this case would require them to find that the statutory reach of sec. 2241 (that it found in Rasul extends to Gitmo) turns out to be irrelevant. Whadaya know, the detainees had a constitutional guarantee to the Writ all along. This would be a stretch even for this court notwithstanding its penchant for discovering hitherto unknown "rights" buried like so much pirate's treasure in the soil of the Constitution.


Of course, it could overturn this case by interpreting the Suspension clause to mean what it says. I realize that would be a shocking turn of events in Constitutional jurisprudence. Does anyone doubt in this case that Congress has tried to suspend the writ in Gitmo? So the Court could say that, under these facts, the amendment of the statute to prevent these detainees from bringing the writ amounts to an unconstitutional suspension. And they could do this without deciding whether every curtailment of the right by statute would also be unconstitutional. Courts do this sort of thing all the time. Its called interpretation.
2.20.2007 8:53pm
Bruce Hayden (mail) (www):
Perhaps my point wasn't clear. The original post suggested that the point of the Writ must be to command the holder of the person, not the place where the prisoner was held. The language of the 1679 statute supports that interpretation.

It's quite true that the statute originally applied only to citizens. Subsequent case authority (prior to 1789) extended the availability of the writ to aliens. There seems to be no disagreement that aliens held in the US can use the Writ. Thus, the only remaining question is whether aliens can be kept outside of the "US" for the sole purpose of avoiding the Writ. That seems dubious in light of the intent of the 1679 statute.
That isn't quite how I read the statute. Rather, Article XI of the 1679 Statute appears aimed at preventing the practice of transferring someone from within England, et al. to outside in order to avoid the Writ.

There were two requirements for Article XI to apply: a) being a subject of the Realm, and b) being a resident or inhabitant of the England, et al. Mark addressed the first (that being a subject of the Realm was later expanded) but it makes little sense to extend the later. As noted, where does it end? Resident or inhabitant implies, at least to me, that those incarcerated were to be within England, et al. when their incarceration began for this to apply. Or, at a minimum, had been at some time in the recent past. (And, obviously, the Gitmo detainees are neither residents nor inhabitants of the U.S.)

What must be remembered here is that the Gitmo detainees were never in the United States. And that was done intentionally to avoid just this problem, that once they have set foot in this country, the Constitutional Writ attaches, regardless of their citizenship.

As to the POW caught on the battlefield scenerio, you have to draw the line somewhere. Are POWs caught on the battlefield and detained there subject to Habeas Corpus? I think most here would say not. There is a gradient between someone captured and held overseas on foreign soil and someone held here in the U.S., and this court drew the line at whether or not we had had sovereignty over the soil that the prisoners trod at any time in their incarceration.

There is a slippery slope if you find the Writ applying to Gitmo. Where does it end then? Pretending, like some above, that this isn't a problem doesn't answer where to draw the line.
2.20.2007 9:24pm
Frater Plotter:
It seems to me that the question is, may the executive and/or the legislature deliberately and with malice aforethought construct a place which is wholly within the power of the U.S. government, but outside the reach of the Constitution?

That seems to be what the administration wants out of Gitmo: a place that is entirely controlled by the armed might of the U.S., uncontested and effectively irresistible ... but where the normal limits of U.S. power, namely the Constitution including the Bill of Rights, do not apply. It is not intended as an orderly prisoner-of-war camp; it is rather intended as a "state of nature" in which blind force rules; where persons may be held or psychologically destroyed without any recourse to law.

As a strict constructionist, I hold the Constitution to define the limits of the U.S. government's authority. The U.S. government can no more operate outside the Constitution than a computer program can run on thin air. When people claiming to act under government authority act outside of its constitutional limits, they are really acting on their own as private citizens. (Consider: If the President commits a murder and claims that he is acting under color of law, should anyone believe him?) As such, they should be liable personally for offenses such as kidnapping, battery, &c.
2.20.2007 9:36pm
Anderson (mail):
Okay, Bush Scouts, what about the implication that Bush could send U.S. citizens to Gitmo and thus deny them habeas review?

See Lederman's aforelinked post, item 4.

If Jose Padilla is sent to Gitmo next week, is he there as long as the Executive pleases?
2.20.2007 10:23pm
Mark Field (mail):

That isn't quite how I read the statute. Rather, Article XI of the 1679 Statute appears aimed at preventing the practice of transferring someone from within England, et al. to outside in order to avoid the Writ.


I think it's important to understand the Act in its historical context. The Writ preceded the Act by quite some time. The various Kings, especially the Stuarts, were constantly trying to avoid the Writ. They would transfer prisoners from one county to another, from one Kingdom to another, from Britain to somewhere else. Eventually Parliament cracked down on the gamesmanship and barred all of that. That's why I believe the "reason" of the statute is broader than the specific terms (person in England sent out of England) would suggest. Indeed, the fact that the Writ was later extended to aliens, though the Act says nothing about them, supports the conclusion that it was the purpose of the Act, not its text, which the courts understood as controlling.


What must be remembered here is that the Gitmo detainees were never in the United States. And that was done intentionally to avoid just this problem, that once they have set foot in this country, the Constitutional Writ attaches, regardless of their citizenship.


Yes, in fact I believe John Yoo has stated that this was the reason. The question now is, how should we understand the intent of the Founders to such an attempt in light of their knowledge and experience of Stuart tyranny and the Writ? I think it would be hard to make an originalist argument supporting the Administration in its actions here.
2.20.2007 11:16pm
Just an Observer:
There is something about the theory of the dissent that I do not grasp:

The Supreme Court has stated on several occasions that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” St. Cyr, 533 U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)) [emphasis in original]


Now, I understand that the court is split about the question of the original understanding of the writ as of 1789. It would seem to me that the resolution to that dispute over constitutional interpretation can control either way.

What I don't understand is the alternative point that turns on the import of the phrase "at the absolute minumum." If the 1789 understanding did exclude a situation such as Guantanamo, how else might it have been included later except by statute? (In fact, Rasul held that the statute in 2004 included such a situation, without reaching a direct constitutional grounding that was only suggested in dicta.)

But why could Congress not amend or repeal its own statute to take away what it once had granted? Is the theory that the Suspension Clause forbids that action, that there is a constitutional "high water mark" created by statute that can never be rescinded except by invoking suspension?

I am not asking as rhetorical snark. I honestly am trying just to understand the case.
2.20.2007 11:19pm
Just a Nut (mail):
DrGrishka think that if the Congress can add to the writ it can also take away. This is a disingeneous assumption that cannot be deduced from the language used in the Constitution. No such power is granted to the Congress. The Supreme Court presumably can take away what it did not enact by declaring it unconstitutional. However, the notion that Congress can legislate contrary to the Constitutional prohibition on suspending the Writ requires more than just clever wordsmithing. It needs an amendment to the Constitution or a friendly and lazy Supreme Court.

Indeed, there is no support for two or more types of Writ in the Constitution. There is a Writ and it cannot be suspended (except in case of invasion, insurection etc.). The other parts of the Constitution do not, to the best of my limited knowledge, provide a basis for another type of Writ that differs in being amendable to being 'taken back.' This possibility is a legal fiction based on word play aimed at limiting the Constitutional limitation that is uncomfortable for some unfathomable reason.
This is also a result of faulty analysis for absent a reliable way of separating the various types of Writs now being imagined to make them exclusive of the one that cannot be suspended. It stands to reason that Presidential Powers, being the potent stuff they are now, could also include a third type of Writ that could not be suspended by the Congress and only 'taken back' by the Executive. Afterall, the original Writ was created by the executive.

Indeed, this slippery slope of reasoning can lead to various types of slavery that are lawful. Some such form of slavery could then be an option for disposing off the Guantanomo Bay inmates quickly and profitably. The 13th, 14th and 15th amendments do not appear to prohibit sale into slavery of inmates following conviction at a trial, even if it is by a kangaroo court. Given the mockery of a trial now being attempted, it is but a short step to allow cost-effective and profitable disposal of the inmates. Of course, we would not call it slavery and just call it soemthing like an 'involuntary transfer into a liberating work regime in a suitable jurisdiction.' Unreviewable trials would make such outcomes easier.
It is such possibilities that argue against attempts at engaging in secret trials when perfectly fine time tested mechanisms exist for trying such (alleged) criminals. These tried and tested procedures were fine for convicting the Oklahoma City bombers. The major unsaid distinction this time around is xenophobia.
Ann Frank and other Jews' fate was ignored due to such xenophobia. It justified a slow visa train that eventually stopped and had many procedural hurdles. It resulted in a rule of 'law' that sent back a ship full of refugees to their deaths.
Decades from now when the kin of the present incarcerated seek redress for the innocent (and most of those incarcerated were merely swept up on vague suspicions) and insufficiently guilty, we will click our tongues and pretend to be better than we are at this time. I am sure there were some Jews/Gypsies in Europe who were security threats. This, however, was not a proper ground for requiring a security clearance (issued by Nazis) specially from Jewish/Gypsy and other unfortunate potential immigrants despite knowledge of their peculiar predicament.
These unfortunates, however, could not escape their fate because they could provide evidence of their good character only by producing a document from their tormentors together with a fortune. Something similar is true for the Guantanomo prisoners. They cannot escape or avoid solitary confinement (at the very least) if they protest and proclaim their innocence, which innocence is acceptable only if it is certified by their tormentors. If they do not proclaim their innocence then they are guilty --as not charged merely presumed. Their tormentors are increasingly being relieved of the responsibility of presenting proper evidence as was expected even in the case of the Oklahoma City bombers. There are few forums for these people to 'prove' their innocence because of the strange laws being enacted-- with no demonstration of any need for such laws. Instead, it is all about demonstrating legislative or executive privilege with due process and the Bill of Rights lost in the shuffle or in limbo.

This exercise in instituting military tribunals for allegedly non-military personnel (thus, no Genva convention coverage by right) is not even revenge. The whole exercise is far too unfocussed in the routine suffering being meted out for that. The incarcerated have included mere boys and old men. While many were freed after a few years, it is unclear why it took so long to notice children in the population. To further remove oversight from such a system is lunacy at the very least.

Many suicides at the Guantanomo base are a shameful reminder of our low esteem for the way set forth plainly in the Constitution to judge people with provision of the full extent of due process. I fail to see the reason for this low esteem for such a fine document and the constant attempts to restrict its reach.
Unless the Supreme Court reacts with some urgency to provide for due process on review of this case, it will have merely demonstrated its mediocrity--judged by its acts and notwithstanding Rasul. It needs to issue a rebuke to DC Circuit for disregarding the analysis of Rasul as 'dicta' etc. Each day the Supreme Court wastes is an extra day in solitary for far too many people.
2.21.2007 12:04am
Anderson (mail):
I'm looking forward to an answer to JaO's question (paging Mark Field?).

My amateur guess is that "statutory habeas" is misconstrued as *extending* the scope of the writ, rather than as *foiling* the Executive's efforts to circumvent same. That does not, alas, appear to be how our courts have ruled (based on my scan of Felker &St Cyr); but it does seem to fit the pre-1789 understanding of the writ as I've seen it described.

To fall back on the time-honored heuristic, there are 2 kinds of people: those who think the Executive can create a black hole which no right can penetrate, and those who don't. In a year or so, we may find out which Justices fall into which of those types. It's becoming harder &harder for them to dodge the constitutional issues.
2.21.2007 12:17am
Duffy Pratt (mail):

But why could Congress not amend or repeal its own statute to take away what it once had granted? Is the theory that the Suspension Clause forbids that action, that there is a constitutional "high water mark" created by statute that can never be rescinded except by invoking suspension?


One interpretation of the clause is that it locked into place the law of the writ as of 1789.

Another is that it acts as a one way ratchet, forever expanding the scope of the writ with Congress' new enactments.

Another possibility is that a common law of the writ would develop in the U.S., and that Congress could not cut that back. Of course, we learned quite a bit later that there is no such federal common law. So, in light of the 1939 understanding of the Constitution, this interpretation of what the founder's meant is untenable.

It's also possible that the writ limits the Federal government's ability to suspend States' issuance of the writ. This would mean that the Contitution originally envisioned State courts issuing writs against Federal jailers. That interpretaion got foreclosed as part of the struggle over the fugitive slave laws before the civil war. The court decided that a state court could not issue a writ against federal jailers who were going to return slaves back to their masters. This view was brought to you by the same court that decided Dred Scott.

Another possibility is that the suspension clause is meant to prohibit Congress from suspending the writ against particular groups of people to advance particular political causes. Under this interpretation, the shorter and less general the limitation on the writ, the more particular the area the suspension applies to, then the more likely it is that the act is an unconstitutional suspension. This theory is entirely implausible, because it would mean that the clause means what it says.
2.21.2007 12:44am
DrGrishka (mail):
Just a Nut,

Most of your post borders on incoherence. However, I will try to address that which I can understand.

1. Congress has been amending and adjusting habeas statutes for 200 years. Prior to the enactment of AEDPA, state prisoners could file successive habeas petitions ad infinitum. Now, they are essentially limited to a single pentition. That cuts back on the previous statutory enactment, yet in no way is that unconstitutional. Such examples abound. If Congress can enlarge the writ beyond the Constitutional minimum, a future Congress can repeal such an enlargement. It is a fundamental principle that a past Congress cannot via its enactment bind a future Congress.

2. Indeed, there is only 1 Constitutional Writ. But then there is a STATUTORY writ. And since it is statutiry, you of course are not going to find any support for it in the Constitution. Just like you are not going to find any support for the proposition that children of US citizens born abroad become US citizens at birth. The Constitution does not say that, yet Congress decided to expand the citizenship category to include these babies. It does not have to and can change its mind. So too with the writ. It can grant rights that it is not required to grant, and that is where statutory writ comes from.

3. Military tribunals for non-military personnel are nothing out of the ordinary. I suggest you look up Nuremberg Tribunals (and not just the 1st trial).
2.21.2007 1:47am
DrGrishka (mail):
Duffy,

A suggestion that the suspension clause acts as a one way ratchet is contrary to the Constitutional principle that a legislature cannot bind a subsequent legislature and also contrary to history. See, e.g. AEDPA.
2.21.2007 1:48am
Anderson (mail):
DrGrishka,

Your "no binding subsequent legislatures" argument falters on the fact that the Suspension Clause is itself in the Constitution. There is no such "Constitutional principle" if the Constitution says otherwise. Just sayin'.
2.21.2007 6:18am
David M. Nieporent (www):
Your "no binding subsequent legislatures" argument falters on the fact that the Suspension Clause is itself in the Constitution. There is no such "Constitutional principle" if the Constitution says otherwise. Just sayin'.
But the Constitution DOESN'T say otherwise. The Suspension clause doesn't say, "Congress may not suspend something that, at some time in the next two centuries, one of the sessions of Congress will call 'habeas corpus.'"

If Congress passes a law tomorrow that says "Slander is protected speech under the first amendment," (*) does that mean no future Congress can ever pass a law against slander, because to do so would be abridging free speech? Well, that's one possible interpretation of the first amendment, but is it a sensible one?





(*) Let's assume the law is Constitutional -- for instance, that it applies only in DC and on other federal lands.
2.21.2007 7:12am
Anderson (mail):
Nieporent: Sure, but that assumes the conclusion. You may be right about the meaning of the Clause, but it simply makes no sense to argue that the Clause can't bar future legislatures from ratcheting back habeas because of a Constitutional principle, when the Clause (or a disputed reading of it, say) is itself part of the Constitution.
2.21.2007 7:21am
David M. Nieporent (www):
Anderson, if you're just making an abstract observation about the relationship between constitution and law, I don't disagree. The Constitution could say, "Once Congress passes a law about subject X, it can never be ratcheted back." Given that sort of language, there would be no sense in arguing that the Clause can't bar future legislatures because of a Constitutional principle.

I don't think that's what DrGrishka is saying, however. What Grishka is saying is that, given the general principle that legislatures can't bind future legislatures, it doesn't make sense to interpret the Suspension Clause as violating that principle, when there's another interpretation of the Suspension Clause which wouldn't violate that principle.
2.21.2007 8:41am
jrose:
Roark:
For SCOTUS to overrule the D.C. Circuit in this case would require them to find that the statutory reach of sec. 2241 (that it found in Rasul extends to Gitmo) turns out to be irrelevant. Whadaya know, the detainees had a constitutional guarantee to the Writ all along.
Isn't it plausible that the Court would prefer to settle a case based on statutory interpretation without prejudicing whether a companion Constitutional right exists?
2.21.2007 8:56am
Just an Observer:
jrose: Isn't it plausible that the Court would prefer to settle a case based on statutory interpretation without prejudicing whether a companion Constitutional right exists?

That is more than plausible. My understanding is that in Rasul v Bush, the Guantanamo parties themselves avoided making a constitutional claim, so it would have been unususual for the court to reach out and decide one.

The majority opinion in Rasul was a statutory holding, even though the dicta -- "Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus." -- bears on the constitutional question.

Scalia's dissent likewise focused on the statutory issue. In a footnote, he quoted the appellant's oral argument to that effect:

See Tr. of Oral Arg. 5 (“Question: And you don’t raise the issue of any potential jurisdiction on the basis of the Constitution alone. We are here debating the jurisdiction under the Habeas Statute, is that right? [Answer]: That’s correct. . .”).
2.21.2007 9:30am
Duffy Pratt (mail):
I never said I thought the one-way ratchet interpretation of the suspension clause was correct. I don't think that interpretation makes sense of the language.

On the other hand, the writ had developed in English law over centuries, and I think that it makes as little sense to say that the suspension clause was meant to set the 1789 understanding of the writ into stone.

I think its possible to look at the clause and determine what sort of abuses of power it was meant to guard against. (There was a history in England of just these sort of abuses.) Then you can look at a particular case and decide in that case whether the government is engaging in the sort of abuse that the clause is designed to prevent. The word "suspend" is telling. It doesn't say limited, or curtailed, or repealed.

Also, I don't think this is an area where a pure "original" understanding of the Constitution will be much help, because this clause most likely assumed a view of Federalism that died over a hundred years ago.
2.21.2007 9:34am
Roark:
jrose:"Isn't it plausible that the Court would prefer to settle a case based on statutory interpretation without prejudicing whether a companion Constitutional right exists?"

Hopefully, and if they do the President wins hands down. Surely, if Congress grants a privledge by staute Congress may revoke that privledge. The dissent in the instant case was based on the premise that in so revoking, Congress removed a constitutional right which the detaintees held independent of legislative enablement. My point was that SCOTUS would have to agree that their exists some plenary unassailable right to the the Writ to overrule.
2.21.2007 10:10am
Duffy Pratt (mail):

Surely, if Congress grants a privledge by staute Congress may revoke that privledge.


So if Congress, by statute, increases federal judges salaries then it surely must be able to take away the pay increase? When the Constitution says that judges salaries shall not be diminished, that means that they can't be lowered that what they were in 1789, right? There must be some constitutional baseline to judges salaries.
2.21.2007 10:29am
Roark:
Just An Observer:

That is more than plausible. ...
The majority opinion in Rasul was a statutory holding...Scalia's dissent likewise focused on the statutory issue.

Exactly right. But the MCA made Rasul moot. Congress has repealed the statutory reach that Rasul found extended to Gitmo. There is nothing left of Rasul except the lowly dicta, unsupported by reason or history (see Scalia's dissent). The Writ applied to subjects of the King. It is a reasonable stretch to extend the privledge to resident aliens who have "assumed the obligation of citizenship", it is unreasonable to extend the Writ to combatants who actions threaten the rights of citizens.
2.21.2007 10:57am
DrGrishka (mail):
Duffy, yes and no.

Congress can pass an increase in salary and a future Congress can repeal it. The repeal will just be inapplicable to the judges already serving. But there is no requirement that new judges be compensated at par with old ones or compensated at all.
2.21.2007 11:07am
Mark Field (mail):

What I don't understand is the alternative point that turns on the import of the phrase "at the absolute minumum." If the 1789 understanding did exclude a situation such as Guantanamo, how else might it have been included later except by statute? (In fact, Rasul held that the statute in 2004 included such a situation, without reaching a direct constitutional grounding that was only suggested in dicta.)

But why could Congress not amend or repeal its own statute to take away what it once had granted? Is the theory that the Suspension Clause forbids that action, that there is a constitutional "high water mark" created by statute that can never be rescinded except by invoking suspension?



I'm looking forward to an answer to JaO's question (paging Mark Field?).


You guys stay up way past my bedtime.

I'm not sure what the Court meant in St. Cyr. Here's my best guess.

An originalist (of whatever flavor) would generally take the view that we must interpret Constitutional clauses as they were understood in 1789 (I'm glossing over distinctions here). A non-originalist would not agree. I believe the Court was trying to avoid that dispute with its "at a minimum" language. It also may have recognized that, as a practical matter, the Court has never had occasion to develop a "common law"-style constitutional jurisprudence of the Writ precisely because the statutory writ has generally provided all the relief necessary. Thus, there isn't the usual concern of non-originalists regarding the stare decisis effect of intervening decisions regarding the scope of the Writ.

I'm not an originalist. However, the Writ is one issue where the Founders very likely had MORE expansive views than we do today. They were all very acutely aware of the experience under the Stuarts; most of their ancestors came here for that reason. Virtually all of the rights they protected stem from that experience. Given the disgust with Stuart "gamesmanship" regarding the Writ, I'm sure they'd recognize the current Administration actions for what they are.
2.21.2007 11:52am
Mark Field (mail):

It is a reasonable stretch to extend the privledge to resident aliens who have "assumed the obligation of citizenship", it is unreasonable to extend the Writ to combatants who actions threaten the rights of citizens.


This begs the question: what if the use of the Writ is precisely to determine whether or not someone is a "combatant who threatens the rights of citizens"? You are assuming your conclusion.
2.21.2007 11:54am
Rattan (mail):
DrGrishka:

There is a flaw in your analogies. There is no prohibition against citizenship. There is one against suspending the Writ. Most of us libertarians know it is for a good reason- our freedom and liberty.

The fact that legislatures have withdrawn or contracted the reach of the Writ in the past without challenge does not make the action Constitutional. Our courts do not scrutnize all legislation. They focus on what is presented in a case or controversy. We could have legislation decreeing the value of the constant 'pi' as 3 (it seems this happened a long time back in Indiana on some Biblical argument along lines adopted to promote creationism). It does not change reality and the legislation even if unchallenged is not only substantively wrong, it is also establishing religion- a legal error. Thus, past legislative goofiness means little.
What exactly is the problem with a ratchet like interpretation of the suspension clause? Actually none. Any serious error could be fixed by Amendments to the Constitution- we did that with prohibition. On the upside it promotes liberty and prevents the very errors that the availability of the Writ is expected to address.
Granted, if there is no need to use a Constitutinal basis (when other arguments will suffice) it is preferable to do avoid interpreting the Constitution in an abundance of caution in view of our fallibility. However, if push comes to shove, this is not a close call. I know of no serious adverse consequences from 'too' liberal an access to the Writ that would indicate that it should be denied liberally.
Restrictive interpretations of the Constitutional protection of the Writ do have serious negative consequences starting with confusing statutory, Constitutional, Executive, Judicial and other flavors of Writs being made possible in arcane wordsmithing exercises. All of these end with less liberty when it is needed the most with no public good coming of it.
2.21.2007 12:07pm
SG:
Mark Field:

This begs the question: what if the use of the Writ is precisely to determine whether or not someone is a "combatant who threatens the rights of citizens"? You are assuming your conclusion.


And you are establishing a perverse incentive. To wit: Because the enemy disregards the laws and customs of war, they are entitled to greater process than that due lawful combatants. Surely this is bad policy, no?
2.21.2007 12:33pm
jrose:
My point was that SCOTUS would have to agree that their exists some plenary unassailable right to the the Writ to overrule.
Didn't Kennedy make that argument in his Rasul concurrence, and don't you expect the Rasul majority to embrace his view if they conclude that the MCA supercedes their holding that 2241 provided statutory habeas?
2.21.2007 1:01pm
Mark Field (mail):

And you are establishing a perverse incentive. To wit: Because the enemy disregards the laws and customs of war, they are entitled to greater process than that due lawful combatants. Surely this is bad policy, no?


Your question still assumes the conclusion. Before anyone can answer your question, we first need to determine if, in fact, the detainee is an "enemy".

I assume your complaint is predicated on the fact that lack of uniform, etc. makes this hard to establish. In substantial part, this doesn't distinguish terrorists from any other criminals, which is really how they should be treated. However, let's put that issue aside for now.

How hard it is will depend on the standards required. In my view, those standards don't have to be very high, but they do have to meet the basic levels of fairness: right to be heard; right to hear the evidence against you; right not to have evidence obtained by torture introduced against you; etc.

In cases where US forces made the capture, I'd expect there would be little dispute; the prisoner probably wouldn't even seek a Writ. That's because our soldiers aren't likely to be able to identify a prisoner except under circumstances where "combatant" status is fairly obvious.

The big problem with Gitmo is that only 7% of the prisoners there were captured by US forces. Most of the rest were turned over to us by Pakistanis and Afghans. The circumstances of those captures make them suspect. I don't see why it's asking too much to insist on some basic level of due process just to confirm the we aren't inadvertently taking sides in some personal or tribal vendetta.
2.21.2007 1:37pm
Roark (mail):
jrose:

Didn't Kennedy make that argument in his Rasul concurrence, and don't you expect the Rasul majority to embrace his view if they conclude that the MCA supercedes their holding that 2241 provided statutory habeas?


Kennedy no where addresses the constitutional scope of habeas. He concurred with the majority's stautory conclusion but applied a different line of reasoning based on his view that Gitma is defacto US sovereign territory. In his concurrence he agreed with the minority that Eisentrager should be the controlling precedent. Assuming he holds to that position, he would still have to explain how enemy combatants have a constitutional habeas right (in clear definance of both Congress and the Executive which hold that they do not) and why that constitutuional right is controlling here and was not in Eisentrager. My prediction, given the sympathy he expressed for Scalia's arguments, is that both he and Souter will not be willing to go so far as to extend a constitutional habeas right to POWs, especially since the second part of Kennedy's argument (no other way to challenge a detainee's status) was obviated by Hamdon and the MCA.
2.21.2007 1:54pm
Roark (mail):
Mark Field:

This begs the question: what if the use of the Writ is precisely to determine whether or not someone is a "combatant who threatens the rights of citizens"? You are assuming your conclusion.

Again, their is no evidence of habeas ever being for the purpose you describe and plenty of counter-point evidence showing thta such attempts were rebuffed in the past. Military commissions convened under the Laws of War provide the protection you seek without giving aid to enemy by allowing them unfettered access to our courts, and without inserting the judiciary into the Executive's exclusive war power authority. The last thing this country needs is judges second guessing executive decisions about how best to protect the nation against external threats in time of war.
2.21.2007 2:09pm
DrGrishka (mail):
Rattan,

Your argument fails for the following reason. First, Congressional tinkering with habeas has been addressed numerous times (see, e.g., numerous AEDPA cases). Scaling back of habeas has never been held to be unconsututional. Second, yes we can "fix" things with Constitutional amendments, but it is rather perverse to suggest that once some Congress enacts something the only way to repeal it is through Constitutional amendment. That impermissibly emasculates and diminishes the power of future Congresses.

The problem with your approach (even though you see none) is the unbalancing of our system of separation of powers and restricting ability of future generations to respond to crises as tehy see fit. By your logic, if Congress enacts some very broad access to habeas and then sees that the statute creates abuse and is obviously not working it is powerless to repeal that statute. That simply has never been and cannot be the law.
2.21.2007 2:17pm
SG:
Mark Field:

I am not assuming the conclusion. I am assuming that a class of combatants exist, but not that any particular individual is a member of that class.

It doesn't appear that you are denying that there exists combatants, either. As I read you, you're saying that because the combatants have willfully chosen to render themselves indistinguishable from innocent civilians, we should offer additional process to anyone captured in case they might be non-combatants.

How does this not incentivize combatants to become war criminals? After all, if they were uniformed when captured they would have no expectation of access to the Writ (I don't believe you're assserting that all POWs have such access. That's completely ahistorical.), yet somehow by remaining un-uniformed they gain access? How is it in anyone's best interests to provide benefits for being a war criminal? How is this not a perverse incentive?

I also question your assumption that a true combatant wouldn't avail themselves of every iota of process we deem to give them. What would compel this sudden act of honor? If there's any possibility that they could use our granted process to free themselves, they should be expected to avail
themselves of it. Or even if there's no possibility of freedom, just the increase on the burden on our Armed Forces would demand that they exercise every avenue opened to them.
We expect the same from our soldiers.

Note that I'm not assuming that there won't be instances of injustice (people inappropriately detained, etc.) However, culpability for that injustice lies solely with the war criminals who made themselves indistiguishable from the civilian population. If they weren't fighting as war criminals, this problem wouldn't exist.

And as to your aside about treating Gitmo detainees as criminals: What US laws were broken by those fighting in Afghanistan? How does the US criminal justice system have jurisdiction to try them? How does treating them as criminals not run completely afoul of Article 84 of the Third Geneva Convention?
2.21.2007 2:39pm
Just an Observer:
FYI, I don't believe this news, reported late yesterday in SCOTUSblog, has been noted in this thread: Detainees to seek fast-track appeal


While I remain uncertain of the outcome, I hope I don't have to wait a year to find out.
2.21.2007 3:14pm
jrose:
Roark:
In his concurrence he agreed with the minority that Eisentrager should be the controlling precedent. [...] he would still have to explain how enemy combatants have a constitutional habeas right [...] and why that constitutuional right is controlling here and was not in Eisentrager
It would be very odd if Kennedy felt the statutory right at stake in Rasul should be judged based on Eisentrager, but the current constitutional claim should not. I suspect he, and the holdover majority from Rasul will conclude that "Guantanamo Bay is in every practical respect a United States territory" and thus will reverse that portion of the Circuit's opinion. However, I agree it is possible that he or others may hold that the hearing provided by the MCA is sufficient to deny habeas.
2.21.2007 3:30pm
Mark Field (mail):

I am not assuming the conclusion. I am assuming that a class of combatants exist, but not that any particular individual is a member of that class.


I assume that too. The problem is that we have to have some way of deciding which detainee falls into which category. Ruling out a fair hearing in advance means that we de facto treat ALL prisoners as falling into just the one category.


As I read you, you're saying that because the combatants have willfully chosen to render themselves indistinguishable from innocent civilians, we should offer additional process to anyone captured in case they might be non-combatants.


No, I'm saying that the innocent have the right to establish that. For example, we don't take all murder suspects and lock them up forever just because we don't want to give "extra" rights to murderers. We do so because we believe that those suspects who are innocent shouldn't pay the cost of others' guilt.


How is it in anyone's best interests to provide benefits for being a war criminal? How is this not a perverse incentive?


For the same reason that criminal trials are not an incentive to commit murder. There is no benefit to spending the resources to try someone who's guilty. The benefit is that it's unjust to punish the innocent; we have to have a process in place to assure we don't.


I also question your assumption that a true combatant wouldn't avail themselves of every iota of process we deem to give them. What would compel this sudden act of honor? If there's any possibility that they could use our granted process to free themselves, they should be expected to avail
themselves of it.


I could be wrong, of course, but in my experience when people are caught in flagrante, they generally don't fight it much.

But really, this is just a dispute over details. Even the Bush Administration agrees that there must be some process to separate the righteous from the wicked (NB: that's a Buffy reference). The real question is whether the Administration gets to control that process or the judiciary does.


Note that I'm not assuming that there won't be instances of injustice (people inappropriately detained, etc.) However, culpability for that injustice lies solely with the war criminals who made themselves indistiguishable from the civilian population. If they weren't fighting as war criminals, this problem wouldn't exist.


This argument proves too much. One could say the same about ordinary criminals. I don't think it would comfort the innocent much to know that having them held in perpetuity made the rest of us feel better and wasn't our fault.


And as to your aside about treating Gitmo detainees as criminals: What US laws were broken by those fighting in Afghanistan? How does the US criminal justice system have jurisdiction to try them? How does treating them as criminals not run completely afoul of Article 84 of the Third Geneva Convention?


Treating soldiers as criminals is permissible if they violate the recognized laws of war. Merely wearing a uniform won't protect you against, say, a rape charge.

The US government might or might not have jurisdiction to try someone; depends on the circumstances so I can't answer the question without specific facts. But surely murders violate the laws of Afghanistan and the government there is supposed to be on our side. Iraq, of course, is a somewhat trickier issue, but then that's more our fault than anyone else's.
2.21.2007 3:36pm
JoeBlow (mail):
SG: And as to your aside about treating Gitmo detainees as criminals: What US laws were broken by those fighting in Afghanistan? How does the US criminal justice system have jurisdiction to try them? How does treating them as criminals not run completely afoul of Article 84 of the Third Geneva Convention?

At a very minimum, Al Qaeda members are guilty of being part of a world-wide conspiracy to kill Americans--making them liable (under federal law) for all crimes foreseeably committed in furtherance of the conspiracy.
2.21.2007 3:37pm
Mark Field (mail):

While I remain uncertain of the outcome, I hope I don't have to wait a year to find out.


Personally, I wouldn't complain if there was some delay, just to give Congress a chance to vote on repealing the habeas stripping provisions. I think that vote will gain a majority, and I think that would provide political support for the Court even if Bush vetoes it.
2.21.2007 3:40pm
Anderson (mail):
SG misses a point: an alleged terrorist is perhaps "entitled to more protections" than a POW, but that's precisely b/c he's also subject to far greater hazard. We do not execute POW's for murder based on their having shot our guys on the battlefield, whereas terrorists are criminals in jeopardy of life imprisonment or worse.

Re: the 1789 understanding of habeas, let me see if I can ask about Mark Field's take.

What if the 1789 understanding of the Writ was that it was flexible enough to cover any eventuality?

Did the Founders anticipate *any* case where the Executive could lock up someone indefinitely, outside both the laws of the State and the laws of war?
2.21.2007 3:44pm
Roark (mail):
Oren
The founders would likewise have thought the notion of women/blacks/reds/yellows/children (perhaps not all of the forgoing) having due process rights to be likewise laughable. Remember that for a large portion of our history, a red man could be neither witness nor victim in our courts. Nor could a woman accuse her husband of rape or abuse, lest she be deemed 'hysterical'.


And yet not one of those grievences prevailed. They were addressesd the way the founders intended, through legislation and when necessary, ammendment. You rememebr ammendment right? It's that quaint notion that guided the evolution of our Republic before the Court decided it could dispence with such an unwieldy contrivance and simply declare that the basis for their desire was in the Constitution all along.
2.21.2007 4:41pm
Mark Field (mail):

Re: the 1789 understanding of habeas, let me see if I can ask about Mark Field's take.

What if the 1789 understanding of the Writ was that it was flexible enough to cover any eventuality?

Did the Founders anticipate *any* case where the Executive could lock up someone indefinitely, outside both the laws of the State and the laws of war?


To the extent we're talking about citizens, I can say "no" with complete confidence.

My best guess -- and it's only that -- is that they would have expected either the law of war or habeas to control. They'd have seen no middle ground.

I say this for two related reasons. The concept of citizenship was somewhat flexible in the US at that time. This makes sense for a country in which allegiance had to count for at least as much as birth. Nobody born before July 4, 1776 was a citizen by birth of the United States. Under the Confederation, states controlled citizenship (this was granted to Congress by Art. I, Sec. 8, cl. 4).

As a result, certain basic rights were not directly associated with citizenship. The Articles of Confederation provided that "the free inhabitants of each of these states... shall be entitled to all privileges and immunities of free citizens in the several states..."

The phrase "privileges and immunities" is vague, but we can get some clue to its meaning from Blackstone:

"The rights themselves thus defined by these several statutes [Magna Carta and others], consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringment or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense."

He then goes on to say

"NEXT to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned or detained without cause shewn, to which he may make answer according to law. By 16 Car. I. c. 10. [a different statute than the 1679 Act] if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain."

From this language, and from cases like Somersett (habeas granted to slave) and Schiever (habeas sought for POW who denied his classification as such), my judgment is that they'd have recognized a very broad right to habeas, applicable except when superseded by the law of war.
2.21.2007 4:55pm
Porkchop (mail):
I am trying to think through ramifications of the denial of "sovereignty."

Say, for example, a US serviceman marries a non-citizen while stationed overseas, is transferred to Guantanamo Bay Naval Station, and brings his dependent wife with him directly from his prior overseas station. The dependent wife has never set foot in the United States. The dependent wife is accused of shoplifting expensive (i.e., felony-worthy) jewelry from the Navy Exchange. What sovereign administers justice? Civilians generally cannot be tried by courts martial. Is the wife turned over to the Cubans for trial? I suspect not. I think there has to be a civilian trial by a U.S. Court. Does the wife have the same rights as a federal criminal defendant charged with the same offense at Naval Station Mayport, Florida? If so, isn't the United States exercising "sovereignty"?

What if the NCIS believes that the wife, in fact, is a mole, a terrorist sympathizer with plans to disrupt the base, say by detonating a bomb, and turns her over to the military detachment running the Guantanamo detention facility? The military detachment detains her as an unlawful combatant in a female holding area at Guantanamo, and subjects her to interrogation? What rights, if any, does she have to challenge her detention? Is Guantanamo now her "battlefield"? What if there is a perfectly reasonable and innocent explanation for her suspect conduct? Are the dependent wife's rights different from those of the other detainees'?
2.21.2007 5:32pm
DrGrishka (mail):
I am not sure that you are correct in your assertions that civilians cannot be tried by military tribunals for acts committed on military installations.
2.21.2007 6:05pm
SG:
my judgment is that they'd have recognized a very broad right to habeas, applicable except when superseded by the law of war.


I largely agree with your assessment. So, while recognizing that you believe this matter should not be treated as a war, can you explain why prisoners taken and held by the US military while engaged in ongoing wartime operations in Afghanistan, as ordered by the CinC and as authorized by Congress with the AUMF which was passed in response to the single deadliest foreign attack on US soil, why these prisoners are somehow not being held under "the laws of war"?

Your continual analogies to civilians held under peacetime circumstances really don't seem applicable. None of which is not to say that the current policy is optimal, but your proposed remedy (civilian judicial review) is inappropriate.

Anderson: I may have missed it, but at no point in the current round of detainee hearings are the detainees being tried or punished as war criminals, hence any potential increased penalties aren't applicable at this stage. But if we were proposing to execute them pending the outcome of their hearing, I would support granting them more process.

In fact, I've never heard any of the people arguing for more process now also supporting trials and severe punishment those found guilty of fighting out of uniform. The people I hear arguing for more process seem to say that the prisoners should get all the rights and privileges of ordinary POWs plus many of the rights of civilians criminal defendants. As a matter of policy, that seems like a profoundly stupid balance.

But are you that saying you would support punishments up to and including execution for prisoner found to have violated the rules of war?
2.21.2007 6:12pm
Anderson (mail):
Thanks, Prof. Field. But what about noncitizens? Is there any daylight b/t the Great Writ and the laws of war? It seems obvious to me (lonely me) that Osama or KSM would not be covered by the latter, for ex.
2.21.2007 6:14pm
Mark Field (mail):
One other point before I respond to SG and Anderson. It's an interesting question for originalists to ponder.

The soldiers who fought in the Revolution didn't, speaking generally, wear uniforms. Few armies in those days required them and fewer still supplied them. Nor was irregular warfare (the polite term) unknown to the Revolution. Assuming the meaning of habeas is fixed as of 1789, does our interpretation depend on their understanding of what makes a lawful combatant, or ours?


So, while recognizing that you believe this matter should not be treated as a war, can you explain why prisoners taken and held by the US military while engaged in ongoing wartime operations in Afghanistan, as ordered by the CinC and as authorized by Congress with the AUMF which was passed in response to the single deadliest foreign attack on US soil, why these prisoners are somehow not being held under "the laws of war"?


Your implicit suggestion is problematic for two reasons. First, we are not treating these prisoners under the laws of war as now recognized. If we granted them POW status, I would agree that habeas is unwarranted.

This brings us to the second issue, however. POWs have to be released at the end of hostilities. A war on "terror" has no plausible end of hostitilies. We would, in practice, be holding them as a life sentence. This benefits neither us -- unless we want to serve as jailer for the world -- nor them. If, on the other hand, we declared the war over, we'd be faced with the option of releasing people whom we have reason to believe are criminals rather than actual soldiers. That's not an attractive option either. It seems preferable to me to apply criminal standards where appropriate so that we can convict people of crimes.

I should note that your question is very limited factually. As I mentioned above, only 7% of the prisoners at Guantanamo are US captures. We have to deal with the other 93% as well. The circumstances of their capture raise serious doubts about the justification for treating them as combatants at all.


But what about noncitizens? Is there any daylight b/t the Great Writ and the laws of war? It seems obvious to me (lonely me) that Osama or KSM would not be covered by the latter, for ex.


There are two ways to look at this from the perspective of 1789. The Writ at that time clearly applied to non-citizens. The Somersett case alone shows that (slaves could hardly be "citizens"). It seems to have been potentially applicable to POWs (Schiever). Given what I said above about the irregularites of 18C warfare, I'm not sure the Founders would have accepted the neat categories we would like to create.

The other way is to make the analogy to piracy. Pirates who were caught in the act of piracy were generally killed on the spot. Blackbeard, for example, was killed while resisting capture. In contrast, Captain Kidd was brought to England, tried, and hung as a murderer. I suspect the Founders were happy with both results.
2.21.2007 7:32pm
Bruce Hayden (mail) (www):
While it may be true that a lot of our soldiers fought out of uniform during the Revolutionary War, esp. at the beginning. By the end though, they were in uniform. And that doesn't address what happened to them when caught.

But if we are talking the Revolutionary War, let us not forget British Major John André caught with the plans for West Point and hung as a spy after a hearing by a who's who of American generals. Not only was he out of uniform at the time he was caught, he also had a fake passport showing him as John Anderson.
2.21.2007 11:15pm
CharleyCarp (mail):
John Andre had a trial. And I don't believe that at his trial he claimed to be John Anderson, innocent civilian.

Someone above hit the nail on the head with regard to the Gitmo detainees. It's not a matter of distinguishing between POWs and illegal combatants, but between combatants (of either type) and civlians. If petitioners claim to be civilians, and they do, then only after some level of review can all the flat statements above about what is, and what is not, permitted under the laws of war become relevant.

The central issue is whether the hastily created and convened CSRTs are sufficient basis to detain someone who says he is a civilian. The answer from the Circuit -- yes, no matter what actually happened in the CSRTs, so long the government keeps the prisoners away from anyplace on earth where they might have access to a court -- isn't going to stand.
2.22.2007 12:05am
DrGrishka (mail):
Charley,

During WWII the determinations of who is a POW and who is a civilian were made by local military commanders on pretty thin evidence. No one thought that these determinations were open to challenge in US courts (even if these POWs were kept inside the US proper).
2.22.2007 8:59am
SG:
According to the Geneva Conventions, all prisoners are required to be treated as POWs "until such time as their status has been determined by a competent tribunal" (Article 5 of GCIII). Why would the the CSRTs not be considered competent tribunals? Especially given that detainees have been released, so they clearly are not just pro forma.

I would agree that the US has not been abiding by the Geneva Conventions in that prisoners have not been granted POW status prior to the determination of their status. It's not permissable to categorize prisoners en masse. But violations of the Geneva Convention are not actionable.

Mark, you keep raising this 93%/7% issue, but I don't believe it's of any particular relevance. All sorts of legitimate military activities, including the entire Afghan campaign, is conducted with exactly these same sort of 3rd party proxies. I'm hard pressed to understand why dropping a bomb on somebody's head because of 3rd party information is permissable but holding a prisoner is not. I'm not suggesting that these prisoners shouldn't have a hearing or that the nature of their capture isn't relevant to that hearing, but use of proxies in and of itself is a long established part of warfare and doesn't inherently call into question the legitimacy of their detention.
2.22.2007 11:20am
Roark (mail):
I would like to see a discussion of the use of the word "privledge" in the Suspension Clause as opposed to "right". My understanding is that privledge is a term of art that defines a benefit that is granted by statute as opposed to rights which are innately held. No statute is required to implement our right of free speech for instance, and in fact, the protection of rights is the primary purpose of government. It is duty bound to preserve them for all, citizens and aliens alike, who are under its protection. Not so with privledges, which are extended by statute and therefore can be limited to whatever scope the majority deems fit. I seems unlikely to me that the framers would consider such a limitation of scope as a suspension, but perhaps I'm confused on the distictions. Any comments?
2.22.2007 1:22pm
Mark Field (mail):

I would like to see a discussion of the use of the word "privledge" in the Suspension Clause as opposed to "right". My understanding is that privledge is a term of art that defines a benefit that is granted by statute as opposed to rights which are innately held.


See the quotations from Blackstone in my post on 2/21 at 4:55 pm. In summary, Blackstone says a "privilege" is something society has agreed to provide in lieu of the natural liberties we gave up when we agreed to enter the social contract.


Mark, you keep raising this 93%/7% issue, but I don't believe it's of any particular relevance.


I think it's relevant because the circumstances of capture create doubt about the accuracy of information we're getting. For the details, here's link to the Seton Hall study of the detainees.


Why would the the CSRTs not be considered competent tribunals?


As the Court held in Rasul, they don't meet the standards required by Geneva. They don't even meet the minimum due process standards which we would expect from any fair hearing.
2.22.2007 3:36pm
SG:
As the Court held in Rasul, they don't meet the standards required by Geneva. They don't even meet the minimum due process standards which we would expect from any fair hearing.


The CSRTs were established post-Rasul, so Rasul couldn't have invalidated them. Did you mean Hamdan? Breyer and Kennedy's concurrences both state that Congress could legitimate the CSRTs and that was the intent behind the Military Comissions Act.

While it has yet to withstand challenge, the current state of the law would seem to be that the CSRTs to be competent tribunals.
2.22.2007 4:25pm
Mark Field (mail):

The CSRTs were established post-Rasul, so Rasul couldn't have invalidated them. Did you mean Hamdan?


Sorry, yes, Hamdan.


Breyer and Kennedy's concurrences both state that Congress could legitimate the CSRTs and that was the intent behind the Military Comissions Act.

While it has yet to withstand challenge, the current state of the law would seem to be that the CSRTs to be competent tribunals.


I think it's still an open question whether the CSRTs provide an adequate hearing either by themselves or in conjunction with the DC Circuit review. I expect this to be an issue on review of Boumedienne (see paragraph 5 of Marty Lederman's post at Balkinization).
2.22.2007 4:59pm
Greg D (mail):
"Not Greg D"

We're not talking about right and wrong. We're talking about war. You know, that activity where the gov't sends people out to murder other people?

All war is "wrong". That doesn't keep it from happening. Now, we can try to make it "less" wrong. Thus we get things like the Geneva Conventions.

But the Geneva Conventions "act" by limiting what countries can do. In other words, they impose costs on countries at war. The reason why they're around is because they also give benefits to countries at war.

So, if everyone follows the rules, then everyone pays costs, and everyone receives benefits. What happens, however, when one side decides not to follow the rules?

Will Daddy spank them for cheating? No.

Will the government throw them in jail, or fine them, for violating their contract? No. It's the government deciding to violate the contract.

We are therefore left with one, and only one, remedy: If they're not willing to pay the costs of following the Geneva Conventions, then they don't get the benefits.

Anything else rewards them for violating the Conventions.

The choice is simple, do you reward evil, or do you punish it? When you say "extend the protections to those who don't follow the rules", you are rewarding evil (unless, of course, you don't think it's evil / wrong / pick your negative to murder POWs). You are, in short, doing wrong.
2.22.2007 7:05pm
Mark Field (mail):
Roark, I doubt you're still reading this, but I came across an interesting reference to "privileges" that helps clarify how the Founders understood the term.

When Madison introduced the BoR, he included one which didn't pass providing that "No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.” In a speech on June 8, 1789, he explained the purpose of this amendment by stating “the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.” Emphasis added.
2.23.2007 12:38pm