SCOTUS Takes Another GWOT Habeas Case:
SCOTUSblog reports:
The Supreme Court agreed on Friday to rule on claims by two U.S. citizens being held by the U.S. military in Iraq that they have a right to challenge their detention there and future transfer to Iraqi authorities — one of them to be tried, the other to be executed for a prior Iraqi conviction. The cases, drawing the Court more deeply into defining the rights of detainees, will be heard together, probably in March. The cases are Munaf v. Geren (06-1666) and Geren v. Omar (07-394). The D.C. Circuit reached different results on the two; both, however, involve interpretation of the scope of the Court’s 1948 decision in Hirota v. MacArthur. That decision barred U.S. courts from ruling on overseas detention of Japanese nationals by U.S. military forces serving as part of a multi-national force.
I disagree. American citizens are different from foreigners in that the Constitution applies to the conduct of the U.S. government towards American citizens abroad. As an example, the prosecution of American servicemen abroad under the UCMJ is subject to Constitutional review. Ditto for any jurisdiction asserted by the U.S. government over American civilians abroad, whether it involves punishment or mere incarceration.
But I definitely draw a bright line between citizens and non-citizens (aliens). IMO the judicial branch lacks jurisdiction over the conduct of American forces abroad towards aliens absent consent by the executive branch.
I repeat, though, this issue involves American citizens. The Court's action here is proper.
I would suggest that the reason for this that conservatives who defend the Bush Administration ought to think hard about is that one thing judges can't stand is being lied to. Even in a simple little motion hearing in a civil case, the one way to be assured to lose is if the judge catches you telling him something happened that didn't, or misrepresenting the holding of a case, etc.
The Bush Administration has filed so many false statements and arguments with the judiciary during the course of the war that at least those 5 members of the court just don't trust it anymore. Consider:
1. The Administration SWORE up and down that Hamdi was a dangerous combatant. When finally ordered by the Supreme Court to provide, under a very deferential standard, at least minimal evidence of his status as an enemy combatant, they forthwith RELEASED the guy.
2. The Administration claimed that the exigencies of warfare precluded it from going to Congress to get authorization to do the things it wanted to do in the war on terror. However, when it went to Congress, e.g., the Military Commissions Act, Congress was cooperative and gave the Administration just about everything it asked for.
3. The Administration claimed that all of the people being held in Guantanamo were the "most dangerous" terrorists on earth and that they had carefully evalulated whom to hold and the President had made determinations based on the evidence that these people where "enemy combatants". However, they released hundreds of them, and even with respect to many that they didn't release, the evidence that was presented at Combatant Status Review Tribunals or which has been gathered by their lawyers establishes that they were NOT enemy combatants.
4. The Administration denies that it uses torture, when it is perfectly clear that it has both (a) tortured detainees itself and (b) rendered detainees to other countries where they were tortured.
Deference is based on trust. Sometimes misplaced trust-- the Roosevelt Administration lied its head off to the courts relating to the Japanese internment. But when courts know they are being lied to, they aren't likely to defer.
And this is what conservatives are missing when they cite all those precedents about deference to the executive branch in wartime. Yes, some other Presidents have claimed a lot of power in wartime. But that doesn't mean that judges are going to give the same amount of power to a President whom they KNOW is not telling the truth.
If the Bush Administration had been careful to always tell the truth to the courts about what they were doing, why they were doing it, who was dangerous, and who wasn't, I have a feeling that some of these cases would have come out differently. Instead, we are in a situation where 5 judges of the Supreme Court are basically forced to constrain the actions of the executive branch, because those within that branch will not constrain them.
I am trying to make sure I understand your point, since you say that our conduct towards aliens is non-justiciable.
Go back to law school.
You shouldn't be advising others to attend law school if you think federal court jurisdiction turns on executive discretion, rather than Congressional statute. Executive fiat can neither deprive a federal court of jurisdiction granted by statute, nor grant a federal court jurisdiction absent a jurisdiction-granting statute.
At Schwaebisch Hall, a particularly infamous prison near Stuttgart for officials suspected of major war crimes, MacDonogh writes:Also:
Patricia Meehan, reviewing Giles MacDonogh, After the Reich: The Brutal History of the Allied Occupation (h/t Henry at Crooked Timber).
Sounds familiar.
You assume all jurisdiction is the same. Civil jurisdiction is not criminal jurisdiction. Civil jurisdiction can be conferred by contract, which here would be by treaty. Treaties between governments often grant each other's citizens rights to sue for property damage inflicted by each others' armed forces. Assertion of such rights commonly take the form of "claims".
I am not aware of any treaties which permit foreign nationals to sue the U.S. government for personal injuries inflicted by American forces abroad, though there might be some. But there most definitely have been treaties which permit foreign nationals to sue the U.S. government for property damage inflicted by American forces abroad.
Absent such a treaty, the judicial branch lacks jurisdiction over the conduct of American forces towards foreign nationals abroad.
Foreign governments certainly have civil and criminal jurisdiction over the conduct of American forces towards the citizens of those foreign governments. Extensive diplomacy takes place concerning these matters, and the conclusions are ratified in the form of "status of forces" agreements.
The executive branch, though, does have jurisdiction over the conduct of American miltary personnel and American civilians towards foreign nationals, whether the alienas are abroad or in this country. And the executive branch's assertion of criminal and civil jurisdiction over American citizens abroad, whether they be military personnel or civilians, is subject to Constitutional scrutiny.
You too could benefit from further legal study.
Interestingly, Robert Taft, staunch conservative Republican, was opposed to the Numemberg trials, and for this was attacked from all sides. In Profiles in Courage, John Kennedy wrote:
That too may've been an "ex post facto" law according to Taft, but it wasn't the case that anyone was executed simply for "a war of aggression."
I disagree with your conclusion that being a US citizen gives you special rights and priveliges to fight against American troops. The Supreme court has set clear guidelines in Territo and Quiren that basically say that when legal or illegal combatants are captured it is their conduct that matters, not their citizenship status. In Territo, a US citizen, captured as an Italian prisoner of war had his POW status confirmed.
But the fact that he was confirmed as a POW status actually gave him greater protection than the Geneva convention required:
But this case is completly different, is anybody really arguing that the US military has an obligation to shield these two individuals from the Iraqi legal justice system? Are they obligated to spirit a convicted murderer out of the country to keep his sentence from being carried out? Munaf is a dual US and Iraqi citizen, doesn't Iraq have jurisdiction over its own citizens for crimes committed within its own territory?
I don't know if that's true or not, but I think that's the nature of the allegation -- that in fact, the proceedings were controlled by the U.S.
--Oh, wait, Wikipedia exists. Why should I try to remember anything anymore?
Intriguing.
And you appear to be confusing subject matter jurisdiction with personal jurisdiction. A contract between private parties can confer personal jurisdiction on a federal court, but not subject matter jurisdiction. Only a statute can confer subject matter jurisdiction.
As for a treaty, it can't confer subject matter jurisdiction either, except to the extent that Congress has approved the treaty, in which case it can of course, in the same manner as a statute. The point being that executive action alone can't do it.
You too could benefit from further legal study.
With your first post I wondered whether you even knew what the word "jurisdiction" meant in the context of federal courts but your statement "The executive branch, though, does have jurisdiction over the conduct of American miltary personnel and American civilians towards foreign nationals, whether the alienas are abroad or in this country..." removes any doubt.
Iran's mullahs are about to produce their first home-built nuclear weapons this year.
A classic, of its kind.
American citizens can seek habeas, i.e., they should at least get a hearing. This not mean they are entitled to any relief.
IMO aliens captured and held abroad lack even standing to seek habeas.
As for the two guys in question, I had not considered the facts. I was making an abstract point about jurisdiction.
I'd love to see the lefties here say that a pair of American civilians in Britain charged with child molestation can hide out on an American military base and sue the U.S. govt. to keep it from turning them over to Scotland Yard. Our status of forces agreement with the United Kingdom does not cover American civilians unaffiliated with the U.S. government.
But, if the dudes are also charged with stealing a U.S. military vehicle and held in the base's brig on those charges, i.e., the U.S. government has asserted criminal jurisdiction over them, they can at least raise an extradition argument about being transferred to British custody.
Note that I am talking about ordinary criminal law issues here. Enemy combatants, particularly unlawful ones, present different issues which the lefties much prefer to ignore.
ejo, I will leave aside the fact that the Supreme Court isn't waging war, and I will also leave aside the fact that it is entirely the province of the judiciary to say what the law is and has been for 200 years.
But your claim that "people will die" is silly. As bad as 9/11 is, the whole war on terror is grossly overblown. And the importance of absolute executive power in that war is even more grossly overblown. Nobody's going to die because the Supreme Court eventually forces the administration to abide by fair procedures and make more reliable determinations of combatant status.
Sure, but I can figure out what the lay writer probably means. The declaration is NOT "a sworn declaration," but it's of the same legal effect. He just means it's not a notarized affidavit, is my guess.
Wiki's fine for "what's being said about X," within limits, &n.b. that I didn't vouch for the truth of the fellow's defense; but we did get an account of what that defense is.
"People will die" if we don't imprison for life every person ever arrested in the U.S. Sure, some of those people are innocent -- but some aren't, and they might beat the rap, and then they might kill someone. Statistically, it's *certain* that they will.
Sucks for the innocent of course, but at least they're alive, right? Shouldn't have messed with the cops and gotten arrested in the first place.
That may make sense to ejo; at least, I can't imagine why not.
The lefties will disappoint you. But I will say that the U.S.A. ought not to be allowed to evade federal court habeas corpus review by using a puppet foreign court to convict a U.S.A. citizen in a grossly unfair manner.
Certainly the federal court should have jurisdiction to determine its own jurisdiction, which may hinge on factual questions such as the degree to which the U.S.A. controlled or manipulated the foreign court. I do think, however, that the federal court will not be enchanted with the prospect of delving into such a highly charged question.
I like your reasoning - you contend I'm wrong unless Congress ratifies a treaty, and pretend I wasn't talking about treaties from the beginning.
Your error is more fundamental - the usual lefty aka transnational progressivist denial of the nation-state concept, particularly concerning political jurisdiction.
The United States Constitution does not protect foreigners abroad from the United States government. THAT is POLITICAL jurisdiction.
Here's what you said.
But I definitely draw a bright line between citizens and non-citizens (aliens). IMO the judicial branch lacks jurisdiction over the conduct of American forces abroad towards aliens absent consent by the executive branch.
I pointed out, correctly, that consent of the executive branch means nothing. Only a statute (including a ratified treaty) can confer subject matter jurisdiction on a federal court, which means Congress has to approve it.
Your error is more fundamental - the usual lefty aka transnational progressivist denial of the nation-state concept, particularly concerning political jurisdiction.
I have no idea what you're talking about. I certainly agree that nation states exist.
The United States Constitution does not protect foreigners abroad from the United States government. THAT is POLITICAL jurisdiction.
And you clearly have no idea what "jurisdiction" means in the context of a federal court's ability to hear a case.
Congress does not make treaties. If the Executive does not make a treaty with a foreign government giving its citizens the right to sue the U.S. government in our courts for actions by American forces abroad, i.e., if the Executive does not give its consent to jurisdiction by American courts to such claims, or consent to some variety of international tribunal or commission to hear them, there isn't any jurisdiction.
American citizens and American companies can make claims against the U.S. for damage to their property abroad inflicted by American forces. Foreigners cannot unless the Executive consents by making a treaty with the foreigners' governments.
IMO you are pretending not to understand because you don't like the results. This is common.
If the Senate does not ratify the treaty, would the federal courts have such jurisdiction on the basis of that treaty alone? In other words, can the President confer any jurisdiction to federal courts, via treaty, without the advise and consent of the Senate?
On the other hand, couldn't Congress make a law giving such jurisdiction to federal courts without consent of the President? (If you consider that the veto power amounts to "consent", consider that Congress overrides the veto.) Could such Congress confer the aforementioned jurisdiction for foreign citizens to sue the United States in federal courts?
No, a treaty not ratified by the Senate could not confer jurisdiction on the federal courts.
On the other hand, couldn't Congress make a law giving such jurisdiction to federal courts without consent of the President? (If you consider that the veto power amounts to "consent", consider that Congress overrides the veto.) Could such Congress confer the aforementioned jurisdiction for foreign citizens to sue the United States in federal courts?
Yes, if Congress enacted a statute giving federal courts jurisdiction to hear claims by foreigners for damage caused against them by US forces outside the US, then the federal courts would have jurisdiction to hear such claims, regardless of whether the executive branch consented or not. One might try to argue a veto is such consent, but Congress could enact it with a veto proof majority, or even a simple majority under a previous president who wouldn't try to veto it.
In other words, non-native speaker, the post above yours has it completely wrong.
Extra-territorial aliens aren't persons within the meaning of the Fifth Amendment and terminating one is an act which is not constitutionally different from terminating a viable fetus. Congress and the President are the choice-makers here, and as with anyone who has the right to choose in termination cases, they have the right to base their chpices either on tradionalist principles of religiously-based morality or on modern principles of personal choice free access to information, health, well-being, and security for Americans, whichever principles they think more important.
But American citizens are always persons, and they get a different analysis.
(1) Says who?
(2) What about the Fourteenth Amendment?
Many politicians urged German voters to ratify a ban on the death penalty in the _hope_ it would influence the Allies to commute the death sentences of convicted German war criminals.
The Allied response was basically "We don't care." They continued to carry out the executions of those sentenced to death by the various war crimes tribunals. I think Paul Blobel was the last one to hang, in June 1951.