Supreme Court Decision on Enemy Combatants Held at Guantanamo - Legal Discussion

United States Supreme Court ^ | June 28, 2004 | United States Supreme Court Justices

[Thud]

This is the thread for a legal oriented discussion of Rasul v. Bush, which may be the worst Supreme Court decision since the Dred Scott case. The link is to an Adobe Acrobat reader version of the ruling's text. I'm a lawyer and will analyze this opinion, and its implications, later today after studying it more carefully.

[Thud]

I'd appreciate it if someone would post either a link to an HTML version of the decision, or its whole text, in this thread.

[Huck]

Care to partake?

[oceanview]

We should try and see what Mark Levin thinks about this.

[Thud]

I'd really like to see your thinking on this.

[Pinetop]

Here's a link to the decision:

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-334.pdf

While the WH did not get everything it wanted, the government is still allowed to detain, but the detainees can contest the detention or their treatment.

[BenLurkin]

So the question is whether the statute in question specifically excludes aliens? I'd have to read it.

My gut reaction is that if the statute is silent then the courts are doing us a great disservice by extending the habeas corpus privileges to non-citizens.

Maybe I can find the decision on Westlaw (I've become spoiled by the direct links to statues and cases cited)

[walden]

Can you'all please address the issue of whether it makes a difference WHERE the terrorists are captured? Seems to me that it ought to make an enormous difference whether they were arrested here in the U.S. or captured on a foreign battlefield. Thanks.

[MamaLucci]

My take is that SCOTUS essentially gave terrorists, intent on killing Americans,
constitutional rights and priveleges.

[Strategerist]

You're assuming everyone held at Gitmo is guilty.

Based on the fairly large number released, that's unlikely.

[gdani]

Can you'all please address the issue of whether it makes a difference WHERE the terrorists are captured?

Basically, Rasul v. Bush is more about where the people are held following capture, rather than where they are actually captured.

And the USSC - based on a prior ruling - has ruled that U.S. courts have jurisdiction to hear aliens habeas corpus claims when those aliens are being held in territory that the U.S. has control over (like Gitmo).

[MamaLucci]

I trust the military to make battlefield decisions, not liberal judges.

[tort_feasor]

Scalia's dissent soves a rod up the liberals' a$$holes.

[NonValueAdded]

Not necessarily ... remember, war is not a law enforcement exercise. You capture enemy combatants, remove them from the field of combat, and determine if they have any intelligence value. Once drained, if they are not major players and there are no war-crime level charges to be made, you either hold them in camps until the end of hostilities (a la Stalag-17) or release them. In the current asymmetrical warfare scenario the former is not really feasible so you do a slow catch-and-release. Hopefully, you do some psyops work and hint that some of the released ones are "turned" so that they will never be trusted again.

[COEXERJ145]

Scalia's dissent soves a rod up the liberals' a$$holes.

He always does.

[Logical me]

It doesn't matter to me what the Supreme Court says. They are a pack of useless functions anyway. Supposed to interpret law not make new ones.

Best thing we could do is transfer all the prisoners to Afghanistan and let them take care of the murders.

[Blood of Tyrants]

Here is the important part:

"STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined."

The three most conservative judges were against it. The five most liberal judges were for it. Anytime the split is that clear, I tend to believe that it was a bad decision.

[Pinetop]

Well, the court distinguished Eisentrager and noted that in this case, none of the detainees were citizens or nationals of a country with which we were at war and also the court relied upon the fact that the US has exclusive control over Guantanamo pursuant to the lease and treaty with Cuba.

The Court rejected respondent's claim that the detainees lacked litigation privileges, noting that historically nonresident aliens have had such privileges in US courts.

In short, the Court distinguished it's earlier reasoning in Eisentrager in order to reach this decision. What always fascinates me about the Court is its easy way with stare decisis. Those footprints in concrete are never very permanent...

[Steven W.]

to the contrary, the few which are released are typically found again, back on the battlefield.

[BenLurkin]

Scary. It is sometimes no more than an intellectual exercise; how can the court get the result it wants and still have the veneer of jurisprudence.

[Pinetop]

It's an obnoxious decision. It drips with guile by stating that the detainees are not members of a country with which we are at war. By that logic, if we capture Bin Laden we will have to hold all sorts of hearings about the legality of his detention and his treatment.

[Carolinamom]

Only solution to that problem imo: Bin Laden is killed in skirmish to capture him.

[KDD]

Some background on previous rulings...

Civil Liberty and the Civil War: The Indianapolis Treason Trials
http://www.freerepublic.com/forum/a3bf162dc55b6.htm

[COEXERJ145]

"STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined."

Just as I figured and most people expected.

[WHBates]

Or hold him in a undisclosed location before he meet his end. It easier to get forgiveness than permission.

[conserv13]

Actually, I think Scalia dissented because he thinks the prisoners should be given MORE rights than the majority judges thought!

[goldstategop]

I approve of it. Those who behead innocent non-combatants deserve no rights, period. No lawyers, no protection of law, no expectation of mercy from society. Terrorists are hostili humanis generis, in word and deed, the enemy of mankind. Such an enemy should be given no quarter since he gives none. Its good to see the U.S Supreme appreciate the nature of an adversary who plays neither by the customary laws of war nor the elementary principles of humane conduct.

[Samwise]

Bookmarking to read later after someone figures this out.

[Thud]

HTML versions of the opinion, concurrances, etc., may be found here:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-334

[Dog Gone]

I've finished reading the 45 page opinion, and I have to say that I'm horrified. This may be one of the worst decisions ever made by this court, from both a legal and practical matter.

From a legal perspective, it uses faulty logic and twisted legal precedent to reach its conclusion. And the majority didn't have the guts to admit that they're overturning prior established case law.

And Justice Kennedy's concurring opinion is even worse. It's a huggy-feely assertion practically devoid of legal analysis. Essentially, he wants habeas corpus to apply to the prisoners at Guantanamo because they've been there for awhile. It's a pathetic piece of legal work, and had it been the answer offered in a law school exam examining these issues, I'd give it no better than a D and probably an F.

The bottom line for this opinion is that it greatly expanded the power of the federal courts to hear appeals from anyone in our custody anywhere in the world. Right now, Saddam Hussein could file a habeas corpus writ based on the ruling of this Court. Every prisoner of war can, and everyone being detained at Abu Ghraib can.

Suddenly, federal courts have jurisdiction over the entire world, even though that's NOT what Congress has ever said, nor the Constitution.

[AuH2ORepublican]

No he didn't. Read his dissent.

[Pinetop]

I don't think it expands federal jurisdiction beyond those areas where the Court thinks the US has exclusive control, such as Guantanamo. What concerns me is the transportation of the detainees to federal courts in the U.S. But, my biggest concern is their failure to recognize this is not a war against a particular nation, but instead against a fascist ideology. It was with that distinction that they afforded non-resident alien detainees held in a facility exclusively under US control Constitutional protection. I don't think it is the worst decision the Court has ever made, but it's not a good one.

[AuH2ORepublican]

"Suddenly, federal courts have jurisdiction over the entire world, even though that's NOT what Congress has ever said, nor the Constitution."

---

Good analysis.

The one silver lining is that the opinion is based on the liberal justices' (mis)interpretation of the federal habeas statute, and Congress can just turn around and clarify the statute. I'm sure such a clarification would pass through the House without any problem, and hopefully RINO Arlen Specter won't keep such a bill bottled up in the Senate Judiciary Committee and we'll have a fighting chance of approving it in the Senate floor.

[Dog Gone]

I think any place where we're holding and guarding prisoners is under our exclusive control by definition. While that's not the entire world, it can be anywhere in the world. That's my point.

Tarik Aziz should file a case in Federal Court in the 9th Circuit. They'd be more than happy to order his release.

[El Gato]

So the question is whether the statute in question specifically excludes aliens? I'd have to read it. My gut reaction is that if the statute is silent then the courts are doing us a great disservice by extending the habeas corpus privileges to non-citizens.

All of the petitioners were aliens, 2 Austrailian citizens and 12 Kuwaitis, all captured abroad.

Jolly, The Supreme court has just indicated that foreigners out to do us harm, captured by the military outside the US, now are protected by the Constitution, specifically habeus corpus. (Meaning charges must be filed, with some evidence given or the prisoners released). I say move them to a base in Korea or Turkey or other place not under full US control. I'm sure about now the RoK and/or Turk militaries would be glad to take a turn at questioning the subjects.

[AuH2ORepublican]

"It was with that distinction that they afforded non-resident alien detainees held in a facility exclusively under US control Constitutional protection."

---

What "Constitutional" protection? The Court gave them *statutory* protection, even though the clear text of the federal habeas statute, as well as its longstanding interpretation, did not afford protection to foreigners outside of U.S. sovereign territory. And by the way, the prisoners are not "non-resident aliens," they are foreign nationals. "Non-resident alien" is a description of immigration status pursuant to U.S. immigration laws, and the prisoners in question are not in U.S. territory.

As for the " U.S. control" issue, Scalia is correct that if Gitmo, which is unambiguously under Cuban sovereignty, should be deemed to be part of the U.S. because the U.S. exercises "control," the same should hold true for parts of Afghanistan, Iraq, etc. under control by the U.S. military.

[Dog Gone]

That's a good point. This can be fixed by Congress and there are several ways to accomplish it.

[AuH2ORepublican]

"I say move them to a base in Korea or Turkey or other place not under full US control."

---

I don't think it would make any difference. The status of our bases in Turkey and South Korea are the same as that of Gitmo; sovereignty is still maintained by the host country, even though our military exercises exclusive jurisdiction.

[El Gato]

And the USSC - based on a prior ruling - has ruled that U.S. courts have jurisdiction to hear aliens habeas corpus claims when those aliens are being held in territory that the U.S. has control over (like Gitmo).

Actually not quite, it was based on the earlier ruling, but only by contrast with it. In that case the Germans were captured in China, tried in China, and thus never subject to the Jurisdiction of a US district court. The current Supreme Court has decided that those held at GITMO are in an area subject to the jurisdiciton of a US district court, aparently the US District Court for the District of Columbia. ??? (Hmm, didn't know that GITMO extended that far north, or the District of Criminals that far south).

[conserv13]

Huh. You are right. What the heck was I reading?
Thanks

[El Gato]

I don't think it would make any difference. The status of our bases in Turkey and South Korea are the same as that of Gitmo; sovereignty is still maintained by the host country, even though our military exercises exclusive jurisdiction.

Well not quite the same. Many overseas bases are shared with the host country, with the base nominally under the control of the host country, which sometimes provides services such as building maintence, grounds keeping, runway maintence, and so forth. As opposed to GITMO where we have a treaty granting us full jurisdiction on that piece of Cuban territory.

Still you are probably correct in that the court would rule that there wasn't any difference, even though there is. We seem to have a very "results oriented" Supreme Court.

[zip]

ping

[oceanview]

indeed.

I don't see why prisoners at any US military base, anywhere in the world (even inside a soverign country), can't now be subject to the federal courts. even inside a foreign country, a US prison is "under the control of the US", just like Gitmo is.

This decision is madness, and apparently there is nothing that can be done about it. I wonder if something could be done through Congress.

[oceanview]

too late for Saddam and those guys - they are being transferred to the now soverign iraq as we speak.

[Southack]

The liberals on the Supreme Court are attempting to force the Bush Administration to throw out the distinctions of the Geneva Convention...because those liberals want all battlefield captures to be labeled as POW's even if they are illegal combatants.

And those liberals will likely win this battle, sadly.

To combat this decision, the natural response is to declare all detainees as official POW's.

Of course, that throws the distinctions of the Geneva Conventions out the window. Now we aren't detaining spies, sabotuers, and illegal combatants (if we make this adjustment). Instead, everybody is a POW.

POW's don't get attorneys. POW's don't have trials. Charges aren't automatically brought up against POW's, and they remain detained as long as we like.

But such a change means that we can't shoot on sight spies and sabotuers any longer (post-capture).

So watch...my money says that we begin classifying all battlefield captures as POW's instead of as illegal combatants. It's the natural response to this SUpreme Court decision.

[gdani]

Actually not quite, it was based on the earlier ruling, but only by contrast with it....

I was talking about Braden, not Eisentrager.

[BenLurkin]

You don't suppose this is part of the reason for the early transfer?

[El Gato]

What "Constitutional" protection? The Court gave them *statutory* protection

You are probably correct, although the decision says:

Habeas corpus is, however, “a writ antecedent to stat-ute, . . . throwing its root deep into the genius of our com-mon law.” Williams v. Kaiser, 323 U. S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ ap-peared in English law several centuries ago, became “an integral part of our common-law heritage” by the time the Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of “[t]he Privi-lege of the Writ of Habeas Corpus . . . unless when in Cases of Rebellion or Invasion the public Safety may require it,” Art. I, §9, cl. 2.

Hmm, the clear intent of the constitutional language is that the writ not apply to the invaders, that is those attacking us. So these terrorists gt more protection than internal rebels would. Like I said, Jolly. Congress needs to get on the stick and formally suspend the writ for foreign nationals captured on the battlefield by US or friendly forces. I'd even extend that to US citizens caputed on the battlefield, here or abroad.

[Dog Gone]

The bottom line is that the Court felt sorry for the terrorists at Guantanamo and decided to reverse established law regarding habeas corpus in order to get them into our judicial system. Either that, or they wanted to stick it to President Bush and make the War on Terrorism a law enforcement issue like John Kerry advocates. Everything else they said was just excuses.

Where was the discussion of what effect this ruling would have as a practical matter on the War on Terrorism? Only Scalia brought up that issue in his dissent.

This is why this upcoming election is so important. There will be vacancies on the Supreme Court during the next term and it's critical that President Bush fill those vacancies instead of John Kerry.

[Sandy]

Lotta reading to do. No comments til later tonight.

BTW, the Court granted cert in Raich v Ashcroft. Click.

[Pinetop]

In order to otain a writ of habeas, one generally has to show that one is being held in violation of a provision of the Constitution. In fact, that portion of the Eisentrager holding is still valid.

The use of "non-resident alien" was not meant in the immigration law sense, but in the sense that these are aliens, i.e., foreign nationals, not present in the U.S. But, they are in military custody.