The Supremes: The road to today’s decision

Flopping Aces ^ | 06-12-08 | Mataharley

[Starman417]

I've been reading the 134 page SCOTUS opinion Boumediene vs Bush, and archiving previous related decisions. So I thought I’d post this to complement Curt’s post, The Nation will live to regret what the Court has done”, Here I’ve filled in some of the blanks that led to today’s close decision, and included some of the arguments from past referenced cases.

First… disclaimer. I am not attorney. But I’ve written a few briefs for per se appearances, and read more than a few briefs in my time. I guess you could say I consider it an S&M hobby… But I’ll stay mostly generic, and use excerpts. Law, as we all know, has varying degrees of interpretations of absolutes… as our Supreme Court exhibits flawlessly. Justice may be “blind”, but it’s also in a constant state of conflict.

This legal battleground has endured incoming since Coalition of Clergy, et al. v. Bush, et al in February 2002.

That court dismissed the petitions for writ of habeas corpus on behalf of the absentee detainees for two reasons. One was that the petitioners themselves did not have standing. The other was that the court ruled it did not have jurisdiction as Cuba retained sovereignty over Gitmo. The opinion recaps history in the first pages, stating the sequence of events as below:

Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo.

The Supreme’s reasoning for reversing has everything to do with Gitmo’s base status and the lease agreement for Gitmo with Cuba, originally struck in 1903.

According to the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations, as referenced in this Jan 14, 2004 Supreme opinion in Rasul vs Bush:

5 Article 3 of the Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations provides: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. . . .

In the same above linked 2004 opinion, the Supreme's recognized that Gitmo was not sovereign, but was still a “creature of the Constitution” because it was accountable only to itself, and US law was the only law recognized and applied. There is no SOFA, but since Cuba granted the US complete jurisdiction and control over the area, none was needed.

As to detainees in other location facilities, their status would depend entirely upon the circumstances as to the military’s jurisdiction and control in the host country, and any SOFAs that altered that authority. (You'll see this with Johnson v Eisentrager further down in the post.)

Since the agreement with Cuba is unique, with only a pale comparison to the Canal Zone (Panama), even the Supreme’s know they are working sans precedents.

A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.

In the Rasul v Bush, June 2004, which overturned the DC Court of Appeals, the Supreme’s ruled the federal courts *do* have jurisdiction for Gitmo. The previous ruling district judge then went thru two proceedings with the petitioners. One to dismiss, the second to hold the detainees had due process rights.

At that time, Congress steps in and passes the Detainee Treatment Act of 2005. It was attached to the DOD appropriations bill as Title X, along with Gulf hurricanes and Pandemic Flu Act appropriations. DTA granted validation and review of the CSRT (Combatant Status Review Tribunals) exclusively to the U.S. Court of Appeals, DC. (CSRTs were implemented after Hamdi v Rumsfeld in June 2004)

DTA was far from partisan. It passed the House 398 to 19, (16 not present), and the Senate 97 to 0, (3 not present).

But in an ensuing SCOTUS opinion, Hamdan v Rumsfeld in March 2006, the justices held DTA did not apply to petitioners who were already in the appeal process.

So Congress came up with the Military Commissions Act of 2006. This law amended the habeas corpus issue, denying it to those that were determined (by CSRT, and any reviews by the DC circuit) to be enemy combatants, and extended it to anything else against the US... i.e. as treatment, conditions or trial.

MCA did one more thing… it was enforceable upon enactment, and applied to all cases – including those that were pending appeals.

[Pontiac]

Bump for later

[Sgt_Schultze]

It still makes no sense for the Supremes to enter into this. During WW2, the US had some 450,000+ prisoners of war quartered in prison camps spread throughout the US. I can't find any information about the SC of 1943 having granted any habeas petitions to those prisoners on actual US soil. Are Kennedy, Breyer, Souter, Ginsburg and Stephens so much smarter than Felix Frankfurter, Wm. O. Douglas, and Hugo Black?

I'm thinking - NO.

[Sgt_Schultze]

450,000 = 400,000

[IrishCatholic]

Yes, but POW’s actually have legal status under the Geneva Convention. These unsponsored enemy combatants are not covered by the convention because they are rogue terrorists.

This made the Democrats sad so they jumped the terrorists up so they had MORE rights than valid POW’s. That's right, the DEM’s made sure the terrorists were above legitimate soldiers.

All hail the new state of socialism.

[EasySt]

One thing I don't see in all of this good stuff is the link to the actual Supreme Court ruling on this issue. This is the actual source, from http://www.supremecourtus.gov.

Dissents begin on Page 82.

Boumediene et al. v. Bush, President of the United States, et al.