How to Complicate Habeas Corpus

NYT ^ | June 21st, 2008 | RICHARD A. EPSTEIN

[The_Republican]

LAST week’s Supreme Court decision in Boumediene v. Bush settled a key constitutional issue: all prisoners detained at Guantánamo Bay are constitutionally entitled to bring habeas corpus in federal court to challenge the legality of their detention.

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president. (Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

Yet Boumediene is rich in constitutional ironies. In addressing whether non-Americans detained outside the United States are entitled to habeas corpus, the court passed up an opportunity to clarify the law, and instead based its reasoning, flimsily, on a habeas corpus case that was decided just after World War II. This is too bad, because issues as important as habeas corpus should turn not on fancy intellectual footwork but on a candid appraisal of the relevant facts and legal principles.

At the core of the dispute in Boumediene is the Constitution’s suspension clause: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Unfortunately, the text neglects to specify the grounds for granting habeas corpus. And historical precedent is inconclusive on the question of when it should be available to aliens held in American custody outside the United States.

In Johnson v. Eisentrager, in 1950, a case involving illegal German combatants from World War II, the court held that citizens could bring habeas corpus whether they were detained in the United States or abroad. Aliens, on the other hand, had the right only if they were detained within the United States.

[elmer fudd]

This is the kind of crap that happens when you don’t bother declaring war. If there’s no state of war then of course the courts are going to get involved on issues of prisoners and detainment.

[muawiyah]

There's a state of war ~ ever since we were attacked!

That's not part of the problem. The USSC majority didn't care if there was a war or not, they simply extended their authority beyond that provided for by the Constitution.

Eventually we'll have to resolve this issue with the Court the way the citizens of Venice dealt with a wayward Doge.

BTW, it only happened once. All future Doges got the message.

[muawiyah]

There's a state of war ~ ever since we were attacked!

That's not part of the problem. The USSC majority didn't care if there was a war or not, they simply extended their authority beyond that provided for by the Constitution.

Eventually we'll have to resolve this issue with the Court the way the citizens of Venice dealt with a wayward Doge.

BTW, it only happened once. All future Doges got the message.

[FlingWingFlyer]

(Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

Sounds like Dick Epstein is pro-Islamoterrorist.

[elmer fudd]

Then why not make it official? You can always claim to be at war. Heck, we've had the "war on drugs" for decades now, but that doesn't give us the right to inter all drug abusers for the duration. When congress declares war, that makes it official and that's important. Then instead of being "detainees", our prisoners would be either POW's or saboteurs and we could legally keep them for the duration or execute them depending on their status.

If you're unwilling to officially declare a war, then you shouldn't be surprised when people don't take it seriously.

[Banjoguy]

when people don't take it seriously.

What planet are you living on?

Just exactly who isn't taking it seriously?

Being at war is not dependent on documentary or political formalities. It happens when the other guy is trying to kill you. The Muslims of the world want all of us dead and have succeeded in killing about 3000 of us. Ipso facto: we are at war.

This blunder by SCOTUS will eventually lead to the deaths of American citizens.

One more thing, see my tag line. Also among the enemies of The Republic are those who stand in the way of our right of self defense whatever form that defense may take, you know, like incarceration and "waterboarding."

[Paladin2]

"BTW, it only happened once"

Defenestration?

[sam_paine]

(from the end of the article):

star chamber proceedings n. any judicial or quasi-judicial action, trial, or hearing which so grossly violates standards of "due process" that a party appearing in the proceedings (hearing or trial) is denied a fair hearing. The term comes from a large room with a ceiling decorated with stars in which secret hearings of the privy council and judges met to determine punishment for disobedience of the proclamations of King Henry VIII of Great Britain (1509-1547). The high-handed, unfair, predetermined judgments, which sent the accused to The Tower of London or to the chopping block, made "star chamber" synonymous with unfairness and illegality from the bench. In modern American history the best example of star chamber proceedings was the conduct of the House UnAmerican Activities Committee (1938-1975) which used its subpena power to intimidate citizens by asking them unconstitutional questions about their political beliefs and associations, and then charging them with contempt of Congress for refusing to answer. Another example was the conduct of criminal proceedings against black defendants in some southern states from 1876 until the late 1960s. (See: kangaroo court)

[sam_paine]

If you're unwilling to officially declare a war, then you shouldn't be surprised when people don't take it seriously.

Fudd, the SCOTUS accepts in the decision, not only that we are at war, but that this war could last 50 years. It's in Kennedy's majority opinion.

He doesn't care. He expects the USA to pay a little more, to go a little farther, to extend habeas corpus rights to all people detained by our government, in order to let the DC circuit court decide whether or not someone is an enemy combatant in this time of war.

The whole decision is about what to do with prisoners be they at Gitmo or at Leavenworth, Kansas.

I recommend you read the decision. Everyone seems to believe we're at war except you.

[AndyJackson]

I recommend you read the decision.

I recommend you also read the decision, and particularly the parts which discuss the Secretary of the Navy's implementation of the DTA, turning the impartial tribunals into kangaroo courts. If you want to blame someone, don't blame Kennedy but rather that idiot suit of a secretary of the Navy Winters.

[sam_paine]

tribunals into kangaroo courts....don't blame Kennedy

Andrew, I was not 'blaming' Kennedy. I was refuting the specific assertion from 'elmer fudd' that this decision was caused by supposedly having not actually declared the war.

That was not true. Nowhere did I 'blame' Kennedy for anything. I merely said Kennedy (and the majority) expect that the Executive must now go farther than we have in the past, and as you say obviously, farther than the DTAs or CSRTs have gone so far.

And yes, I have read the entire dissent and most of the decision, though I think I've gleaned the substance of the majority opinion in the single sentence above.

Did you see that we agree in #9? Must we argue so much if we are in agreement on this FRikken forum?

[AndyJackson]

Sorry, for my clumsy wording and directing it at you, specifically. I am not sure that Kennedy is telling the administration that they had to go further than the CSRTs, so much as in their implementation they perverted the CSRTs. As the decision pointed out, in Eisentrager the defendants had the right of counsel, cross examination, and a neutral tribunal. In this case, in Guantanamo, the detainees, as Kennedy points out, the government was given the presumption of fact (i.e. it isn't neutral), and the detainees were given little right to find and present evidence and were denied counsel (so it wasn't fair).

There is a key issue in this case. Folks try to argue that the detainees are prisoners of war, and furthermore that they were unlawful combatants. Unfortunately, you cannot have it both ways. If they were lawful combatants you have to treat them as POWs under the Geneva convention, and they get to go home some time. If they are illegal combattants, then you have to try them as war criminals, under some form of judicial proceeding, even if it is a properly constituted military tribunal. At least one of the detainees, accused of being a member of Al Qaida denies that and claims that he is being improperly held as he did not do anything. There is always the possibility someone got picked up in the wrong place at the wrong time.

I read elsewhere that one of the things that is slowing up the proceedings setting up tribunals to try these cases is that the government wanted panels without a judge. What were they thinking?

In my view, this is all on Bush and the senior administration officials. The world has been conducting tribunals since the beginning of time, and we know how to do it. Bush1 did it in GW1. We seem determined to pervert any appearance of real justice is these cases. I wonder what the motive is, since it just makes us look bad to the rest of the world.

[sam_paine]

The world has been conducting tribunals since the beginning of time, and we know how to do it.

To that point, one thing has gnawed at me.

When "Regime Change" was directed by Congress for Iraq, since Richard Clarke etc have been on Bush about not using "their anti-terror plan" and for not having the planning right for the post-war insurgency, where was "the plan" for these tribunals back then? Congress declared 'regime change' as a foriegn policy...that's not war, but it's damn close isn't it? My point is, that I have yet to see the inside guy from the Clinton/Bush administrations who "had a plan" for this stuff that would pass muster with Kennedy. You would expect that after the several revisions in Congress and upon getting to this point that some wet-eared jerk would have a book saying "I told you so...you should've used my plan." AFAICT, there was no plan that Bush refused.

OTOH, something else you mention might very well explain where we are:

We seem determined to pervert any appearance of real justice is these cases. I wonder what the motive is, since it just makes us look bad to the rest of the world.

On this fascinating article which outs one of the CIA interregators, I read this:

Inside a 9/11 mastermind's interrogation

Mohammed met his captors at first with cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer — the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef's arrest in 1995.

But the rules had changed, and the tough treatment began shortly after Mohammed was delivered to Poland. By several accounts, he proved especially resistant, chanting from the Koran, doling out innocuous information or offering obvious fabrications. The Times reported last year that the intensity of his treatment — various harsh techniques, including waterboarding, used about 100 times over a period of two weeks — prompted worries that officers might have crossed the boundary into illegal torture.

...Kiriakou, who was not present for the waterboarding but read the resulting intelligence reports, said he had been told that Abu Zubaydah became compliant after 35 seconds of the water treatment. "It was like flipping a switch," Kiriakou said of the shift from resistance to cooperation.

So...perhaps this "we'll let you rot in the dungeon sans lawyers" is intended as a message to would-be neck-choppers?

I mean, westerners were literally losing their heads left and right back in the Daniel Pearl days, weren't they? Now the terrorists are reading in the NYT that that Crazy Bastard Bush has his own thugs, and he's getting high-level terrorists to rat out other terrorists....so you'd better be careful who you trust to help you behead someone.

I mean, maybe America needs to be just as brutal as those guys to stop it?

If that's the case, then it explains the consistent gap between the Bush idea and the Kennedy ideal.

[AndyJackson]

where was "the plan" for these tribunals back then?

Bush1 created tribunals to regularize the status of POWs in GW1. It is a standard part of war planning. I have absolutely no problem with doing this in a manner that protects the classified nature of the proceedings and treating spies, terrorists and unlawful combatants as unlawful combatants.

But I don't think that the folks in charge thought this through. I know it seemed clever to try to create Guantanamo as a legal black hole, but I just don't agree with constitutional holidays for the US government.

[sam_paine]

So what do you think about all this as possibly an intentional (or unintentional) deterrent to terrorists, knowing that others might be detained indefinitely, without seeing the light of day, and might end up ratting them out?

[AndyJackson]

what do you think about all this as possibly an intentional (or unintentional) deterrent to terrorists

It would be nice to think that this was all well planned. OTOH, given how short-sighted all of the other planning for Iraq was, I think, as usual, incompetence is a better explanation than conspiracy.

[elmer fudd]

Just exactly who isn't taking it seriously?

The democrat party, Hollywood, a majority of the Supreme Court... Need I go on?

[elmer fudd]

I recommend you read the decision. Everyone seems to believe we're at war except you.

And obviously the US government and that is the problem. If you don't even have enough confidence in your objectives to come right out state what you want to do, then you're in trouble. It would have taken a mere request by GB in the days following 9/11 to get a declaration of war. It's something that would have helped unite the nation and keep it united, which is absolutely essential when you're fighting a war of attrition. Instead he went around talking about some mythical "religion of peace".

The details of this particular case are inconsequential. It's just plain bad law, but it's the kind of thing that happens when you allow a war to become so unpopular. If we were clearly winning this war and Bush's approval ratings were up in the 70's this case never would have gotten to the high court.

[okie01]

It would have taken a mere request by GB in the days following 9/11 to get a declaration of war.

Do you refer to Afghanistan and the War on Terror or the Iraq War?