Friday, November 11, 2005
Hamdan, Rasul, et al., Imperiled
Cross-posted from SCOTUSblog.
Very interesting post Marty. Here's a question:
The detainees at Guantanamo have been there since early 2002. Their cases really begin then, and if they are entitled to relief they are entitled to it then. Meanwhile, their cases have been dragged out and obsfucated by the government with this long series of really silly and dishonest appeals.
Why isn't Graham's amendment an ex post facto law here?
And I hate to be a broken record, but when you are dealing with a set of policies and an administration that are broken records, it's difficult not to...
The Graham amendment is a war crime in direct violation of 18 USC 2441(c)(1-3) in reference to Geneva grave breaches, violations of Hague Annex art. 23(h), and Geneva common art. 3 -- just like the administration's policies are.
But I suppose that I should welcome the amendment, because I firmly believe that the constitutional grounds for overturning Eisentrager, Yamashita, and Quirin are overwhelming and clear. Each is in fact MOOT under the current laws.
And I submitted a sworn statement to the Judiciary Committee that included a 20 page commentary on the Hamdan decision and several earlier briefs and articles which get well into the details of that opinion; see:
Let me close by saying that I thought the performance of Senators Graham and Kyl was was one of the most disgraceful things I've seen in the last four years.
Wow. I'm really worried that we risk getting into a very dangerous standoff between two branches of government.
My old fed courts professor -- a very conservative type I might add -- used to harangue us to no end complicated questions about the constitutionality of these sorts of laws, but he always ended the lecture with something like this:
"We haven't gotten any clear answers to these questions because Congress knows better than to create a constitutional crisis. Politicians rattle their swords, but in the end, everybody knows the system would break down if they go too far. So cooler heads prevail, and they always back down."
Start down that road, and there's no going back.
It seems that the Rasul intimated that the Gitmo prisoners would be entitled by the Constitution to habeas.
If Gitmo is pretty much part of the U.S., as Rasul all but said, then the Gitmo prisoners would have the same constitutional rights as people picked up and detained in New York City.
The Supreme Court invited this showdown by ruling as they did in Rasul. If the Graham Amendment passes, then we'll see how serious the problem gets. My guess is that the Court will (and should) back off b/c now Congress has expressly backed up the executive.
I don't like Bush, and don't like Gitmo, but right or wrong the President and Congress have the right to determine how the U.S. conducts its foreign affairs. Maybe our allies will continue to shame us into performing better, but it's none of the business of federal judges.
Of course, the Court also botched the Hamdi case as well. U.S. citizens are entitled to criminal trials, as Stevens and Scalia said in dissent, not some bogus administrative hearing.
Given Hamdi, it's hard to imagine what sort of due process Gitmo prisoners would get, even if the Graham Amendment is held unconstitutional.
Here's a political question that might be outside of the legal focus of this blog: Why is Senator Graham sponsoring this bill? I find it very confusing that he leads the charge to restrict the availability of habeas while at the same time siding with McCain to reduce the availability of torture. Perhaps it is a reflection of faith in the operation of government -- review of detainment is less necessary when there are greater restrictions on government actions.
This is not a foreign policy question only. It is a question of rights. Admittedly, the adopted version provides for protections against torture. But it provides for little else. Otherwise, the basic message is: foreigners in US custody abroad have no rights, and if they have constitutional rights or international human rights, there is no remedy. No wonder that the rest of the world takes offense.
A question on separation of powers: Of course it is not unheard of that the law changes during an ongoing court procedure. But to my mind it makes a huge difference if legislation is intended to take away jurisdiction. It may not be a technial violation of the Constitution, but it seems at least antithetical to the idea of an independent judiciary. And if constitutional rights are involved, is it permissible to take away any habeas jurisdiction?
I think Justice Kennedy's concurrence in Rasul is key: to my thinking, his point was that Guatanamo is special, basically not "overseas" at all, but de facto U.S. territory.
But, to make this (surely not slamdunk) claim, we will be left with more litigation, maybe years worth of it (see Padilla).
So, Sen. "Hypocrite" Graham is concerned with torture, huh?
18 USC § 2441(c)(2) states:Post a Comment
"(c) Definition.-- As used in this section the term "war crime" means any conduct-- * * *
"(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907[.]"
Geneva is included by (c)(1) & (c)(3), but Hague Annex Article 23(h) makes this all very plain:
"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
The U.S. Senate has no authority to violate that law: Senator Graham is aiding and abetting WAR CRIMES.
See also the Martens Clause (Hague IV 1907, preamble):
"According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.
"It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;
"On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
"Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.
"They declare that it is in this sense especially that Articles 1 and 2 of the Regulations adopted must be understood."
Noting that Hague Regulations ("HR") arts. 1-2 are precisely those dealing with POW status and have been replaced by Geneva III POWs arts. 4-5.
Geneva Common Article 3 and the ICCPR also stand against Sen. Grahams criminal proposal.
As to why a USAFR JAG Col, who should and undoubtedly does know this law would sponser such an outrageously dihonest and criminal amendment, my theory is simple: he was BOUGHT. Graham is amibitous and Bill Frist is planning on running for president. I think the deal is either he will be the VP candidate or the new Senate Majority leader.