Balkinization  

Tuesday, February 20, 2007

Initial Thoughts on Boumediene

Marty Lederman

The U.S. Court of Appeals today by a 2-1 vote dismissed the pending habeas corpus petitons of hundreds of Guantanamo detainees. In an opinion by Judge Randolph, joined by Judge Sentelle, the court held (i) that the Military Commissions Act stripped the federal courts of the (statutory) habeas jurisdiction that the Supreme Court had recognized in Rasul v. Bush, and (ii) that this elimination of habeas was not unconstitutional. Judge Rogers dissented.

The Court's constitutional holding, in turn, is based on three propositions: (i) that the Constitution (the Suspension Clause, by implication) only protects the right of habeas corpus that was recognized at common law in 1789; (ii) that the common law in 1789 did not provide the right of habeas petitioning to aliens held by the government outside the sovereign's territory (and without property within that territory); and (iii) that GTMO is outside U.S. territory for constitutional purposes, notwithstanding that the U.S. has complete control over that facility.

I'm tied up with another project right now, so only have time for a few brief, preliminary reactions to the majority opinion:

1. The Court writes (page 14) that "[t]he Supreme Court has stated the Suspension Clause protects the writ 'as it existed in 1789,' when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301."

This is misleading. The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." Compare Felker v. Turpin, 518 U.S. at 663-664 (assuming for the sake of argument that "the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789"). The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees. [UPDATE: It's not an innocent mistake, either -- Judge Rogers calls them on it in note 5 of her dissent.]

2. The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:

Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather
than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.

3. Why doesn't GTMO count as U.S. sovereign territory for purposes of the rule Judge Randolph announces? After all, the U.S. has complete control over the territory. According to the court (pages 20-21), the reason is that the Detention Treatment Act of 2005 declares that the term "United States," "when used in a geographic sense . . . does not include the United States Naval Station, Guantanamo Bay, Cuba.” But that definition merely establishes a status for GTMO as a matter of statute (it explains what Congress was referring to when it used the term "United States" in the DTA). If a statute said that Boise, Idaho was not in the United States, that wouldn't place Boise outside of any constitutional protections limited to U.S. sovereign territory. So, too, here -- the court simply doesn't do the work necessary to determine whether GTMO falls within the rule it announces (even assuming arguendo that rule is correct).

Moreover, the court (at page 21) cites its 1977 decision in Ralpho v. Bell, 569 F.2d 607 (1977), in which the D.C. Circuit held that the Constitution does protect aliens living on the Micronesian island of Jaluit. Contrary to the court's suggestion in its opinion today, that island was not U.S. territory -- it was an island that we agreed to hold in trust. The court does not explain why Jaluit in the years after World War II is distinguishable from GTMO today for constitutional purposes. (Thanks to Gerry Neuman for this point.)

Prediction: This part of the opinion will not survive Supreme Court review. To see why, take a look at Justice Kennedy's opinions in Rasul and in Verdugo-Urquidez. The Court is not going to hold that the Executive branch can avoid the constraints of the Constitution merely by the "fortuity" of the fact that it opts to set up shop 400 miles off the coast of Florida. The constitutionality of the habeas-stripping will instead turn on the question of whether the D.C. Circuit review of CSRT detention decisions is an adequate substitute for habeas review (see Point 5, below), especially as applied to these detainees who have been held at GTMO for several years.

4. Although the holding of Judge Randolph's opinion apparently extends only to aliens held abroad, the logic of his opinion at page 16 suggests that even U.S. citizens held abroad would not be entitled to constitutional habeas protections:
When agents of the Crown detained prisoners outside the Crown’s dominions, it was understood that they were outside the jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17. Even British citizens imprisoned in “remote islands, garrisons, and other places” were “prevent[ed] from the benefit of the law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which included access to habeas corpus, see DUKER, supra, at 51-53; HOLDSWORTH, supra, at 116; see also Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP. L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be available” in “remote islands, garrisons, and other places” (internal quotation marks omitted)).

(Just to be clear: The implication of the Randolph opinion is that Congress could abolish habeas rights for U.S. citizens detained at GTMO (or elsewhere outside the U.S.). The Supreme Court would never go for that -- perhaps not even a single Justice -- and in any event, section 7 of the MCA does not strip citizens of habeas rights: It applies only to aliens.)

5. The MCA permits certain review of detention decisions in the D.C. Circuit court of appeals itself. The court today refused to perform that review, because it concluded (page 25) that the record does not contain sufficient information to review the detention decisions of the Combatant Status Review Tribunals at GTMO. Therefore, the court did not reach the question of whether the D.C. Circuit review, prescribed in the MCA and DTA, would be an adequate substitute for habeas rights in the event the court is wrong about whether these detainees have constitutionally protected rights to petition for habeas. Cf. Swain v. Pressley, 430 U.S. at 381 (“the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus”). [UPDATE: In a very interesting part of her dissent (pages 20-25), Judge Rogers argues that the D.C. Circuit review is not an adequate substitute for habeas. See also her discussion at pages 29-31, suggesting that "searching" factual review of the grounds for detention is appropriate on habeas, at least insofar as the procedures within the military are less than robust (note 13).] Prediction: The litigation in the Supreme Court -- and the Court's ultimate decision -- will primarily focus on this question, rather than on the question of whether the detainees at GTMO are entitled to constitutional protections (which the Court will answer in the affirmative).

6. Neither opinion discusses the most vexing substantive question that would have to be reached if the habeas claims were entertained -- namely, determining the category of persons who may lawfully be detained by the military as "enemy combatants" pursuant to the September 2001 AUMF and the laws of war incorporated therein. See note 14 of the Rogers dissent.

Comments:

[Prof. Lederman, from the post]:

The Court's constitutional holding, in turn, is based on three propositions: (i) that the Constitution (the Suspension Clause, by implication) only protects the right of habeas corpus that was recognized at common law in 1789; (ii) that the common law in 1789 did not provide the right of habeas petitioning to aliens held by the government outside the sovereign's territory (and without property within that territory); and (iii) that GTMO is outside U.S. territory for constitutional purposes, notwithstanding that the U.S. has complete control over that facility.

It's hard to believe that such a substantive right as the right of habeas corpus should depend in the arcane intricacies of whether a territory is within the formal "sovereignty" of a country, when in practical fact, that country maintains full territorial control of the area in question. The examples given in the Boumediene opinion (of Scotland, for instance) recognise the reality that a habeas corpus writ that, to be effective, would have to be issued to another sovereign nation and require their assent, and thus stand simply for the proposition that one nation's courts can't order another nation to do something. Also implicit in this is that the proper forum for such a request would be the courts of the nation that holds "sovereignty". When, as in GTMO, the U.S. maintains complete control, and even runs its own courts there, this practical limitation on habeas does not apply; the U.S. is not without power to "produce the body" ... and in fact, Cuba, the nominal "sovereign" is without such power.

Such legal "black holes" as the U.S. gummint is trying to create here should be looked at seriously askance by any government that believes in the "rule of law".

Adding to this is the fact that the gummint in this case (as Prof. Lederman notes) has expressly created this "black hole" for the purpose of frustrating the rights of the petitioners. Were it simply an unintentional (and pre-existing) loophole, one might look at it with less doubt, but when it is the respondents that both created the "black hole" and who now seek to use it through their own actions and machinations to prevent legal oversight, the intent is clear: To prevent any legitimate review of the gummint's detention of alleged "enemys". One has to wonder then what their motivations are ... and their fears.

Common sense requires that the gummint be required to justify their actions here. If they can't show in court that they have a right to hold the petitioners, they shouldn't be allowed to do so. That they don't want to speaks ... to any sensible person ... to the legitimacy of their actions.

Cheers,
 

While the majority indulge in a long digression about aliens not enjoying the same rights as citizens, they don't appear to notice that their precious 1789-era English precedents all readily concede that aliens have a right to petition for the Great Writ.

Consequently, the majority's constitutional analysis depends on its antiquarian interpretation of 18th century English cases and the 1679 statute. There is no question but that in the 21st century the equivalent of a "King's officer" would have no difficulty whatsoever in complying with the strict time limits established by the 1679 statute, no matter where in the world the prisoner was held. The constitutional standard is based on the right as it existed in 1789, not on the conditions of transportation as they existed in 1789.

The majority cite with approval 18th century statements that the Great Writ could only be issued within the "King's dominions and realm" and did not run to "remote garrisons, islands or other places". If the United States is arguing that Cuba still exercises full sovereignty and jurisdiction over the Guantanamo Naval Base, fine; the detainees filed for relief in the wrong courts, and should they obtain relief in the courts of Cuba no one will prevent Cuban marshals armed with nothing more than the Writ from escorting the detainees out the front gate. This is of course palpable "nonsense", as the majority characterizes the detainees' interpretation of the MCA. The Guantanamo Naval Base is every bit as much a part of the United States' "dominions and realm" today as any British colony was part of the "King's dominions and realm" in 1789. The majority rather slyly notes that Guantanamo is not "sovereign territory" based on statute and case law, but those statutes were enacted and those cases decided well after 1789, and accordingly are not apposite. And neither is Guantanamo "remote" -- the argument might have made some headway had the detainees challenged their confinement in Tora Bora, but the United States elected to bring the detainees halfway around the world to a secure base that is closer to the continental United States than are Alaska or Hawaii.

I suspect that supporters of the MCA on First Street, N.E. will try to avoid this highly questionable and overly broad constitutional analysis and focus instead on the MCA's provision of DC Circuit review as an adequate alternative.
 

Although the holding of Judge Randolph's opinion apparently extends only to aliens held abroad, the logic of his opinion at page 16 suggests that even U.S. citizens held abroad would not be entitled to constitutional habeas protections:

When agents of the Crown detained prisoners outside the Crown’s dominions, it was understood that they were outside the jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17. Even British citizens imprisoned in “remote islands, garrisons, and other places” were “prevent[ed] from the benefit of the law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which included access to habeas corpus, see DUKER, supra, at 51-53; HOLDSWORTH, supra, at 116; see also Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP. L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be available” in “remote islands, garrisons, and other places” (internal quotation marks omitted)).


This passage seems dubious. The Habeas Corpus Act of 1679 explicitly precluded the transfer of citizens overseas in order to avoid jurisdiction. Since transfer to Gitmo was done admittedly for that purpose, it seems to come within the purpose of the statutory language, assuming that other cases allow the writ to aliens (they do). Moreover, the application of the Constitution to US citizens overseas was established in Reid v. Covert. I doubt that the rights thus protected somehow exclude habeas.
 

Maybe I'm confused, but didn't the Court rule in Rasul that it did have jurisdiction to hear habeas writs from GITMO? So why does the Court even go into all this historical justification?
 

nat dewitt:

I suspect that supporters of the MCA on First Street, N.E. will try to avoid this highly questionable and overly broad constitutional analysis and focus instead on the MCA's provision of DC Circuit review as an adequate alternative.

As pointed out by the dissent, the DC Cicuit "review" is a fig leaf, and is just empowered to "review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards." (dissent, p. 22) The D.C. Court is entitled only to look to see that the process has been followed, not that the judgement was correct. The only real "alternative" to habeas corpus is the actual CSRT itself, and whether that is a functional equivalent of habeas corpus is a quite arguable question, particularly considering the deficiencies of the CSRT process as detailed by the dissent.

Cheers,
 

zachary says:

Maybe I'm confused, but didn't the Court rule in Rasul that it did have jurisdiction to hear habeas writs from GITMO? So why does the Court even go into all this historical justification?

Rasul was specific about 28 USC § 2241 habeas jurisdiction. Having found it, they didn't need to look for the extent of common law habeas relief.

The opinion here in Boumediene makes much of this, and essentially makes the case that the only ground for relief in Rasul was § 2241 jurisdiction, which, being statutorily granted, can be repealed. The dissent disagrees, claiming that there is common law habeas relief as well, and that the MCA is unconstitutional in suspending such absent "rebellion" or "invasion".

The real question would be whether there is a common law right to habeas absent any enablng legislation (i.e., if Congress, in its wisdom, provided no statutory jurisdiction for run-of-the-mill habeas petitions, would a U.S. person still have a constitutional right to such? Answer: Yes), and then whether there are exceptions or conditions on this common law right that preclude the petitioners here from having their claims heard (say, because of nationality, sovereignty, territorial jurisdiction, exigencies of the "War On Terra", etc.)

Cheers
 

Does anyone doubt that the U.S. Supreme Court will take this case now?

The dissent has basically posed this as defiance of Rasul and rightly so.

Since the government conceded that there is no suspension, its entire case hangs on the thin reed of the legal status of Guantanamo Bay, and Rasul, at the very least, has clear dicta addressing the point even under the historical standard.

I wouldn't be surprised to see even expedited treatment by the U.S. Supreme Court given its statements in the order transferring Jose Padilla to civilian custody.
 

Zachary said...

Maybe I'm confused, but didn't the Court rule in Rasul that it did have jurisdiction to hear habeas writs from GITMO? So why does the Court even go into all this historical justification?

The Court interpreted the old habeas corpus statute to extend to detainees at Gitmo. Afterwards, Congress corrected the Court by enacting the MCA, which expressly stated that these detainees did not have habeas corpus rights under statute.

In this case, the detainees lawyers then tried to argue that the Constitution grants their clients habeas corpus review. The purpose of the historical analysis was to determine what habeas corpus rights were incorporated into the Constitution by implication via the Suspension Clause.

The Circuit Court essentially held that the Constitution incorporated the rights in existence at the time of the enactment of the Constitution and these rights did not extend outside of the United States to Gitmo.
 

Professor Balkin:

1. The Court writes (page 14) that "[t]he Supreme Court has stated the Suspension Clause protects the writ 'as it existed in 1789,' when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301."

This is misleading. The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." Compare Felker v. Turpin, 518 U.S. at 663-664 (assuming for the sake of argument that "the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789"). The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees.


I do not see how the Circuit Court could come to any other result. To hold that "the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789" means that Congress can amend the implied constitutional right to habeas review by simply changing the statute and the MCA now defines the scope of the constitutional right. As the Circuit Court correctly observed in Footnote 5, the courts do not have a common law jurisdiction over the scope of habeas review.
 

The case now seems to hinge on the question of whether common-law habeus in 1789 would have extended to aliens held in such extra-territorial circumstances. That question likely will be framed squarely for the Supreme Court on appeal, and it is hard to see how the high court could avoid addressing it, given its dicta in Rasul.

Interestingly, in the D.C. Circuit opinions, that question seems to depend on competing interpretations of original understanding circa 1789.

There is a move in Congress to restore statutory habeas jurisdiction to Guantanamo, but that seems likely to fail because it would probably take a supermajority to enact it.

This case presents facts specific to Guantanamo, and I think the Supreme Court would not be inclined to generalize to other situations, such as the many detainees held at the Air Force base in Bagram, Afghanistan. Meanwhile, there is a real possibility that Congress will force the Gitmo facility to be closed before SCOTUS decides this case.
 

"Bart" DePalma says:

Afterwards, Congress corrected the Court by enacting the MCA, which expressly stated that these detainees did not have habeas corpus rights under statute.

Congress didn't "correct" the Court (nor could they). Rasul is still the law of the land (although pehaps moot if the MCA stands, and is not repealed). The grounds under which the Supes decided against the gummint's argument in Rasul against the applicability of § 2241 (including the claim that Guantanamo prisoners were not subject to U.S. court jurisdiction) still pertain. Congress amended 28 USC § 2241 with the DTA/MCA. The main point of dispute between the Boimediene opinion and the dissent is whether such amendation is constitutional.

Cheers,bc
 

"Bart" DePalma says:

As the Circuit Court correctly observed in Footnote 5, the courts do not have a common law jurisdiction over the scope of habeas review.

Not exactly. From footnote 5: "Jurisdiction of the lower federal courts is ... limited to those subjects encompassed within a statutory grant of jurisdiction."

Which brings us to the general question of whether Gawd can make a rock so big that even She can't move it. Or, more concretely, whether the Republican efforts to strip courts of jurisdiction would be successful in preventing any meaningful court review of specific Constitutional questions. Various Republican foamers have suggested over the years that, ferinstance, a statutory law that bars all court jurisdiction to hear any school prayer case might prevent the adverse result that a properly formed case would present to a court. Having stripped the courts of jurisdiction, an end run could be made around the problems with garnering enough support for the requisite constitutional amendment to address adverse court decisions directly.....

One would think that sapient people would say that such procedural sleight-of-hand is no way to run a country.

Similarly, here, the excision of these particular petitioners from the right of habeas corpus by Congress in the MCA should be looked at somewhat askance. One has to wonder why the gummint is afraid to make its case in court (as does the dissent).

Cheers,mfhgnjsa
 

Boiled down to essentials, the dissent argues that the Suspension Clause cannot be a nullity; that there must be some actions that are prohibited from Congress. If habeas corpus is only a statutory right, and defined in scope and in application solely by the statutes, and jurisdiction to hear habeas cases is entirely a statutory creation, then how can Congress not amend this right at any time simply by rewriting the statutes covering habeas corpus to redefine that right's scope and application? How could it "suspend" a right that it had created?

In addition, there were no federal statutes at the time of the writing of the Constitution, and thus the Constitution would be hard-pressed to be read as providing for such a statutory creation's "suspension".

The bottom line, as I think both the dissent and the majority opinion acknowledge (but which the majority opinion glosses over), is that there's a meaning to "habeas corpus" independent of any statute, and in existence at that time -- in the conception of the writers -- as the "Great Writ" of centuries' provenance and of the common law and understanding at that time.

If this is true (and I think it hard to argue otherwise), the problem becomes one of defining the scope of such a right. And for that, we need to look at the understanding of the framers of the meaning of "habeas corpus".

When they were so adamant about preserving it except under the most dire conditions, they could hardly have been parsimonious as to its applicability. And its meaning, throughout the ages, is fairly obvious: People should have a right to a day in court in which to demand that the gummint show on what basis they are holding that person. It was not the "Great Writ" for nothing. And if there is a class of people or a class of cases to be excluded from its protection, it is for the proponents of such exclusion to show why the founders would have thought that such exclusion was consistent with the understanding of the Great Writ (and why such an exclusion would not have been written into the Constitution).

Cheers,
 

Professor Balkin:

2. The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.).

The Circuit made no concession in this regard. It merely observed that: "The detainees claim that...the King's Bench exercised jurisdiction and reached the merits." However, rather than addressing the argument, the Circuit Court distinguished these cases as applying only to detainees in English sovereign territory when the Gitmo detainees do not reside in US sovereign territory.

While I do not disagree with the Circuit Court's holding that habeas review did not extend outside of the US sovereign territory when incorporated into the Constitution, I would have preferred that the Court addressed the argument raised by the detainees.

The detainees offered The Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779) and Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) for the proposition that courts may use habeas review to determine whether the government has properly designated the detainee as a prisoner of war. In fact, neither of these cases stands for that proposition.

In The Case of Three Spanish Sailors, the Circuit Court on page 13 of its opinion noted that "[t]he Kings Bench denied the sailors' petitions because they were 'alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.'"

In Schiever, the D.C. District Court in Footnote 11 of Hamdan v. Rumsfeld quoted the Kings Bench as holding: "[petitioner] is the King's prisoner of war, and we have nothing to in that case, nor can we grant habeas corpus to remove prisoners of war."

In sum, the Kings Bench in The Case of Three Spanish Sailors and Schiever held that habeas review does not extend to prisoners of war.

I have not been able to obtain copies of these opinions for my own review, but neither the detainees offering these opinions or the courts reviewing them have quoted the King's Bench making a determination of whether the government properly designated the petitioners as prisoners of war. At most, the Kings' Bench appears to have taken judicial notice that the government had designated the detainees as POWs and then dismissed their petitions.

In the Boumediene case, the Circuit Court could have followed the lead of the King's Bench by judicially recognizing that the government was holding petitioners as POWs and dismissing the petitions on the ground that POWs do not enjoy habeas rights under the common law incorporated by the Suppression Clause of the Constitution.
 

The bottom line, as I think both the dissent and the majority opinion acknowledge (but which the majority opinion glosses over), is that there's a meaning to "habeas corpus" independent of any statute, and in existence at that time -- in the conception of the writers -- as the "Great Writ" of centuries' provenance and of the common law and understanding at that time.

The majority assumes that the "core" meaning of habeas includes ONLY what was available in 1789. The SCOTUS has never decided that issue, though the majority quoted St. Cyr to look like it had. What the SCOTUS actually wrote in St. Cyr was that the understanding of 1789 provided a minimum "core". It might (or might not) have additional meaning.
 

Arne Langsetmo said...

"Bart" DePalma says:Afterwards, Congress corrected the Court by enacting the MCA, which expressly stated that these detainees did not have habeas corpus rights under statute.

Congress didn't "correct" the Court (nor could they). Rasul is still the law of the land (although pehaps moot if the MCA stands, and is not repealed)


No, "corrected" was the right term.

The old habeas statute said nothing about extending habeas review to POWs, habeas review had never before over several centuries been extended to POWs and Congress in the DTA made it clear that that they did not intend the statute to do so.

The Court invented this right out of whole cloth in Rasul and the Congress corrected them for the second time in no uncertain terms with the MCA. Indeed, the Circuit Court got it right when they analogized Congress' enactment of the MCA to be the equivalent of Congress "slamming their fists on the table shouting "When we say "all," we mean all - without exception!" (emphasis in opinion).
 

Professor Lederman:

6. Neither opinion discusses the most vexing substantive question that would have to be reached if the habeas claims were entertained -- namely, determining the category of persons who may lawfully be detained by the military as "enemy combatants" pursuant to the September 2001 AUMF and the laws of war incorporated therein. See note 14 of the Rogers dissent

This is perhaps the best practical reason for the Supreme Court not to rewrite the Constitution to extend habeas review of the status of prisoners of war being held for the duration of the conflict.

The status of POWs has always been a military matter throughout Anglo-American history because the military has the hard won experience and expertise to make a status determination. In contrast, the Courts have no competence or experience in this area and have traditionally deferred to the executive in matters of war.
 

Re: POWs

The Bush Administration has never claimed that habeas corpus should be denied to detainees because they are prisoners of war, and has in fact denied granting formal POW status to those held in Cuba.
 

"Bart" DePalma is of the opinion that Republicans can overturn court decisions:

No, "corrected" was the right term.

The old habeas statute said nothing about extending habeas review to POWs, ... habeas review had never before over several centuries been extended to POWs and Congress in the DTA made it clear that that they did not intend the statute to do so....


Wow. Talk about ignoring the holding of Rasul (while "Bart" feels free to cite dicta, even from dissents, as "good law"). Just wow.

... The Court invented this right out of whole cloth in Rasul and the Congress corrected them for the second time in no uncertain terms with the MCA. Indeed, the Circuit Court got it right when they analogized Congress' enactment of the MCA to be the equivalent of Congress "slamming their fists on the table shouting "When we say "all," we mean all - without exception!" (emphasis in opinion).

So in "Bart"'s 'legal' mind, overturned district court cases carry more weight than Supreme Court decisions. That explains a lot.

BTW, "Bart", have you told your clients that you can't afford Lexis research?

Cheers,

Cheers
 

I said:

So in "Bart"'s 'legal' mind, overturned district court cases carry more weight than Supreme Court decisions. That explains a lot.

Sorry, misread and misunderstood which district court "Bart" was referring to. He was (apparently) referring to the circuit court decision in the Boumediene case, a decision that hasn't been overturned ... yet.

What "Bart" can't argue (at least not honestly) is that this language of the circuit court: "slamming their fists on the table shouting 'When we say 'all,' we mean all - without exception!'" doesn't refer to the newly passed MCA, and not to the § 2241 habeas statute at issue in Rumsfeld.

Cheers,
 

"Bart" DePalma says:

The status of POWs has always been a military matter throughout Anglo-American history because the military has the hard won experience and expertise to make a status determination.

But elsewhere "Bart" says that they also had a practise of "summary execution". Notice that "Bart" says nothing about whether this alleged "hard won experience and expertise" was at all conducive to accuracy....

"Trust us, we're from the gummint...." Ummm, sorry, make that "Cheney/Libby/Yoo maladministration"....

Cheers,
 

Bart,

The status of POWs has always been a military matter throughout Anglo-American history because the military has the hard won experience and expertise to make a status determination.

I think it safe to say the reason so many people insist on the need for habeas corpus in thise cases is there is strong evidence that the military has not shown good judgment on who is and is not an enemy combatant and is continuing to hold numerous non-combatants in GTMO because someone cannot admit to making a mistake.
 

This comment has been removed by the author.
 

I said:

"... nd not to the § 2241 habeas statute at issue in Rumsfeld."

Should have been "at issue in Rasul". Mea culpa.

Cheers,
 

Priest said...

Re: POWs

The Bush Administration has never claimed that habeas corpus should be denied to detainees because they are prisoners of war, and has in fact denied granting formal POW status to those held in Cuba.

The term "prisoner of war" has a generic meaning (captured enemy combatants being held during a war) and a more limited meaning defined by the Geneva Conventions to qualify for various privileges.

The decisions of the King's Bench, which long predated the Geneva Conventions, use the term prisoner of war in its generic sense.

The United States designation of the Gitmo prisoners as unlawful combatants simply means that they do not meet the definition of POWs set forth in the Geneva Conventions and do not enjoy the privileges of that convention.

If you argue that the Gitmo unlawful combatant prisoners also do not meet the generic definition of prisoners of war as used by the King's Bench, that fact hardly commends extending habeas corpus to them. Under the King's Bench decisions, ordinary POWs do not have the right to habeas review of their detentions. Unlawful enemy combatants during this period had nearly no rights apart from a summary execution. Therefore, it would be absurd to grant habeas review to unlawful enemy combatants, but not to lawful ones.
 

Enlightened Layperson said...

Bart: The status of POWs has always been a military matter throughout Anglo-American history because the military has the hard won experience and expertise to make a status determination.

I think it safe to say the reason so many people insist on the need for habeas corpus in thise cases is there is strong evidence that the military has not shown good judgment on who is and is not an enemy combatant and is continuing to hold numerous non-combatants in GTMO because someone cannot admit to making a mistake.


Actually, very few people insist on the need to extend habeas corpus review to captured enemy combatants for the first time in history. This is a cause celebre for some academics and the anti war left. Feel free to put up for a vote whether the military or the courts should determine who to detain as an enemy combatant.

When given a capture from Afghanistan who is a Saudi citizen, who attended a madrassa in Pakistan, who claimed to emigrate to Afghanistan for "employment opportunities" or to "study the Quaran," and was captured with or admitted consorting with al Qaeda or the Taliban, the military calls that capture an unlawful enemy combatant while the lawyers seeking habeas review say with a semi straight face that he was simply in the wrong place at the wrong time. I can confidently say in that case the "good judgment" belongs to the military.

If it quacks like a duck, walks like a duck and flies with ducks, good judgment tells you that it is a duck.
 

Bart's willful stupidity has provoked me to retort.

A POW is not, by definition, culpable of anything in particular, but rather is "guilty" only of carrying arms under the enemy flag.

Hence the return of POW's to the enemy after the conclusion of hostilities.

Are supposed terrorists now POW's, in Bart's mind, whom we will repatriate when the Global War on Terror is concluded?

Are they not culpable of anything?

Is Khalid Sheikh Muhammed a POW?

Where would we repatriate Taliban prisoners?

Is anyone utterly full of crap who argues that Gitmo detainees are "POW's" in *any* sense of the word?
 

There are perhaps 80 detainees who may be charged before Military Commisions. A POW or unprivileged belligerent who is not tried and convicted by a military court must be repatriated at the end of the hostilities. Although unprivileged status may deny a detainee certain protections, he is not in addition to being an unlawful belligerent guilty of any war crime unless convicted. Whether any country will accept them back is a different question, but it will be a different world at the end of these hostilities.

"Is Khalid Sheikh Muhammed a POW?" I have heard no convincing argument otherwise. It is certainly true that the US does not want to grant him that status, but he is an enemy military commander who was captured in bed, and cannot be denied status because he was out of uniform while sleeping. On the other hand, he was captured in Pakistan by the Pakistan police, and in their jurisdiction he could have been regarded as a military spy for passing through their lines pretending to be a civilian. If they turned him over to us as a spy captured by an ally, then we could argue that he is unprivilged to us through their authority where he was captured.

In addition to being a POW, however, he is a pirate. Specifically, he is guilty of air piracy and the death of several hundred people on four airplanes. Even if granted POW status, nothing prevents his trial and execution on that charge.
 

Sorry, Howard, but I don't buy that KSM is an "enemy military commander." Would a leader of the Shining Path have been entitled to that status? Or of the Red Brigades?

KSM is a terrorist and a criminal, period. The Bush administration's glorification of such people into Sith Lords notwithstanding.
 

Howard... Whether any country will accept them back is a different question, but it will be a different world at the end of these hostilities.


Oh, great! An evangelical utopian fantasist and "true believer". Pass him the tin foil hat.
 

Reality Check: One doesn't have to be a lawyer to possess the prudence to see the folly of burdening the executive, in time of war, with defending lawsuits brought by captured enemy fighters, who are not US citizens and have never even set foot in the United States. That's what these cases come down to, notwithstanding all the brilliant constitutional argumentation. Sooner or later the courts will find a way to bend to that reality--or else, on Lincoln's authority, will be bent to that reality.

Must a platoon leader obtain a search warrant before launching an assault against an enemy bunker? Some abstracted lawyer out there is already surmising, "Perhaps, if there's time to do so." But there's a reason Churchill felt it unnecessary to say, "We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills, and we shall fight in the courts."

It's inconceivable that these habeas cases would ever have any practical implication, legal or otherwise, for a US citizen who has not taken up arms against his government. Well, let me restate that: These cases will have no such implications unless we indulge so many more rounds of legislation and litigation that the austerity of the Great Writ suffers the mortal contempt of both the willful and the active branches of government, as well as that of the majority of citizenry.

Eventually having realized that there's nothing for the courts to gain and much harm to be wrought (not least to the third branch itself) in clutching to such a wildly dubious judicial prerogative, the courts will realize their error and remove themselves (or be removed) as far as they possibly can be from the essential, and inessentially injudicious, business of war-making.

Forgive me for intruding reality into these otherwise highly entertaining lawyerly disputations.
 

Bathus: that's satire, right? You're pretending to be clueless, right?

Imagine, if you will, a person who is *accused* by the feds of taking up arms vs. the U.S., but *didn't really do so.*

But never mind -- you weren't serious, right?
 

"The Court interpreted the old habeas corpus statute to extend to detainees at Gitmo. Afterwards, Congress corrected the Court by enacting the MCA, which expressly stated that these detainees did not have habeas corpus rights under statute."

Bart, if you want to be a conservative, fine, but don't lie. Congress didn't "correct" the Court. The Court was not wrong. The old habeas statute did NOT contain a territorial limitation. The Court recognized this, and Congress decided to impose a limitation.

You slipped this into your post, but it really shows what a dishonest hack for the Bush position you are.
 

"I do not see how the Circuit Court could come to any other result. To hold that "the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789" means that Congress can amend the implied constitutional right to habeas review by simply changing the statute and the MCA now defines the scope of the constitutional right. As the Circuit Court correctly observed in Footnote 5, the courts do not have a common law jurisdiction over the scope of habeas review."

I am not sure what you mean by this, but in fact, many constitutional provisions expressly evolve over time (the Eighth Amendment being a fine example). And some evolve by implication (e.g., Scalia's applying the Fourth Amendment to thermal imaging).

The Constitution says the privilege of the writ of habeas corpus shall not be suspended except by Congress in certain limited circumstances. It doesn't define habeas corpus. So the courts have to determine whether that means only what existed in 1789 or a more modern understanding. Nothing in the Constitution particularly answers that question. So it follows that the Circuit Court of Appeals could come to the contrary result, and your conclusion is wrong.
 

One other thing about Bart. Notice how he refers to "captured unlawful combatants". How does he know if they were unlawful combatants? Does he trust the CSRT's? Is he aware of the GITMO prisoners who have not been released despite being found NOT to be enemy combatants?

The fact is, if you strip away the legal debate, the underlying point is that if you are paying attention, you don't trust anything the Bush Administration says about terrorism. They lie a lot, they exaggerate threats, and they claim a lot of things about detainees that aren't true.

The CSRT's determinations may or may not carry weight in a court of law. But nobody arguing the ADVISABILITY of these policies should call these people unlawful combatants. Bart has no idea if this is actually correct-- he just refuses to use his critical faculties when evaluating Bush edicts.
 

I would invite anyone which desires to continue this conversation with me to my blog where I posted my analysis of why habeas corpus rights do not extend to foreign prisoners of war no matter their location.
 

Here's a slight variation of original intent that was in opposition to a different tyrant named George:

For depriving humans, in many cases, of the benefits of Trial by Jury:

For transporting humans beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring island naval base, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into this Country:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

A President, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People.
 

"Bart" DePlama says:

I would invite anyone which desires to continue this conversation with me to my blog....

Blogwhoring, IC. No thanks. We've heard everything you've ever said on the subject already ... five times over. And you never respond to any substantive points of your critics, so how you can call such a "conversation" is beyond me.

Then again, "Bart", maybe I should reconsider. Tell you what: You go over there and get the fire started, and we'll be with you ... shortly. ;-)

Cheers,
 

Haller,

Yes, I was quite serious. However, since you chose to impugn the arguer, more than the argument, I can't credit you with being serious

I was especially serious in the point you missed: that if the weakest branch doesn't find a way to extricate itself from fields wherein it is is not well-armed to wander, the courts and the writ will suffer the damage--with the latter being precisely of the sort your hypothetical envisions. After all, the Great Writ is but a piece of paper, easily torn, while war is . . . war.

That you would want heedlessly and needlessly, on purely hypothetical grounds, to hazard that precious and delicate piece of paper to the exigencies of war is yet more proof of lack of seriousness.

Now that we've both succeeded in saying something inapposite, more or less, about each other's cluelessness and/or unseriousness, I'll leave you to contemplate the sublime poetry of the last response you'll get from me, which--in case you might wonder--is, appropriately, not-altogether-serious:

I'm happy with my argument.
I'm happy you don't pay my rent,
or hold me dear,
or brew my tea.
And since you don't, I'll let it stand,
for all to hear,
for all to see.
Who does not like, can go pound sand.
 

Harold 'Bart' "Humpty-Dumpty" DePalma says:

["Humpty-Dumpty"]: The status of POWs has always been a military matter throughout Anglo-American history because the military has the hard won experience and expertise to make a status determination. In contrast, the Courts have no competence or experience in this area and have traditionally deferred to the executive in matters of war.

[Priest]: The Bush Administration has never claimed that habeas corpus should be denied to detainees because they are prisoners of war, and has in fact denied granting formal POW status to those held in Cuba.

["Humptyt-Dumpty]: The term "prisoner of war" has a generic meaning (captured enemy combatants being held during a war) and a more limited meaning defined by the Geneva Conventions to qualify for various privileges.


`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

`The question is,' said Alice, `whether you can make words mean so many different things.'

`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'


Cheers,
 

"Bart" DePalma:

If you argue that the Gitmo unlawful combatant prisoners also do not meet the generic definition of prisoners of war as used by the King's Bench, that fact hardly commends extending habeas corpus to them. Under the King's Bench decisions, ordinary POWs do not have the right to habeas review of their detentions. Unlawful enemy combatants during this period had nearly no rights apart from a summary execution. Therefore, it would be absurd to grant habeas review to unlawful enemy combatants, but not to lawful ones.

Brings to mind another quote:

"Now friends, there was only one or two things that Obie coulda done at
the police station, and the first was he could have given us a medal for being so brave and honest on the telephone, which wasn't very likely, and we didn't expect it, and the other thing was he could have bawled us out and told us never to be see driving garbage around the vicinity again,
which is what we expected, but when we got to the police officer's station there was a third possibility that we hadn't even counted upon, and we was both immediately arrested. Handcuffed. And I said "Obie, I don't think I
can pick up the garbage with these handcuffs on." He said, "Shut up, kid. Get in the back of the patrol car."

The fallacy of bifurcation. In Bart's mind, they're either POWs or "illegal enemy combatants". Couldn't possibly be anything else; Der Führe... -- ummm, sorry, The Great Deciderator said so, and of course he's never been wrong. Never mind that all they're asking for is a judgement by an independent body as to whether the evidence supports their being indefinitely held prisoner, and a chance to present their case for their innocence. Heavens, we can't have that; that would interfere with Dubya's military plans anddontchaknowwehaveawaron?!?!?.....

Cheers,
 

"Bart" DePalma says:

Actually, very few people insist on the need to extend habeas corpus review to captured enemy combatants for the first time in history. This is a cause celebre for some academics and the anti war left....

Maybe that's because for the first time in a long while, someone was handing out bounties to someone else to round up people and hand them over into captivity.

But as is apparent from the record, there were cases cited where the prisoners had claimed to have been innocent and to have been forcibly and involuntarily pressed into service. And they got their day in courtm even if the court decided that the evidence against themn was sufficient to show their imprisonment justified on the merits.

"Bart" doesn't want that. He wants tribunals where the defence attorneys are working for the prosecution, where torture can be used to produce the evidence, and where the defence cannot even see the nature of the evidence against them (not to mention the judges also work for the prosecution). This sentiment coming from a member of the bar. For shame, for shame.

Cheers,
 

"Bart" DePalma says:

When given a capture from Afghanistan who is a Saudi citizen, who attended a madrassa in Pakistan, who claimed to emigrate to Afghanistan for "employment opportunities" or to "study the Quaran," and was captured with or admitted consorting with ... the Taliban,...

Ummm, none of these were illegal prior to 9/11 (and arguably not afterwards). In fact, U.S. gummint officials "consort[ed]" with the Taliban (hell, IIRC, the Dubya maladministration even gave them some money).

What makes such an "illegal enemy combatant" is not clear to me.

As for consorting with al Qaeda, once again a bit of a grey area before 9/11. If the U.S. gummint has proof that they were engaged in actual terrorist activities, put the proof in front of a court!

Cheers,
 

Bathus doesn't trust a mere piece of paper in places that get too hot:

That you would want heedlessly and needlessly, on purely hypothetical grounds, to hazard that precious and delicate piece of paper to the exigencies of war is yet more proof of lack of seriousness.

What f*cking good is that "piece of paper" if you keep it locked away in a strongbox, for the day that ... umm, say, you ... might want to go dig it out. Let me tell you, if you wait that long, you can guarantee that the flames will consume it right quick. Ask Niemöller.

Cheers,
 

Arne Langsetmo,

Given the massive number of habeas petitions courts address every day, there's no danger that the courts' wisely refusing to entertain enemy combatants' habeas matters would diminish the vigor or the volume of that legal device in any practical way.

Your fear that, lest habeas rights be granted to enemy combatants, the Great Writ will decay "locked away in a strong box" cannot rise even to the level of the theoretical, but is purely fanciful and imaginary.

The greater danger, of which we are already beginning to hear ominous rumblings, is that the political branches would respond to the courts' novel over-expansion of habeas jurisprudence in war-making matters (which are by nature not amenable to judicial intervention) by moving things too far in the other direction. President Lincoln and Chief Justice Taney have provided sufficient historical and legal precedent.

I am sorry to observe that, based on your previous commentary, especially your responses to Bart, one must anticipate that any further exchange between us wuold serve no purpose and would soon degenerate on your side to the point that you would begin to call me a liar, hack, blogwhore, etc. My congratulations to Bart, who has thus far confined himself to addressing the meager substance of your argument, without once lowering himself either to return, or even to acknowledge, the pointless personal barbs. For my preemptive acknowledgement of your manifest inclinations, I must apologize and bid you permanent goodbye.
 

Anyone seen Bart and Bathus in the same room together?

Bathus, coming around here and using expressions like "enemy combatant" expresses a serious contempt for the subject at hand.

One, is Joe Bob Ali really any sort of combatant? How do we know?

Two, if he *is* an "enemy combatant," how is that not a POW, and why is he not being extended Geneva protections?

The whole "enemy combatant" label is a rhetorical construct for evading Geneva. This blog in particular has done yeoman's work in demonstrating that to the general public. Please see the "anti-torture memos" link & start reading up.
 

Does all of the above mean that the hostilities won't end soon? Jeepers, creepers!
 

Bathus said... Reality Check

H. Haller is correct. Your reality check bounced. It bounced the minute you demonstrated your ignorance of the difference bewtween "war" and "occupation".
 

Shag from Brookline said...
Does all of the above mean that the hostilities won't end soon? Jeepers, creepers!


Since we got "tough on crime" so some politician could get elected, I haven't been murdered once!
 

Bathus:

Arne Langsetmo,

Given the massive number of habeas petitions courts address every day, there's no danger that the courts' wisely refusing to entertain enemy combatants' habeas matters would diminish the vigor or the volume of that legal device in any practical way.


Absolute nonsense. If, as you say, the courts are entertaining "massive number of habeas petitions courts address every day", then this destroys one argument of the gummint here; that the habeas petitions for the less than 400 (max) prisoners in Guanatanamo will flood the court system and impermissibly interfere with the Terribly Important War'on'a'Noun.

OTOH, if the courts start refusing such petitions on the grounds that some people are simply not deserving of such, or there's just too few of them to bother, the precedent it creates is that the Great Writ is just a little less "great" ... and that when the gummint, in the interest of 'expediency', decides that it's too much trouble to deal with your request that the gummint explain itself, you're just SOL...

Your fear that, lest habeas rights be granted to enemy combatants, the Great Writ will decay "locked away in a strong box" cannot rise even to the level of the theoretical, but is purely fanciful and imaginary.

Nonsense. But I'd note that you take "Bart"'s favourite formulation and assume your conclusion: That the petitioners are in fact "enemy combatants". Hate to have to point it out for the forty third time, but that is the very bone of contention here. I have no problems with detention of actual enemy combatants consistent with the laws of war, and I have no problems with the trial of actual terrorists for their crimes. The maladministration has done neither.

The greater danger, of which we are already beginning to hear ominous rumblings, is that the political branches would respond to the courts' novel over-expansion of habeas jurisprudence in war-making matters (which are by nature not amenable to judicial intervention) by moving things too far in the other direction....

"Novel over-expansion"?!?!? "[B]y nature not amenable to judicial intervention"? Where do you get that? As pointed out by the opinions themselves, in the past, courts have made the kinds of inquiries sought here, and at no cost to either the gummint nor to the status of jurisprudence.

... President Lincoln and Chief Justice Taney have provided sufficient historical and legal precedent.

Huh? Ex Parte Milligan decided that Lincoln's suspension of habeas was unlawful.

I am sorry to observe that, based on your previous commentary, especially your responses to Bart, one must anticipate that any further exchange between us wuold serve no purpose and would soon degenerate on your side to the point that you would begin to call me a liar, hack, blogwhore, etc....

When you lie, engage in hackery, and blogwhore, yes, I'll point that out as well.

... My congratulations to Bart, who has thus far confined himself to addressing the meager substance of your argument, without once lowering himself either to return, or even to acknowledge, the pointless personal barbs....

"Bart" ignores my substantive criticisms. See here and here and here, for instance.

... For my preemptive acknowledgement of your manifest inclinations, I must apologize and bid you permanent goodbye.

IC. Just as interested in "conversation" as "Bart" is. We won't miss you.

Cheers,
 

Arne Langsetmo said...

["Humptyt-Dumpty]: The term "prisoner of war" has a generic meaning (captured enemy combatants being held during a war) and a more limited meaning defined by the Geneva Conventions to qualify for various privileges.

`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'


Arne, the law often has substantially different meanings for the same term. For example, the broad generic definition of the term "battery" is simply an unwelcome touching. However, our state criminal code's definition requires a touching which causes bodily injury of some degree to another person.

This is the case with the term "prisoner of war." Generically, this term simply means a captured enemy combatant. In the Geneva Conventions, it means a captured enemy combatant who follows certain rules. Therefore, it is perfectly logical to find that the Gitmo prisoners fit the broad generic definition but not the much narrower definition in the Geneva Conventions.

Welcome to the wonderful world of law where definitions often mean everything.
 

"Bart" DePalma says:

Arne Langsetmo said...

["Humptyt-Dumpty]: The term "prisoner of war" has a generic meaning (captured enemy combatants being held during a war) and a more limited meaning defined by the Geneva Conventions to qualify for various privileges.

`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

Arne, the law often has substantially different meanings for the same term. For example, the broad generic definition of the term "battery" is simply an unwelcome touching. However, our state criminal code's definition requires a touching which causes bodily injury of some degree to another person.


While it is true that common language may have different definitions (for instance, a "battery" may be a galvanic pile), when we're talking law here, we ought to use the legal definitions. See below.

This is the case with the term "prisoner of war." Generically, this term simply means a captured enemy combatant....

Says you. Here we need to agree on specifically what we're talking about. If you choose t use that 'definition' to ascribe legal status, it better be a legal definition. Facts matter, not labels (particularly not labels you have chosen for your own polemical purposes).

But perhaps it could mean, "people turned over to captivity by a third party, for a reward, based on an unpaid debt, possession of something of value that the initial captor desires to confiscate, or membership in the wrong tribe".

... In the Geneva Conventions, it means a captured enemy combatant who follows certain rules.

I'd note the Geneva Conventions in no place define "illegal enenmy combatant". The Geneva Conventions give certain protections to those that are captured hors de combat, and more such protections to those that are "POWs". I've noted some of these differences before. But in either case, those in captivity and placed hors de combat are covered by the Geneva Conventions. A more accurate description would be "captives" or "detainees".

Therefore, it is perfectly logical to find that the Gitmo prisoners fit the broad generic definition but not the much narrower definition in the Geneva Conventions.

You mean they have the status of "captives" or "detainees"? In any event, the Geneva Conventions do require a determination by the holding power of the status of such as to whether they are in fact "POWs" as defined in the Third Geneva Convention or not.

Welcome to the wonderful world of law where definitions often mean everything.

But it is you that elide the distinction of a "POW" under the Third Geneva convention and the status of being held captive. Insofar as the petitioners are challenging their detention (and not their status as 3GC "POWs"), the use of the term "prisoner of war" is not appropriate (other than as a means of assuming your conclusion). Which I pointed out, and which you still refuse to address.

It is you that continue to insert the "red herring" that "POWs" are not eligible for habeas relief, when the understanding of such is that
actual prisoners of war (in the 3GC sense) have no argument for release (except for specified circumstances, including medical) but do have the rights specified under the 3GC) while hostilities continue. The distinctions of the Geneva Conventions between "prisoners of war" (covered by the 3GC) and "civilians" (covered by the 4GC) are not relevant here.

As to the suggestion that alleged "POWs" do not have a habeas right to contest their detention, the Schiever case refutes this contention (even though the court found that Schiever was, on the evidence, properly classified and detained as a POW after the court had heard the evidence).

Cheers,
 

As a retired Air Force noncommissioned officer, I'm still trying to figure out how a full-fledged U.S. military installation, where the Uniform Code of Military Justice surely obtains, can be considered out of the reach of the U.S. court system.

Am I missing something?
 

spaghetti happens:

As a retired Air Force noncommissioned officer, I'm still trying to figure out how a full-fledged U.S. military installation, where the Uniform Code of Military Justice surely obtains, can be considered out of the reach of the U.S. court system.

Am I missing something?


Actually, U.S. courts do operate in Guantanamo. There's civil cases over disputes at Guantanamo in the legal record, IIRC. AFAIK, no one has bothered to fight jurisdiction there, because it made no sense. Someone has to decide cases there, else it would be completely lawless.

The "dodge" is the claim that Guantanamo is "sovereign" Cuban territory, despite the full territorial control of the U.S. as well as the sole functioning courts in Guantanamo. This allows the maladministration to cite Eisentrager and the "Guantanamo is Cuban sovereign territory" distinction WRT the alleged "enemy aliens" there (despite the fact that -- as Rasul pointed out -- the sovereignty issue was only one of six factors in Eisentrager.

But as indicated by the Rasul opinions, this "sovereign territory"/"territorial jurisdiction" distinction has been looked a a bit askance by the Supes, as well it should.

Here's the Supes on Guantanamo (from Rasul):

"By the express terms of its agreements with Cuba, the United States exercises "complete jurisdiction and control" over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. 1903 Lease Agreement, Art. III; 1934 Treaty, Art. III."

Cheers,
 

Spaghetti: As a retired Air Force noncommissioned officer, I'm still trying to figure out how a full-fledged U.S. military installation, where the Uniform Code of Military Justice surely obtains, can be considered out of the reach of the U.S. court system.

Am I missing something?


No, not at all, but it feels that way sometimes, doesn't it?

You'll recall that Article 2 addresses who is subject to the UCMJ, and this is one of the reasons we're always wrangling over the "POW" vs. "enemy combatant" designations around here.

Prisoners of war in military custody are subject to the UCMJ. Since "unlawful enemy combatants" are defined by statute as those combatants who do not abide by the laws of war sufficiently to be considered "lawful combatants," they are not technically "prisoners of war" and therefore are not subject to the UCMJ.

The Military Commissions Act (10 USC 948b(c)) dictates that the UCMJ is not applicable to enemy combatants, and makes it quite clear what their fate vis-a-vis habeas hearings is:
"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

In the DTA, Guantanamo Bay was explicitly mentioned, denying habeas to enemy combatants maintained there. The MCA struck some of these references and expanded it to those held in US custody in general.

Did that help clear it up at all for ya, spaghetti? :)
 

There is no way this decision will stand, as written, because the panel majority opens a trapdoor under its own feet. In Footnote 8, the majority states: "The detainees are correct that they are not enemy aliens," but opines that enemy alien status is irrelevant to the question of the reach of common law habeas corpus circa 1789.

The court's analysis of the scope of the common law may be correct, but its concession that the detainees are not enemy aliens renders any inquiry into the common law moot. By its own terms, the MCA strips the statutory right to habeas only from enemy aliens or those who are awaiting a determination as to their enemy alien status. Thus, per the D.C. Circuit's own analysis, the petitioners have a right to habeas review under 28 U.S.C. sec. 2241, because the MCA does not apply.
 

spaghetti happens said...

As a retired Air Force noncommissioned officer, I'm still trying to figure out how a full-fledged U.S. military installation, where the Uniform Code of Military Justice surely obtains, can be considered out of the reach of the U.S. court system.

Am I missing something?


The venue of the military justice system and the civilian federal courts are not the same. UCMJ follows the troops no matter where they go. Federal civilian courts generally do not have venues outside our territory.

That is not really the issue, though. The court in this case determined that the writ of habeas corpus did not extend overseas beyond US sovereign territory when it was incorporated into the Constitution.

It is my contention that geography is irrelevant because foreign POWs simply do not have habeas corpus rights.
 

Pete said...

There is no way this decision will stand, as written, because the panel majority opens a trapdoor under its own feet. In Footnote 8, the majority states: "The detainees are correct that they are not enemy aliens," but opines that enemy alien status is irrelevant to the question of the reach of common law habeas corpus circa 1789.

The court's analysis of the scope of the common law may be correct, but its concession that the detainees are not enemy aliens renders any inquiry into the common law moot. By its own terms, the MCA strips the statutory right to habeas only from enemy aliens or those who are awaiting a determination as to their enemy alien status. Thus, per the D.C. Circuit's own analysis, the petitioners have a right to habeas review under 28 U.S.C. sec. 2241, because the MCA does not apply.


The MCA does not use the term "enemy alien" in reference to habeas corpus. Section 7 of the MCA concerning habeas matters states in pertinent part:

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

In Section 988a, the MCA defines enemy combatants.

What the DC Circuit is referring to is the use of the term "enemy aliens" in the Eisentrager case to mean citizens of a country against which the United States was at war.

This shorthand used by the Court for the civilian non combatant petitioner in Eisentrager was not dispositive to the outcome of that case and has nothing to do with the application of the MCA to "enemy combatants."
 

"Bart" DePalma, blissfully ignoring what anyone else has said, says:

That is not really the issue, though. The court in this case determined that the writ of habeas corpus did not extend overseas beyond US sovereign territory when it was incorporated into the Constitution.

And cited for this proposition Eisentrager. But the U.S. Supreme Court, in Rasul, rejected this "sovereign territory" distinction of Eisentrager in finding a habeas right for prisoners in Guantanamo. While this was decide on the basis of 28 USC § 2241 statutory habeas, the majority doesn't explain satisfactorily why common law habeas should not apply similarly WRT "territoriality" compared to § 2241. While the Boumediene majority is of the opinion that Congress "overruled" Hamdan (and presumably Rasul(, it did not. What Congress did was to amend §2241 statutory habeas. The question of the territorial applicability of habeas generally was not affected, much less "overruled" (i.e., while the original § 2241 did not exclude habeas for petitioners in Guantanamo, and this was found to be consistent with general court (and habeas) jurisdiction, after § 2241 was specifically modified to exclude habeas for those in Guantanamo [and then for alleged "enemy combatants" generally], this was a modification simply of the statute).

The majority's comments about the lack of habeas generally overseas has more to do with the impossibility of issuing a writ to another sovereign demanding that they release a prisoner. That is not a concern for Guantanamo where the U.S. has complete territorial control and jurisdiction. Similarly for concerns about time limits and fines; such pragmatic "concerns" have no applicability in today's age of jet flight.

It is my contention that geography is irrelevant because foreign POWs simply do not have habeas corpus rights.

The question, once again, is whether they actually are "foreign POWs" (note once again "Bart"'s elision of terms; the gummint won't classify them as such). As to whether such a determination is to be made by courts on a habeas petition, "Bart" won't acknowledge the Schiever case to the contrary.

Cheers,
 

Bart,
The Eisentrager case revolved critically around the fact that the prisoners in question were "enemy aliens." The Court listed six factors on which it relied in denying that the prisoners had a right to habeas relief; the first was the fact that they were admitted enemy aliens.
 

arne:

1) The DC Circuit based its holding that the Constitution incorporated the habeas common law at the time of its enactment based on St Cyr and then noted correctly that no common law at that time extended habeas outside sovereign territory. Subsequently, the DC Circuity cited Eisentrager to confirm, not as the basis, of their holding.

2) The Supreme Court is going to have a hard time claiming that Eisentrager does not establish the standard for interpreting the constitutional habeas right given that the Court in Rasul expressly distinguished Eisentrager as interpreting only constitutional habeas rights. Now that the MCA has shut down the statutory route, the Court is stuck with its argument in Rasul.
 

Pete said...

Bart, The Eisentrager case revolved critically around the fact that the prisoners in question were "enemy aliens." The Court listed six factors on which it relied in denying that the prisoners had a right to habeas relief; the first was the fact that they were admitted enemy aliens.

Once again, what does the Eisentrager description of non-combatant civilians as "enemy aliens" have to do with the MCA definitions of "enemy combatants?"
 

Cuba is only 90 miles off the Florida coast. Not 400 miles.
 

Eisentrager is toast.
 

["Bart"]: 2) The Supreme Court is going to have a hard time claiming that Eisentrager does not establish the standard for interpreting the constitutional habeas right given that the Court in Rasul expressly distinguished Eisentrager as interpreting only constitutional habeas rights....

That wasn't the only "distinction". See below.

... Now that the MCA has shut down the statutory route, the Court is stuck with its argument in Rasul.

OK, here's the actual argument in Rasul:

Respondents' primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager. In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to 21 German citizens who had been captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that "any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ." Eisentrager v. Forrestal, 174 F. 2d 961, 963 (CADC 1949). In reversing that determination, this Court summarized the six critical facts in the case:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." 339 U. S., at 777.

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears." Id., at 781.

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.


[which, of course, as well describes the petitioners in Boumediene to a "T"....]

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. Id., at 777....

[i.e., here the Rasul court goes on to state that the six factors mentioned above are relevant to constitutional habeas, which is what is under consideration here. It does not say that constitutional habeas is not available to prisoners held in the "sovereign territory" of other nations]

The [Eisentrager] Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.

[Here the Rasul court goes on to explain its reasoning, something that "Bart" chooses to ignore]:

Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to question of statutory jurisdiction. In 1948, just two months after the Eisentrager petitioners filed their petition for habeas corpus in the U. S. District Court for the District of Columbia, this Court issued its decision in Ahrens v. Clark, 335 U. S. 188, a case concerning the application of the habeas statute to the petitions of 120 Germans who were then being detained at Ellis Island, New York, for deportation to Germany. The Ahrens detainees had also filed their petitions in the U. S. District Court for the District of Columbia, naming the Attorney General as the respondent. Reading the phrase "within their respective jurisdictions" as used in the habeas statute to require the petitioners' presence within the district court's territorial jurisdiction, the Court held that the District of Columbia court lacked jurisdiction to entertain the detainees' claims. Id., at 192. Ahrens expressly reserved the question "of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights." Id., 192, n. 4. But as the dissent noted, if the presence of the petitioner in the territorial jurisdiction of a federal district court were truly a jurisdictional requirement, there could be only one response to that question. Id., at 209 (opinion of Rutledge, J.).7

When the District Court for the District of Columbia reviewed the German prisoners' habeas application in Eisentrager, it thus dismissed their action on the authority of Ahrens. See Eisentrager, 339 U. S., at 767, 790. Although the Court of Appeals reversed the District Court, it implicitly conceded that the District Court lacked jurisdiction under the habeas statute as it had been interpreted in Ahrens. The Court of Appeals instead held that petitioners had a constitutional right to habeas corpus secured by the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, reasoning that "if a person has a right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal jurisdictional statute." Eisentrager v. Forrestal, 174 F. 2d, at 965. In essence, the Court of Appeals concluded that the habeas statute, as construed in Ahrens, had created an unconstitutional gap that had to be filled by reference to "fundamentals." 174 F. 2d, at 963. In its review of that decision, this Court, like the Court of Appeals, proceeded from the premise that "nothing in our statutes" conferred federal-court jurisdiction, and accordingly evaluated the Court of Appeals' resort to "fundamentals" on its own terms. 339 U. S., at 768.8


[the above explains the Eisentrager concentration on constitutional habeas, as the Rasul opinion pointed out helpfully for "Bart". They go on]:

Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to "fundamentals," persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973), this Court held, contrary to Ahrens, that the prisoner's presence within the territorial jurisdiction of the district court is not "an invariable prerequisite" to the exercise of district court jurisdiction under the federal habeas statute. Rather, because "the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody," a district court acts "within [its] respective jurisdiction" within the meaning of §2241 as long as "the custodian can be reached by service of process." 410 U. S., at 494-495. Braden reasoned that its departure from the rule of Ahrens was warranted in light of developments that "had a profound impact on the continuing vitality of that decision." 410 U. S., at 497. These developments included, notably, decisions of this Court in cases involving habeas petitioners "confined overseas (and thus outside the territory of any district court)," in which the Court "held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim." Id., at 498 (citing Burns v. Wilson, 346 U. S. 137 (1953), rehearing denied, 346 U. S. 844, 851-852 (opinion of Frankfurter, J.); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Hirota v. MacArthur, 338 U. S. 197, 199 (1948) (Douglas, J., concurring)). Braden thus established that Ahrens can no longer be viewed as establishing "an inflexible jurisdictional rule," and is strictly relevant only to the question of the appropriate forum, not to whether the claim can be heard at all. 410 U. S., at 499-500.

That is to say, Eisentrager concentrated on constitutional habeas claims due to the previous (but now questionable) Ahrens case, and the Circuit court's concentration on the "fundamentals" of habeas and the effect of the Suspension clause. But, that being said, Rasul said that there are six factors necessary to the denial of constitutional habeas Extraterritoriality is only one of them. While Rasul was concerned with § 2241 habeas, they did not hold or suggest that Eisentrager ruled out habeas on that one basis alone.

Rasul v. Dubya, 542 U.S. 466 (2004)

Cheers,
 

Bart,
My second post was in response to your comment that the Eisentrager Court's description of the petitioners there as "enemy aliens" was nondispositive. I do not think that is the case, and neither does the Rasul Court, which made it clear that all six of the factors listed in Eisentrager were "critical" to the disposition of the latter.
 

"Bart" DePalma said:

1) The DC Circuit based its holding that the Constitution incorporated the habeas common law at the time of its enactment based on St Cyr and then noted correctly that no common law at that time extended habeas outside sovereign territory.

As the Boumediene dissent points out, there's a paucity of case law either way on whether common law habeas extends outside "sovereign territory". Perhaps you can explain why the same rationale that applied to the jurisdictional extent of statutory habeas in Rasul doesn't apply equally to the constitutional habeas in Boumediene.

Cheers,
 

To point out the obvious, the strong emphasis on the 6 factors in Eisentrager was as close as the Court could come to saying "E. is limited to its facts" without, you know, saying that. The case is something of an embarrassment, as Scalia has noted.

IOW, "toast."
 

"Bart" DePalma says:

["Bart"]: This shorthand ["enemy alien" used by the Court for the civilian non combatant petitioner in Eisentrager was not dispositive to the outcome of that case....

Misleading. No one said it was "dispositive". It was important, but not the sole important fact (regardless of the status of any of the other five factors). See my quotes from Rasul above quoting Eisentrager:

[from the Rasul opinion]:

In reversing that determination, this Court summarized the six critical facts in the case:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." 339 U. S., at 777.


Not solely dispositive, but one of six critical facts.

On anotehr note, "Bart" is full'o'shite:

["Bart"]: In Section 988a, the MCA defines enemy combatants.

"Bart", your link is FOOBAR, and the proper cite is § 948a (see here), but the MCA doesn't define "enemy combatants". Rather, it defines "lawful enemy combatants" and "unlawful enemy combatant" (which definition includes anyone who Dubya says is such; quite the legal 'definition')

Cheers,
 

Arne Langsetmo said...

"Bart" DePalma said: 1) The DC Circuit based its holding that the Constitution incorporated the habeas common law at the time of its enactment based on St Cyr and then noted correctly that no common law at that time extended habeas outside sovereign territory.

As the Boumediene dissent points out, there's a paucity of case law either way on whether common law habeas extends outside "sovereign territory".


Umm... That is precisely the point.

The Constitution incorporated the habeas writ as it existed at that time. The scope of the writ of habeas corpus was affirmatively created by common law decisions when the Constitution was enacted. Nothing existed in this regard unless it was first created by the courts. Therefore, if there are no cases extending habeas jurisdiction outside sovereign sovereign territory at that time, then the scope of habeas incorporated into the Constitution similarly does not extend that far.

Perhaps you can explain why the same rationale that applied to the jurisdictional extent of statutory habeas in Rasul doesn't apply equally to the constitutional habeas in Boumediene.

Easily.

In order to reach the prisoners at Gitmo, Rasul relied upon an earlier Court decision in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973) which interpreted the habeas corpus statute to permit habeas jurisdiction beyond the usual territorial jurisdiction of the district court.

However, Congress by enacting the MCA unequivocally removed the habeas corpus statute from the equation. Thus, the Court can no longer create new law claiming to be "interpreting" a statute.

As the DC District noted in its opinion, the federal courts do not have a common law power to create new habeas jurisdiction.

Therefore, the Court is limited applying whatever habeas rights were incorporated by the Suspension Clause. Because it has no common law power to create new jurisdiction, the Court has two options - (1) apply the common law in existence at the time of the enactment or (2) apply the habeas right as it exists under today's statute. As I pointed out above, the second option is highly questionable because it would allow Congress to determine the scope of the constitutional habeas right by simply passing a statute. However, habeas jurisdiction does not reach the Gitmo detainees under either analysis.
 

Several plausible arguments have been raised here concerning territorial jurisdiction of the courts to hear habeas corpus petitions.

This is precisely the reason I think the DC Circuit erred by failing to hold that foreign enemy combatants simply do not enjoy habeas corpus rights to challenge their detention for the duration of the war, judicially recognize that the military has designated the petitioners as foreign enemy combatants and then dismissing their petitions.

Such a bright line rule is well supported in the common law when the Constitution was adopted and eliminates that various avenues of mischief courts could go down in unconstitutional attempts to create new de facto common law habeas jurisdiction.
 

foreign enemy combatants simply do not enjoy habeas corpus rights to challenge their detention for the duration of the war

I have a hard time buying that habeas corpus, being a cornerstone of our law, shouldn't be available to anyone in American custody.

I phrase that as a moral statement on purpose. I'm quite aware of the way the MCA is phrased and short of the high court deeming it unconstitutional, I don't see much chance for altering the current course.

Beyond the argument of "we've never done it before" (which is ridiculous when it stands alone) is there a serious reason that we should not extend it to people in US custody regardless of their origin and combatant status? I've yet to hear a convincing argument against doing so, but I've heard plenty of convincing ones for why we should.
 

Just a quick question I hadn't seen in the comments:

How does the MCA as applied to the pending Habeas cases avoid the ex post facto limitation immediately following the habeas suspension clause in the Constitution?
 

How does the MCA as applied to the pending Habeas cases avoid the ex post facto limitation immediately following the habeas suspension clause in the Constitution?

The ban on ex post facto laws only applies to substantive law, not to procedure. While the distinction isn't always clear, in this case I don't think there's any dispute that habeas is a procedural right.
 

PMS_Chicago said...

Beyond the argument of "we've never done it before" (which is ridiculous when it stands alone) is there a serious reason that we should not extend it to people in US custody regardless of their origin and combatant status? I've yet to hear a convincing argument against doing so, but I've heard plenty of convincing ones for why we should.

Perhaps, the question should be, if this is such a great idea, why have Britain and the United States never extended habeas review by civilian courts to POWs over the past few centuries and dozens of wars?

1) The military has the experience and expertise to determine who is or is not an enemy combatant, most especially unlawful enemy combatants who intentionally attempt to disguise their identities. The guys who gather the intelligence on the enemy and fight the enemy on the field are the best ones to identify the enemy. The military has developed detailed profiles of the members of the various terrorist groups based on real life contact with them.

2) In stark contrast, the civilian courts have no experience and lack the competence to determine who is or is not an enemy combatant. Almost without exception, civilian judges have never had contact with the enemy and would not know a terrorist if they walked by one.

Moreover, courts apply facts to precisely defined elements of a criminal statute to determine of a person is a criminal. However, there is no law precisely defining an unlawful enemy combatant. The MCA broadly defines an unlawful enemy combatant as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant." A civilian judge with no experience with the enemy has no reasonable competence to apply that broad definition to the facts and come up with an objective determination.

3) There is no need to hold a status hearing pursuant to habeas corpus before a civilian court when these captures are already getting status hearings before military boards which are unrelated to the capturing units. These military status review boards are hardly kangaroo courts and have released dozens of captures and have ordered the release of dozens more captures if the military could find a country willing to take them.
 

"Bart" DePalma said:

[Arne]: Perhaps you can explain why the same rationale that applied to the jurisdictional extent of statutory habeas in Rasul doesn't apply equally to the constitutional habeas in Boumediene.

Easily.

In order to reach the prisoners at Gitmo, Rasul relied upon an earlier Court decision in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973) which interpreted the habeas corpus statute to permit habeas jurisdiction beyond the usual territorial jurisdiction of the district court.


No. Braden held that territorial jurisdiction derived from the locus of the custodian:

"Read literally, the language of 2241 (a) requires nothing more than the court issuing the writ have jurisdiction over the custodian."

Braden, 410 U.S. 484, 495 (1973).

Braden continues:

"This Court, too, has undercut some of the premises of the Ahrens decision. Where American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim. Burns v. Wilson, 346 U.S. 137 (1953), rehearing denied, 346 U.S. 844, 851 -852 (opinion of Frankfurter, J.); cf. Toth v. Quarles, 350 U.S. 11 (1955); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (DOUGLAS, J., concurring (1949))."

Id at 498.

However, Congress by enacting the MCA unequivocally removed the habeas corpus statute from the equation. Thus, the Court can no longer create new law claiming to be "interpreting" a statute.

Agreed, the MCA removed the § 2241 statutory habeas for "alien" "enemy combatants" (note: no distinction between "lawful" and "unlawful"). But they didn't do it on the basis of territoriality.

What you're on about WRT "creat[ing] new law claiming to be 'interpreting' a statute" is beyond me; I suspect you're just confoozed, "Bart"....

As the DC District noted in its opinion, the federal courts do not have a common law power to create new habeas jurisdiction.

This is gibberish.

Here's Rasul on habeas:

"Congress has granted federal district courts, "within their respective jurisdictions," the authority to hear applications for habeas corpus by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §§2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners "in custody, under or by colour of the authority of the United States, or committed for trial before some court of the same." Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 82. In 1867, Congress extended the protections of the writ to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See Felker v. Turpin, 518 U. S. 651, 659-660 (1996).

"Habeas corpus is, however, "a writ antecedent to statute, ... throwing its root deep into the genius of our common law." Williams v. Kaiser, 323 U. S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared 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 Privilege 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.

"As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus "beyond the limits that obtained during the 17th and 18th centuries." Swain v. Pressley, 430 U. S. 372, 380, n. 13 (1977). But "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." INS v. St. Cyr, 533 U. S. 289, 301 (2001). See also Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). As Justice Jackson wrote in an opinion respecting the availability of habeas corpus to aliens held in U. S. custody:

"Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint." Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 218-219 (1953) (dissenting opinion).

"Consistent with the historic purpose of the writ, this Court has recognized the federal courts' power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U. S. 1 (1942), and its insular possessions, In re Yamashita, 327 U. S. 1 (1946)."

Rasul v. Dubya, 542 U.S. 466, ___ (2004).

The Rasul court then went on t say:

"The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not
'ultimate sovereignty.'6"

Id.

Their answer was "yes". Their reasoning I have quoted above, and you really haven't replied to it.

Therefore, the Court is limited applying whatever habeas rights were incorporated by the Suspension Clause. Because it has no common law power to create new jurisdiction, ...

Huh?!?!? Did you read the Braden decision?!??

... the Court has two options - (1) apply the common law in existence at the time of the enactment or (2) apply the habeas right as it exists under today's statute. As I pointed out above, the second option is highly questionable because it would allow Congress to determine the scope of the constitutional habeas right by simply passing a statute. However, habeas jurisdiction does not reach the Gitmo detainees under either analysis.

Huh?!?!? Rasul quoted Braden in explaining why there was jurisdiction in Rasul. You are either ignoring what Braden said, or you just don't understand it.

If statutory habeas relief is available to those in Gitmo by dint of the custodian being in Washington, D.C., why doesn't the same pertain to the Boumediene petitioners?

You will have to find another peg to hang your hat on than territoriality, if you want to argue that habeas relief is not available to the Boumediene petitioners.

Cheers,
 

"Bart" DePalma:

This is precisely the reason I think the DC Circuit erred by failing to hold that foreign enemy combatants simply do not enjoy habeas corpus rights to challenge their detention for the duration of the war, judicially recognize that the military has designated the petitioners as foreign enemy combatants and then dismissing their petitions.

But then you'd have to deal with the holding to the contrary in Schiever (granting habeas review, but finding that the imprisonment there was proper on the facts), something that you've assiduously avoided for some reason.....

Cheers,
 

I said:

But then you'd have to deal with the holding to the contrary in Schiever (granting habeas review, but finding that the imprisonment there was proper on the facts), something that you've assiduously avoided for some reason.....

... not to mention everyone's favourite, Ex Parte Quirin:

"Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void.

"The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of [317 U.S. 1, 25] persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission."

Cheers,
 

"Bart" DePalma says:

Such a bright line rule is well supported in the common law when the Constitution was adopted....

"Proof by repeated assertion" again.... <*SIGH*>

One word, Ben, just one word: Schiever.

Cheers,
 

"Bart" DePalma says:

1) The military has the experience and expertise to determine who is or is not an enemy combatant, most especially unlawful enemy combatants who intentionally attempt to disguise their identities....

More "proof by repeated assertion".

But a more important question is whether the maladministration that believed a drunken sot like "Curveball" and brought you the Iraq "catastrophic success" -- not to mention Katrinagate -- is any good at this. Because the MCA puts this authority in the hands of the Doofus-In-Chief.

Cheers,
 

"Bart" DePalma says:

However, there is no law precisely defining an unlawful enemy combatant.

Sure there is (and "Bart" even tried [unsuccessfully] to cite it):

Whoever the Deciderator-In-Chief -- or whatever lackey he picks -- says is an "unlawful enemy combatant": 948a(1)(A)(ii) "a person who ... has been determined to be an unlawful enemy combatant by a [CSRT] or other 'competent tribunal' established under the authority of the Preznit [or the disgraced Donald Rumsfeld]." Guess maybe there's some gummint work coming up for Frank Gaffney and Donald "TFSMOTFOTE" Feith....

"Because we said so! We doan need no steenkin' evidence...."

Cheers,
 

Thanks for the nice post!

Free PS3
 

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An update today from a guy who is not a threat to the United States and never was: Lakhdar Boumediene>
 

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