Balkinization  

Saturday, March 24, 2007

Why the Administration is Legally "Constrained" from Moving the GTMO Detainees to the Mainland

Marty Lederman

The President has stated that he desires to shut down the detention center at Guanatanmo. The Secretary of State agrees. And the New York Times now reports that new Defense Secretary Gates, endeavoring to put the President's desires into action, has proposed that the GTMO detainees be transferred to a facility here in the continental United States. Gates "repeatedly argued that the detention facility at Guantánamo Bay, Cuba, had become so tainted abroad that legal proceedings at Guantánamo would be viewed as illegitimate, according to senior administration officials. He told President Bush and others that it should be shut down as quickly as possible."

The Secretary of Defense actually thinks that retaining the detainees at GTMO rather than on the mainland "hamper[s] the broader war effort" -- and there's indication the President and Secretary Rice agree -- and yet the Administration will not move them.

Why?

That's what one reporter asked Tony Snow yesterday:
Q Why is it that the President's stated desire to close Guantanamo Bay cannot be turned into some kind of plan of action?

MR. SNOW: Because there are legal constraints. . . . [T]he President made clear back in September that he would love to be able to shut it down, but unfortunately the circumstances do not presently permit."

And what might those "legal constraints" be?

According to the Times, "[s]ome administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights."

In particular, if the GTMO detainees facility were transferred to a U.S. mainland site, they would unarguably be protected by constitutional due process and the right to petition for habeas corpus. And we wouldn't want that, would we? Better that we should continue to "hamper the broader war effort."

[Note: Just to be clear -- I think the Supreme Court, if it reaches the questions, will likely hold that the detainees have due process and habeas rights even at GTMO. Therefore, it's likely that the only "cost" to the Administration of moving the detainees to the continental U.S. would be to foreclose the Department of Justice from arguing to the contrary.]

Comments:

This comment is a result of the D.C. Circuit's self limited opinion based on venue. In fact, we have held POWs in the United States during multiple wars and never extended constitutional habeas corpus or due process rights to them. In order to grant the Gitmo detainees the constitutional rights they seek, the Supremes would have to ignore or reverse Quirin (which denied 5th and 6th Amendment rights to petitioners) and Eisentrager(which denied constitutional habeas rights to petitioners).
 

L.S.,

Not to start the whole discussion all over again, but these prisoners are not POWs (no one ever claimed they were, if for no other reason that there isn't really a war on at the moment), so it follows that they are private citizens, entitled to the same rights that I am/would be.

Personally I find it curious that the rules of jurisdiction might have as a consequence that the Federal government can decide unilaterally whether the prisoners it holds can sue in federal court...
 

Bart: In fact, we have held POWs in the United States during multiple wars and never extended constitutional habeas corpus or due process rights to them.

In actual fact, according to the solicitor general, Ali al-Marri -- the only alien held as an "enemy combatant" in the United States since 9/11 -- already has received habeas review, but relief was denied on the merits. The government's position is that al-Marri's habeas proceeding, devised by a magistrate judge, provided him as much process as a U.S. citizen held as an "enemy combatant" (such as Hamdi) would be due. Al-Marri is appealing, and the government argues that the Military Commissions Act denies jurisdiction to federal courts to decide that appeal.

In none of the Guantanamo cases has the government even claimed -- let alone a court ruled -- that "POWs" or "enemy combatants" per se are denied habeas review. Rather, the administration has staked its case on a theory that there is no constitutional habeas jurisdiction for aliens held outside U.S. sovereign territory. If the detainees were moved to Fort Leavenworth or the Charleston brig when al-Marri is held, that geographic distinction would go away.
 

You've made an excellent point but you haven't made it anywhere near strongly enough. Bush may say he'd like to see an end to Guantánamo "detentions" but that itself is political theater as was Bush's wish to find the Plame leaker. But the significance and symbolism of Guantánamo runs straight to the heart of Republicanism (and I use that word with all the disgust and more that Republicans have toward using "Democratic" with a capital "D").

The innocuous Republican word to describe the Republican nirvana is "flexibility." Flexibility to act in whatever manner they choose, if it should be frivolous and wasteful or bloody and murderous. We see this with any suggestions of oversight of executive branch activities but also any oversight and accounting of corporate executive activities. Laws and regulations to provide oversight for corporations are considered damaging to the economy and America, even in the face of the obviously damaging events of Enron, World Con, et al and right now, the lone shark mortgage scam, err, sub prime mortgage meltdown. In contrast, for unions, which represent a check on corporate "flexibility," there isn't enough regulation to restrict union operations. Same for environmental concerns. Same for "tort" attorneys. Class action, which for the most part has become an attorney scam to rip off the public, is still a threat because, though the public sees almost no benefit from victorious class action suits, those suits are restrictions on corporate "flexibility" - corporate malfeasance.

I too am getting away from the metaphor that best suits Republicanism. Guantánamo is the nirvana of Republican "flexibility." It is the totalitarian state with no oversight and no restrictions on Republican actions what-so-ever. Republicans can take their real and perceived adversaries and strip them naked and force them into pyramids to be photographed and humiliated. As Rush Limbaugh would suggest, to Republicans that's just a prank and not worthy of restriction or even consideration. Stuffing adversaries into sleeping bags, beating them and then sitting on them till they die of suffocation? The only problem with those sort of actions is when the "beautiful minds" of the people are exposed to them and get upset. The problem of Republican murder isn't the murder, it's the disclosure of the murder. That restricts Republican "flexibility." When the Abu Ghraib attrocities were first disclosed the primary concern from Donald Rumsfeld, the man most responsibile for those attrocities, was that they were disclosed to the public. Not the attrocities themselves. Those were brushed off in true "show trials" of "bad apples" with no examination of the "executives" responsible.

If Republicans had their way all of America would be like Guantánamo detention centers. The ideal Republican republic. Even now, with Americans vastly against the Bush group actions, we're told that Republicans are making the tough choices that the American public, in their child like way, want to avoid. American public will is a restriction on Republican "flexibility." Fair elections are a restriction on Republican "flexibility." The constitution is a restriction on Republican "flexibility." The only right you have is to hail the Commander-in-Chief.

And any regard towards the Supreme Court seems absurd to me. The "Supreme Court" and the Bush group have been dancing a kabuki dance with each doing their best to do their worst yet avoid having a face off. The only concern most of the members of the "Supreme Court" have with the actions and excesses (crimes, high, low and everywhere in between) is that they must not rule to make themselves irrelevant. Once they rule in that way then they do become both irrelevant and unnecessary for consideration by the Bush group. The invites for duck hunting trips will end. The membership in exclusive clubs will end. The restriction on Republican "flexibility" that the Supreme Court represents is fully recognized by the Republicans on that court and their only interest is in maintaining their "flexibility."

Where does America fit in this Republican republic? Don't make me laugh.
 

JaO said...

Bart: In fact, we have held POWs in the United States during multiple wars and never extended constitutional habeas corpus or due process rights to them.

In actual fact, according to the solicitor general, Ali al-Marri -- the only alien held as an "enemy combatant" in the United States since 9/11 -- already has received habeas review, but relief was denied on the merits.


As you well know from our previous discussions on the topic, I am referring to the status quo ante the Supreme Court's recent rewriting of the habeas corpus statute which Congress has twice corrected in the DTA and MCA. The initial al Masri habeas review was based upon those now reversed statutory decisions, not on the constitutional right which is now at issue.

In none of the Guantanamo cases has the government even claimed -- let alone a court ruled -- that "POWs" or "enemy combatants" per se are denied habeas review. Rather, the administration has staked its case on a theory that there is no constitutional habeas jurisdiction for aliens held outside U.S. sovereign territory.

In previous cases, the argument concerned an interpretation of the habeas corpus statute. Of course, the common law in existence prior to the enactment of the Constitution would have no bearing in interpreting the current statute.

We are just now getting to the issue of the scope of the habeas right incorporated into the Constitution. The D.C. Circuit avoided ruling on the issue I raised by making a venue ruling. Thus, the venue issue is what is under appeal and being addressed by the parties. If the Supremes decide to accept cert, it will be interesting to see whether the Government decides to go beyond the ruling of the D.C. Circuit.
 

For those who are interested in the basis for my contention that the common law incorporated into the Constitution via the Suspension Clause had a bright line rule that habeas corpus did not extend to foreign prisoners of war to challenge their wartime detention, I have posted at my blog the entire entries from the British reporters of the Schiever and Three Spanish Sailors decisions by the King's Bench along with analysis.
 

marty,

you hit the nail on the head when you concluded that the administration won't move them because it would foreclose the opportunity to argue their ridiculous jurisdictinal claims.

this is also consistent with their constant desire to increase the power of the presidency by refusing to allow congressional or judicial oversight of their actions.

karl won't testify under oath, the pow's are outside judicial jurisdiction, signing statements, evesdropping, phone jamming, secrets leaking, flunky promoting, fraud, waste and corruption.

i think bush has decided to go out guns blazing.
 

Bart: We are just now getting to the issue of the scope of the habeas right incorporated into the Constitution. The D.C. Circuit avoided ruling on the issue I raised by making a venue ruling.

Actually, Boumediene was not a ruling on "venue" -- the term does not even appear -- but on congressional action in the MCA to strip habeas jurisdiction for a particular class in a particular place. In the words of Judge Randolph: "Do federal courts have jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba?"

If the Supremes decide to accept cert, it will be interesting to see whether the Government decides to go beyond the ruling of the D.C. Circuit.

It would indeed be interesting -- perhaps hilarious -- if the government adopted the off-the-wall theory "raised" by a blog troll, especially since both the D.C. Circuit and the Supreme Court have adopted a reading of precedent that is at odds with that theory.

Meanwhile, I am interested in the arguments the government actually makes. If Paul Clement ever adopted the theory that the habeas writ's jurisdiction excludes all alleged "POWs" and "enemy combatants" per se, no matter where they are held, I would begin to take it seriously. So far, he avoids making that argument in any case.
 

jao:

Actually, Boumediene was not a ruling on "venue" -- the term does not even appear...

Venue is simply geographical jurisdiction, which was the basis of the DC Circuit opinion.

If Paul Clement ever adopted the theory that the habeas writ's jurisdiction excludes all alleged "POWs" and "enemy combatants" per se, no matter where they are held, I would begin to take it seriously.

You are confusing law with litigation tactics.

The government is facing a 5 justice majority which has felt no compunction against rewriting the law in the past in favor of this novel extension of habeas review to prisoners of war. They are making their play to peel Kennedy off of that majority by making arguments calculated to appeal to his sensibilities.

Making my categorical bright line argument probably probably would not accomplish that goal. Generally, courts will narrowly rule on issues and avoid broad bright line rules which limit their future options. This is especially the case if they have shown a propensity to exercise those options in the past. Therefore, the Government is soft peddling their approach with arguments that Congress has complied with the Court's request to set rules for unlawful enemy combatants and giving Kennedy an out on the constitutional front with the venue argument.

In any case, what the government does or does not decide to argue has no bearing on the legal basis for my argument. You are essentially engaging in a negative citation to authority logical fallacy rather than addressing the argument itself.
 

The Bush admin has an established record of what they consider to be the truth: only final determination in the Supreme Court can lead them to change, or seek to change the rules to start the process over again.

Although it is their legal right to do this, they use it to set up maintain a big advantage over any challengers.

But the courts can issue injunctions, which could restore some balance.

What about the Congress? If Bush continues to exert executive privilege on a case by case basis, he can easily run out the clock. If we assume both sides of this standoff are arguing in good faith, there isn't much political will to do anything about it. But I was reading about the Sergent at Arms. It appears this is the top executive for the Senate. On the senate website there is this description:

"The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States."

From Sergent At Arms

Instead of going through the whole process of a trial and appeals for Contempt of Congress, couldn't they just detain anyone who refused to testify, at least to take the 5th?
 

Bart: In any case, what the government does or does not decide to argue has no bearing on the legal basis for my argument. You are essentially engaging in a negative citation to authority logical fallacy rather than addressing the argument itself.

Bart's "argument" has been refuted at length in other threads, notably this one. To rehash that here would simply reward Bart's tactics as a propagandist, which repeat the same unsupported assertions anew in thread after thread on other people's blogs, long after the assertions have been knocked down. I suggest that anyone interested in engaging that "argument" further take up Bart's invitation above to comment at his own blog.

The discussion on this blog, including Bart's last comment, merely reinforces the point of Marty's original post above, which is all about what the government is willing to argue. And yes, legal tactics include counting votes on the Supreme Court. Ever since the 8-1 smackdown in Hamdi, and other losses in Rasul and Hamdan, it has been apparent that the kind of "bright-line argument" Bart advocates is a loser. So the administration's general strategy in the "war on terror" cases is to avoid the courts at all costs, even overriding the policy preferences of its own current secretaries of Defense and State to try maintaining a law-free zone in Guantanamo as long as possible.
 

jao:

Bart's "argument" has been refuted at length in other threads, notably this one. To rehash that here would simply reward Bart's tactics as a propagandist...

:::chuckle:::

Do you think you have a virtual audience of some sort here or are you just trying to convince yourself of something?

I did indeed have a fine conversation on this topic with several people on the thread to which you linked. However, you did not appear to be one of the ones offering a legal argument to contest my points, so there is nothing for you to rehash.

If you do develop a legal argument in the future and want to test it, I would be pleased to chat with you.

Ever since the 8-1 smackdown in Hamdi, and other losses in Rasul and Hamdan, it has been apparent that the kind of "bright-line argument" Bart advocates is a loser.

Your citation to authority fallacies are getting weaker. The Supreme Court has not addressed my argument, nevertheless "smacked it down." Whether they will get the opportunity this time around remains to be seen. Meanwhile, you are welcome to give it your best shot.
 

Bart: The Supreme Court has not addressed my argument, nevertheless "smacked it down." Whether they will get the opportunity this time around remains to be seen.

... if and when the government even makes it. In the meantime, as Marty points out, the administration continues trying to to hide behind Guantanamo's geography instead.

As for the substance of Bart's argument, and its rebuttal, his repetition of his own conclusion today adds nothing new.
Interested readers can follow the links above to prior threads -- and this one -- and reach their own conclusions.
 

jao:

You really should not put so much stock on the common wisdom of some legal bureaucracy and do your own thinking.

While I was waiting for the bar exam and background process to finish up, I clerked for the Florida State University System.

At that time, a group of older professors filed an age discrimination suit (Kimel v. Florida Board of Regents) against the university system pursuant to the Age Discrimination in Employment Act of 1967 (ADEA) because Florida Universities were often paying younger professors more to attract them in a competitive market. The State filed and lost a perfunctory motion to dismiss under an Eleventh Amendment sovereign immunity theory.

My boss asked me to perform some research to determine whether the 11th Amendment argument was worth appealing to the 11th Circuit. At that time, this argument had lost in a majority of other Circuits, but the 11th Circuit and the Supreme Court had recently issued some favorable decisions.

In a meeting between the AG's office and the University attorneys which I attended, the AG attorneys refused to appeal the decision because they claimed the argument was hopeless in view of the weight of Circuit court opinions. The University attorneys were not sure whether to proceed on their own.

After the meeting, I argued that we actually had a pretty good chance of prevailing in the 11th Circuit. To clinch the deal, I offered to do all the work on the brief myself at the whopping $7.50 an hour I was earning as a clerk and free up the University attorneys to do their usual work. They took me up on the offer and had another attorney sign off on the brief I provided them.

My "hopeless" Eleventh Amendment argument won at the 11th Circuit and then again before the Supremes. Kimel v. Florida Board of Regents, 521 U.S. 507 (1997).

Like any other attorney, I have won and lost my share arguments over the years. However, I could give less than a damn what the conventional wisdom is and I do my own thinking.
 

"Bart" DePalma, clueless and careless as ever:

The initial al Masri habeas review was based upon those now reversed statutory decisions,...

"al-Marri". Get the freakin' case right, willya?

But "Bart" continues this insane blather about Congress "revers[ing]" the Rasul and Hamdan decisions. I've disposed of this nonsense before (see also above in that thread), but "Bart" just trots it out again and again ... and again.

Cheers,
 

"Bart" DePalma invites people t subject themselves to more of his faux "scholarship":

For those who are interested in the basis for my contention that the common law incorporated into the Constitution via the Suspension Clause had a bright line rule that habeas corpus did not extend to foreign prisoners of war to challenge their wartime detention, I have posted at my blog the entire entries from the British reporters of the Schiever and Three Spanish Sailors decisions by the King's Bench along with analysis.

I've eviscerated his previous nonsense here. No need to visit his new crapola; "Bart"'s garbage just isn't worth the time.

Cheers,
 

"Bart" DePalma slept through 1L:

[Jao]: Actually, Boumediene was not a ruling on "venue" -- the term does not even appear...

Venue is simply geographical jurisdiction, which was the basis of the DC Circuit opinion.


Oh, so the courts can cure the case by simply making a change in "venue"? OK. Why didn't someone just say so early on, and save a lot of people a lot of time and money?

ROFLMAO....

Cheers,
 

"Bart" DePalma toots his own horn:

While I was waiting for the bar exam and background process to finish up, I clerked for the Florida State University System.

At that time, a group of older professors filed an age discrimination suit (Kimel v. Florida Board of Regents) against the university system pursuant to the Age Discrimination in Employment Act of 1967 (ADEA) because Florida Universities were often paying younger professors more to attract them in a competitive market. The State filed and lost a perfunctory motion to dismiss under an Eleventh Amendment sovereign immunity theory.

My boss asked me to perform some research to determine whether the 11th Amendment argument was worth appealing to the 11th Circuit. At that time, this argument had lost in a majority of other Circuits, but the 11th Circuit and the Supreme Court had recently issued some favorable decisions.

In a meeting between the AG's office and the University attorneys which I attended, the AG attorneys refused to appeal the decision because they claimed the argument was hopeless in view of the weight of Circuit court opinions. The University attorneys were not sure whether to proceed on their own.

After the meeting, I argued that we actually had a pretty good chance of prevailing in the 11th Circuit. To clinch the deal, I offered to do all the work on the brief myself at the whopping $7.50 an hour I was earning as a clerk and free up the University attorneys to do their usual work. They took me up on the offer and had another attorney sign off on the brief I provided them.

My "hopeless" Eleventh Amendment argument won at the 11th Circuit and then again before the Supremes. Kimel v. Florida Board of Regents, 521 U.S. 507 (1997).


Ummmm, Seminole Tribe v. Florida was decided in March, 1996.

This was really the death knell for Union Gas, which had been on life support for a while.

Of course, this line of cases is predicated on a reading of the Eleventh Amendmen as saying precisely what it explicitly does not say, to wit, that the Eleventh Amendment prhibits cases against a state by citizens of that state. An absurd conclusion, but one favoured by such sticklers for literalism as Scalia.

["Bart"]: "My 'hopeless' Eleventh Amendment argument won...."

Wow. "Bart" tries to pretend that he came up with that coprolithic nugget. Bosh and balderdash.

Cheers,
 

arne:

Ummmm, Seminole Tribe v. Florida was decided in March, 1996. This was really the death knell for Union Gas, which had been on life support for a while.

Very good. That was my opinion as well at the time. What made success more likely is that the Seminole Tribe decision came out of the 11th Circuit. Therefore, both levels of appeals were favorable for our argument. Fortunately for me, the AG's office did not agree and I got to run with the ball.

The point of my vignette was to provide an example of why you do not listen to naysayers simply because they are in a position of authority when you know you are right about a legal argument or essentially anything else in life. There is a reason why citation to authority is considered to be a logical fallacy.
 

"Bart" DePalma:

The point of my vignette was to provide an example of why you do not listen to naysayers simply because they are in a position of authority when you know you are right about a legal argument or essentially anything else in life....

Well, seeing as you were the dirivng force behind this nonsense, care to explain to us dummies and legal ignoramuses (ignorami?) here how the Eleventh Amendment says precisely what it doesn't say? How did you finesse that little issue in your "brief"? Maybe with 'scholarship' and slipshod 'logic' like this, perchance?

But just a word of clarification: You were harldy a 'lone voice crying in the wilderness' in wanting to take the ol' "state's rights" approach (as I noted above). Why do you pretend that was such a brave stand? It certainly isn't a very honest one, for the reason I've made plain: The Eleventh Amendment does not bar suits in federal court by a citizen of that state; it is explicit in what suits it bars and that is not one of them:

Amendment XI:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

They could have said: "You can't sue a state in federal court, no way, no how, nya-nya-nya." They didn't. So why you think it means that is a total mystery to me.

Cheers,
 

"Bart" DePalma says he's a lawyer:

There is a reason why citation to authority is considered to be a logical fallacy....

Wow. Missed that point. But then again, I might have been a few minutes late to the first lecture of the first day of law school.....

ROFLMAO....

Guess I also missed the point where my law perfessers explained that citing to authority when the authority cited to doesn't say whay you say they say makes such 'argument' then acceptable.

Cheers,
 

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