Balkinization  

Thursday, June 21, 2007

Does the Constitution Apply in Kansas?

Marty Lederman

Certain factions within the Administration have leaked word that a "consensus" is developing within the Administration to close the Guantanamo detention facility and to move at least some of the detainees there to the maximum security prison at Fort Leavenworth, Kansas.

The suggestion is, according to these officials, "gaining momentum with at least tacit support from the State and Homeland Security departments, the Pentagon, and the Intelligence directorate" . . . but . . . "Cheney's office and the Justice Department have been dead set against the step," and "could still block the proposal."

So hold onto your hats. (And even if "some" detainees are moved to the mainland . . . what about the remainder?)

Cheney and DOJ, of course, oppose the move to Kansas because that would -- heaven forbid -- "give [the detainees] undeserved legal rights."

Fairly safe prediction: If the detainees are moved to Fort Leavenworth, the Administration will argue in court that they still are not entitled to any constitutional protections, because their presence in the U.S. would be entirely involuntary. It's a tougher argument than the already tenuous idea that the Constitution does not apply at GTMO; but don't be surprised to see it play a prominent part in any possible change of venue.

Comments:

They can simply put that portion of the prison under the direct control of Dick Cheney's office, which, we have learned, is apparently not part of the Executive, Judiciary, or Legislative branches of government, and apparently not covered in the constitution.

His office, where Dick Cheney rules by fiat, neither makes laws, determines their constitutionality, nor obeys them, which pretty much takes care of the problem.
 

who knew cheney could issue a signing statement that he will not be bound by laws that impinge on the Vice President's perogatives to unduly tamper with our country?

rahm had the best retort was that if it is the case he is not part of the executive branch he should move the hell out of the white house.
 

If the detainees were at Fort Leavenworth, I think the administration would have no viable arguments left against habeas rights. Whether habeas would provide an avenue to substantive rights under the Constitution is another question entirely.

(BTW, I heard a version of this story on CNN, which reported that one possibility under consideration is for most of the Guantanamo detainees -- apparently those who would not be charged and tried in tribunals -- to be sent to a new prison in Afghanistan.)
 

The Afghan-prison idea is scary -- Katherine @ ObWi has worried about their being sent to Bagram, far from sight & mind.
 

Actually, the administration would likely rely most on its argument that military proceedings under the MCA and DTA provide a constitutionally acceptable surrogate for habeas.
 

This story, as I say at Unbossed, is pretty evidently an attempt by anti-Gitmo forces in the administration to wrong-foot Cheney in advance of any meeting. Put the public on notice that the administration is "close" to shutting down Gitmo, so as to pressure Bush directly. The problem has always been that anything Bush agrees to in a larger meeting of advisors is likely to be undone by Cheney afterwards in a private session with Bush.
 

I believe Cheney's correct that he's no longer a part of the executive branch. In support of that position, I maintain that we are thus under no obligation to pay his salary or his perks or to grant him a say in any policy or legislative development.

That course is, after all, the only check we have on his unbalanced-ness.
 

This situation is precisely why the Executive should have been arguing from the beginning that foreign enemy prisoners of war (in the generic and not the GC definition of that word) have never and do not enjoy habeas corpus review of their wartime detentions or a constitutional right to a civilian criminal trial as an alternative to wartime detention.

The US has detained literally hundreds of thousands of prisoners of war inside the US for the duration of a conflict since the War of Independence without once extending habeas review of or providing civilian criminal trials as an alternative to wartime detention.

This pretty much demonstrates what a radical project treating POWs as civilian criminals is in our history.
 

There is another consideration which needs to be taken here - the effect of these policies on the incentive to take prisoners in the first place.

al Qaeda has just tortured and slaughtered three more of our soldiers recently. In contrast, the civilians back home are debating granting al Qaeda prisoners civilian trials or releasing them outright.

Thus, I was not surprised to read in Michael Yon's blog from the Iraqi front that the Army engaged in clearing al Qaeda from Baqubah is no longer dropping leaflets urging al Qaeda to surrender. Rather, their intent is to methodically kill the enemy and remove them permanently from Iraq.

Given the current state of events, exactly what is the military's incentive to take al Qaeda prisoners?

BTW, for those who are unfamiliar with Michael Yon, he is one of a new breed of internet reporters who do their own on the scene research and do their own reporting. If you want a good idea of the actual day to day life and operations of the military in Iraq which the Green Zone hotel reporters miss, I strongly urge you to read Yon's dispatches.
 

So, Bart, these people are now POW's, not enemy combatants, in your opinion?

Interesting, although it strikes me as a bit inconsistent on your part, from skimming some of your past comments.

Of course, since the US military isn't taking any more candidates, this question is moot. I'm sure that taking warfare back to prehistorical ethics by instituting taking no prisoners as policy will have a calming effect on the struggle for the hearts and minds of their relatives and countrymen.
 

The US has detained literally hundreds of thousands of prisoners of war inside the US for the duration of a conflict since the War of Independence without once extending habeas review of or providing civilian criminal trials as an alternative to wartime detention.

Once again, how many of those generic prisoners of war openly disputed their status?

If you catch a confederate soldier wearing a confederate uniform who says "Yes, I'm a confederate soldier. Let's get on with this summary execution already!", that's a different situation than a detainee who says "I was illegally picked off the streets at a border crossing, sold to agents of your country, and by the way, I've done nothing wrong, and the government has shown no evidence that I've done anything wrong. While you're talking to me, though, could ya stop the non-torturous torture thing? It's really uncomfortable."
 

PMS_Chicago said...

Once again, how many of those generic prisoners of war openly disputed their status?

There is generally no record concerning this since unlawful enemy combatants who fought in civilian clothing and contrary to the law of war were generally executed without any legal process at all.

No courts attempted to extend habeas review to these cases until recently.

As for whether unlawful enemy belligerents enjoy a constitutional right to trial, this was resolved against the unlawful enemy belligerents in Quirin.
 

C2H50H said...

So, Bart, these people are now POW's, not enemy combatants, in your opinion?

The generic term prisoners of war simply means captured enemy combatants detained for the duration of the war. This includes lawful and unlawful enemy combatants.

The GC requires a stricter definition in order to enjoy treaty benefits as a prisoner of war. This definition only covers lawful enemy combatants who follow the law of war.

When I refer to POWs, I am using the generic definition.
 

JaO: Actually, the administration would likely rely most on its argument that military proceedings under the MCA and DTA provide a constitutionally acceptable surrogate for habeas.

Have you seen the news today about Lt. Col. Abraham's take on the CSRTs?

From the AP:
Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only "generic" material that didn't hold up to the most basic legal challenges.

Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.

"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an "enemy combatant."

 

PMS_Chicago,

Although Bart tries to dodge this in a later post, your point is excellent. Bart tries to point out Abraham as an example of the system working, while a thorough reading shows that he is a definite exception to the rule that it is not working.
 

Fraud Guy said...

PMS_Chicago, Although Bart tries to dodge this in a later post, your point is excellent. Bart tries to point out Abraham as an example of the system working, while a thorough reading shows that he is a definite exception to the rule that it is not working.

An example of the CSRT system not working would be an innocent unaffiliated with the Taliban or al Qaeda being found an enemy combatant by the CSRT. LTC Abraham does not provide any such example. His own anecdote indicates quite the opposite.
 

Bart,

You obviously skipped the comprehension part of the speed reading course.

Abraham made a couple of damning (to your assumptions) assertions in his affadavit.

First, while he stated that he never saw exculpatory evidence (which is where you stopped reading, or comprehending), he also stated that he had to state that he could not make a determination that there was no exculpatory evidence because he could not see all evidence or detailed evidence which would support the conclusion that he was being asked to make (i.e., state that the was NONE).

Second that the evidence he saw when he was part of a CSRT panel was insufficient for that panel to declare a detainee an enemy combatant. The other portions indicate that other such evidence that he saw, as a liaison with the readers who prepared the information for many other CSRTs (since he was one of the few staffers with sufficient qualification) was of a par with that which easily allowed his panel to make the non-EC determination. However, the non-EC determination was rare (less than 10% per your numbers in another thread), and all such determinations caused high level reviews of the determinations to find out "what went wrong"--apparently, why didn't the reviewers find the detainee to be an enemy combatant. Apparently, in Abraham's case, his decision resulted in him not being allowed on another CSRT panel.

It sounds very much like there were many more detainees who should not have been designated enemy combatants, because there was no there, there, just like in your counterfactual interpretation.
 

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