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Tuesday, December 04, 2007
Boumediene, on the Eve of Argument
Marty Lederman
I am part of an online "debate" on the Boumediene case that the Federalist Society has posted today. The oral argument is tomorrow morning. My co-discussants are former White House counsel Brad Berenson, the Cato Institute's Tim Lynch, and former federal prosecutor Andrew McBride.
Comments:
I am less sanguine about the court's ability to answer yes on any of the three questions. Rasul will be left as statutory and not constitutional. The procedures will be considered minimal. The enemy combatant definition will be allowed to be far more capacious than the laws of war. And then the dragnets will start in earnest but - don't worry! - only of foreigners abroad.
Best, Ben
According to [Andrew McBride], “[n]o Anglo-American court has ever recognized a habeas corpus right in alien enemies held outside the territorial jurisdiction of the capturing state. Not one. Ever.”
Andrew would have been better advised to narrow that argument to no Anglo-American court has ever recognized that a foreign POW has the right to challenge the military's designation of him as a POW in a civilian count pursuant to a habeas corpus review. Quirin and Yamashita can be easily distinguished from the instant case because they sought habeas corpus review of criminal convictions by United States courts or military commissions. In those cases, the government brought them into our justice system and thus arguably habeas corpus review. However, the instant question is fundamentally different from that presented in Quirin and Yamashita. The Gitmo petitioners are not seeking review of a criminal justice conviction, but instead are seeking to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW for the duration of a war. There is absolutely no precedence for substituting civilian habeas corpus review for military status hearings to determine whether a person is properly a POW. Indeed, the British common law which the new United States inherited and incorporated into the Constitution makes it clear that habeas corpus rights or indeed any rights of citizens are not extended to foreigners held by the Crown as POWs. The government and multiple amici have taken up this argument in their briefs to the Court. Therefore, the petitions of the Gitmo detainees should be dismissed by the Supreme Court on the first question. Whether Kennedy will follow the law remains to be seen.
we can listen live via cspan radio from the supreme court for arguments tomorrow, starting at 11:15am.
"Andrew would have been better advised to narrow that argument to no Anglo-American court has ever recognized that a foreign POW has the right to challenge the military's designation of him as a POW in a civilian count pursuant to a habeas corpus review."
Does this mean that the held enemy combatants are indeed Prisoners of War, and thus entitled to the legal protections afforded by that designation?
drational:
The generic term prisoner of war as used in the habeas common law incorporated into the Constitution is simply a enemy alien detained for the duration of the war. All the Gitmo detainees fall under this definition. The definition to which you refer is the Geneva Conventions' much narrower definition of those who qualify for GC privileges. The Gitmo detainees fail to meet one or more elements of this definition. I would commend the government and amici briefs to which I linked above for your reading. They cover all of this in detail with cites. Hopefully, Justice Kennedy is paying attention.
anderson:
The question you raise was not posed by drational and therefore could not be begged. As I posted above, the issue is whether foreigners have a constitutional right to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW. Time will tell whether the Court will ignore the pre-constitutional habeas corpus common law create such a right out of whole cloth.
Regarding Prof. Lederman's argument that the third question-- whether Congress has authorized the detention of "enemy combatants" as the President has attempted to define them-- is most important, it seems highly unlikely that the Court will answer this. It's perfectly coherent to say that the President does have detention authority, but that those detainess can nonetheless challenge those detentions with habeas petitions. It seems almost certain that at least five justices will rule this way; but it seems equally certain that they will be unwilling to add, for good measure, that the Boumediene petitioners cannot lawfully be held at ALL.
The point here is that questions on the identity of the detainees, who can hold them, and where, cannot even be answered by a court without gateway access to the judicial system, i.e., through habeas petitions. The habeas right (though I hesitate to call it that, since it's more a question of what Congress can and cannot constitutionally do, and less one of what's "owed" to prisoners) is the lowest common denominator here, but a ruling on this account would be significant enough that the Court is unlikely to go further. As for the adequacy of the CSRT tribunals, Hamdan precedent alone is enough to answer the question, decisively, that these are not meaningful substitutes.
I have argued that the third question precedes the second. If the Court finds that the administration's position in this case does not express a prima facie claim of combatant status, then they can rule as a matter of law that the detainees are entitled to Habeas. They never get to the question of whether facts are better evaluated by a military or judicial process in all the other cases (al Odah) where a hearing on the facts is required.
The court may not choose in this case to define "enemy combatant" except to say that Boumediene clearly doesn't fall within any of the definitions.
Scalia and Roberts appear to support my position that there is no preconstitutional common law precedent for a right to habeas review. No surprise.
However, the other justices do not seem to be eager to have the civil courts assume these reviews and were asking what standards might be required of the CSRTs. Even if Kennedy and the 4 liberals find a constitutional right to habeas review, the majority may want to end this by simply ordering certain standards for CSRT status reviews.
"Bart" DePalma:
At the risk of Cuisinarting a dead equine: The question you raise [was Boumediene and "enemy combatant"?] was not posed by drational and therefore could not be begged. It is one of the prime questions raised (see Prof. Lederman's point #3). Even if we assume that "enemy combatants" held in foreign territory have no habeas rights, without some workable definition of "enemy combatant" (outside of the maladministration's 'say-so'), it would seem that you are of the impression that the U.S. gummint is free to hold (and kidnap) anyone they want in other countries without any legal constraints or recourse. This is perhaps a position that could be argued, but that being said, it would seem to be far from a general view of the powers of gummints and international law. Stangely enough, that does seem to be the view of some in the U.S. gummint, even if it is not the prevalent view internationally. But at least in that case, the kidnapee would have a right in U.S. court once "rendered" to demand that the gummint show cause as to why he was being held. Your view seems to be that such recourse in not available as long as the magic words "enemy combatant" are said. Without a proper showing (to a court or other disinterested party) that the person is in fact an "enemy combatant", there simply is no limit as to who can be grabbed and held ... and held indefinitely. That would seem to be the very thing that the Great Writ had been instituted to prevent. If your position is that all foreigners outside the U.S., regardless of other status, have no habeas rights, out with it. But it's hardly a common view. As I posted above, the issue is whether foreigners have a constitutional right to substitute habeas corpus review by a civilian court in place of military status hearings to determine who is or is not an enemy combatant who can be held as a POW. This is a misstatement of the case. For those that have had (after pressure for six years and several adverse Supreme Court rulings, at long last) CSRT reviews, the court's position would be to review the sufficiency of the CSRT and the adequacy of the evidence; for these the courts may well adopt standards of review that are as deferential to the gummints's determinations as the situations may require, consistent with basic Constitutional law and fairness. For those that haven't, there's hardly a "substitution" here; they were never given any chance, no matter how threadbare, to prove their status. Cheers,
"Bart" DePalma:
However, the other justices do not seem to be eager to have the civil courts assume these reviews and were asking what standards might be required of the CSRTs. Even if Kennedy and the 4 liberals find a constitutional right to habeas review, the majority may want to end this by simply ordering certain standards for CSRT status reviews. The reason they're asking is that one of the questions presented is whether the CSRTs (along with the statutory "review" of CSRT procedures) is a sufficient substitute for habeas review (see Prof. Lederman's Isssue #2). This question should arise only if the justices decide that the petitioners do indeed have a right to habeas review (or the equivalent). But they can hardly rewrite the laws passed (the DTA/MCA) to include "standards"; they're pretty specific (for instance, in denying legal representation, lack of access to evidence, and the inclusion of evidence obtained by torture). Simply striking out the offending portions doesn't "cure" the process but rather makes it even more arbitrary; affirmative "standards" would have to be placed in heir stead. They would probably have to strike the CSTRs down as unconstitutional if they find they don't adequately substitute for habeas. Cheers,
Bart writes:
There is absolutely no precedence for substituting civilian habeas corpus review for military status hearings to determine whether a person is properly a POW. Has there ever been a time in the past when the US has spread its "battlefield" over the entire globe and principally hidden the criteria as to when and where it takes the fight (detains suspects)? Was there a time in the past when the US captured civilians from countries all over the world? Has there been a time when the principal 'enemy combatants' have been citizens of so many countries?
bitswapper:
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This is the dilemma. We have crated a new category of enemy, the enemy combatant, that in fact can be any civilian citizen of any country our Government chooses. They are not POWs. Scalia challenges Waxman: "''Show me one case'' down through the centuries where circumstances similar to those at Guantanamo Bay entitled an alien to challenge his detention in civilian courts, said Scalia." The lack of precedence is because we have never jailed civilians on such a scale as at present. They are trapped in a legal twilight zone, and the Administration seeks to retreat away from principles of "rule of Law" to keep the "enemy" in perpetual limbo.
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