The Government and multiple amici have gone beyond their previous narrow geographic argument to a broader argument that the common law habeas corpus incorporated in the Constitution was expressly denied to foreign POWs no matter where they are located. This argument will be difficult to bypass.

In contrast, to find for the detainees, the Court will have to ignore the rule of law by creating a constitutional right of habeas corpus for foreign POWs out of whole cloth, reverse Eisentrager and Quirin, and ignore Congress' invited exercise of its express power to set rules for captures through the MCA.

On the practical side, the Court would also have to agree to individually review (in camera to protect classified sources) each one of hundreds, if not thousands, of POWs the US is currently holding around the world and the hundreds of thousands it will hold in the future.

Is the Court truly this radical?
 

Ah yes, but the torture, but the torture! All of these historical arguments again attempt to extract the United States from its international obligations. All of the obligations that the United States has accepted since World War II including Nuremberg weigh in this balance too.

Might I suggest that there might be a limit to the tolerance of courts for the arguments of impunity sought by a sitting sovereign. The bright line rule is a last ditch effort by those who have put in place the monstrous policies of extraordinary rendition and the rest of it to try to protect themselves from the legal consequences of their acts.

Unfortunately, the U.S. Supreme Court seems incapable of grasping that deference to a co-equal branch of the sovereign has within it an expectation that the co-equal branchn is acting in a lawful manner. It is those departures from legality in the name of legality by this administration with the aquiescence of Congress that is the essence of the problem confronting the U.S. Supreme Court.

I sincerely doubt that this U.S. Supreme Court is capable of rising to the occasion and saying "this will not pass." But, I will be curious to see what turns of phrases they use to try to use internal law to exclude the United States from its external obligations.

By the way, I see that these detainees are now compared with POW's and the non-rights of POW's. THe administration has not recognized POW status for these persons. It would seem to me that the case for habeas corpus review would be even stronger for persons who are not recognized as having POW's on the administration's terms. They are not being held in territory that is occupied as occurred in World War II, the courts are open here in the United States, there is no military exigency requiring military commissions, and the commissions and combatant status review tribunals do not meet minimum standards of Common Article 3 of the Geneva Conventions which the court has said applies.

I hope that the U.S. Supreme Court will take the scales from its eyes and understand that the this process by this administration is about holding people outside of law. And, secondly, that the Supreme Court would just state clearly whether it thinks that is OK. I am pessimistic as to what that answer will be.

Best,
Ben
 

benjamin davis said...

By the way, I see that these detainees are now compared with POW's and the non-rights of POW's. THe administration has not recognized POW status for these persons. It would seem to me that the case for habeas corpus review would be even stronger for persons who are not recognized as having POW's on the administration's terms.

The generic law of war definition of a POW is simply an enemy combatant being detained by the military for the duration of the war to keep him or her from returning to the fight. The much narrower GC definition is solely to determine whether GC rights are extended to an enemy combatant. The petitioners in this case fall under the generic definition, but not the narrow GC definition.

It is difficult to understand the reasoning behind an argument that the Supremes should create habeas rights for an enemy which does not enjoy GC rights because they violate GC, which are not not enjoyed by our own troops or an enemy who do enjoy GC rights because they follow the GC.
 

The petitioners in this case fall under the generic definition, but not the narrow GC definition.

You're still arguing in circles, Bart. Let's restore your elision to make the matter clear:

The Executive declares that the petitioners in this case fall under the generic definition, but not the narrow GC definition.

Of course, that still leaves open the question of whether the detainees retain the privilege to challenge that Executive declaration and their resulting detention. Arguments that preempt further detainee legal challenges when their enemy combatant or POW status
is not in dispute are inapposite.
 

mark:

There is nothing circular about my disposal of the GC argument.

A prisoner of war under the law of war and under the habeas corpus common law incorporated into the Constitution is simply an enemy held for the duration of a war.

The GC adds several requirements to this definition to enjoy the privileges extended by the GC. Among these requirements is that the enemy be in uniform.

The Boumediene petitioners fall under the first definition, but not the second, in part because they were not in uniform. Indeed, the petitioners denied habeas review as POWs under the British common law would also fall under the same category.

The habeas common law incorporated by the Constitution has expressly held that no rights of Englishmen accrue to foreign POWs including habeas review. Until Rasul, no British or American court had ever extended habeas corpus to foreign POWs. Hopefully, the Court will remedy that mistake this time around.
 

Contrary to Professor Hafetz and the Halliday and White article relied on by the petitioners, the historical evidence strongly supports a citizenship/territorial test.

Here is a little work in progress on the example of British habeas practice in India. Unfortunately, blogs don't permit easy footnoting. Nevertheless, most of the factual information my post relies on is derived from pages 67-80 on the Halliday and White article.


Here is a work in progress . . .

In 1774, the king granted a Royal Charter to the East India Company that created, in part, a court system in India. “The Charter was itself the result of a Parliamentary statute of 1773 that, among other things directed the creation of that court.” The Charter granted, “the like jurisdiction and authority as may be executed by the chief justice and other justices of the court of King’s Bench in England.” Under the Charter, the newly established courts had jurisdiction over all the British subjects in India. Furthermore, the judges of the newly established Indian courts began to issue writs of habeas corpus to British subjects (including Indians) detained by the British—generally by the East India Company. Notably, the Charter did not specifically mention the right of habeas corpus. In subsequent years, the East India Company cited this omission as proof that the writ of habeas corpus did not extend to India.

Based on these facts, Halliday and White and the Boumediene petitioners argue that the judicial power to issue a writ of habeas corpus followed the king’s officers (or jailers). They posit that British habeas corpus was solely a restriction on the power of the government rather than an individual right. Furthermore, the Boumediene petitioners argue that the case of India is evidence both that habeas ran to non-citizens in areas under the jurisdiction and control of the crown, and that the common law writ of habeas corpus extended to India aside from any Parliamentary approval.

Even accepting the Indian courts’ assertion that they had the power to issue writs of habeas corpus under the Charter’s grant of “the like jurisdiction and authority”, this acceptance supports only the inference that Parliament extended the judicial jurisdiction of the writ where it otherwise did not exist. Importantly, this power to issue writs of habeas corpus in India was not created by judicial assertion of the power—a common law creation. This power only came into existence because of a legislative act. Notably, neither the Boumediene/Al-Odah petitioners nor Halliday and White can point to a single instance of a British judge anywhere—either in India or Britain—granting a writ of habeas corpus to a non-British individual detained in India prior to the Charter. If the writ ran as a matter of common law to India, and not because of Parliament, then there should be some evidence.

Over the next few years after the Charter, disputes arose as the Indian courts began issuing writs of habeas corpus not just for Britons, but also for the Indian subjects. The East India Company expressed great disapproval of the courts’ practices and convinced Parliament to pass the Judicature Act of 1781. The Judicature Act specifically stated that the Indian courts could only extend habeas corpus to Britons in India, but not to native Indians. Halliday and White argue that this Parliamentary act was the equivalent of a suspension of the writ of habeas corpus in India—and further evidence in their view that the writ otherwise did run to India.

Quite the contrary, the Judicature Act showed that habeas did not apply to India except through the alleged extension of habeas by Parliament and the Charter. India, and more precisely its non-English subjects, had no common law writ of habeas corpus. The writ, consequently, was not a pure restriction on the government, rather it was an individual right, which still flowed to Britons in India, but was inapplicable on a territorial basis to India—it applied because of British citizenship.

Importantly, neither Halliday and White, nor the Boumediene/Al-Odah petitioners point to a single post-Judicature Act case of a court in England issuing a writ of habeas corpus for detained non-Britons in India. If habeas did extend as a matter of common law to India during that period, then the British courts in England still should have had habeas jurisdiction over detained non-Britons in India. The lack of cases could not have been for a lack of opportunities, because the Indian courts had issued a number of writs of habeas corpus during the few years between the Charter and the Judicature Act.

Furthermore, Halliday and White’s assertion that the Judicature Act constituted a suspension is even more suspect when one considers that the Judicature Act did not have any of the hallmarks of Parliamentary Acts that were widely acknowledged to be suspensions. The Judicature Act did not cite war, rebellion, necessity, or any of the purposes asserted in the English or American suspensions as reasons why habeas did not apply. The Act did not even imply that habeas otherwise applied to the territory of India. Instead, the debates over the Act discussed the different cultural and legal values of the Indians and British. The Act implied that habeas corpus was an inappropriate vehicle under Indian customs and that habeas unduly interfered with Indian customs and culture. Regardless of the accuracy (or lack thereof) of the Act’s characterization of Indian law and customs, the salient point is that the Judicature Act viewed habeas corpus as completely inapplicable to the Indians. The Act does not suggest that habeas otherwise ran to India and that Parliament had suspended habeas.

Consequently, the case of India does not support the argument that habeas is primarily a structural restriction on the power of government, instead of an individual right. While habeas can, in a limited sense, be seen as a restriction on government, the individual right’s thesis more properly accords with the habeas practice of the British. Per the India example, if habeas was primarily a structural restriction on the government, then habeas should have run to Indian subjects, but, as shown, it did not, aside from a brief time when the Indian courts thought Parliament had granted them habeas jurisdiction over Indian subjects.

In addition, the case of India shows that habeas did not extend beyond the sovereign territory of the crown to areas only under the jurisdiction and control of the crown. India by any definition was under the jurisdiction and control of the crown. India had an extensive court system established by the British, but even that was not sufficient for the writ to run on a territorial basis—the writ only applied on a citizenship basis. Therefore, the case of India is far from a helpful piece of evidence to the Boumediene/Al-Odah petitioners. In fact, the lessons from India are good evidence that, constitutionally, the writ of habeas corpus does not run to Guantanamo Bay, Cuba.
 

A prisoner of war under the law of war and under the habeas corpus common law incorporated into the Constitution is simply an enemy held for the duration of a war.

...

The Boumediene petitioners fall under the first definition, but not the second, in part because they were not in uniform.

That is another ridiculous elision. A lack of a uniform alone does not make someone an enemy outside the protection of GCIII or lacking in habeas privileges. Boumediene allegedly falls under the first definition because he wasn't wearing a uniform when the Executive detained him and declared him to be an enemy combatant. It is precisely that declaration (and the legitimacy of the CSRT affirmation of that declaration) that is in dispute. By taking it as a given that Boumediene is an enemy combatant and that the provisions of the MCA constitute an adequate and effective substitute for an Article III court habeas hearing challenging Boumediene's status as an enemy combatant, you are arguing in a circle to avoid the very matters in dispute at the heart of the case -- matters cogently and eloquently summarized by Linda Greenhouse:

Modern Supreme Court decisions have put a gloss on the “suspension clause,” as the constitutional provision is known, holding that habeas corpus need not be available in a formal sense as long as prisoners have an “adequate and effective” substitute for challenging the validity of their detention. The government offers a substitute: “combatant status review tribunals,” which are panels of military officers who review the initial determination that an individual detainee has been properly labeled an enemy combatant.

As substitutes for habeas corpus, the tribunals are “structurally and incurably inadequate,” Seth P. Waxman, a lawyer for six Algerian detainees, asserts in his brief. By sharply limiting access to evidence and witnesses and by forbidding defense lawyers from participating in the hearings, he says, the alternative procedure fails to offer “even the most elemental aspects of an independent adversarial proceeding.”
 

mark:

A lack of a uniform alone does not make someone an enemy outside the protection of GCIII or lacking in habeas privileges.

Try reading GC3. In order to qualify for those privileges, the enemy combatant must be wearing a uniform or a distinctive marking. GC3 simply adopted a centuries old law of war meant to protect civilians by keeping combatants from disguising themselves among civilians. Historically, enemy combatants disguising themselves as civilians were executed, not rewarded with habeas corpus rights.

In any case, no foreign POW, uniformed or not, had or has common law habeas corpus rights.

Linda Greenhouse: Modern Supreme Court decisions have put a gloss on the “suspension clause,” as the constitutional provision is known, holding that habeas corpus need not be available in a formal sense as long as prisoners have an “adequate and effective” substitute for challenging the validity of their detention. The government offers a substitute: “combatant status review tribunals,” which are panels of military officers who review the initial determination that an individual detainee has been properly labeled an enemy combatant.

Greenhouse has got it backwards.

The US military has run combatant status hearings since the Revolution whereas civilian courts have never made this determination via habeas corpus review or under any other vehicle.

Only if the Supreme Court usurps the military's role and rewrites the Constitution to extends habeas corpus review to foreign enemy POWs for the first time in history do traditional combatant status hearing become a "substitute" for habeas corpus. In reality, the detainees are asking civilian criminal courts to substitute themselves for military status hearings.
 

Mark: A lack of a uniform alone does not make someone an enemy outside the protection of GCIII or lacking in habeas privileges.

Bart: Try reading GC3. In order to qualify for those privileges, the enemy combatant must be wearing a uniform or a distinctive marking.

Are you really this stupid, Bart? Stop assuming that which is in dispute. I said "someone." I did not say "an enemy combatant." Whether and how it may legitimately be determined if Boumediene is more than just a generic "someone" and is, in fact, "an enemy combatant" is precisely the matter in dispute. "Someones" do not become enemy combatants by not wearing a uniform.

Only if the Supreme Court usurps the military's role and rewrites the Constitution to extends habeas corpus review to foreign enemy POWs for the first time in history do traditional combatant status hearing become a "substitute" for habeas corpus.

Whether those properly categorized as enemy detainees or POWs have habeas rights is not the matter at issue in Boumediene. The questions are whether and how it may legitimately be determined if Boumediene is a detained enemy combatant.
 

HLS, thanks for cross-posting your argument here. The discussion at Volokh often moves too fast to allow consideration of a single comment, no matter how thoughtful.

Let me start at the conclusion. I doubt that holding habeas an individual right would help your side of the argument much. There are two important distinctions between the British government and the American which lead me to say this.

First, under the British theory of government, Parliament is sovereign. It can both create "rights" and eliminate them. There would be nothing inconsistent with Parliament eliminating an individual right in India if it so chose.

Congress, OTOH, does have limitations on its ability to restrict rights (no quotes because I'm using the word now in the true, American sense). Specifically, the Constitution restricts Congress from limiting the writ of habeas. Thus, if habeas were an individual right, that does not mean Congress can restrict the right.

Second, we need to decide who possesses the right of habeas. You may think of it as American citizens only, but that conclusion isn't so obvious. The Declaration of Independence specifically includes "liberty" as an inalienable right held by "all men". Since habeas is an obvious, necessary corollary to that inalienable human right (and not being imprisoned is certainly a core meaning of "liberty"), the Constitutional restriction on Congress can easily be read to apply to everyone in the world, or at least everyone subject to the jurisdiction of American courts, not just Americans.

Now let me take up some details, in no particular order.

1. The Constitution itself does not refer to habeas as a right, but as a "privilege". That word did sometimes get used in ways synonymously as "right" during the 18th C, but not always. I honestly don't know if the term is important for the argument you raise, and I haven't looked at the contemporary evidence to see how it might have been understood in 1789.

2. In your discussion with Anderson over at Volokh, you mention that the writ was not issued prior to the Charter. This isn't evidence of very much. The British didn't control India until at least 1765 and arguably even later. Given the communications of the time -- it took roughly a year for a message to go from India to England and back -- it's hardly surprising that there's no evidence of writs issued before the Charter.

3. The Judicature Act seems to me to have less force than you attribute to it. For one thing, it was likely due to racial attitudes of the time which would be inadmissible today even for purposes of defining the scope of the writ in 1789. That is, the writ didn't run to blacks in the US either, but I doubt anyone would argue for Congressional power to restrict the writ in that way.* For another, when we consider the scope of the writ as of 1789, it only makes sense to do so by ignoring the power of Parliament to change the common law rule; after all, the whole point of the Suspension Clause was to eliminate that very power. Thus, we should consider the writ as it existed at common law, not as limited by statute.

3. It's hard to argue that the Charter granted the power to issue writs of habeas corpus. What it did do was establish British control of India and a court system which operated there. Nobody thinks that US courts can issue a writ when they lack jurisdiction; all the Charter did was establish jurisdiction. That issue has already been decided with respect to Guantanamo.

*I'm making several assumptions throughout this comment, including that the scope of the writ should be limited to its scope in 1789.
 

Bart repeats the line that POW status is dependent upon "wearing a uniform or a distinctive marking."

That is not what GC III, pt I, art. 4, says.

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

[(3) through (6) omitted.]

If you qualify under (1), as I would argue the Taliban certainly did, then you don't have to meet any of (2)(a) through (d).

If there's some other part of the GC that requires members of the armed forces to wear a uniform or other distinctive sign, please cite.
 

Assuming you are right Bart that POW's have no constitutional rights, I still think that you are wrong to say the Judicial Power will simply hold to that line when the United States holding the persons tortures them and puts them in front of kangaroo commissions and tribunals.

As a co-equal branch, the Supreme Court can decide that the torture and the kangaroo commissions and tribunals put in place by the political branches are incompatible with the United States international obligations and/or declare them unconstitutional. The alternative is simply that the Judicial Power acquiesces in the United States being in violation of its international obligations.

I expect this Supreme Court ot acquiesce in these violations of the United States international law obligations.

But, the reason is not because of some practice in a British colony by the Brits in times gone by, but because the Judicial Power wishes to hide its acquiescence today behind English colonial practice back in times of great barbarity. Our Supreme Court is free to do that, but it is an admission of our barbarity not our civilization.

The briefs you cite are the kind of cramped thinking that I have come to associate with the orginalists who wish the debate to be about a few scarce precedents in times gone by when I would have been considered subhuman. Sorry, those colonial precedents do not hold much sway with me.

Best,
Ben
 

Mark,

Thanks for your great response. Let me first make a general point about the individual rights view of habeas vs. the structuralist view.

As I understand, habeas originally evolved as a restriction on the power of the king. Habeas was a method primarily focused on restricting or eliminating arbitrary detention by the king. Under this view, habeas is properly understood as a structuralist limitation on government.

From those initial roots, however, subsequent British practice appears to follow an individual rights approach (even if it wasn’t always explicitly justified in this manner). That is what I am trying to study. Whether British practice (or “functional habeas”) evidenced an individual rights or structuralist view.

Okay, now to your specific points.

As to your “First” point. From my understanding of British habeas (and from the Halliday and White article), Parliament had to suspend habeas, to remove habeas jurisdiction over a person. Consequently, habeas was not an individual right of the type that could just be eliminated by a legislative act. Of course, that lends support for the structuralist perspective. I acknowledge that. I have to argue that it was an individual right that couldn’t be removed a mere Parliamentary Act, instead of a suspension. Taking your point, let me still posit that the “individual rights” thesis more accurately accords with British practice (to be substantiated further on below).

To your “Second” point. I’d say that anyone who is a citizen or anyone within the sovereign territory of the United States has the right to access to the writ of habeas corpus. Although the Declaration of Independence (DOI) says “all men,” our Constitution was not written for “all men.” The Constitution was a pact among and for Americans, not the entire world. So, I fail to see the applicability of a document of aspiration to the core constitutional rights/privileges/duties contained in the Constitution.

Now to your detailed points.

1.I’m not really sure either, unless you ask Gonzales . . .

2.My point is that, contrary to Halliday and White and the petitioners assertion that India is an example to show that habeas did run at common to India, the situation of India much more reasonably argues for an individual rights thesis. Also, to your point regarding the time, the courts entertained writs of habeas (or categorically rejected writs of habeas) from places as far as India (for example, some British outposts in Africa—I forget in what country(ies)).

3.The racial attitudes point is interesting. I can’t necessarily disprove it. And, there is some evidence for it, which I note in my main discussion. On the other hand, we have a substantial amount of the Parliamentary debates, and while some members express racist sentiments, many of the comments don’t take that perspective. Separately, I don’t think the slave analogy really works. The slaves were not given habeas because they were considered property. Remove the barrier, and blacks in the US were considered citizens and would have received habeas. No so with Indians in India. You had one country (England) exercising jurisdiction and control over another (India). Indians were not otherwise Britons, who were kept as slaves. To me, it appears to be an important distinction.

4.I think your characterization is incorrect. For example, the courts in England should have always had habeas jurisdiction over individuals detained in India under the petitioners (and your?) perspective. Parliament did not assert to remove any jurisdiction of the courts in England, only the courts in India.


Here is another argument to show that the individual rights thesis functionally accords with British habeas practice.

Beginning with the 1777 Suspension Act, Parliament passed six acts over six years suspending habeas corpus in the American colonies. The 1777 Suspension Act cited treason, “rebellion and war . . . in certain of his Majesty’s Colonies and Plantations in America” as the justification for the suspension. In addition, the Act “applied only to those taken for treason in any colony, or for piracy upon the open seas.” In other words, “Suspension of habeas corpus only affected those in ‘his Majesty’s colonies’ in America and ‘such as shall have been out of the realm’ when their offenses occurred, including in international waters.”
On this basis, Halliday and White and the Boumediene/Al-Odah petitioners argue that the 1777 Suspension Act demonstrates that habeas corpus did otherwise run at common law to the American Colonies because of the British jurisdiction and control over the colonies. In other words, Britain could only suspend habeas corpus in the American colonies if the writ ran to the Colonies in the first place. Consequently, Halliday and White and the petitioners argue this evidence reveals that habeas was a structural limitation on the government and that the writ at common law ran to territories, e.g. the American colonies, that were not the sovereign territory of the crown.
Before beginning, I should note that some scholars and early Colonial cases state that the common law writ of habeas corpus, as codified in The Habeas Corpus Acts, did not apply to the American colonies. Nevertheless, I will proceed on the assumption that it did apply in some form. The question is how and to what extent.
First, contrary to Halliday and White and the Boumediene/Al-Odah petitioners, the common law writ of habeas corpus, prior to the Suspension Act, extended to the American colonies insofar as it protected the rights of the Englishman. For example, the Halliday and White article, the Boumediene/Al-Odah briefs, and separate researching has not revealed any cases in where a court extended the writ of habeas corpus to a non-Englishman in the American colonies prior to 1789. Additionally, there is no evidence to suggest that anyone thought that the writ of habeas corpus applied to non-Englishman detained in the American colonies. Furthermore, when American colonists protested for not receiving the writ of habeas corpus, the colonists argued that they deserved the writ as Englishmen, and that the physical distance from England should not prevent the application of the writ of habeas corpus to them as Englishmen.
Second, an examination of the Suspension Act itself suggests that the writ of habeas corpus, as it otherwise applied to the American colonies, applied only insofar as the detainee was an Englishman. The Suspension Act specifically limited itself to those detained for acts of treason or piracy. This limitation is important for two reasons. (1) As a matter of common understanding, only a citizen can commit treason against his or her government. If the Halliday and White and Boumediene/Al-Odah petitioners are correct, then their interpretation would necessarily create the strange result that habeas was suspended for Englishman detained in the colonies during the Revolutionary War but not for a non-Englishman—Indians, the French, the Acadians, etc. The more reasonable view is that Parliament suspended habeas for the only people that habeas ran to in the American colonies—Englishman. (2) The Suspension Act stated that it applied to those captured on the high seas. In order for the Halliday and White and Boumediene/Al-Odah structuralist perspective to make any sense, England must have exercised a sufficient level of jurisdiction and control over the high seas in order for the writ to be suspended on the high seas. However, powerful the British fleet was, I highly doubt that England exerted sufficient jurisdiction and control over international waters that an individual captured on international waters and detained could qualify for habeas.
Contrary to Halliday and White and the Boumediene/Al-Odah petitioners, the more reasonable explanation is that the Suspension Act used a territorial basis to determine which Englishmen’s rights to habeas corpus were suspended. According to this explanation, those Englishman detained in the United States colonies or on the high seas had their right to habeas corpus suspended. The Suspension Act was inapplicable to all other Englishmen.
This territorial division explanation also accords with the various criticisms of the Act. Critics argued the Act unjustly divided Englishmen—“our brethren.” The Suspension Act distinguished British citizens in England from those in the rebellious colonies, and that was how the Act defined where the Suspension acted. On a related note, the United States is familiar with suspending habeas based on territorial boundaries.
Furthermore, this territorial division explanation produces a more reasonable explanation of the piracy provision of the Suspension Act. In practice, when an individual was captured and detained on the high seas and the ship then returned to port, an Englishman normally had access to the writ of habeas corpus. Additionally, if the ship holding the non-Englishman docked back in England or other sovereign territory of the crown, the presence of the non-Englishman on English soil entitled him or her to the writ of habeas—as long as the individual was not at war with England. Consequently, the Suspension Act ensured that all individuals captured for piracy would have their access to the writ suspended regardless of where their capturing ship docked or their citizenship. This explanation accords with British practice of the time and does not lead to the curious results of the Halliday and White and Boumediene/Al-Odah argument.
The better understanding of the Suspension Act is that it used a territorial basis to determine where and to whom the writ of habeas was suspended. Regarding those accused of treason in the American colonies, the Act removed as a matter of common law the writ of habeas corpus from those Englishman. Therefore, the writ would not have otherwise run to the American colonies as a matter of common law for non-British citizens. For those accused of piracy and captured at sea, the Act suspended access to the writ the detained individual might otherwise have had by their detainment at a British port or some other sovereign territory of the crown.
Consequently, this understanding of the Suspension Act suggests that habeas corpus is better understood as an individual right that is protected by the courts against the government, rather than a pure structural limitation on the power of the government. In addition, this understanding implies that habeas corpus otherwise extended to the American colonists because of their status as Englishman, rather than because of their presence in the American colonies. Therefore, if the American colonies cannot unequivocally be considered sovereign British territory (or even satisfy the sufficient British jurisdiction and control argument), then it suggests that Guantanamo Bay, Cuba, is not sufficiently under American control for the writ of habeas corpus to run for both citizens and non-citizens.
 

But, whether the argument is structuralist or individualist, the question that remains is the import of the Constitutional provision in a setting that differs substantially from that of the time of the cases you are citing. We are in a world where someone can be held in the antipodes and on a second by second basis a person in the United States can dictate the precise treatment of that person. In addition, the question is whether the King can do what he/she wills with that person or are there some minimum constitutional standards below which we can not fall. And finally, whether we have fallen below those standards in a world in which human rights law, international humanitarian law, and the law of diplomatic protection informs our thinking about the world.

Best,
Ben
 

anderson:

The drafters of the GC3 assumed that regular forces and those attached to regular forces will be in uniform and it was not necessary to list this as a requirement as it was for irregular forces. You can find the commentaries here and they state in pertinent part:

1. ' Sub-paragraph (1) -- Members of the armed forces '...

The drafters of the 1949 Convention, like those of the Hague Convention, considered that it was unnecessary to specify the sign which members of armed forces should have for purposes of recognition. It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians. The Convention does not provide for any reciprocal notification of uniforms or insignia, but merely assumes that such items will be well known and that there can be no room for doubt. If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17
 

benjamin davis said...

As a co-equal branch, the Supreme Court can decide that the torture and the kangaroo commissions and tribunals put in place by the political branches are incompatible with the United States international obligations and/or declare them unconstitutional.

The Supreme Court is not a co-equal branch when it comes to making rules for captures. Article I grants Congress plenary power over this area. By necessity, the President as CiC can set these rules, but only in the absence of congressional action.

Article III does not give the judiciary any power to make rules for captures. Given that the Constitution does not grant rights to a foreign person located overseas who is not part of the citizenry, the Court cannot "interpret" the Constitution to indirectly set rules for captures. Article III also does not provide the judiciary with the right to create common law rights for foreigners.

The courts can enforce treaties, but only to the extent that Congress or the President have not withdrawn from them through legislation or executive order. Congress has determined the scope the the GC and the torture treaty in the DTA and MCA. To the extent that these treaties can be interpreted differently than the DTA and MCA, Congress' statutes enacted under the Article I power to set rules for captures takes priority.
 

Interesting, Bart, but I am skeptical of the binding force of this "assumption" as an actual duty. Seems to me the GC are pretty explicit about what duties they impose on the Parties.
 

... reverse Eisentrager and Quirin

Distinguish Eisentrager. That they did previously as well. See, e.g., Rasul (and note Scalia's dissent that notes the court's departure from Eisentrager).

As for Quirin, as many have previously pointed out, the Quirin petitioners got their habeas hearings. They just weren't granted the relief they asked for.

Cheers,
 

From the same ICRC post as Bart noted.

"If it is to be distinctive, the sign must be the same for all the members of any one resistance organization, and must be used only by that organization. This in no way precludes the wearing of additional emblems indicating rank or special functions.
The International Committee of the Red Cross was anxious that the matter should be regulated as satisfactorily as possible and had gone so far as to propose to the Conference of Government Experts that the nature of the sign should be specified in a conventional text, as well as its size and the manner in which it should be worn (for instance, a green arm-band with national emblem, 10 cm. wide, worn on the left arm). The matter might be settled by a special agreement under Article 6 . This suggestion was not adopted, however. Consequently, the term "recognizable at a distance" is open to interpretation. In our view, "the distinctive sign should be recognizable by a person at a distance not too great to permit a uniform to be recognized" (33). Such a sign need not necessarily be an arm-band. It may be a cap (although this may frequently be taken off and does not seem fully adequate), a coat, a shirt, an emblem or a coloured sign worn on the chest. If the partisans are on board a vehicle or an engine of war, tank, aeroplane or boat, the distinctive sign must of course be shown on the vehicle concerned. This is in line with the long-established regulations of international law regarding the flag in the case of war at sea.
Lastly, there is no requirement that the distinctive sign must be notified, as several delegations to the 1949 Diplomatic Conference would have wished. It is nevertheless open to the interested parties to make such a notification through the International Committee, in the same way as the Committee offered its services in its Memorandum of August 17, 1944, referred to above (34). Such a notification may also be made through the Protecting Power of the Party to the conflict to which the resistance organization is affiliated. Titles and ranks may also be communicated in this way, as provided in Article 43 ."

Then State Legal Adviser William Taft IV noted in his memo recommending the applicability of the Geneva Conventions to the Taliban that their turbans (note the discussion of caps in the section with the difference that Taliban are not known to fight without their caps) were the distinctive sign. Apparently they are like the academic regalia seen on professors at commencement in indicating the provenance of the Taliban concerned and everyone knew who was a Taliban.

Many of those held at Guantanamo are Taliban including a governor of a region who should have POW status under the Geneva Conventions.

And, of course, these provisions are as relates to POW status and not the protections of Common Article 3 that apply in non-international armed conflicts, security detainees, and civilians.

Best,
Ben
 

"Bart" DePalma:

The generic law of war definition of a POW is simply an enemy combatant being detained by the military for the duration of the war to keep him or her from returning to the fight.

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

Cheers,
 

"Article III does not give the judiciary any power to make rules for captures. Given that the Constitution does not grant rights to a foreign person located overseas who is not part of the citizenry, the Court cannot "interpret" the Constitution to indirectly set rules for captures. Article III also does not provide the judiciary with the right to create common law rights for foreigners."

Sorry Bart the Constitution grants the Judicial Power to the Supreme Court. The allocation of executive and legislative powers to the political branches does not change that.

A cramped vision of the Judicial Power is your assumption and not Constitutionally required. The question is whether the Supreme Court is willing to address when the other co-equals go off the rails. I doubt this court would do that, not because it does not have the power, but because it considers the standard for treatment of foreigners held overseas to be a standard with little or no floor, notwithstanding all the developments in international law.

That, however, just reminds me of Dred Scott - a different person in a different time who had no rights of which the court would take cognizance.

The result will remain uncivilized if the Supreme Court determines that this torture and these kangaroo commissions and tribunals may go forward.

Best,
Ben
 

[mark]: A lack of a uniform alone does not make someone an enemy outside the protection of GCIII or lacking in habeas privileges.

["Bart" DePalma]: Try reading GC3.

Oh. Where does it say that everyone that's not a "POW" is an "enemy"? Missed that article. Which one was it, now?

Cheers,
 

Just for "Bart"'s edification, Boumediene et al. were arrested by Bosnian police, where they were legal residents, on suspicion of plotting to attack the U.S. Embassy in Sarajevo. The Bosnia/Hezegovina Supreme Court ordered them released for lack of evidence, whereupon they were turned over to the U.S. military, who transported them to Guantanamo.

If this isn't a case for the criminal justice system, I don't know what is. Try them with any evidence you have against them, but to call them, in these circumstances, "enemy combatants", really takes the cake.

Cheers,
 

"The courts can enforce treaties, but only to the extent that Congress or the President have not withdrawn from them through legislation or executive order. Congress has determined the scope the the GC and the torture treaty in the DTA and MCA. To the extent that these treaties can be interpreted differently than the DTA and MCA, Congress' statutes enacted under the Article I power to set rules for captures takes priority."

Sorry. Treaties are self-executing or not-self-executing. There is the view that the Geneva Conventions are self-executing and that an individual treaty right in the particular person vests in that person and that can not be removed by Congress or the President as treaties are made "under the authority" of the United States. See Wick Yo and Head Money Cases I believe or the relevant parts of Jordan Paust's International Law as American law.

Congress or the Executive may do things contrary to a treaty obligation, but those things do not amount to a termination of the treaty obligation until the United States terminates that treaty obligation. The determination of whether a treaty obligation is terminated depends on the treaty language, what the state does, and international law.

In none of the laws that you cite did Congress or the Executive terminate the United States obligations under the Geneva Conventions. So the pressure on the court (in Charming Betsey land) is to read these Congressional acts (and the Executive order) in a manner that is harmonious with the underlying international treaty obligation on the United States. Those international treaty obligations pull us very much towards torture and kangaroo commissions and tribunals being incompatible with the United States treaty and constitutional law obligations. The court may grab from the treaty or may use its Judicial Power + Treaty to get there to come to a determination that under either or both together these things are incompatible.

There is also customary international law that is binding on the United States.

Whether our court would go there, I doubt it. Why? Because we tend to make a virtue of ignorance of these kinds of concepts in our development and appointment of judges so that they will make decisions that will please the President and Congress in their powers. But, the constitutional Judicial Power remains. We just have to wait until the equivalents of Justice Taney come in who can see beyond the US borders.

Happens once in a while. See Brown. The question at the center is always the same "Are we barbarians or are we civilized?" No amount of pussyfooting will get around that question.

Best,
Ben
 

If need be, any person to whom the provisions of Article 4 are applicable can prove his status by presenting the identity card provided for in Article 17....

IOW, a uniform is not required.

Thanks.

Cheers,
 

anderson said...

Interesting, Bart, but I am skeptical of the binding force of this "assumption" as an actual duty. Seems to me the GC are pretty explicit about what duties they impose on the Parties.

The Constitution is the only law which is binding. Treaties can be and have been withdrawn from at will by the elected branches.
 

benjamin davis said...

Then State Legal Adviser William Taft IV noted in his memo recommending the applicability of the Geneva Conventions to the Taliban that their turbans (note the discussion of caps in the section with the difference that Taliban are not known to fight without their caps) were the distinctive sign. Apparently they are like the academic regalia seen on professors at commencement in indicating the provenance of the Taliban concerned and everyone knew who was a Taliban.

My argument is that regular forces of a nation must also have uniforms or clothing which identifies them as combatants from a distance even if the GC3 does not list that requirement for regular forces.

Taft is applying this rule to the Taliban.
 

arne langsetmo said...

Just for "Bart"'s edification, Boumediene et al. were arrested by Bosnian police, where they were legal residents, on suspicion of plotting to attack the U.S. Embassy in Sarajevo. The Bosnia/Hezegovina Supreme Court ordered them released for lack of evidence, whereupon they were turned over to the U.S. military, who transported them to Guantanamo.

If this isn't a case for the criminal justice system, I don't know what is. Try them with any evidence you have against them, but to call them, in these circumstances, "enemy combatants", really takes the cake.

Terrorists planning an armed attack against one of our embassies are enemy combatants in a war, not civilian criminals like some punks robbing a 7-Eleven.

The fact that the muslim dominated Bosnia/Hezegovina Supreme Court released them is hardly evidence of innocence. Jihadis (many al Qaeda) came to Bosnia's aid when Clinton and the Euros twiddled their thumbs during the Serbian ethnic cleansing. The Bosnians are hardly likely to turn their backs on the Jihadis for our sake.
 

The fact that the muslim dominated Bosnia/Hezegovina Supreme Court...

Is there anything behind that assertion other than the fact that you want it to be true? It would seem rather odd that the Constitutional Court of Bosnia and Herzegovina would be so dominated in a country where Christians outnumber Muslims and where fully one-third of the Court's members are chosen by the President of the European Court of Human Rights. You wouldn't just be talking out your ass again, would you, Bart?
 

HLS, there's a lot in your post and it'll probably take me several to respond. Let me start with some preliminary observations.

Although the Declaration of Independence (DOI) says “all men,” our Constitution was not written for “all men.” The Constitution was a pact among and for Americans, not the entire world. So, I fail to see the applicability of a document of aspiration to the core constitutional rights/privileges/duties contained in the Constitution.

I also tend to think of the Constitution as a "pact", but the document itself says that it's "the Supreme law of of the land". It's a law which, speaking generally, we consider both as creating the structure of the federal government and as binding on the individual departments of that government. Thus, for a non-controversial example, Congress can't order the quartering of troops in private houses in time of peace. That is, the Constitution serves, at least in part, as a structural grant of and restraint on the power of the federal government (and of the states in some clauses).

This is reinforced by the placement of the Suspension Clause in Art. I, Sec. 9, where it's in with some restrictions on the federal power to tax, to grant titles of nobility, etc. If we see the provisions of Art. I in this light, it's easy to see the Suspension Clause as structural rather than individual. In this understanding, it controls the actions of government generally, not just those actions which affect American citizens.

If you disagree, consider whether you believe the US government can enslave persons abroad.

All that said, I'll continue to assume for the sake of argument that you're right that both the British and Americans saw the writ as an individual right. One question, then, is to whom they saw that right extending.

I am assuming we're supposed to put ourselves in the minds of those in 1789 in order to understand how they would have considered the writ. IF they saw it as an individual right, I'd suggest that they surely considered that right, like all rights, to be affected by the DoI. After all, a fair number of those in the Convention also signed the DoI. It's hard to imagine they didn't believe what they had themselves signed. The whole idea of natural rights is, after all, a universalizing principle (and a very powerful one).

Also, to your point regarding the time, the courts entertained writs of habeas (or categorically rejected writs of habeas) from places as far as India (for example, some British outposts in Africa—I forget in what country(ies)).

Sorry if I didn't make this clear, but my point was not that the writ would have been cumbersome due to time and distance constraints, but merely that the British didn't rule India long enough before the Charter for the issue to arise at all. In short, and in this case, absence of evidence is not evidence of absence.

The slaves were not given habeas because they were considered property. Remove the barrier, and blacks in the US were considered citizens and would have received habeas.

Taking these in reverse order, even free blacks were never citizens according to Dred Scott. That's merely noted, not a real issue here.

As for not being blacks not being entitled to the writ only because they were property, that pretty much begs the question which habeas is designed to answer.

Again, this isn't of much interest except that if we're considering the writ as of 1789 and holding that as the Constitutional minimum, we are going to have to recognize SOME modern exceptions to the rule at that time. To the extent we recognize those exceptions, we don't need to accept the Judicature Act if it was based on racism (which I don't know for certain, but reasonably suspect).

Furthermore, when American colonists protested for not receiving the writ of habeas corpus, the colonists argued that they deserved the writ as Englishmen, and that the physical distance from England should not prevent the application of the writ of habeas corpus to them as Englishmen.

This argument doesn't have much force, in my view. The colonists regularly asserted their "rights as Englishmen" because they recognized that they were on firmest ground there. It was a good political tactic. That doesn't mean it was their ONLY ground, as the DoI makes clear.

The more reasonable view is that Parliament suspended habeas for the only people that habeas ran to in the American colonies—Englishman.

The problem with this argument is that the two classes were the same. As you pointed out, only Englishmen could commit treason. Thus, the suspension only had to apply to Englishmen. Silence as to others doesn't resolve the issue precisely because the two categories are identical.

The Suspension Act stated that it applied to those captured on the high seas. In order for the Halliday and White and Boumediene/Al-Odah structuralist perspective to make any sense, England must have exercised a sufficient level of jurisdiction and control over the high seas in order for the writ to be suspended on the high seas.

I lost you here. As I understand a structural restriction on executive power, it would operate wherever executive power operated. Thus, suspension of the writ on the high seas would imply that the writ ran there absent the suspension. And the obvious reason it did was not because England exercised sovereignty there, but because the executive acted there. That's a classic example of a structural limitation.

Therefore, if the American colonies cannot unequivocally be considered sovereign British territory (or even satisfy the sufficient British jurisdiction and control argument), then it suggests that Guantanamo Bay, Cuba, is not sufficiently under American control for the writ of habeas corpus to run for both citizens and non-citizens.

Well, the British certainly thought they had sovereign authority over the colonies. Remember that the Declaratory Act claimed the right of Parliament to legislate for the colonies "in all cases whatsoever". I suspect the government would have been embarrassed to oppose a writ petition on the ground of lack of sovereignty after the passage of this Act.

In any case, I think your point is moot for present purposes. Justice Kennedy seems convinced that we do exercise sovereignty over Guantanamo.
 

Mark,

You make good points. I have tired myself out from writing, so I won't hazard another lengthy response. I will say that I am confident as well that Kennedy considers GB, Cuba, for all intents as part of the United States. So, history be damned . . .
 

"Bart" DePalma:

Terrorists planning an armed attack against one of our embassies are enemy combatants in a war, not civilian criminals like some punks robbing a 7-Eleven.

Fine, try them and present the evidence of such. Just making them an "enemy combatant" on the maladministration's 'say-so' ain't my idea of due process. I'd note that the maladministration has this idea that they can categorically claffisy anyone they want to be an "enemy combatant" based on group guilt, that is to say, alleged membership in a "Terra-ist" organisation sans any individual determination. It is the individual determination (by someone other than the captors) that is at issue here.

Cheers,


Cheers,
 

"My argument is that regular forces of a nation must also have uniforms or clothing which identifies them as combatants from a distance even if the GC3 does not list that requirement for regular forces."

But, if that requirement is much less than "uniforms or clothing" then what you are calling for is not required by the GC3. Regular forces are not required what you are asking for. It is simply unreasonable to think a standard should be interpreted at the level of a well-financed Western military when the standard does not require that level.

Next, for someone picked up outside of the two armed conflict zones of Afghanistan and Iraq in a situation where the traditional uses of military commissions do not apply (occupied territory or courts not available) the only basis to put them through commissions in the Military Commission Act and Presidential Order.

However, for those persons, the question arises whether they have International Covenant on Civil and Political Rights protections or non-GC protections of customary international law.

On a constitutional power basis, it would seem that if the Congress and the Executive are willing to exert extraterritorial jurisdiction to this extent, the question for the Judicial Power is whether it is appropriate for it to review those actions.

It would seem that the foreigner in that setting (1) from a country that is not an enemy (2) picked up in a country in which we are not in armed conflict (3) who also denies being an illegal enemy combatant over which the Military Commissions have jurisdiction, (4) who complains about being tortured by the United States with evidence to support it, (5) who complains about the kangaroo commission and CSRT procedures to which they would be subjected to determine their rights and (6) who is held by the United States outside the United States is a category of persons over whom the Judicial Power of a world power would consider that habeas should apply because the US control over these persons is operating from 1600 Pennsylvania Avenue, N.W. down the street.

This does not mean that the habeas petition will be granted, but it sure seems to mean to me that the Supreme Court can look at what is being done and see if elemental rights of civilized nations are being respected in the manner in which this person is held.

Now, the Supreme Court may not wish to say constitutional habeas reaches that foreigner held by the United States, but that is only to put in place a territorial limitation on the Judicial Power that is more limited than the state's jurisdiction to adjudicate in international law. That is a pure policy choice by the Supreme Court as to how it sees the Judicial Power and whether it would permit it to remain so truncated. It is a question of whether the Supreme Court thinks there is no floor under persons held abroad by the United States who fit the categories that are there other than the kangaroo commission and tribunal floor that the United States put in place that are thinly veiled "conviction machines".

Please keep in mind that other states will question whether an international minimum standard of process is being provided in these "conviction machines" procedures as part of diplomatic protection of their citizens.

The Supreme Court is not on some hill above the fray - it is in the middle of it and basically is called to look at whether we are acting in a civilized manner or not. That is the heart of the question that confronts the Judicial Power. Unfortunately, I do not expect our Supreme Court to be willing to answer such a fundamental question in a meaningful manner, they do not appear to be made of the stuff to grasp that deeply into what the United States as a state means.

I suspect that they are more willing to say if Congress passed it then it is OK. They will focus on the approval and not the fact of the elections in 2006 that changed the balance of the majorities in both houses of Congress and that the effort since then has been a rearguard action by those formerly in power to use negative power (threat of veto, 60 cloture) to block any ameliorations to the regime for holding persons in this war.

Best,
Ben