Balkinization  

Wednesday, December 05, 2007

Quick Take on Boumediene Oral Argument

Marty Lederman

Both Paul Clement and Seth Waxman were superlative -- two of the best at their very best.

The key to the case, I think, was a question of Justice Kennedy's about three-quarters of the way through (it'll be obvious on the tape and in the transcript), wondering why the D.C. Circuit could not adequately handle some of the trickier problems that the petitioners had raised, such as whether the government’s definition of “enemy combatant” is consistent with the AUMF and Constitution. Justice Kennedy referred, in particular, to the provision of the DTA stating that, “to the extent the Constitution and laws of the United States are applicable,” the court of appeals may determine “whether the use of [the CSRT’s] standards and procedures to make the [detention] determination is consistent with the Constitution and laws of the United States.” DTA § 1005(e)(2)(C). (The Solicitor General strongly implied on several occasions that to the extent the Court thinks the MCA/DTA procedure is inadequate, the Court could construe the statute to permit the D.C. Circuit the power to deal with the shortfall, e.g., to order release of a petitioner rather than simply remand to the CSRT.)

Part of the answer to Justice Kennedy's question is simply "six years" (the phrase most often invoked in today's argument). That's how long these detainees have been held, and the Court obviously sees the potential prospect of a substantially longer delay if the government is given the opportunity to litigate each of these other difficult issues in the D.C. Circuit.

More importantly, Seth Waxman in rebuttal seized on Justice Kennedy's critical question, and, in my humble opinion, gave one of the more powerful and effective rebuttals I've ever seen -- one that addresses not only Justice Kennedy's question, but also goes to the heart of why, at least for these detainees (if not, perhaps for any future detainees, who might be the beneficiaries of a revamped system), this system of indefinite detention is fatally flawed. Listen for it.

Comments:

Roberts and Scalia's questions unsurprisingly indicated that they are not buying the argument that the common law as incorporated into the Constitution provides foreign aliens with the right to challenge their designations as POWs via habeas corpus.

Kennedy was mostly keeping his own counsel. His only question raised the possibility of punting this case back to the DC Circuit to review the adequacy of the CSRT hearings. It does not sound like he is eager to take on Congress.

I thought Souter's question implying that the Constitution provides a definition of a POW and that definition was adopted in the Geneva Conventions was amazing. Exactly where does the Constitution provide this definition and when was the GC ever based on our Constitution?

If Souter is this far in left field on these facts, it is scary to contemplate his thinking on the other issues before the court.
 

I thought Ginsburg's question to Clement toward the end was actually one of the most important: Essentially, she asked whether questions on the adequacy of the tribunals even matter if the government is asserting that the detainees have no habeas rights to begin with. In other words, the government has no obligation to create a "substitute" for a right that doesn't even exist. By Clement's reasoning, the tribunals could be conducted through the reading of palms or tea leaves-- and the D.C. circuit court handling appeals can only ask whether the tribunal followed its own procedures, while granting a blanket presumption in favor of all evidence.

All Clement's talk about the legal ammenities at the tribunals is really irrelevant if you buy the government's primary argument that there is no right to review, and therefore no right to a substitute for habeas review, in the first place. If we subscribe to that, then any procedural protections offered at the tribunals are simply products of the executive branch's generosity. Clement's discussion of the right to a "personal representive," etc. was simply window dressing for all this.
 

sophia:

Clement is trying to give Kenendy a reason not to invent a constitutional right to habeas corpus by pointing out that Congress has gone above and beyond what the Constitution requires.

However, I suspect that Kennedy wants to keep his hand in a game which is none of the Court's business and will create a right to habeas corpus, but really does not want to create a constitutional crisis by attempting to override Congress' express wishes and will vote to punt the case back to the DC for a review of the CSRT procedures as provided for by Congress.
 

I wonder if there was a reason court transcripts in the recent past converted to a new vagueness omitting the name of the Justice asking the question, substituting only QUESTION which could mean any one of the justices was the speaker. Absent the parallel access to oyez soundtrack, these new transcripts are denatured compared to even the most routine local jurisdiction deposition. Forgive the minor punctilio here, from a descendent of a prominent court reporter in the DC region.
 

Did anyone else notice the government relying on a 1941 British case to argue that a habeas petitioner has no right to contest the facts asserted in the return?

I thought conservatives didn't think that Constitutional decisions should rely on citations to foreign law?
 

dilan:

I also noticed that reference. I believe the argument was that the 1941 case applied the law as it existed in Britain prior to our independence.

I would like to see the citations in that case to see if they in fact go back that far.
 

Now that I have had a chance to review the transcript, Kennedy's questions to Waxman indicate that he wants to avoid habeas corpus hearings in the federal district courts and instead wants to punt this back to the DC Circuit for review of the propriety of the past CSRT hearings under the standards established by Congress in the DTA.

It is possible that the petitioners may win the habeas corpus battle, but lose the substitution war.

Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts. All the DC Circuit can do under the DTA is either approve the prior CSRT hearings or make the CRSTs hold new hearings. The DTA does not allow the DC Circuit to substitute the civilian courts for the CSRTs for the determination of whether the prisoner is an enemy combatant.
 

By Clement's reasoning, the tribunals could be conducted through the reading of palms or tea leaves-- and the D.C. circuit court handling appeals can only ask whether the tribunal followed its own procedures, while granting a blanket presumption in favor of all evidence.

Actually, sophia, I think Clement was arguing something quite different; viz, that the MCA and the CSRT procedures do not represent a suspension of habeas nor an inadequate substitute for habeas since the habeas challenge is available in the federal court review of the CSRT hearing. Therefore, in Clement's view, the Supreme Court should not overturn the Circuit's ruling that MCA/CSRT do not constitute a constitutionally prohibited suspension of habeas.

The line of questioning that Ginsburg touched off focused on the legal consequences of affirming that ruling, even if it were done so on other grounds than the Circuit's claim that MCA/CSRT do not suspend habeas because Boumediene et al do not have habeas rights in the first place. If the Supreme Court were to affirm on other grounds, any habeas challenge by Boumediene et al in the lower courts would still be rejected unless the Supreme Court explicitly rejected the reasoning that the Circuit used to find that MCA/CSRT do not suspend habeas. Strictly speaking, however, the reasoning of the Circuit is not currently a matter before the Supreme Court, so affirming the Circuit's ruling while preemptively over-ruling a subsequent Circuit decision that Boumediene et al still do not have valid habeas challenges in the lower courts would be somewhat unusual. On the other hand, the fact that Boumediene et al have already been held for six years without being charged may necessitate the Supreme Court precipitating such a preemptory decision.
 

Opiniojuris gathers Kennedy's statements and comes to the same tea leaf reading that I do:

First Exchange (pp. 20-21):

JUSTICE KENNEDY: Suppose there had not been a six-year wait, would it be appropriate then for us to — if you prevail — remand the case to the habeas court and instruct the habeas court to defer until the Court of Appeals for the District of Columbia has finished the DTA review proceedings?

MR. WAXMAN: I would argue that the answer is no for two reasons. The one because there is no prospect, no prospect that the DTA proceedings will be conducted with alacrity or certainty …

JUSTICE KENNEDY: Why should I assume that the district court in Washington would be any faster than the court of appeals?

Second Exchange (p. 22):

MR. WAXMAN: … the Petitioners have to have the right to adduce and present evidence to controvert the government's return which was — almost all of the government's evidence was introduced ex parte, in camera, and with a — to boot with a presumption that it is accurate and genuine.

JUSTICE KENNEDY: Why can't that take place in the CSRT review proceedings that are pending?

Third Exchange (p. 53):

JUSTICE KENNEDY: I didn't understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are — - to make the determination — are consistent with the Constitution –

GENERAL CLEMENT: Yes, Justice –

JUSTICE KENNEDY: — that's provided in the MCA.

GENERAL CLEMENT: It absolutely is….

Fourth Exchange (p. 54):

JUSTICE BREYER: …. [Y]ou could have the best procedure in the world, and they're totally constitutional.... They're not going to concede it. They're assuming it. On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted….

JUSTICE KENNEDY: But the statute talks about standards. Why can't that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?

Fifth Exchange (p. 55):

JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in — under the MCA have the authority to question the constitutionality of the definition of noncombatant — of unlawful combatant?

GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.

Sixth Exchange (pp. 73-74):

MR. WAXMAN: … We can raise that claim because they have to establish that the procedures and standards were consistent not only with the Constitution but also with the laws of the United States. And the problem this is this –

CHIEF JUSTICE ROBERTS: That is an argument that, I gather, both sides agree is available to you under the DTA before the D.C. Circuit.

MR. WAXMAN: That is absolutely correct….

JUSTICE KENNEDY: What does that tell you about the adequacy of the substitute?


We shall see...
 

Opiniojuris gathers Kennedy's statements and comes to the same tea leaf reading that I do

Suuuuure they do.

Bart: All the DC Circuit can do under the DTA is either approve the prior CSRT hearings or make the CRSTs hold new hearings. The DTA does not allow the DC Circuit to substitute the civilian courts for the CSRTs for the determination of whether the prisoner is an enemy combatant.

Opiniojuris: Other than one joke (p. 30) and one question about how much it could give directions to the D.C. Circuit in the DTA review if it held that it lacked jurisdiction (p. 63), all Kennedy's questions were about how one could reach the conclusion that the DTA review was not adequate, particularly given that all the procedural and substantive concerns one might raise in habeas could also be brought there.


Kennedy gave every indication that he is searching for D.C. Circuit hearing and adjudication of a far broader range of concerns and petitions than you think the constraints of the DTA allow, Bart. While Kennedy may find that a broad Circuit role of that nature is an adequate substitution for habeas hearings in federal district courts, that would seem to put an extreme burden on the D.C. Circuit, since all of the habeas procedural and substantive issues that might have been decided by the district courts will then fall to the D.C. Circuit to handle.

That the D.C. Circuit may be put upon to clean up after the CSRTs in order to avoid denying the detainees' habeas privileges is hardly reason to conclude that the DTA/MCA/CSRT system on its own represents an adequate expression of justice.
 

mark:

The DTA only permits the DC Circuit to make two determinations when reviewing a CSRT determination - whether the CSRT determination in a particular case was conducted in accordance with the “standards and procedures” established by the Pentagon and “whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States.”

The DTA assumes that the CRSTs and not the civilian courts will make the substantive decision of whether the detainee is an enemy combatant. The DC Circuit is limited to determining whether the CRST followed its own procedures and whether those procedures comport with the Constitution. While it is possible that the DC Circuit could compel DoD to adopt additional procedures if it somehow finds that the Constitution provides procedural rights to foreign prisoners, but the DTA does not permit the DC Circuit or any other civilian court to make the final substantive status decision.

Therefore, unless he plans to rewrite the DTA as some later date, Kennedy's questions imply that he supports allowing the CRST's and not the civilian district courts to make the substantive decision of whether the prisoners are or are not enemy combatants. The DTA only permits the DC Circuit to deal with procedural issues.

Waxman did not view Kennedy's suggestion as merely a deferral of substantive civilian court habeas corps review. Rather, he vigorously tried to convince Kennedy that he was suggesting a bad idea because the CRST's are "fundamentally flawed." Waxman realized as I do that the DTA assumes that the CRSTs will make the final substantive status decisions.
 

Revision: this transcript has attribution. Perhaps the personal communications with that professional service, who was very courteous several months ago, helped swing the balance back to letting the Justice's individual identity appear in the formal record. And appreciation to the Court itself for the prompt posting of that record of the proceding, and to prof.Lederman for review of the Boumediene material.
 

On this exchange about the ability of the D.C. Circuit to "clean up" the CSRT problems:

Kennedy seems to be looking for a way to do this ("I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are — - to make the determination — are consistent with the Constitution") and Clement is certainly encouraging him to see it ("Yes, Justice--") but I think this is ultimately unconvincing.

The D.C. Circuit can only inquire whether the CSRT's are consistent with the Constitution to the extent that it's "applicable." This is a huge problem if we leave the habeas question unresolved. If detainees have habeas rights, then CSRT's should have to provide adequate substitutes, procedural protections, etc, and the D.C. Circuit can make meaningful rulings or even instructions where this is not the case. But if detainees have no such rights, then CSRT's are as much in compliance with the Constitution as laws regulating insect control-- because the "extent" of applicability is essentially none.

Since the lower courts have punted the habeas question upward, it really does need to be resolved here.

To me at least, this whole case turns on the ability of Justice Kennedy to see something that's fairly obvious-- namely, that the current process of review by the D.C. Circuit is essentially meaningless and is in no way commensurate with a real habeas challenge.
 

Sounds exactly right to me, Sophia, and we can see that Souter and Breyer are going to be working him very hard on the issue.

Ultimately, I fear Kennedy is too timid, too prone to hide behind an exaggerated notion of "judicial restraint" that lets the executive and the legislature run wild.
 

I'm more optimistic giving Kennedy's stance in Rasul and Hamdan though Padilla suggests he can join in with fig leaf moves to ignore pressing questions.

The fact a new administration will come mere months after the decision (like June 2008) is notable too though it's no gimmee WHO would win.
 

I'm still curious as to whether or not in this country in its past has engaged in the abduction of foreign nationals to such an extent as now. Don't foreign nationals have rights under treaty with us? Don't those right extend to facilities under our control? If we capriciously ignore those rights, don't we forfeit them for ourselves in facilities controlled by foreign entities?

If the process for determining the difference between a foreign national and an 'enemy combatant' is completely hidden, what assurance do other countries have that we're not just fabricating? Hasn't that error been made on more than one occasion already? I mean, it looks as though the only substantive reason we offer to assert that someone is an enemy combatant is that we're holding them.
 

Linda Greenhouse in the NYT today:

"The details of the tribunal and appeal procedures are relevant to the Supreme Court only insofar as the detainees can claim a right to due process or other constitutional rights that the federal courts historically enforce for prisoners through writs of habeas corpus."

Basically a much clearer way of what I was trying to get at before.
 

Excuse the naivete of my question (I am not a trained lawyer): Doesn't the Supreme Court need to rule on whether the MCA is unconstitutional by depriving foreign nationals held at GTMO any form of habeas protection (habeas, POW status, other)?

I understand Clement arguing that the Executive is being generous by even providing detainees CSRT's and DTA authorized DC Circuit review? Is this correct?
 

matthew:

If the Court finds for the first time in history that foreign POWs have a constitutional privilege to habeas corpus to challenge their designation as POWs and that Congress has not properly suspended that privilege, then the Court will indeed have to find the MCA provisions suspending habeas corpus to be unconstitutional.
 

bitswapper said...

I'm still curious as to whether or not in this country in its past has engaged in the abduction of foreign nationals to such an extent as now.

If you mean the capture of non nation state combatants, the United States has done this with the Barbary Pirates, American Indians and any number of foreign rebel groups like the Moros in the Philippines.

Don't foreign nationals have rights under treaty with us?

None that I am aware of. Do you have a treaty in mind?

If we capriciously ignore those rights, don't we forfeit them for ourselves in facilities controlled by foreign entities?

I do not see how.

If one of our civilians is arrested for a crime in a foreign country, they are subject to the laws in that country. We can protest, but little else.

If one of our soldiers is captured in a war in a foreign country, they are due the privileges of the GC because they follow the laws of war.

If one of our soldiers is violating the laws of war by fighting as a civilian, then they like the captured al Qaeda and Taliban are not privileged under the GC. They have a right to a status hearing and "humane"treatment.

However, no enemy since the Germans in WWII has granted our soldiers either GC3 privileges or even humane treatment. Indeed, al Qaeda tortures to death our captured troops. Thus, there is nothing to lose by declining to provide al Qaeda the GC3 privileges which they have forfeited by violating the laws of war.
 

Bart said: "Thus, there is nothing to lose by declining to provide al Qaeda the GC3 privileges which they have forfeited by violating the laws of war."

I couldn't disagree more. To point out the obvious, by refusing to treat suspected members of al Qaeda humanely--and that's what they are, suspected members--we run the very serious risk of inspiring more individuals to join the ranks of al Qaeda when they see how horribly we treat the detainees and react accordingly. To pretend that our actions as a country, and the manner in which we treat our suspected enemies, has no effect whatsoever is incredibly naive. While some al Qaeda members "hate us for our freedom" a lot of them hate us because of our actions, here and abroad. Until we realize that our actions have consequences, we're not going to make much progress. All I am saying is that, apart from the moral obligation to treat suspected al Qaeda members humanely, it's in our interest not to be actively seeking to piss people off to the point when they feel their only recourse is to join al Qaeda.
 

adam said...

Bart said: "Thus, there is nothing to lose by declining to provide al Qaeda the GC3 privileges which they have forfeited by violating the laws of war."

I couldn't disagree more. To point out the obvious, by refusing to treat suspected members of al Qaeda humanely--and that's what they are, suspected members--we run the very serious risk of inspiring more individuals to join the ranks of al Qaeda when they see how horribly we treat the detainees and react accordingly.


Really, can you actually identify anyone who was inspired to join al Qaeda because we treat there prisoners like they are on a Club Med holiday compared to the way they treat ours?

al Qaeda's popularity across the Muslim world is perhaps at its lowest level ever.

Rather than a flood of new recruits, it is getting more and more difficult to find any surviving al Qaeda. The al Qaeda in Iraq commander admitted in a speech the other day that he only has about 200 surviving jihadis while the survivors of defeats in Iraq and Africa are drifting to the Pakistan/Afghanistan border for what may be their last stand.

The captures and their interrogations were key in helping to destroy al Qaeda.
 

It's a shame that Australian authorities were not referred to (in relation to cases where habeas corpus was granted to aliens beyond country borders): see http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1329.html
 

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