There's a lesson here: Act like a tyrant and people will treat you like a tyrant. Act like you care about the rule of law and courts will give you the benefit of the doubt. The Bush Administration got far less deference from the courts than usual because it acted like a tyrant. It reaped what it sowed through its arrogance and incompetence.

The problem with this narrative is that Five Supremes replaced their own policy preferences for those of Congress alone in Rasul and Boumediene and both Congress and the President in Hamdan. In fact, the Supremes effectively reversed their own 2004 holding in Hamdi recognizing the power of the elected branches to set rules for captures in order to seize that power for themselves in Boumediene.

Exactly which branch of government is acting like arrogant tyrants?
 

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Bart,

Your fictional view here is transparently dishonest. You have one opinion of the case, the Court had another, and all your claims of absolute certainty as to the meaning of the Constitution are nothing more than lies.

You're the guy who says the Constitution grants the President and Congress the authority to construct a new Auschwitz and exterminate 6 million Iraqis.

You're the guy who wasn't sure if Congress had the authority to abolish the basic rules of arithmetic pursuant to the commerce clause.

You're the guy who bellows about "prizes and captures" without even knowing what the term means.

And you're the guy who had nothing to say to the post in which I made it obvious just how big a liar you really are. The original meaning of habeas is simple:

It was the means of asking the King's courts to verify that any detentions were conducted in accordance with the King's laws, pursuant to their duty as the King's servants to administer those laws faithfully.

I'd like to see you find any historian who'd argue with that description. The crux of the matter couldn't be any more clear:

In the United States, the People are sovereign, not the Congress, the President, nor the Courts. Habeas issued in the name of the Crown, and in the United Sates, the President is NOY our sovereign, but a servant of We, the People, and OUR laws, as stated explicitly by the Constitution.

Your silliness about what the British did or didn't do is fallacious.

'It never happened, ergo it wasn't possible', and never mind that there wasn't any need for it to happen in the first place. In point of fact, the usual treatment of combatants in those days was to either to exchange or parole them, and as I noted in my previous post, the abuse of such prisoners was strictly prohibited by the Articles of War.

You're just wrong, and so is Justice Scalia.
 

Still, it is fun to listen to the screaming of movement conservatives about how dubious the decision of Five Supremes has gotta be.

Tell me that part again, about how a 5-4 decision can't be right.
 

jpk,

Somebody once asked Bobby Fischer what he liked most about playing Chess. His reply:

"I like to see 'em squirm."
 

Charles Gittings wrote:

”It was the means of asking the King's courts to verify that any detentions were conducted in accordance with the King's laws, pursuant to their duty as the King's servants to administer those laws faithfully.”

I agree. Further the writ of habeas corpus is closely allied to other historical remedies known as the “prerogative writs” which provided the supervisory jurisdiction of the Court – ‘certiorari’ to bring up the record of an inferior court or administrative body to ascertain whether the proceedings had been in accordance with law; ‘mandamus’ to compel an inferior court or official to carry out a public duty and ‘prohibition’ to restrain abusive proceedings or practices.

Your founding fathers well knew the utility of the remedies and, if I am not wrong, a petition for certiorari is still the formal process by which most proceedings get to the Supreme Court.

But there were other prerogative powers claimed by monarchs within the memory of the founding fathers and I have in mind the power of pardon, the power to suspend the application of a law and the power to dispense particular individuals from the effect of a law.

The first power was given to the President. But the second two powers, claimed and used by the Stuart Monarchs, in particular in relation to religious dissent, had already become obsolete in England by the time of the 1688 Revolution.

I do not think that it ever crossed the mind of the founding fathers to give to the President all the powers of an English monarch – indeed the evidence is that they distributed other powers to other branches – eg the powers to declare war and to ratify treaties are vested in the Congress, and the powers to appoint ambassadors, ministers and judges, are all more restricted than in the British constitutional arrangements of the time because they are subject to the “advice and consent” of the Senate.

I do not think it can be seriously argued that there was any intent to give the President power to suspend a law or to dispense individuals or groups from complying with a law.

Indeed that would be contrary to the express constitutional charge on the President to see to the execution of the law – which must include ratified treaties – and all of the laws, not just the ones he happens to like. There is no Presidential power to suspend or dispense.

Therefore the Neoconservatives who argue for an expanded authority from the President including a power to suspend the operation of laws or to dispense with their effect are arguing against their own preferred method of constitutional interpretation, the “originalist heresy”, because the founding fathers clearly did not intend the President to have powers which even poor King George III did not claim to have.

And, no, I do not think it is all that funny to listen to those who question or abuse the majority of the Supreme Court for carrying out the task imposed on them by the Constitution - particularly when the abuse comes from people like Bart who is an officer of the Court.

While all of us have the right and even the duty to analyse and question decisions, it is not appropriate to do so in intemperate terms because that tends to diminish the respect in the public mind for the rule of law.
 

mourad:

Attorneys are officers, not servants, of the courts. When a court acts unlawfuly, it is the duty of attorneys to speak out, not meekly accept unlawful acts and remain mute.
 

But there were other prerogative powers claimed by monarchs within the memory of the founding fathers and I have in mind the power of pardon, the power to suspend the application of a law and the power to dispense particular individuals from the effect of a law.

Correct. And as Mourad knows, the powers to suspend and dispense were specifically barred to the King in the English Bill of Rights (1689). The drafters of the Constitution used the "duty to execute" clause to say the same thing.
 

mourad:

I do not think it can be seriously argued that there was any intent to give the President power to suspend a law or to dispense individuals or groups from complying with a law.

Indeed that would be contrary to the express constitutional charge on the President to see to the execution of the law – which must include ratified treaties – and all of the laws, not just the ones he happens to like. There is no Presidential power to suspend or dispense.

Therefore the Neoconservatives who argue for an expanded authority from the President including a power to suspend the operation of laws or to dispense with their effect are arguing against their own preferred method of constitutional interpretation, the “originalist heresy”, because the founding fathers clearly did not intend the President to have powers which even poor King George III did not claim to have.

1) The President does in fact have the power to unilaterally withdraw from treaties.

2) No one is making the argument that the President has the power to suspend habeas corpus. That issue was decided during our Civil War. Indeed, Boumediene had nothing at all to do with an act of the President.

Rather the issue before the Boumediene Court was whether the Suspension Clause of the Constitution incorporated a pre-existing right granted to foreign POWs to challenge their designation as POWs. The Boumediene Five themselves resolved that issue by admitting that no such right existed during the entire history of the Writ.
 

"Bart" DeDicta:

Attorneys are officers, not servants, of the courts. When a court acts unlawfuly, ....

... and when an officer acts unlawfully (say, by engaging in dishonesty and deceit, see, e.g., MRPC 8.4(c))?

Cheers,
 

Mark Field wrote:-

”And as Mourad knows, the powers to suspend and dispense were specifically barred to the King in the English Bill of Rights (1689). The drafters of the Constitution used the "duty to execute" clause to say the same thing.”

Indeed, and we know the founding fathers had the English Bill of Rights in mind when they drafted the (later) US Bill of Rights.

It seems that a regrettably prolific poster, to wit, one Neocon Bart, has some reading or comprehension difficulties because he foolishly observes:-

”Rather the issue before the Boumediene Court was whether the Suspension Clause of the Constitution incorporated a pre-existing right granted to foreign POWs to challenge their designation as POWs. The Boumediene Five themselves resolved that issue by admitting that no such right existed during the entire history of the Writ.

I have to say that I read the recent decision of the Supreme Court as saying quite carefully that the only thing that was certain was that the petitioners were detained at the behest of the executive and had a right to have the legality of that detention tested.

The Suspension Clause is an irrelevance, because the circumstances when “common law habeas corpus” may be suspended have not arisen.

The majority held that had the procedures enacted by Congress in the MCA provided sufficiently rigorous procedures for a proper review process, then the Court could have held that to be sufficient substitute. The Court felt that there was no sufficiently robust substitute and therefore the MCA habeas stripping articles were unconstitutional. That is all they invalidated. It is open to Congress to try again with a clearer idea of the constitutional minimum.

The Court was therefore – with considerable reluctance – obliged to consider whether in conscience it could deny protection to the detainees.

Since what is guaranteed under the Constitution is the remedy – and a common law remedy at that – it is open to the Court to fashion the limits of that remedy in order “to do right” and the Court applying proper fundamental principles has reached the same conclusion as have other common law jurisdictions: if there is a person amenable to the jurisdiction of the Court who is holding someone prisoner (no matter where), then the writ may issue.

The Court did not say that the right to have the legality of detention tested did not exist previously, the Court said that it found no exactly analogous precedent which could guide it in defining the limits to the grant of relief. So in reasoned from principles and in so doing reached a conclusion declaratory of the scope of the remedy when properly understood.

The writ does not issue to the prisoner, but to the jailer or the jailer’s superior – it is he who has to account to the Court for the legality of the detention. In other words, in matters of liberty, the executive is not above the law.

Neocon Bart also wrote:

” Attorneys are officers, not servants, of the courts. When a court acts unlawfuly [sic], it is the duty of attorneys to speak out, not meekly accept unlawful acts and remain mute.”

I do not think I suggested that Neocon Bart should remain mute – although in common with others - I often wish he would.

Just think what it must be like for the long suffering judges of the courts where Bart is wont to appear and who are forced to listen to Bart’s idea of forensic advocacy. I can conceive of then being sorely tempted to interject after the ritual “May it please the Court…” something unjudicial like:

“No, Mr De Palma, it, bloody well does not please the Court – so the fines and sentences will get heavier the longer you keep talking.”.
 

Professor Richard Epstein of Chicago and Hoover Institute had a nice little op-ed piece in today’s New York Times:-
here.
 

The NYT published an interesting piece providing some more details of the interrogation of Khalid Sheik Muhammad. In the aftermath of the Boumediene Five's extension of habeas corpus to KSM and his fellow terrorists, this passage from the NYT article seemed apropos:

Mr. Mohammed met his captors at first with cocky defiance, telling one veteran C.I.A. officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer — the experience of his nephew and partner in terrorism, Ramzi Yousef, after Mr. Yousef’s arrest in 1995.

But the rules had changed...

Unfortunately, the Boumediene Five may be changing the rules back again. Future KSM's may indeed have a right to an attorney and a right to silence until some years later when a court gets around to actually finding him to be an enemy combatant. And as during the 90s, al Qaeda or similar terrorist groups will be free to wage war against the United States confident that their prisoners will not be compelled to compromise the organization.
 

Neocon Bart wrote:

"And as during the 90s, al Qaeda or similar terrorist groups will be free to wage war against the United States..."

Right now, there are many thousands of people prepared to commit acts of terrorism against US interests AND the interests of those seen as US surrogates.

The news that the USA has used torture is one of the best possible gifts to the terrorist recruiters.

When push comes to shove, the moral standards of those whose views Bart parrots are no better than those of Saddam Hussein and the other corrupt régimes the US has supported elsewhere in the Arab world. Torturers one and all.

The one thing about allying one's country with shits like those who have been calling the shots in the Bush Administration, one knows what one will end up standing in.
 

Mourad:

The point of my post concerned the hazards of treating a war like a civilian criminal justice matter along with rights to counsel and silence.

It had nothing to do with "torture."

BTW, you are welcome to link to any witness with personal knowledge of these "many thousands of people prepared to commit acts of terrorism against US interests." This urban myth gets more silly every year that goes by without any actual terror attacks against US interests. Its been six years and counting now.
 

I do not suppose that Woodland Park, Colorado is quite the international travel destination that London is, but Heathrow Airport has 67.3 million passengers a year with 471,000 aircraft movements, the single biggest destination of passengers being the USA. The London Underground carries 4 million passengers every weekday.

In the period from 9-11 to 31 March 2007, Home Office statistics show for the UK mainland (eg excluding Northern Ireland):-
- 41 Terrorism Act convictions to date;
- 183 person arrested on suspicion of terrorism convicted under other legislation: murder and explosives offences (including conspiracies), grievous bodily harm, firearms offences, fraud, false documents offences, etc; and
- 114 on or awaiting trial and among those presently on trial are a group said to have been conspiring to place bombs on transatlantic aircraft.

I do not conduct criminal work, but I have relatives and friends who are either judges or counsel involved in some of the major trials and they tell me that there is no doubt that (i) these people are not under Al-Quaida command or control; (ii) they have been converted to the same philosophy as that used to motivate the mujahiddin in the training camps in the tribal areas of Pakistan; (iii) they view the USA as a supporter of corrupt regimes (and indeed the factual evidence for that is well-nigh overwhelming); (iv) US actions and policies under George Bush, in particular his failure to anything effective for the Palestinians and his invasions of Afghanistan and Iraq, and the conduct of the “war on terror” are major factors in the recruitment and indoctrination of terrorists.

I expect similar figures would be available for other European countries.

If Bart and his Neocon friends think the fight against terrorism is over, they are living in a dream world.

US policy as practised by the Neoconservatives, under Reagan and Bush has been a major contributory factor to the growth of terrorism throughout the world. Present US policy is a massive aid to the recruiters for terrorist cells in Europe and elsewhere. Indeed, the extra-legal aspects of the so-called “war on terror” have made matters worse, not better.

But then, Bart and his Neocon friends and masters, are also anti-European and I suppose they do not regards the bombings in Bali, Madrid, London etc as being in any way inimical to US interests.

Blair's mistake in allying himself so closely with the Neocon shits in the US Administration is that a lot of the shit has fallen on us.
 

mourad:

You are offering a strawman argument again.

As the only hawk here advocating the use of military power against terrorist gangs, it is amusing to be accused of believing that "the fight against terrorism is over."

Rather, I simply challenged you to offer evidence for your unfounded claim that "there are many thousands of people prepared to commit acts of terrorism against US interests."

Because you did not, I will assume you are conceding the point.
 

Army Major Kyndra Rotunda was a legal adviser in Gitmo, a prosecutor at the Office of Military Commissions, and is the author of "Honor Bound: Inside the Guantanamo Trials." Major Rotunda offers these observations from a lawyer on the front lines concerning the decision of the Boumediene Five:

The court has decided to grant constitutional rights to detainees held in Guantanamo Bay. Now detainees can challenge their detention before U.S. judges in U.S. courts. Because Kennedy says so, military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground—in a faraway land during a battle—were justified. Kennedy admits that the court has not done this before and that there is no case precedent.

Not only does this decision come out of left field (remember that during World War II the United States held 400,000 prisoners of war on U.S. soil without granting them access to U.S. courts) but, tragically, their decision puts American troops at risk and will lead to more U.S. deaths on the battlefield because it makes it more difficult for soldiers to detain the enemy.

What's more, the court has no reason to step in. Under current rules, detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions. Roberts, in his dissent, called existing military procedures "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses—and the conditions at Guantanamo Bay—firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative...

The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.

The problem isn't that the U.S. is releasing too few detainees—it is releasing too many. Even Kennedy seems afraid to let these detainees loose. His opinion says that a remedy for violating their constitutional rights might be conditional release—or no release at all.
 

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I'm too busy to even want to get into this part of things here, but I'll say this much:

The first attack on the WTC occurred on February 26, 1993, and the fact that no further attack had occurred by September 10, 2001 didn't prevent what happened the next day.

Bart's argument is nothing but a logical fallacy, and he's also ignoring the fact that the United States has been under constant attack since 911 -- by the Bush administration.

How would an ant go about fighting a war against an elephant?

That's a question I've been looking at since 1987 in the exact context of a "GWOT" -- and the answer has a lot to do with why I've worked on my preposterous little project for six and a half years now. You see, I realized something in 1987... the ant could not only win such a war, the elephant is virtually defenseless.

The reality is that the Bush gang and the Republican Party are the best weapons Al Qaeda has.
 

Neocon Bart quotes the opinion of a “military prosecutor” on the Boumediene decision.

The lady in question is the wife of Professor Ronald Rotunda of George Mason University, now a GW Bush nominee to some commission or other. She was also at George Mason, but apparently resigned in circumstances which were less than happy according to an issue of The Docket.

She now has her own website Kyndra Rotunda, Esquire and Author.

[Strange this American usage of “Esquire” which in England is an appellation which can only be given to gentlemen to the exclusion of ladies and is never self-assumed one waits to be addressed thus. Amusingly, my local gas utility sends out its bill to “Mr X X” but if a receipt is requested it comes to “X.X. Esq” - perhaps they think that people who pay their bills are gentlemen and with-hold the honorific until they get the money.]

The lady lawyer's website has the following summary of her expertise:

“Rotunda is very familiar with the law that protects troops, and their families. Her expertise includes the Service Member Civil Relief Act (SCRA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Uniformed Services Former Spouses Protection Act (USFSPA), and the Traumatic Service Group Life Insurance (TSGLI) program. She is also familiar with military administrative and medical law. Rotunda has helped countless military families and troops with civil legal disputes including landlord tenant disputes, negotiating cell phone contract disputes, and various consumer protection matters.” - which does not exactly sound like a prosecutorial specialisation but she was, apparently, assigned to GITMO as a prosecutor and is now promoting a book on the subject, “Honor Bound - Inside the Guantanamo Trials” with the assistance of the Republican National Lawyers’ Association.

I query how a prosecutor can write anything meaningful about trials which have not happened yet, so perhaps she is writing about the combat status review procedures – which the Supreme Court expressly found wanting and on which the military prosecutors have now asked the DC Circuit for time and permission substantially to amend before they are judicially reviewed.

Strange that, given Major Mrs Routunda USA (Reserves), Esquire and Author’s supposedly expert opinion on the validity of the CSRT procedure: ”The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process.

Even stranger that the first case to get to the DC Circuit Court of Appeals has resulted in the Army’s case being thrown out:-
Parhat Order

Still, all this will in due course doubtless give Major Mrs Routunda USA (Reserves), Esquire and Author, perhaps in collaboration with Neocon Bart, material for a second magnum opus. I suggest a title: “Guantanamo Bay – How the Bush Administration’s lawyers got it badly wrong”.

BTW Sounds as if some Chinese Muslims are going to have to be released – perhaps Bart can help find them some congenial place to stay in the clean, fresh, Colorado mountain air while they get over their six years’ unlawful detention.

Does Bart have a view on the proper quantum of damages for six years in Guantanamo Bay ?
 

mourad:

There is nothing secret about the extensive due process granted prisoners during status hearings.

Nor is it a secret that this due process of far in excess of that which has been granted under the GCs.

These facts will not change regardless of your use of guilt by association logical fallacies pointing out that Major Rotunda is a Republican. This is unsurprising since around 80% of the military vote GOP because the Dems offer nothing but attempts to undermine their mission and denigrate their achievements.

BTW, the military has been attempting to release the Chinese prisoners to a third country for months if not years because it fears that they will end up in a Chinese gulag if returned home. However, multiple EU nations who wish to close down Gitmo also will not provide these men asylum. Surprise, surprise. This rank hypocrisy reminds me of the eager cooperation the EU provided the CIA to remove terrorists from their countries followed by mock outrage when that fact became public.
 

What a load of BS that is.

But don't you worry Bart: the public will be getting a good look at the facts fairly soon. The DC Circuit issued an order in their case today:

USCA D.C. Cir. --

PARHAT v. GATES, No. 06-1397

BEFORE: Sentelle, Chief Judge, and Garland and Griffith, Circuit Judges

NOTICE

On Friday, June 20, 2008, the court issued an opinion to the parties in the above-captioned case. Pursuant to the Detainee Treatment Act of 2005, the court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008). Because the opinion contains classified information and information that the government had initially submitted for treatment under seal, a redacted version for public release is in preparation.

PER CURIAM

http://www.pegc.us/archive/Parhat_v_Gates/CAD_order_20080623.pdf
 

I was fascinated by one of the comments to Professor Balkin’s post on US News & World Report:-

“I'm not too sure, but isn't it possible to just extend the Habeas Corpus right to suspected American prisoners? This allows for a safeguard for our citizens, and for foreign prisoners to be afforded the rights that they deserve.”

Are Americans that racist ?
 

Bart, my dear Neocon,

If you had taken the trouble to read my post before responding, you will see that my questions about your lady friend were:-

(a) as to her prosecutorial experience;
(b) as to her qualification to opine that the CSRT procedures were proper and effective;
(c) as to the ethical correctness of a prosecutor writing a book relating to detainees who are yet to be tried.

The fact that she seems to have campaigned for Guliani was not in the forefront of my mind any more than the fact that she once advised Governor Freudenthal, hopefully not on human rights issues.

BTW, I have nothing against Republicans. For me, Eisenhower was a hero, not so much for his WW2 leadership but for the efforts he made to avert the British/French/Israeli unlawful conspiracy to invade Egypt over Suez. I commend to you the record - here in the UK we have our children study it:
Schoolnet-Suez.

Not to mention, his military-industrial complex speech:
President Eisenhower on Military-Industrial Complex 1961

Unfortunately, the Republican Party has since then gone rather downhill – a crook (Nixon), a B-movie actor (Reagan), a CIA minion (Bush I), and now Bush 2 (expletive deleted).

I await with some eagerness the day when the Republicans can field a candidate, if not an officer and a gentleman, then at least a gentleman. Think how things might have been if Colin Powell had been at the helm on 9-11.

Meanwhile, as to the Uighurs – for some time shackled to the floor at Guantanamo according to the Washington Post – your government took them – you cannot send them to China – you give them refugee status. And you compensate them for their unlawful arrest and wrongful detention for six years.

I asked you about the probable quantum of damages. I await your response. Other tort lawyers please express a view.
 

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