Balkinization  

Monday, June 02, 2008

What Might the Court Do in Boumediene? And How Might Congress Respond?

Marty Lederman

OK, if you insist, Deborah, a few predictions . . . with the caveat that my track record on these matters has been decidedly mixed of late.

First, what will the Court do? (For a quick summary of the three questions raised in Boumediene, see my initial post here.)

In Boumediene -- unlike in Hamdan, Hamdi and Rasul -- Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-Justice majorities: (i) for one majority, an opinion holding that article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at GTMO; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the Court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)

But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush Administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated (i) that the Bush Administration was going to continue to fight tooth and nail, on several fronts, to try to ensure that the D.C. Circuit review of CSRT detention decisions is significantly constrained, with limited governmental obligations to disclose all possible relevant evidence, and a great deal of judicial deference to the Pentagon; (ii) that the D.C. Circuit itself is acrimoniously torn in half (five-five) over such questions; (iii) that therefore there is a very good chance the court of appeals' ultimate review over detention decisions will be far from robust; and, perhaps most importantly, (iv) that the legal disputes about the nature of such review are so controversial, so numerous and so closely contested below that it will likely be many years, if at all, before the GTMO detainees would obtain any meaningful review of the legality of their detentions.

All of which is to say that although the Bush Administration represented to the Court in Boumediene that the D.C. Circuit review was virtually equivalent to what the detainees would receive on habeas, the Bush Administration's posture in Bismullah revealed that its manifest design under the MCA/DTA process is to drag out the detention process indefinitely, and to strenuously resist any serious review of CSRT decisions. Presumably Justice Kennedy could not help but notice, from the example of Bismullah, that if the Court were to hold that the MCA/DTA process is constitutionally sufficient, the petitioners would likely spend many more years in detention, regardless of the merits of their petitions. And in that case, a SCOTUS holding that the GTMO detainees are protected by the Constitution would be of small solace, and the Court's decision in Boumediene would not bring us materially closer to resolving the GTMO mess.

For these reasons, I am now somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process.

Perhaps most significantly for your particular questions, Deborah, whether my original prediction or this updated, post-Bismullah prediction is correct, I think it is unlikely that the Court will resolve two other, more important long-term questions:

(i) whether and to what extent the Constitution protects detainees who are detained elsewhere around the world, such as in Afghanistan. (The AMK opinion, like his opinions in Rasul and Verdugo-Urquidez, might well conclude that the Constitution can apply elsewhere, but that the extent and nature of such coverage is very fact- and context-dependent -- and not, in any event, presented by this case.);

and

(ii) the "merits" question of the legal standard for detention -- in particular, whether Congress has given the President the authority to detain the civilian Bosnian petitioners in Boumediene (see the petitioners' arguments in Parts II of their opening and reply briefs).

If I am right, and the Court does not reach these questions, then I do not see any serious impetus for congressional action before the election. Why?

Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves -- the trials of a small percentage of the GTMO detainees for alleged war crimes violations -- and therefore there will be no call for a new "special court" process to replace the commissions. (If the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission) -- but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)

What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as "enemy combatants"? Well, if the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas -- and why should Congress bother with that, once habeas proceedings have commenced?

If, on the other hand, the Court holds that the D.C. Circuit review is an adequate substitute for habeas, then the government presumably will be content to go forward with the MCA/DTA process, and D.C. Circuit review, even if the detainees are now permitted to raise constitutional claims within that process (something that Congress could not effectively change, anyway).

The one result that might prompt legislative proposals would be if the Court did hold, on the "merits," that the Bush Administration's substantive detention authority is much narrower than what the Administration has been asserting and applying -- holding, for instance, that the 2001 force authorization statute did not give the President the authority to detain civilians who are not subject to the command and control of al Qaeda. In that (unlikely) event (it's not that I think the Court will hold otherwise -- I simply think there's only a small chance the Court will reach the merits question), then the Bush Administration might come forward with draft legislation broadening executive authority to indefinitely detain a much larger category of civilians -- such as those who have allegedly, in one way or another, "assisted" al Qaeda or "groups associated with al Qaeda" or, more to the point from the Bush perspective, persons who are not "combatants" but who might have some intelligence value. But such a proposal would, I hope, be tough sledding in Congress, precisely because it would focus the legislature's and public's attention on the strikingly broad and novel nature of the sort of non-combatant detentions that have become a hallmark of the Bush Administration campaign against al Qaeda.

Comments:

Isn't it just as likely that AMK will consider that the SCOTUS can exercise review of the DC Circuit's inadequacies on a case-by-case basis, so that your original prediction wins?
 

"I am now somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process." -Marty

I hope that's the way it comes down.
 

My position pretty much mirror's Scalia's oral argument, so there is no reason to rehash it again.

Based on oral arguments, Marty's prediction is pretty reasonable. However, Kennedy appears to be very reluctant to cross Congress a second time and appears to believe that he MCA regime is adequate.

This begs a question which I could really use some help in finding an answer:

Based on habeas corpus precedent, is finding a constitutional right to habeas review a necessary prerequisite for finding that Congress' MCA scheme is an adequate substitute for habeas review?

Said another way, can Kennedy avoid answering the question of whether the Suspension Clause grants foreign enemy combatants habeas corpus rights by simply finding that Congress' MCA scheme is an adequate substitute for habeas review and the Court need not reach the constitutional question?

In oral argument (which is a dangerously thin reed on which to base predictions), Kennedy appeared to want the DC Circuit to make an initial determination of constitutional issues under the procedure set forth under the MCA, which suggests that he does not want to rule on them in this case.

Thanks in advance for your help.
 

michael said...

"I am now somewhat hopeful that Justice Kennedy will conclude that the MCA/DTA process is not a constitutionally adequate substitute for habeas. In other words, Bismullah was (perhaps) the best thing that could have happened to the Boumediene petitioners, because it was a concrete demonstration of the constitutional inadequacy of the MCA/DTA process." -Marty

I would suggest that the DC Circuit's sharp divisions and indecision on how to proceed in Bismullah could also be viewed as a cautionary tale of the inadequacy of civilian courts attempting to impose civilian standards in history's first quasi habeas review of what have always been military battlefield decisions.

When he sees this hash, one has to wonder if Kennedy will really be willing to pull the trigger on habeas corpus review. Once he creates a constitutional right, it is forever.
 

However, Kennedy appears to be very reluctant to cross Congress a second time

Bear in mind that the Congress has changed mood (and personnel) since the MCA was passed in apparent response to Hamdan. If he is truly reluctant to "cross Congress," the result might be the opposite of what you suggest.
 

pms:

The Dem Congress does not seem to be particularly eager to challenge the MCA either. Remember that the balance of power in the House are Blue Dog Dems, who are generally hawkish when it comes to foreign affairs and war.
 

There are two cases that are easy to split. The court may rule that Boumediene and the other five Bosnians have a right to Habeas because they are not enemy combatants, but civilians arrested in a neutral foreign country (Bosnia) who are not members of any army or militia and who are not nationals of any enemy nation at war with the US. There is simply no principle in the Laws of War that allow them to be detained by the military for allegations that at most support criminal charges.

Then the court could rule in Al-Odah that real enemy combatants captured in Afghanistan or who operate under the command of al Qaeda or the Taliban have no constitutional right to Habeas and, for them, there was no Suspension nor is there need for a substitute for Habeas.

Except for the six Bosnians, such a ruling throws the status of all the other detainees up in the air, since which of the two categories any particular detainee fits in depends on the peculiar circumstances of his capture. The decision might or might not clarify the appropriate jurisdiction for determining the facts (the CSRT or the district court). This Court has never missed an opportunity to avoid broad decisions, and I see no reason to expect a change.
 

Howard:

Modern terrorism is most akin to piracy.

Nations have waged wars against pirates for a millennium even though piracy is also crime.

Not only do nations have the right to detain pirates/terrorists as enemy combatants for the duration of a war under the law of war, prior to the past century, it was perfectly permissible to summarily execute captured pirates.
 

Ah, so that's it. Ahmed Errachidi is a secret pirate.

http://www.timesonline.co.uk/tol/news/uk/article1940199.ece

I guess it's the way he wore his souffles as eyepatches that gave it all away.

Actually, the Bush DOJ sponsored euphemism called the "Global War On Terror" is most akin to human trafficking transactions, delivering up victims to human experimentation at attainder facilities. Taking people from their beds, their homes, or encouraging Pakistani criminals to collect them into packing containers for delivery to the US.

Not engaging a pirate ship on open seas or at a pirate's retreat on an isolated island, but instead arranging for the future torture of innocent Canadians sitting quietly in a US airport after first disappearing them from their family and children; arranging for the detention and who knows what ultimate disposition of 6 and 8 yo children whose father is a criminal; providing for the slow and relentless pulverizing of a cab drivers legs to his ultimate death after days of torture; kidnapping from a Macedonian hotel a German with the "wrong name" for his own disappearance into black abuse holes and later literally dumping him in isolation without identificaiton or money or communciation acces in the hopes he won't survive long enough to tell his story.

It should have been argued and put to bed long ago -but the truth is that all the facts clearly show that not only GITMO, but the whole network of GWOT concentrated population camps established by the Bush administraton at the the solicitation of the loyal Bushie DOJ, are very simply attainder camps, set up to receive people collected on Executive whim, without proof of any kind and without participation in any combatant activities, for the sole purpose of inflicting pains, penalties and in several reported instances torture deaths - without combat status under the FACTS and laws of war, and without criminal status under the Executive law enforcement function.

Frat boys running wild through the world, torturing and disappearing at will and on whim. It has no correllation in fact or law to anything ever allowed before by any sane democracy and it has no correllation with activity that any sound mind would promote.
 

what Mary said ^^
 

Mary:

You mean the Morrocan Ahmed Errachidi who worked as a cook in the UK, but claimed he traveled to Pakistan to raise money for an operation for his son (after all Pakistan rather than the UK is known as a place where one can raise tens of thousands of dollars in charity) and naturally decided to travel to visit the Taliban in Afghanistan during the war because he was deeply moved by the television coverage of all the victims of US indiscriminate bombing.

It is remarkable how many foreign Arab tourists were innocently taking holiday, seeking employment, helping bombing victims or taking religious instruction with the Taliban in Afghanistan when evil bounty hunters snatched them and spirited them away to Gitmo just to satisfy George Bush's torture lust. After all, Taliban Afghanistan was known as THE vacation spot in the Muslim world, a Mecca of employment opportunity and the finishing school for Islamic scholars.

If you believe that story, I have some beach front property here in the Rockies to sell you.
 

"Bart" DeDicta:

You mean the Morrocan [sic] Ahmed Errachidi who worked as a cook in the UK, but claimed he traveled to Pakistan to raise money for an operation for his son (after all Pakistan rather than the UK is known as a place where one can raise tens of thousands of dollars in charity) and naturally decided to travel to visit the Taliban in Afghanistan during the war because he was deeply moved by the television coverage of all the victims of US indiscriminate bombing.

Did you read the article, "Bart"? He was arrested in Pakistan. He happened to be there when 9/11 happened (wrong place at the wrong time, I guess). He was sold to the Americans by the Pakistani police for $5000 (pretty cheap, I'd say; what do you think you're worth, "Bart"? Doubt you'd get $10 from anyone here...)

He was released because the only charges against him were shown to be simply false.

Do you really think that it's easy to raise money in the UK as a cook?!?!?

And since you're psychic and can tell what Errachidi was thinking concerning bombings, perhaps you can tell the readers here what
finger I'm holding up to you.

Cheers,
 

arne:

Errachidi was released after five years to his home country of Morroco because he was mentally ill with bipolar disorder and no longer considered a danger.

My sarcastic reply to the credulous Mary was the actual "defense" offered by his attorneys.

Errachidi was arrested in Pakistan coming back from Afghanistan (along with hundreds of other Arab al Qaeda) after the liberation of that country, not after 9/11.

Since you believe that Errachidi and nearly everyone else at Gitmo were just in the wrong place at the wrong time, you appear to be a man of rare wisdom and insight. However, unlike Mr. Errachidi, you also happened to be in the right place at the right time. I just so happen to know that you have just won $10,000,000 in the Nigerian lottery. In order to claim this prize, simply send me your name, address, social security number and a deposit of $10,000 to my Cayman Islands bank account and I will send you your winning ticket. You need to act fast, though. The ticket expires next Monday.
 

Errachidi was arrested in Pakistan coming back from Afghanistan

That seems like the sort of thing that we'd put someone on trial for. Provided we had evidence, of course. Do we have any evidence that his man was trained at an Al Qaeda camp? If so, why was there no trial?
 

"If so, why was there no trial?" Because it isn't against the law for someone to be a soldier in an enemy army at time of war. During WWII it was not against US law for a German to join the German army. The US captured 435,000 Axis prisoners of war none of whom were charged criminally or tried.

After 9/11 we went to war with Afghanistan, a country whose army under the Taliban government trained, commanded, and supported "the planes operation" and other attacks on the US. Members of this army, whether Taliban or al Qaeda, are subject to detention until the conflict ends (until the Taliban and al Qaeda surrender, sign a peace treaty, or are wiped out). Although criminal charges can and have been filed (in military tribunals) against those who were part of the chain of command of the planes operation, Privates in the army cannot be charged criminally for an operation with which they were not involved. Nor can they be charged criminally simply for being part of an enemy army, in this war as in all previous wars.
 

Because it isn't against the law for someone to be a soldier in an enemy army at time of war.

Is there any evidence that this guy was a soldier in the Afghan army?
 

There is evidence in each case, but the question before the courts is what is the proper forum to test such evidence. Given that this is not a criminal charge, then the proper forum is not a criminal trial. Is it the CSRT, or is there some involvement by the Article III courts? What is the form of that involvement? When and how does it apply? These are the questions that still have not been resolved.
 

"Bart" DeSnippety:

Errachidi was released after five years to his home country of Morroco because he was mentally ill with bipolar disorder and no longer considered a danger.

From your link:

"A Moroccan man sent home from the U.S. detention camp at Guantanamo Bay last week was released by local authorities after terrorism-related charges were dropped, a human rights lawyer and relatives said on Thursday."

It says nothing about his being released "because" he was "mentally ill with bipolar disorder". But FWIW, if this is now to be the criterion for release, perhaps there is some hope for at least some of the detainees, even if it is an apparent change in your opinion. Not to mention this new "defence" you see may even help you as well, "Bart": your constant hallucinations where you see things that other people can't see might well excuse your behaviour here.

Cheers,
 

"Bart":

Please stop making sh*te up. Thanks in advance.

Since you believe that Errachidi and nearly everyone else at Gitmo were just in the wrong place at the wrong time, you appear to be a man of rare wisdom and insight.

I have never made such a statement. Nor can a fair interpretation of what I have said be taken to indicate that I even have such a sentiment.

Talk about lack of "wisdom and insight". You have what I actually have said in front of you. To pretend that I said something else is simply ... dishonest. And lazy.

I have no specific beliefs about the "guilt" or "innocence" of any specific detainees.

All I have been asking these five long years is that these people be given a chance to demand the gummint show cause as to their continued legal detention, and that in front of a neutral magistrate. It is not my job to show their actual innocence, but rather the job of the gummint to show their guilt (or whatever legal reason that the gummint can show for continuing detention). I am allowed to be "agnostic". Being "agnostic" is hardly reason, in my book, to detain someone for five years amd keep them from their wife and kids.

And I thnk we should have an accounting (and compensation) for those wrongly held, as well as punishment for those that have engaged in brutal, sadistic, or otherwise illegal behaviour toward them.

You seem to be of a different mind. But then again, you seem to be a man of low moral character.

Cheers,
 

BTW, "Bart":

Thanks for coming clean as to your "business ventures". Forewarned is forearmed, as they say, and those in doubt as to your MO here can give this information its proper consideration.

Cheers,
 

These are the questions that still have not been resolved.

It seems like it should have been resolved before now.

In any case, I was just mocking the Baghdad Bart "toss them all in a deep hole" solution.
 

you seem to be a man of low moral character

You misspelled 'no'.
 

arne langsetmo:

Contrary to his lawyer's self aggrandizing misrepresentations, Errachidi was not released "after terrorism-related charges were dropped" with the implication that the lawyer something to do with the military dropping charges. Errachidi was held as an enemy combatant and not charged with war crimes. Thus, there were no charges to drop. Nor did the military, as they did in dozens of other reviews, find that Errachidi was not an enemy combatant.

Errachidi was released like hundreds of other enemy foot soldiers because he did not pose a continuing threat. The man was suffering from bi polar disorder and was in no condition to wage war.
 

A POW who accepts his enemy combatant status has no right to challenge his detention through Habeas. Under Hamdi, a US citizen who claims he was incorrectly classified as an enemy combatant has a right to some sort of hearing. Currently, only Ali al-Marri received such a hearing through Habeas under Federal District Court supervision. All the other detainees received a CSRT, and their right to Habeas is contested here.

What some refer to as Habeas-stripping provisions in the MCA are actually more complicated. The most important provision may be the one that makes a CSRT determination of enemy combatant status dispositive in any Habeas proceeding in District Court. This does not suspend Habeas, but it means that if the government response to a Habeas petition indicates that the prisoner has been found to be an enemy combatant by a CSRT, then the court has no jurisdiction to inquire further.

The Supreme Court may be reluctant to challenge this legislation when the CSRT appeals process is still under way. Thus an alternative resolution would be to find for the Bosnians (because the allegations in their case do not meet a prima facie claim of combatant status) and defer the rest of the al-Odah cases until the DC Circuit completes their review. Such a decision may, however, be accompanied by dicta to prod the DC Circuit in the right direction.
 

Congress shouldn't do anything until next year -- and certainly not anything the Bush administration wants to do.

And what they need to do when the times comes is repeal the DTA and MCA and quit patronizing the idea that there is any merit to the Bush administration's arguments whatever. The reality is that they are WAR CRIMINALS, that is all that they are, and that's the only real problem here beyond the delusions of the fools who support their vile demented nonsense. These people are disgraceful liars and murderers, and anyone who beleives anything the Bush administration or the Republican Party says about prosecuting terrorists -- or fighting wars for that matter -- is anything more than lies, alibis, and delusions is an idiot.

No torture, no disappearences, no kangaroo courts, period. The last six and half years are one of the miost disgreaceful episodes in our huistory. What we need to worry about is prosecuting these demented gangsters for their crimes.
 

Re: summary execution for pirates, it should be recalled that historically, pirates were apprehended far from any tribunal, with no secure means of confining them until a trial could be held, and with transportation presenting great difficulties for production of witnesses, etc.

IOW, Khalid Sheikh Mohammed was not apprehended with his scurvy crew on the Spanish Main, but rather under conditions that allowed perfectly well for due process.

The "pirates!" analogy is fun, but I think it's largely superseded by modern technology, which allows for due process even for Long John Silver.
 

What is amazing to a UK lawyer (and, may I say, to the UK Courts) is the extent to which US jurisprudence appears to have lost its way on the nature of the remedy of habeas corpus.


1. Habeas Corpus is supposed to be a speedy remedy. So much so that in the UK the first ex parte application takes precedence over all other judicial business. One can go into Court and if there is no judge who is not sitting is available, arrangements will be made to interrupt some other case to enable the application to be made. I remember in my youth doing just that before the then Vice-Chancellor who was sitting hearing some Chancery matter with multiple parties each of whom had 3 representatives in Court (1 Queen’s Counsel, 1 Junior Counsel and instructing solicitor). The Vice-Chancellor stopped one of the silks in mid-oratory, “Forgive me, Mr X, I have an urgent matter to interpose “ and then I was on – with a distinguished audience! Permission to apply was granted in 10 minutes with a return date to for 10 am the following morning: “You may tell the police that if your client is released this evening, they need not worry, but if he is not released, they are to appear before me at 10am tomorrow to explain why.”

2. Out of hours there is a duty judge 24 hours a day 365 days a year.

3. Habeas Corpus issues in favour of all persons under the control of the Crown – citizens or not – and wherever they may be – the only bar is the existence (say in a colony) of a local court with habeas jurisdiction.

4. Habeas appeals are also expedited.

This is an extract from the decision of the English Court of Appeal in The Queen on the Application of Abbassi & Another -v- The Secretary of State for Foreign Affairs [2002] EWCA Civ. 1598. [At the time Mr Abassi was detained at Guantanamo Bay].

“Our view of Mr Abbasi's predicament

Mr Blake has founded his case upon Mr Abbasi's predicament as it currently appears.

If the decision of the District Court of Columbia accurately represents the law of the United States, then the United States executive is detaining Mr Abbasi on territory over which it has total control in circumstances where Mr Abbasi can make no challenge to his detention before any court or tribunal. How long this state of affairs continues is within the sole control of the United States executive.

Mr Blake contends that this constitutes arbitrary detention contrary to the fundamental norms of international law. It is not the fact that Mr Abbasi is detained on which Mr Blake relies - it is the fact that Mr Abbasi has no means of challenging the legality of his detention.

It is this predicament which, so Mr Blake contends, gives rise to a duty on the part of the Foreign Secretary to come to Mr Abbasi's assistance. That assistance is claimed as a matter of last resort.

We do not consider that we can deal satisfactorily with this appeal without addressing those submissions and we consider, in the light of the jurisprudence discussed above, that it is open to us to do so.

The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17th Century into "the most efficient protection yet developed for the liberty of the subject" (per Lord Evershed MR, Ex p Mwenya [1960] 1 QB 241, 292, citing Holdsworth's History of English Law, vol 9 pp.108-125). The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions:
"for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted"
(Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary [2001] 2 WLR 1219, 1236).

The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:
"...no member of the executive can interfere with the liberty... of a British subject except on the condition that he can support the legality of his action before a court of justice" (R v Home Secretary ex p Khawaja [1984] 1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson [1942] AC 206, 245 and Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670).

This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court: "He who is subject to English law is entitled to its protection." (per Lord Scarman, ibid p.111). It applies in war as in peace; in Lord Atkin's words (written in one of the darkest periods of the last war):
"In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace." (Liversidge v Anderson [1942] AC 206, 245 at p.244)

As one would expect, endorsement of this common tradition is no less strong in the United States. In Fay v Noia (1963) 372 US 391, 400, Justice Brennan referred to:
" the 'extraordinary prestige' of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence... It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement...'" (adopting the words of Lord Birkenhead LC, in Secretary of State v O'Brien [1923] AC 603, 609).

Like Lord Atkin, he emphasised its importance in times of national emergency:
"It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and liberty clash most acutely, not only in England in the 17th Century, but also in America from our very beginnings and today. " (ibid p.401)

The recognition of this basic protection in both English and American law long pre-dates the adoption of the same principle as a fundamental part of international human rights law. Of the many source documents to which we have been referred, it is enough to cite the International Covenant of Civil and Political Rights, to which the United Kingdom and the United States are parties. Article 9, which affirms "the right to liberty and security of person" provides:
"4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
By Article 2, each state party undertakes to
"ensure to all individuals within its territory and subject to its jurisdiction" the rights recognised by the Covenant "without distinction of any kind, such as... national origin..."

For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a 'legal black-hole'.

That is not to say that his detention as an alleged "enemy combatant" may not be justified. This court has very recently had occasion to consider the legitimacy of legislation that empowers the Secretary of State to detain within this jurisdiction aliens who are suspected of being international terrorists – A, X and Y and Others v Secretary of State for the Home Department [2002] EWCA Civ 1502. We would endorse the summary of the position under international law of Brooke LJ at paragraph 130:
"What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state's power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds."

These comments can be applied with equal force to those suspected of having taken part in military operations involving terrorist organisations.

What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter. The question for us is what attitude should the courts in England take pending review by the appellate courts in the United States, to a detention of a British Citizen the legality of which rests (so the decisions of the United States Courts so far suggest) solely on the dictate of the United States Government, and, unlike that of United States' citizens, is said to be immune from review in any court or independent forum.

It is clear that there can be no direct remedy in this court. The United States Government is not before the court, and no order of this court would be binding upon it. Conversely, the United Kingdom Government, which, through the Secretaries of State is the respondent to these proceedings, has no direct responsibility for the detention. Nor is it suggested that it has any enforceable right, or even standing, before any domestic or international tribunal to represent the rights of the applicant, or compel access to a court.

[discussion of remedies against British Government followed]

Are the applicants entitled to relief in the present case?

We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.

The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.”


I have to say that now in 2008, I wonder whether the UK Court of Appeal would maintain its belief that the US courts have the same respect for human rights as the Courts of the UK.

There is a strong argument for UK legislation requiring all advertising for flights and holidays to the USA to carry a mandatory health warning that passengers travelling to the USA are liable to indeterminate detention, torture and abuse without fair trial.

That might not be too popular in, say, Florida, but I think UK citizens should be aware that the US is now a dangerous place to visit.
 

The 'pirate' references may not be so far fetched. According to report in the Guardian (UK), June 2, the US is holding and possibly even torturing additional 'terror suspects' on prison ships!!!
 

"Bart" DeSnippety continues his voluntary obtuseness:

Errachidi was released like hundreds of other enemy foot soldiers because he did not pose a continuing threat. The man was suffering from bi polar disorder and was in no condition to wage war.

Ummmm, rrrrriiigggghhhtt. You know, "Bart", back here in the states, we sometimes hospitalise people with BPD because they are a danger to themselves or others....

But I also note that you keep asserting your private version of events and circumstances here, while the only cite you provided actually says the opposite of what you keep claiming. Would you be so kind as to provide evidence to back up your repeated assertions, or just kindly STFU? Thanks in advance.

Cheers,
 

Howard Gilbert:

What some refer to as Habeas-stripping provisions in the MCA are actually more complicated. The most important provision may be the one that makes a CSRT determination of enemy combatant status dispositive in any Habeas proceeding in District Court. This does not suspend Habeas, but it means that if the government response to a Habeas petition indicates that the prisoner has been found to be an enemy combatant by a CSRT, then the court has no jurisdiction to inquire further.

The MCA provided you can only question the actual law through habeas, not contest your own specific incarceration under laws that may or may not be valid. Of course, this is a wholesale gutting of what the individual right to habeas is. That proviso that challenges to the MCA itself could be brought in a habeas motion (under restricted circumstances and in specific fora) was the fig leaf proffered to cover the fact that they had in effect gutted actual, substantive habeas.

Cheers,
 

mourad said...

What is amazing to a UK lawyer (and, may I say, to the UK Courts) is the extent to which US jurisprudence appears to have lost its way on the nature of the remedy of habeas corpus.

That is an interesting observation because it is British common law precedent that held the foreign enemy combatants did not enjoy habeas corpus review of their detention as POWs and were "not entitled to any of the privileges of Englishmen" which forms the best evidence of the scope of habeas corpus incorporated into our Constitution.

3. Habeas Corpus issues in favour of all persons under the control of the Crown – citizens or not – and wherever they may be – the only bar is the existence (say in a colony) of a local court with habeas jurisdiction.

Are you sure this is the current state of British law concerning foreign POWs? See Sir Arnold Duncan McNair, International Law Opinions 106 (The University Press 1956) and McNair, Legal Effects of War 54-60 (2d ed. 1944) as cited in the amicus brief of the American Center for Law And Justice pp. 10-11.

This is an extract from the decision of the English Court of Appeal in The Queen on the Application of Abbassi & Another -v- The Secretary of State for Foreign Affairs [2002] EWCA Civ. 1598. [At the time Mr Abassi was detained at Guantanamo Bay]...

"The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17th Century into "the most efficient protection yet developed for the liberty of the subject" (per Lord Evershed MR, Ex p Mwenya [1960] 1 QB 241, 292, citing Holdsworth's History of English Law, vol 9 pp.108-125). The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions:
"for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted"
(Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary [2001] 2 WLR 1219, 1236). Multiple following citations omitted.


Abassi is not a citizen of the United States. Thus, this precedent is irrelevant to the issue of whether Abassi as a foreign POW has the right habeas corpus review of his detention as a POW. The British courts of Blackwell's time refused to extend habeas corpus or any other rights of Englishmen to foreign POWs. NONE of the precedent cited by the British court opining on Abassi addresses this issue.

We would endorse the summary of the position under international law of Brooke LJ at paragraph 130: "What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state's power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds."

Habeas corpus is not a common law right in the United States, thus whether our courts also agree with Mr. Brooke's policy change preferences should be irrelevant. Our courts should be bound by the habeas corpus right as it existed when incorporated by our Constitution and as it is expanded or not by our legislation. Of course, whether our Supreme Court will obey the restriction of its limited mandate is another issue entirely.

There is a strong argument for UK legislation requiring all advertising for flights and holidays to the USA to carry a mandatory health warning that passengers travelling to the USA are liable to indeterminate detention, torture and abuse without fair trial.

Perhaps such a warning will discourage a substantial portion of British terrorists from traveling to our country. Most other Englishmen would get a good laugh from such a warning as they head to Disney World and the Florida beaches.
 

[Mourad]: What is amazing to a UK lawyer (and, may I say, to the UK Courts) is the extent to which US jurisprudence appears to have lost its way on the nature of the remedy of habeas corpus.

["Bart" DeDicta]: That is an interesting observation because it is British common law precedent that held the foreign enemy combatants did not enjoy habeas corpus review of their detention as POWs and were "not entitled to any of the privileges of Englishmen" which forms the best evidence of the scope of habeas corpus incorporated into our Constitution.


Better link here and here. Those interested in flogging dead horses a bit (or just getting an idea of "Bart" DeDicta's curious and selective reading of caselaw that is not in his bailiwick) can go poking amongst the ashes in those older posts. Needless to say, his self-serving link to his own page will just get you his quasi-legal fluffery, and none of the refutations by those of better ken.

But I'm waiting with bated breath for Mourad, who AFAIK is an English barrister (or is it solicitor?, but I'm assuming from his prior comments, the former) to lay into "Bart"'s pretense at knowing British law. Should be fun watching this evisceration....

Cheers,
 

Perhaps such a warning will discourage a substantial portion of British terrorists from traveling to our country. Most other Englishmen would get a good laugh from such a warning as they head to Disney World and the Florida beaches.

Maher Arar had a wonderful time, and he was just passing through...

What "Bart" DeDicta means by "British terrorists", of course, is anyone of dark complexion and/or an Islamic-sounding name. You know ... like ... "Mourad"?

Cheers,
 

from the Cato Institute's amicus in Boumediene:

"The American Constitution affords our Commander-in-Chief latitude to take enemy personnel into custody in a war zone. Once the prisoners are disarmed and jailed, there is no military exigency. If the Executive elects to incarcerate a prisoner for an extended period of time, he must be prepared to persuade an Article III judge that there are good reasons for such a detention. Congress can address some of the practical problems that may arise from habeas litigation, such as forum shopping. If habeas litigation is abused or becomes excessive and burdensome, Congress can also establish a system of purely discretionary review. So long as a prisoner has the ability to petition an Article III court, and that tribunal possesses the power to review the legality of the detention, as well as the power to discharge the prisoner, the Great Writ will retain its vitality as a bulwark of liberty. See Preiser v. Rodriguez, 411 U.S. 475 (1973); Harris v. Nelson, 394 U.S. 286 (1969).

In the instant cases, Congress overstepped the boundary established by the Suspension Clause by attempting to withdraw federal court jurisdiction over petitions for writs of habeas corpus. For the foregoing reasons, the judgments below should be reversed."


Fits well with their approach in the Hamdi brief.
 

arne langsetmo said...

But I'm waiting with bated breath for Mourad, who AFAIK is an English barrister (or is it solicitor?, but I'm assuming from his prior comments, the former) to lay into "Bart"'s pretense at knowing British law. Should be fun watching this evisceration....

It will be interesting to see if mourad can add anything to the efforts of the Commonwealth Lawyers Association amicus brief, which were pretty much eviscerated in pages 10-13 of the American Center for Law And Justice amicus brief.

During oral arguments, Mr. Clement did an excellent job disabusing Justice Souter of the errors of the Commonwealth Lawyers Association amicus brief concerning this British precedent. You can read the transcript here. Go about a third of the way down for Mr. Clement's point by point rebuttal. Further down. Mr. Waxman studiously avoids the entire foreign POW exception when Justice Scalia challenges him to offer a single case which provides authority for extending habeas corpus review of foreign POWs for the first time in Anglo American history.

I wonder if Kennedy was listening?
 

"Bart" DeDicta:

It will be interesting to see if mourad can add anything to the efforts of the Commonwealth Lawyers Association amicus brief, which were pretty much eviscerated in pages 10-13 of the American Center for Law And Justice amicus brief.

Ahhh, yes. The "American Center for Law and Justice". As aptly named as is the "Thomas More Law Center", who filed an amicus brief supporting the state pledge in Newdow but who takes for their namesake the person who lost his head rather than swear a loyalty oath.... Or like the "Federalist Society", chock full of anti-Federalists, but who have the temerity to use Madison's silhouette as their logo.

You know, I think I see a pattern here.

The ACLJ, run by Pat Robertson's Regent University hack (and Jew For Jayyyyyyzzzzus), Jay Sekulow. Probably a nice haven for Regent University grads when they can't find a decent job.....

When you can't pull up Freepervile as a source for links, I guess that RW fundie organisations -- under the tutelage of "Gawd brought about 9/11 because of our tolerance of gays" Pat Robertson -- will do. Particularly those that cite "Wallbuilder" (and serial liar) David Barton as 'authority'.

Cheers,
 

During oral arguments, Mr. Clement did an excellent job disabusing Justice Souter of the errors of the Commonwealth Lawyers Association amicus brief concerning this British precedent.

Yes, I've heard that telling appellate judges that they're mistaken is always a winning tactic. If no one tells them they're wrong, how will they know?

Cheers,
 

I think a majority of the Court, relying on Rasul, St.Cyr and Eisentrager, will find that constitutional habeas for the Guantanamo detainees survived the Military Commissions Act. I also think a majority will decide that federal appellate review of the CSRT determinations is not an adequate substitute for habeas. During oral argument, when Seth Waxman harked back to 1789 habeas, which was not just used to argue the tribunal didn't follow its own procedures (the DTA standard for review of CSRT determinations), but also was used to assert, "you have no right to hold me," Kennedy replied, "What does that tell you about the adequacy of the substitute?"
 

Sorry, to come a little late into this discussion again, but last night and until the early hours of this morning, I’ve been glued to MSNBC/CNN watching Barack Obama presumptively secure the Democratic nomination for the US presidency, an event which, if he should prevail, I hope and trust will do much to return the USA into the mainstream approach to the proper use of executive power – certainly if his campaign promise to review all Bush executive orders for constitutionality is made good.

There are certainly quite a few executive orders which are relevant to the cases of detainees.

As Neocon Bart De Palma well knows, I do not accept that the USA is at war in the legal sense of that term. The USA may well be engaged in armed hostilities, but in legal terms, a war may only take place between sovereign nations. There cannot be a “war” with an unincorporated non-sovereign entity. The so-called “war on terror” is a legal nonsense.

As far as I know, the USA did not go through its constitutional process for a declaration of war either as regards Afghanistan or Iraq. However, I do not think that matters when it comes to detainees taken in Afganistan and Iraq. The legality or otherwise of the two “wars” is not a matter domestic courts need resolve in the context of prisoners.

But whether there can legally be a “war on terror” of indeterminate duration against unspecified categories of persons may be a nettle the US Courts have to grasp. If there is no “war on terror”, then the status of persons detained outside Afghanistan and Iraq cannot be covered by the laws of war.

In the case of persons detained in Afghanistan and Iraq, I consider that distinctions have to be made according to the category of persons detained in US custody and the timing of their capture.

A – Persons detained in third countries and subjected to “extraordinary rendition”
In our jurisprudence, the Courts consider it to be an abuse of process if a person is brought before the Courts in an irregular manner. A person may be extradited and returned to the UK by pursuant to a proper extradition request. A person may be deported to the UK without a request. A person may surrender voluntarily. But in all cases the Court may enquire as to the process.

For example, A is in third country B. The UK police ask the police of B to find A. B’s police arrest A. The UK authorities collude in a process under which no extradition request is made by the UK and an executive decision is made by the authorities of state B simply to put A on an aircraft bound for London and the UK police are told he is en route and invited to meet the aircraft at Heathrow. A is thereby deprived of due process extradition/deportation proceedings in state B. If the UK authorities have colluded in that, there will have been an abuse and the prosecution will be stayed.

A fortiori, if a UK secret service agent were to go to state B, detain a person and then simply spirit him out of the country without lawful process under the law of state B (or indeed in defiance of it) and bring him to London, not only would that be an abuse of process invalidating any prosecution, there would have been unlawful arrest and imprisonment and a cause of action against the agent and the Crown with the prospect of exemplary damages.

Habeas Corpus would run from the moment the person came into the custody of a UK person. So would judicial review for Prohibition against the prosecuting authorities.

Even if the US jurisprudence is still akin to the older UK practice where the Courts would decline to enquire how a prisoner comes before the Court, I question the legal justification for detaining third country detainees otherwise than for the purposes of ordinary legal process before a regular court for an offence for which they could stand trial as a matter of US law.

I would hope that the US Supreme Court would consider such persons entitled to speedy habeas corpus relief on “a charge or release” basis.

I would also hope that the Court would determine that any Presidential determination that such third country persons are “enemy combatants” is an abuse and of no legal effect.

B - Afghanistan
I’m a little rusty on this, but my recollection is that the US intervention in Afghanistan was initially undertaken without any authority of the UN (even though there was a UN Security Council offer of a resolution). That was in international law terms an unlawful war of aggression. The laws of war apply.

Subsequently, and from memory after Bin Laden and many followers had been allowed to cross the Durand Line (the Afgan-Pak border – which is simply a theoretical line on a map with Pushtun tribes on both sides who are uninterested in borders drawn on maps by Victorian cartographers) into the FATA areas of Pakistan, there was agreement at the Bonn Conference on the establishment of the ISAF Security and Assistance Force initially sanctioned by UN Security Council Resolution 1386 of 2001. The UK and other European forces are in Afghanistan as part of ISAF (which is effectively manned by NATO to assist the Afghan Government). I think there are still US forces in Afghanistan operating outside ISAF and there may be US elements operating within ISAF. Insofar as they operate within ISAF, those troops presumably are in an identical legal situation to the other ISAF contingents. Insofar as US forces operate outside ISAF, their status is unclear to me. There may be a bilateral agreement with the Afghan Government. I know not.

C – Iraq
The UK and USA invaded Iraq without any lawful authority under international law. That was an unlawful war of aggression. The laws of war apply.

After the fall of Saddam Hussein, the USA and UK became occupying powers (“the infamously ineffective “Coalition Provisional Authority”). That may be a case of belligerent occupation.

Thereafter a lawful government was established and all troops in the Coalition are now there pursuant to a UN Mandate.

Timing Issues
If a person has come into custody during a period of hostilities (i.e. after invasion and before the establishment of a lawful government), then the laws of war and, in particular the Geneva Conventions apply with their full force.

After hostilities have ceased, and the forces are there as an occupying power, then the law of belligerent occupation applies. The Geneva Conventions continue to apply.

Once there is a recognised government, then either the law of the nation applies or any special provisions under the UN Security council mandate may apply. UN Mandates always have some vague reference to human rights principles.

Habeas Jurisdiction
Law is never as simple as Neocon Bart seems to think it is. His first reference to English cases are to ones of some antiquity:-

”British King's Bench in Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) and The Case of the Three Spanish Sailors, 96 Eng. Rep. 775 (K.B. 1779)

For Bart’s information, there has never been a “British King’s Bench” save in the sense that all the Crown’s courts are British. England and Wales have a distinct legal system from Scotland which is a “foreign” jurisdiction for English purposes applying very different legal concepts more akin to Roman-Dutch law than to Anglo-Norman common law. The King’s Bench was an English Court. It is now the “Queen’s Bench Division of the High Court of Justice of England and Wales”.

English law has moved on a little since the 1700’s. The cases Bart cites may be of some interest to those infected with the “originalist” legal heresy when seeking to establish what the common law was at the time of US independence. But just as the law has moved on in England, I would hope there has been some progress in the USA too.

An English case which may be of some interest to US readers is the decision of the UK Court of Appeal in Al-Skeini & Ors, R (on the application of) v Secretary of State for Defence [2005] EWCA Civ 1609 (21 December 2005)

This is an extract from the case summary:

All six claims in the appeal are test cases arising out of the death of civilians in Basrah City, in the south-east of Iraq, between August and November 2003. It is accepted that these deaths occurred whilst the UK was an occupying power. The central issue in this appeal is “whether national and European human rights law also confer on the relatives of the dead Iraqi civilians enforceable rights against the British authorities arising out of the fatal incidents that are at the centre of this case”

Extracts from the Judgment of Lord Justice Brooke:-

It may seem surprising that an Act of the UK Parliament and a European Convention on Human Rights can arguably be said to confer rights upon citizens of Iraq which are enforceable against a UK governmental authority in the courts of England and Wales. The reason why this proposition is seriously arguable is that when the ECHR was being drafted, the member states of the Council of Europe decided to alter the phrase “the High Contracting Parties shall secure to all persons "residing within their territories" the rights and freedoms defined in … this Convention,” so that instead of the italicised words the words “everyone within their jurisdiction” were substituted. Although by the operation of elementary principles of public international law the jurisdiction of a sovereign state is generally restricted to persons and property within its territory (because any attempt to exercise jurisdiction within another sovereign state would constitute a violation of that state’s sovereignty) international law has always recognised a narrow range of exceptions to this rule.

Mr Christopher Greenwood QC, who appears as leading counsel for the Secretary of State, now accepts on behalf of his client – although he argued unsuccessfully to contrary effect in the court below – that when a citizen of Iraq was in the actual custody of British soldiers in a military detention centre in Iraq during the period of military occupation he was within the jurisdiction of the UK within the meaning of Article 1 of the ECHR. He disputes, however, that Iraqi citizens who were shot dead, whether intentionally or by accident, by British soldiers in their homes or in the street during the period of occupation were properly to be treated as being within this country’s jurisdiction. This is one of the issues we have to decide.

Even if we were to hold that all these Iraqi citizens were within the jurisdiction of this country for ECHR purposes, the Secretary of State nevertheless argues that the HRA conferred no rights upon them that are enforceable in a UK court, and that they must go to the court at Strasbourg if they wish to have their rights recognised in a court of law.

He relies on the canon of statutory construction that requires Parliament to use clear language if it intends one of its Acts to have extra-territorial effect. The contrary argument is that the HRA was all about conferring on people who are within this country’s jurisdiction (within the meaning of Article 1 of the ECHR) the right to enforce their Convention rights in UK courts. This is what, it is said, “bringing rights home” was all about. The appellants rely on recent dicta in both this court and in the House of Lords as having great persuasive, even if not binding, effect in their favour. This is the other main issue we have to decide.

The reason why these issues are so important is that what is known as international humanitarian law imposes a number of unexceptional moral precepts on occupying forces (“Thou shalt not commit murder”; “Thou shalt not be guilty of torture or other inhuman treatment”, etc) but it imposes none of the positive human rights obligations that are inherent in the ECHR. It is a far cry from the complacency of “You must not kill but need not strive Officiously to keep alive” to the obligations imposed on a member state of the Council of Europe by the case law on Articles 1 and 2 of the ECHR (“the High Contracting Parties shall secure to everyone within their jurisdiction [their] right to life”). The difference between these two regimes was vividly illustrated by the powerful written submissions that were prepared by Keir Starmer QC, Richard Hermer and Azeem Suterwalla on behalf of the AIRE Centre and the Redress Trust.



Throughout the case law to which I have referred in paras 98-106 above there has been the constant refrain that a state may be fixed with having exercised extra-territorial jurisdiction if it has exercised control and authority over a complainant. The court’s analysis will then be centred on the particular complaint that is made. If the complaint concerns a breach of Article 2 or Article 3 rights, the court will not only consider whether those rights have been violated but also whether the state was in breach of the positive obligations imposed on it in connection with the duty to secure those rights. The Secretary of State now concedes that the UK had jurisdiction in relation to Baha Mousa throughout the period that led up to his death, because he was being held in a British military prison that was operating in Iraq with the consent of the Iraqi sovereign authorities and contained arrested suspects (see DC 287). In my judgment, Mr Mousa came within the control and authority of the UK from the time he was arrested at the hotel and thereby lost his freedom at the hands of British troops.

In my judgment it is quite impossible to hold that the UK, although an occupying power for the purposes of the Hague Regulations and Geneva IV, was in effective control of Basrah City for the purposes of ECHR jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Bankovic judgment, to secure to everyone in Basrah City the rights and freedoms guaranteed by the ECHR. One only has to state that proposition to see how utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basrah City, other than the limited authority given to its military forces, and as an occupying power it was bound to respect the laws in force in Iraq unless absolutely prevented (see Article 43 of the Hague Regulations cited in para 113 above). It could not be equated with a civil power: it was simply there to maintain security, and to support the civil administration in Iraq in a number of different ways (see para 16 above).

I would observe that this case will probably go to the House of Lords, but I do not think the holdings of law will be disturbed. Also this is a long judgment (202 paragraphs) and to understand it it is really necessary also to read the Judgment of the Divisional Court below, both of which can be found on BALII which is free (http//:www.balii.org).

The impact of the Judgment is this: from the moment a person (of whatever nationality) comes into the custody of UK forces in a detention facility operating effectively under the control of UK forces, he benefits from all the human rights of a UK citizen in England. These rights would also apply if the forces were acting as an occupying power and exercising effective control over a defined area. In the factual situation in Basrah it was an occupying power for the Hague Regulations and the Geneva Conventions but not in control for the purposes of the ECHR.

However, another case which may be of interest relates to the situation of a person with dual British-Iraqi citizenship interned in Iraq. He applied for relief. The Court held that since the UN Security Council Resolution 1546 provided for internment, he could be detained under those provisions. Al-Jedda, R (on the application of) v Secretary of State for Defence [2006] EWCA Civ 327 (29 March 2006)

Extracts:

In order to understand how the point arises it is necessary to say something about the involvement of the UN Security Council in the affairs of Iraq from May 2003 onwards. For the purposes of this case it can be taken that the period between 1st May 2003 and 28th June 2004 was a period when the belligerent Coalition forces were in occupation of Iraq. As such they enjoyed all the benefits and bore all the burdens attributable to occupying powers under international humanitarian law. The Coalition Provisional Authority (“CPA”) exercised governing authority in Iraq during this period. On 28th June 2004 an Iraqi interim government assumed sovereign power, so that sovereignty was vested in an Iraqi government three months before Mr Al-Jedda’s arrest. This is important, because from 28th June 2004 onwards what was called the “Multinational Force” (“MNF”), which was largely dominated by US forces, were now performing their functions at the request of the Iraqi interim government (as the sovereign power), as opposed to being the military arm of the occupying powers.

In US Military Government v Ybabo 16 AD 439 a US Military Government Court of Appeals referred to the Duke of Wellington’s famous phrase “the will of the commander”, and said that the exercise of that will was often defined as martial law. In US v List, XI Trials of War Criminals 1230, a US Military Tribunal said at pp 1244-5:

“The status of an occupant of the territory of the enemy having being achieved, international law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility. But he is definitely limited by recognised rules of international law.”

Article 43 of the Hague Regulations merely embodies the rule of customary international law that such a military commander is bound to take all the measures in his power to restore and ensure, as far as possible, public order and safety, and internment for imperative reasons of security is a tool available in his armoury for achieving that aim. What Geneva IV does is to prescribe the circumstances in which this power is to be used and exercised in relation to the people protected by that convention. It does not itself create the power.


There is no room here for any argument that human rights treaties fall into some special category. If the Security Council, acting under Chapter VII, consider that the exigencies posed by a threat to the peace must override, for the duration of the emergency, the requirements of a human rights convention (seemingly other than ius cogens, from which no derogation is possible), the UN Charter has given it power to so provide. The Security Council has primary responsibility for the maintenance of international peace and security, and one of the purposes of the United Nations, by which it is bound to act, is to take effective collective measures for the prevention and removal of threats to the peace (see para 56 above). There is no need for a member state to derogate from the obligations contained in a human rights convention by which it is bound in so far as a binding Security Council resolution overrides those obligations. If the Security Council is acting under Chapter VI, the principles of justice and international law (see para 55 above) are likely to weigh heavily with it in its search for the settlement of an international dispute by peaceful means, but we are not concerned with Chapter VI on this appeal.

It follows that Mr Greenwood was in my judgment correct when he argued that UNSCR 1546 (2004) qualified any obligations contained in human rights conventions in so far as it was in conflict with them. I use the word “qualified” deliberately. In so far as that resolution sanctioned the continued use of internment beyond the period contemplated by Geneva IV as a means of restoring peace to Iraq, the very essence of internment is inconsistent with the “due process” requirements of ECHR Article 5(1) or Article 9 of the ICCPR. But all the remaining requirements of those human rights conventions retained their vitality (in so far as they were not qualified by the Security Council resolution), and with the greater vigour because an internee’s important right to liberty was being removed without the due process that is obligatory in less exceptional times. There was nothing in the resolution, for instance, to qualify the obligation resting on the members of the MNF not to torture any internees or otherwise subject them to inhumane or degrading treatment, or to deprive them of any other Convention right (or any other international law right) relevant to the regime and conditions of internment that was not qualified by the terms of the Security Council resolution.

Moreover the Security Council has not sanctioned indefinite internment. At present it has extended the MNF’s mandate until 31st December 2006 (see para 34 above), but it would be open to it to terminate the mandate before that time, or to alter its terms, if it thought it appropriate to do so. In the meantime, if an internee continues to be detained, his case must be subjected to a review at least once every six months, and there is no power to continue his detention unless this is necessary for imperative reasons of security, which is a very demanding test. It would always of course be open to the British government to introduce an independent element into the reviewing process if it considered it appropriate to do so.

Again, I commend the full Judgment to readers who have an interest.

It is because of these cases that I suggest that the timing of the detention of an individual may be important because what law is applicable will depend on (i) whether arrest and took place during actual hostilities before a UN Security Council Resolution came into force, (ii) whether the arrest and detention took place after a UN Security Council came into force and if so, what specific provisions are made in it for the administration of justice.

Points to ponder:

In none of the English cases has the Court declined jurisdiction to enquire into the legal basis of the detention of an individual. In Al-Jeddah the court conducted such an enquiry and determined (i)that he was lawfully detained under the provisions of the UN Security Council Resolution and (ii)that authority to detain or release him was vested in the military authorities. That seems to be not inconsistent with US Supreme Court decisions.

The English Court has held that derogation from ius cogens norms of international law is impermissible. In that connection, I consider that the UK military jurisdiction would be able to intern on mere suspicion, but not to punish for crime based on evidence obtained by torture or inhuman and degrading treatment and judicial review would be available to enforce that principle. I would hope that the US Supreme Court would apply the same principles to the procedures of the US military jurisdiction.

One thing comes out of all this: Future “coalition” adventures of COE/NATO countries with the USA are going to be much more difficult unless there is alignment of human rights guarantees. Much more attention will need to be paid to the drafting of the justice provisions of UN Security Council Mandates.

The above are some "quick" reactions. I'll try to deal with some of Neocon Bart's sillier obligations later.
 

Corrigendum

For "obligations" in the post above, please read "observations"

Thanks
 

Mourad:

My hat is tipped to your prodigious output on this blog. Do you work or sleep?

;^)

As usual, I only have time to hit the main points of your post.

As Neocon Bart De Palma well knows, I do not accept that the USA is at war in the legal sense of that term. The USA may well be engaged in armed hostilities, but in legal terms, a war may only take place between sovereign nations. There cannot be a “war” with an unincorporated non-sovereign entity. The so-called “war on terror” is a legal nonsense...If there is no “war on terror”, then the status of persons detained outside Afghanistan and Iraq cannot be covered by the laws of war.

Here is some homework for you:

How many wars did Great Britain wage against unincorporated non-sovereign entities? America waged dozens of such wars.

Did the UK treat the captured enemy combatants in those wars as prisoners of war or common criminals? America treated our irregular unincorporated non-sovereign captures as POWs.

Our countries share a common heritage on this issue, you know. During the American Revolution, Great Britain waged war against the unincorporated non-sovereign colonials and treated the captured revolutionaries as POWs.

Does Common Article 3 of the Geneva Conventions require that signatories treat captured enemy combatants from irregular non governmental militaries as prisoners of war with all the rights of combatants from regular armies so long as the irregulars follow the rules of war or as common criminals?

As far as I know, the USA did not go through its constitutional process for a declaration of war either as regards Afghanistan or Iraq.

This is irrelevant to the status of POWs. The US still must follow the laws of war.

However, I would observe that our Constitution only permits Congress to approve military action in one way - a declaration of war. Thus, I have contended that the Authorizations for the Use of Military Force (AUMF) against Iraq and al Qaeda were de facto declarations of war.

Persons detained in third countries and subjected to “extraordinary rendition”
In our jurisprudence, the Courts consider it to be an abuse of process if a person is brought before the Courts in an irregular manner.


They were military captures and not civilian criminals. The law of war permits a combatant to capture the enemy anywhere.

I’m a little rusty on this, but my recollection is that the US intervention in Afghanistan was initially undertaken without any authority of the UN (even though there was a UN Security Council offer of a resolution). That was in international law terms an unlawful war of aggression. The laws of war apply.

Nonsense.

1) The US Constitution does not empower the UN to declare war on behalf of the United States. The Constitution has not been amended to cede any measure of sovereignty to the UN.

2) Taliban ruled Afghanistan sheltered, supplied and protected al Qaeda, who in turn had been waging war against the United States for the better part of a decade.

The UK and USA invaded Iraq without any lawful authority under international law.

Stuff and nonsense.

1) Once again, neither the US nor the UK requires UN authority to wage war.

2) In any case, as I pointed out in an earlier thread, Iraq had been in a state of war since 1991 with the Coalition which was only suspended if Iraq followed the terms of the Ceasefire. Iraq violated those terms and the combatants returned to a state of war. For what very little this is worth, the UN gave its farethewell to the Persian Gulf War and to the ceasefire entered into afterward.

Habeas Jurisdiction - Law is never as simple as Neocon Bart seems to think it is. His first reference to English cases are to ones of some antiquity:-

”British King's Bench in Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) and The Case of the Three Spanish Sailors, 96 Eng. Rep. 775 (K.B. 1779)”


Actually, these cases where relatively new when our Constitution was enacted. In order to determine the scope of habeas corpus jurisdiction at the time that law was incorporated into our Constitution, the British habeas corpus common law which we inherited is very relevant.

For Bart’s information, there has never been a “British King’s Bench” save in the sense that all the Crown’s courts are British.

These are American citations used by our courts. I humbly apologize for any historical inaccuracies in our system of citation.

English law has moved on a little since the 1700’s. The cases Bart cites may be of some interest to those infected with the “originalist” legal heresy when seeking to establish what the common law was at the time of US independence. But just as the law has moved on in England, I would hope there has been some progress in the USA too.

For the purposes of determining the scope of common law habeas corpus review incorporated by the Constitution, it is necessary to determine the scope at the time the Constitution was enacted, not over two centuries later.

Congress is free to enact statutes expanding the constitutional right, but has determined that it will not extend that review to foreign POWs for the first time in American history.

As I have informed you before, our federal courts are not empowered to create new common law habeas corpus rights as your British courts continue to do.

Therefore, citation to any British common law decisions occurring after the Revolution are irrelevant to our US legal debate. I offered Lord Duncan's 20th Century treatise on international law only to note that Schiever and Three Spanish Sailors had been interpreted in Britain for over two centuries to stand for the propositions for which I offered them.
 

"Bart" DeDicta:

However, I would observe that our Constitution only permits Congress to approve military action in one way - a declaration of war. Thus, I have contended that the Authorizations for the Use of Military Force (AUMF) against Iraq and al Qaeda were de facto >declarations of war.

The Rule Of Cats: "All proper cats must be black" (IF proper cat THEN black)

Arne: "That cat is not black"

Bart: "That cat is black"

Arne: "That's not a proper cat"

Substitute "legal war" and "declared".

There is a different possible conclusion, you know. "Bart" would prefer to ignore that one and assume the other.

Cheers,
 

arne:

Under what provision of Article I apart from the power to declare war can Congress possibly authorize the use of military force?
 

"Bart" DeDicta shows a surprising misunderstanding of the nature of "common law":

As I have informed you before, our federal courts are not empowered to create new common law habeas corpus rights as your British courts continue to do.

At best an originalist can argue that statutory law should be frozen in time to the circumstances and intentions (however determined, and by whatever metric) at the time of the enactment.

But common law is fundamentally inconsistent with such a fixity.

What "Bart" would be best arguing here is that the Constitution, by implication, enshrined "common law" habeas as it was understood at the time of enactment of the Constitution into the protections of Article I as "statutory law", to be interpreted in such a manner. But this is not a necessary construction; the founders may well have intended that common law habeas (that is to say, the general understanding as promulgated by courts) should be protected. Had the founders intended implementing actual "statutory" habeas of fixed scope, they could have done so (see, e.g., the definition of treason).

FWIW, though, the Rex v. Schiever case extended habeas review to Schiever, despite the fact they denied him the relief he petitioned for. Clement made the same 'argument' as "Bart"'s been making to Souter, IC, but Souter wasn't buying it. As the Schiever court said, on "his own shewing", Schiever was a POW. This is similar to the silly 'argument' that "Bart" made WRT Ex parte Quirin, where once again the U.S. Supreme Court accepted a habeas petition, and adjudicated the case, but denied the relief sought. What "Bart" and Clement are trying to insist is that such people shouldn't even be allowed to get their petitions past the clerk and heard by the judges, much less be afforded a judgement by the court on the merits of the petition.

But it matters not: The Supreme Court is likely to rule that the Great Writ is available to all, subject to effective jurisdiction of the United States, which is to say, if the courts have jurisdiction at all [and they do in Guantanamo]), they must proffer habeas protection.

Cheers,
 

"Bart" DeDicta:

Under what provision of Article I apart from the power to declare war can Congress possibly authorize the use of military force?

I didn't say there was any. Maybe you misunderstood. I suggest you read it again.

Cheers,
 

Thus, I have contended that the Authorizations for the Use of Military Force (AUMF) against Iraq and al Qaeda were de facto declarations of war.

I'd note that, IIRC, even the maladministration seems to have dropped the legal contention that there is a "state of war" due to the 2001 AUMF, at least in public comments under Congressional questioning, at least with regard to the FISA law breaking....

I will acknowledge that the Constitutional requirement for a Congressional declaration of war before starting hostilities seems to have been honoured mostly in the breech (or ignored) in recent years. But my personal opinion is that this does not make such legal. But I will state that this is only my opinion, and not a majority view.

The AUMFs are deficient as legal declarations of war in a number of ways, most specifically, the Iraq AUMF.

Cheers,
 

arne:

Modern Presidents like to maintain that they do not have to go to Congress to go to war. Bush is no different. The problem is that Congress has effectively ceded this power.
 

Bart, my dear Neanderthal Neocon,

War only against Sovereign States
We have had this discussion before, and there’s really not too much point in repeating it. The use of the word “war” in common parlance is not the same as defining the word for legal purposes.

The premier jurist on the law of nations of the relatively modern era was Vattel (1714-1767). As an originalist heretic, if you seek to ascertain the intent of the English colonial gentlemen who rebelled against their Sovereign and became your nation’s founding fathers, Vattel is the text book of the period. A Victorian edition commented by Chitty is available on the web site of the Constitution Society. (Chitty on Contracts, now in its 29th Edition (edited, of course) is still a standard English practitioner text – available from Sweet & Maxwell, but it will set you back about £450).

Please go to Book 3 – Of War - “Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.

That would have been the understanding of the expression “war” when the US Constitution was framed and because it involved a foreign sovereign state, as with the nomination of Ambassadors, the sovereign power to declare war is to be exercised under your constitution, not by the President but by the Congress.

Rebellion in the Colonies
You wrote:
“During the American Revolution, Great Britain waged war against the unincorporated non-sovereign colonials and treated the captured revolutionaries as POWs.”

No such compunction was shown during the Jacobite Rebellion of 1745 in Scotland when after Culloden “Butcher” Cumberland took 3,000 or Jacobites prisoner - many were executed, others transported to the colonies.

If you look at the contemporary reports, what you refer to now as your Revolutionary War, was in English law terms, not a war at all, but a rebellion of persons owing allegiance to the Crown. Thus the Rebels (as they even called themselves) knew well that under the Treason Act 1351 (still on the statute book) their rebellion made them liable to the penalties of High Treason.

Until 1814 the penalty for treason was barbaric - for males: to be drawn on a hurdle to the place of execution, to be hanged by the neck but with a short drop so as not to break the neck, but cut down before death, to be disembowelled and emasculated, the same to be burned, the body to be quartered and the head cut off and the head and quarters to be publicly displayed – for women: burning at the stake. As an act of clemency the King might commute the sentence to mere hanging or decapitation. The felon’s estates were forfeit to the Crown.

The Rebels were lucky in that on the whole they were regarded as English gentlemen by the English gentlemen who commanded the Crown’s forces and there had been a degree of revulsion in the Army about Cumberland’s conduct in the ’45 Rebellion. They may have been “treated as” POWs, but in law they were traitors.

I recollect a special ABA meeting in London and moot trial of George Washington for High Treason, presided over jointly by the Chief Justice of the United States Supreme Court and the Lord Chief Justice. I am happy to report that Washington was acquitted, but then there is nothing a Judge can do about a perverse jury verdict.

Native Americans
I think you will find that in both the USA and Canada the Indian Wars usually ended with Treaties so it follows that the aboriginal inhabitants were regarded as sovereign nations. Just as with war, a treaty cannot be made with a non sovereign entity, which, again is why treaties with foreign sovereigns must also be ratified by the Congress.

Declarations of war
The last time the USA declared war was, I think, on 11th December 1941:

The War Resolution
Declaring that a state of war exists between the Government of Germany and the government and the people of the United States and making provision to prosecute the same.
Whereas the Government of Germany has formally declared war against the government and the people of the United States of America:
Therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States


The reason declarations of war have rather gone out of fashion is because wars of aggression are outlawed by the UN Charter: see Chapter I, Clauses 3 and 4 and Chapter VII on peace enforcement.
No state likes to commit a bare-faced violation of the Charter because it is a Treaty binding in international law. What is referred to as the Korean “War” was in fact peace enforcement under the UN Charter Chap VII, the Vietnam “War” was in fact technically military assistance to an ally resisting aggression. The Gulf “War” was also authorised under Chap VII. So what are called “wars” in popular speech are not in fact wars in the technical sense.

You wrote:
“However, I would observe that our Constitution only permits Congress to approve military action in one way - a declaration of war. Thus, I have contended that the Authorizations for the Use of Military Force (AUMF) against Iraq and al Qaeda were de facto declarations of war.”

That's what we call "trying to have your cake and eat it". If the power to declare war is reserved to the Congress, only the Congress can do it with express words. Then there are required formalities: see Article 1 of the Hague Convention of 1907:-

The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.

A “de facto” declaration, as you put it is (i) unconstitutional (ii) in breach of Chap I of the UN Charter and (iii) in breach of Article 1 of the Hague Convention 1907.

And, again, you come up against the fundamental problem that since Al-Quaida is not a sovereign, war cannot be declared against it.

The better view is that the War Powers Resolutions serve as money resolutions. An undeclared war of aggression is unlawful in international law.

So far as both Afghanistan and Iraq are concerned, in the first case Chap VII authority was offered to the US Government, but it declined because the Toxic Texan did not want to ask for it – at the time he did not want to be hamstrung over Iraq.

In the event he then asked for, but failed to obtain, a Chap VII Resolution.

See the other recent thread]

Both wars were therefore unlawful – but as you rightly say, in both cases the Geneva Conventions apply anyway.

Extraordinary Rendition
You wrote:
“They were military captures and not civilian criminals. The law of war permits a combatant to capture the enemy anywhere.”

Absolute b*ll*cks! The law of war does not permit a belligerent to invade a neutral country to capture an enemy. You may remember “the Great Escape” film, it’s about your intellectual level – Clint Eastwood on the bike trying to get into Switzerland because the German’s couldn’t follow him across the border. If you are older, you may remember the film of the Battle of the River Plate – same situation as regards the English seamen.

That’s why there are some arrest warrants floating about Europe for certain CIA officials wanted for kidnapping and other crimes in, for example, Italy.

UN Charter
You wrote:

The US Constitution does not empower the UN to declare war on behalf of the United States. The Constitution has not been amended to cede any measure of sovereignty to the UN.

Taliban ruled Afghanistan sheltered, supplied and protected al Qaeda, who in turn had been waging war against the United States for the better part of a decade.

“Once again, neither the US nor the UK requires UN authority to wage war.


Who said that the UN has power to declare war on behalf of anybody ?

Not me. But the Charter is an international treaty duly signed and ratified by Congress. You should try reading it. It prohibits the USA from waging aggressive war.

The proper course is to go to the Security Council and get a Chap VII resolution. That is what Bush (père) did in the case of the Gulf War which is why the coalition was so much bigger – there was UN authority. I have not seen the USA withdraw from the Treaty.

Habeas Corpus
You wrote:
“For the purposes of determining the scope of common law habeas corpus review incorporated by the Constitution, it is necessary to determine the scope at the time the Constitution was enacted, not over two centuries later.”

“Therefore, citation to any British common law decisions occurring after the Revolution are irrelevant to our US legal debate.”


That’s originalism, the legal heresy well described by Justice Brennan as “arrogance masquerading as humility”. I appreciate that there are plenty heretics around thanks to the corrupting influence of the extreme right wing foundations and the Heritage Foundation. And I appreciate that the Toxic Texan has done his best to pack the SCOTUS and the Federal Bench with heretics.

Until the new dispensation, it was the practice of SCOTUS to interpret constitutional guarantees with regard to “evolving standards of decency” and UK and other common law final decisions were regularly cited as of persuasive authority and vice-versa.

Let’s wait and see what happens after the elections shall we? I appreciate that McSame appointments would also be heretical (if the Congress is not prepared to Bork them), but then, McSame might not make it in November. One lives in hope. And so, it seems, do a majority of the electorate at present.

When Churchill went to Casablanca for a conference with Roosevelt (and perhaps Stalin, memory fails) he went Grey Funnel line (Royal Navy). A French-Canadian Reservist officer asked him about De Gaulle: Monsieur Churchill, do you not think that the General De Gaulle is for France today like Joan of Arc formerly ?”. The PM cogitated and responded: “Could be, the problem is, young man, that I have not been able to persuade the bishops to have him burned at the stake.”

Since burning at the stake was still one of the punishments for treason at the time of the founding fathers, I suppose an originalist SCOTUS might feel able to approve it as a form of punishment for judicial heresy – but, of course turkeys don’t vote for Christmas – so I guess you and the other originalist turkeys are safe.
 

mourad said...

War only against Sovereign States...

The premier jurist on the law of nations of the relatively modern era was Vattel (1714-1767). As an originalist heretic, if you seek to ascertain the intent of the English colonial gentlemen who rebelled against their Sovereign and became your nation’s founding fathers, Vattel is the text book of the period. A Victorian edition commented by Chitty is available on the web site of the Constitution Society. (Chitty on Contracts, now in its 29th Edition (edited, of course) is still a standard English practitioner text – available from Sweet & Maxwell, but it will set you back about £450).


Do you have any evidence whatsoever that the drafters of the Constitution were limiting the meaning of the term "war" to the understandings of philosopher Emer de Vattel as opposed to the common meaning of that term at the time of the ratification?

Rebellion in the Colonies

You wrote: “During the American Revolution, Great Britain waged war against the unincorporated non-sovereign colonials and treated the captured revolutionaries as POWs.”

No such compunction was shown during the Jacobite Rebellion of 1745 in Scotland when after Culloden “Butcher” Cumberland took 3,000 or Jacobites prisoner - many were executed, others transported to the colonies.


Perfidious Albion also declined to extend POW status to the Irish rebellion which was inspired by our Revolution. Then again, the Brits only treated my Irish maternal ancestors as human beings at their discretion.

Until 1814 the penalty for treason was barbaric - for males: to be drawn on a hurdle to the place of execution, to be hanged by the neck but with a short drop so as not to break the neck, but cut down before death, to be disembowelled and emasculated, the same to be burned, the body to be quartered and the head cut off and the head and quarters to be publicly displayed – for women: burning at the stake. As an act of clemency the King might commute the sentence to mere hanging or decapitation. The felon’s estates were forfeit to the Crown.

I did not know this penalty remained on the books for so long. I was aware that those involved in the plot to murder Elizabeth I were dispatched in such a manner. And of course Mel Gibson's "Braveheart" introduced the American audience to this penalty (albeit without the graphic detail). To satisfy my morbid curiosity, when did Britain last apply this penalty?

Native Americans

I think you will find that in both the USA and Canada the Indian Wars usually ended with Treaties so it follows that the aboriginal inhabitants were regarded as sovereign nations. Just as with war, a treaty cannot be made with a non sovereign entity, which, again is why treaties with foreign sovereigns must also be ratified by the Congress.


Treating the Indians as "sovereigns" was a convenient legal fiction to avoid recognizing them as citizens with rights and enabling the government to pen them up in increasingly smaller territories. The United States never recognized the territorial boundaries of "Indian nations" as sovereign independent nation states. All this land was considered to be the United States. Thus, the Indian Wars were not really wars under your de Vattel's concept of war.

Declarations of war

The last time the USA declared war was, I think, on 11th December 1941


That is the last time Congress used that phrase.

The original concept underlying our Constitution was that the United States would not field a substantial standing army. Thus, the President would have to come to Congress to seek a declaration of war and the funding to finance any wars.

Prior to WWII, the President could only avoid asking the Congress for a declaration of war by engaging in the small operations which his small standing military could accomplish without Congress agreeing to raise a larger military.

However, WWII and then the Cold War established the first large standing military in US history. This enabled the President to commit his large military to large wars and then blackmail Congress into supporting the troops already committed to war. Unwilling to defund the troops in the field, Congress lost all leverage to force the President to seek a formal declaration of war.

In the post WWII period, Presidents have occasionally sought congressional approval to send the military to war in order to rally public support, but they no longer call these congressional approvals "declarations of war" because they do not want to reestablish the requirement to seek such declarations and thus limit their own discretion and power.

However, because I am an old fashioned stickler for actually enforcing the Constitution, I do not recognize the Executive's de facto attempt to write the power to declare war out of the Constitution by simply calling the declaration an Authorization to Use Military Force. An AUMF is a declaration of war no matter what euphemism the President and Congres deign to drape it in.

Extraordinary Rendition

“They were military captures and not civilian criminals. The law of war permits a combatant to capture the enemy anywhere.”

Absolute b*ll*cks! The law of war does not permit a belligerent to invade a neutral country to capture an enemy.


What invasion? The EU countries all cooperated with our removal of terrorists from their territory, including the hypocritical Italians who issued warrants for our CIA agents, which of course they never seriously attempted to serve.

In the case where the government is uncooperative, the capture of our enemies in their territory would be an act of war against that country, but has no effect on the status of the captured enemy. There is no "get out of wartime detention card" available to the POW under the law of war simply because we violated another nation's sovereignty in capturing the enemy.

"You may remember “the Great Escape” film, it’s about your intellectual level – Clint Eastwood on the bike trying to get into Switzerland because the German’s couldn’t follow him across the border.

You are not a film snob as well? Too bad. You really do not want to get in a discussion about the relative merits of American and British cinema.

In any case, the hero attempting to leap the motorcycle across the barbed wire in a vain attempt to get into Switzerland was Steve McQueen. not Clint Eastwood.

Perhaps, the movie of which you are thinking is "Where Eagles Dare," where Eastwood and Richard Burton were tasked with snatching a captured American General back from the evil Nazis.

As to your point, the reason the Germans did not mess with the Swiss over a few escaped POWs and Jews was that they did not want to pay the price of going to war in a mountain citadel.

Not me. But the Charter is an international treaty duly signed and ratified by Congress. You should try reading it. It prohibits the USA from waging aggressive war.

But my dear chap, the United States does not wage "aggressive wars."

If we decided to wage such a dastardly war, no treaty could stop the Congress and President from doing so because both bodies can withdraw from treaties at will under our Constitution.

The proper course is to go to the Security Council and get a Chap VII resolution.

No. Under our Constitution, Congress has plenary power to declare war. The UN has no authority to do so. No treaty can amend the Constitution to transfer this power from Congress to the UN.

The United States will occasionally seek UN blessing for a military operation to help gather allies. However, there is no requirement under US law that it does so.

Habeas Corpus

You wrote: “For the purposes of determining the scope of common law habeas corpus review incorporated by the Constitution, it is necessary to determine the scope at the time the Constitution was enacted, not over two centuries later.”

“Therefore, citation to any British common law decisions occurring after the Revolution are irrelevant to our US legal debate.”

That’s originalism, the legal heresy well described by Justice Brennan as “arrogance masquerading as humility”.


I prefer the term textualism, which is simply applying the law as written. The Supremacy Clause language implies that it incorporated the habeas corpus common law in existence at the time.

Justice Brennan's comments are amusing. I would suggest that Brennan's rewriting of the Constitution to impose his own policy prescriptions on his fellow countrymen because he thought he knew better than they is the epitome of arrogance.
 

"Bart" DeDicta:

Modern Presidents like to maintain that they do not have to go to Congress to go to war. Bush is no different. The problem is that Congress has effectively ceded this power.

Problem with that is that the power to declare war is a non-delegable one. Which is one of the infirmities of the AUMFs: They leave too much discretion to the preznit as to who and when and under what circumstances there will be hostilities.

The Iraq AUMF was also deficient as a "de facto" declaration of war in that the expressed intent of a number in Congress was to give Dubya a cudgel to threaten Saddam with, but with the understanding (one that Dubya fostered) that if he decided to actually use this cudgel, there would be more deliberations and consultation, and in fact, followed by a new resolution.

Cheers,
 

arne langsetmo said...

BD: Modern Presidents like to maintain that they do not have to go to Congress to go to war. Bush is no different. The problem is that Congress has effectively ceded this power.

Problem with that is that the power to declare war is a non-delegable one.


Powers are only as effective as the people exercising or, more to the point, failing to exercise them.

Congress' unwillingness to require a declaration of war is similar to Carter's fire sale of his CiC powers to Congress back in the 70s.

The Iraq AUMF was also deficient as a "de facto" declaration of war in that the expressed intent of a number in Congress was to give Dubya a cudgel to threaten Saddam with, but with the understanding (one that Dubya fostered) that if he decided to actually use this cudgel, there would be more deliberations and consultation, and in fact, followed by a new resolution.

The speeches and comments of weasel Dems who voted for the AUMF to keep from being run out of office post 9/11, but who qualified their votes to placate their isolationist base, are not the law.

All that counts is the language of the AUMF, which gave the President carte blanche permission to go to war.

Cheers,
 

The administration's fruadulent claims about the need to invade Iraq count for more than the AUMF does.
 

"Bart" DeDicta:

However, because I am an old fashioned stickler for actually enforcing the Constitution, I do not recognize the Executive's de facto attempt to write the power to declare war out of the Constitution by simply calling the declaration an Authorization to Use Military Force. An AUMF is a declaration of war no matter what euphemism the President and Congres deign to drape it in.

I've read it a couple times now and ... I have to ask: WTF are you trying to say?

1). How is "simply calling the declaration an Authorization to Use Military Force" a "de facto attempt to write the power to declare war out of the Constitution"?

2). Who called it a "AUMF"? Wasn't that Congress? How does that become an executive act? And did you start drinking early today?

3). And who cares what the title is? If we're going by titles without examining the substance of the bill, then the "USA PATRIOT" act is patriotic.....

If you're a "stickler", then shouldn't you be up in arms that Congress delegated authority that is not within its power to delegate?

Cheers,
 

"Bart" DeDicta:

["Bart"]: Modern Presidents like to maintain that they do not have to go to Congress to go to war. Bush is no different. The problem is that Congress has effectively ceded this power.

[Arne]: Problem with that is that the power to declare war is a non-delegable one.

["Bart"]: Powers are only as effective as the people exercising or, more to the point, failing to exercise them.

Congress' unwillingness to require a declaration of war is similar to Carter's fire sale of his CiC powers to Congress back in the 70s.


What does that have to do with what I said? Just because some people tolerate something doesn't make it constitutional.

But, since you asked, how would you suggest that Congress cure the infirmity of its ways, should it decide that Dubya had exceeded his mandate and the limits of the Constitution? Pass some "Sense of the Senate"? I'd note that previously you'd claimed that Congress has no power to
'undeclare' war. But do they have the power to undeclare that which they (now say they) never declared to begin with? How would they do so? How would this work, given the current stand-off between the two branches? Is there no solution short of the 'nuclear option'? And even if that's the 'last resort', what happens if Dubya says, "you and what army?"

Tell me, "Bart", how does this darned Corn-sti-too-shun work when one of the principals is a raving (but arrogant) nutcase....

Cheers,
 

The "Simon Says" Rule of Constitutional Interpretation:

[Arne]: The Iraq AUMF was also deficient as a "de facto" declaration of war in that the expressed intent of a number in Congress was to give Dubya a cudgel to threaten Saddam with, but with the understanding (one that Dubya fostered) that if he decided to actually use this cudgel, there would be more deliberations and consultation, and in fact, followed by a new resolution.

["Bart" DeDicta]: The speeches and comments of weasel Dems who voted for the AUMF to keep from being run out of office post 9/11, but who qualified their votes to placate their isolationist base, are not the law.

All that counts is the language of the AUMF, which gave the President carte blanche permission to go to war.


Hell of a way to ru[i]n a country.

But FWIW, the Iraq AUMF, despite being constitutionally deficient for the reasons previously stated, was not "carte blanche" (and if it was, that would only reinforce the constitutional infirmity).

Cheers,
 

Bart, my dear Neanderthal Neocon,

The plain fact of the matter is that you, in common with other Neoconservatives, wish to vest in the US president of the day an unlimited executive power to act as he sees fit, unconstrained by law.

In the expression “unconstrained by law” I include (i) unconstrained by the international law obligations of the USA, and (ii) unconstrained by the checks and balances of your country’s Constitution.

This is clear beyond peradventure from your posts on this and other threads.

Treaties in US Law
The UN Charter is an international treaty duty ratified by the Congress and from which the USA has not withdrawn. It was drawn up by statesmen who had seen the horrors of two world wars in the first half of the last century and were determined to establish an international legal order to prevent that happening again.

Likewise for the Torture Convention, the Hague Conventions, the Geneva Conventions, and a whole host of other treaties which the USA has negotiated in good faith, signed, presented to the Congress and ratified.

The US Constitution proclaims that treaties duly ratified are “the supreme law of the land” and therefore a president by his oath of office is obliged to secure the due execution of the UN Charter and other treaties as such “supreme law of the land”.

It is always open to the USA, as it is to any treaty party to denounce a treaty and withdraw from it in which case the international law obligations to other states and the domestic law obligation to secure compliance all come to an end.

I accept that most treaty provisions are non-justiciable at the suit of a citizen in the courts, the domestic remedy for a president’s breach of such international legal obligations being, at worst, impeachment.

Internationally, what is not acceptable conduct on the part of any nation state, is to disregard treaty obligations and treat them as if they did not exist.

If the word and honour of the United States of America, the leader of the free world, is to be thus devalued, what incentive is there for other lesser states to live up to their treaty obligations?

The UN Charter
By the UN Charter, the USA like the other signatories renounced the use of military force as a means of dispute resolution save under strictly limited conditions.

When a dispute between nations arises, it is to be referred to the UN Security Council. If other means of persuasion and conciliation fail, then the Security Council may authorise coercion under Chapter VII of the UN Charter. That is what happened for the Korean ‘War’ and for the Gulf ‘War’.

That is “the supreme law of the land", which President Bush was to faithfully execute. Therefore it was his duty not to determine to use force otherwise that in compliance with that supreme law.

What have you said in answer to that? Your response was:

No. Under our Constitution, Congress has plenary power to declare war. The UN has no authority to do so. No treaty can amend the Constitution to transfer this power from Congress to the UN. The United States will occasionally seek UN blessing for a military operation to help gather allies. However, there is no requirement under US law that it does so.

Is this an honest answer? I contend it is not.

Firstly, the UN Charter does not purport to transfer any power whatsoever from the Congress to the UN.

Secondly, the UN has no power to declare war on behalf of the USA – or any other nation.

Thirdly, the UN has no military forces at its disposal. When the UN authorises measures under Chap VII, it is for member states to contribute the means using their domestic law procedures to obtain authority to do so.

Finally, by reason of its great power veto, no Chapter VII action may be undertaken at all by the UN if the USA does not wish it.

What the US has engaged to do is not to use military force otherwise than in accordance with the UN Charter.

You seek to transform that treaty obligation of the United States of America, the supreme law of the land, into some kind of Neocon 'pick 'n' mix' arrangement.

All I can say is that your approach to the importance of observing solemn treaty obligations to which your nation has subscribed seems remarkably consistent with the approach adopted by the late Herr Hitler to Nazi Germany's treaty obligations with, inter alia, Russia and Poland.

I stand by a previous remark: The snake oil you are trying to peddle is the old fascism, only this time it is not presented by people wearing brown shirts and jackboots but by Neoconservative Republican lawyers wearing business suits who wrap up their lies in the Stars and Stripes.
 

Dear Neocon Bart:

Authorisations for the Use of Military Force

In your response to a post of mine you said this:-

However, because I am an old fashioned stickler for actually enforcing the Constitution, I do not recognize the Executive's de facto attempt to write the power to declare war out of the Constitution by simply calling the declaration an Authorization to Use Military Force. An AUMF is a declaration of war no matter what euphemism the President and Congres deign to drape it in.

I must defer to those qualified in matters of US law, but I understood that “AUMF” Resolutions are the product of the controversial War Powers Act of 1973. 50 USC S.1541-1548 passed by the Congress overriding the veto of the late unlamented President Nixon and seeking to place some constraints on the ability of presidents to send US troops into combat situations without the beneplacet of the Congress.

It is my understanding that more than one president has maintained that the legislation is an unconstitutional constraint on the authority of the president as commander-in-chief, but that no president has ever wished to have the constitutionality of the provisions tested in the manner contemplated by the Constitution.

It is my understanding that by §1544, the President is required to remove troops from a combat area unless the Congress has either declared war or given specific authorisation for the use of the forces. An AUMF Resolution is such authorisation. Note that there are other statutory provisions authorising participation by US Forces, eg in multinational forces.

I assume that statutes are presumed constitutional until otherwise determined by the Supreme Court. I also assume that the US applies the ordinary principles of statutory interpretation.

Since the section places in apposition (i) declaration of war and (ii) statutory authorisation, the one cannot be taken to be the other. The statutory authorisation cannot be a declaration of war, de iure, de facto or any other way – it is different thing.

One can think of a number of circumstances where the procedure might be appropriate: e.g. the USA has an ally threatened by a third country. A show of commitment to that ally might avert hostilities even commencing. The US upon the invitation of the ally sends an aircraft carrier into the territorial waters of the ally and a Marine Force to the main airbase and reports a threat to peace to the UNSC – AUMF is an appropriate procedure.

But I do not see that an AUMF can be substituted for a declaration of war for a deployment for offensive purposes – for example to overthrow a foreign government. Such an act is (i) unconstitutional by US law and (ii) in breach of the UN Charter in international law.

There is an English saying – “X may well have been called to the bar, but he is no lawyer”. I stand to be corrected by others qualified to express an opinion of US law, but I do not see how your assertions can be justified.
 

Dear Neocon Bart:

You wrote:-

It will be interesting to see if mourad can add anything to the efforts of the Commonwealth Lawyers Association amicus brief, which were pretty much eviscerated in pages 10-13 of the American Center for Law And Justice amicus brief.

Firstly, I have read the Amicus Brief of the Commonwealth Lawyers’ Association. Coming as it does, from very distinguished lawyers, I think it ought to be given respectful consideration by the Court, as to what the state of the law is in the Commonwealth jurisdictions.

Secondly, having read the brief of the American Center for Law and Justice (“ACLJ”), I thing it may be necessary to make some preliminary observations about what I perceive as differences in our respective practices and procedures.

As readers seem to know, there is a split profession in England: Solicitors and Counsel. The lay client instructs a solicitor, the solicitor instructs counsel. Solicitors may form partnerships, counsel are sole practitioners. In litigation, solicitors do the investigation and trial preparation, counsel and solicitors share in the research, counsel will do the trial advocacy and some of the more important interlocutory applications. Some of the historic advocacy restrictions on solicitors are being lifted, partly as a result of pressure from the Treasury which has never particularly liked seeing public funds being expended on two lawyers for a accused defendant in a criminal trial or an impecunious litigant in a civil one.

Solicitors are “officers of the Court”, Counsel are in a very real sense “members of the Court”. By that I mean that the forensic argument between the bench and the bar is designed to illuminate the judicial thought process and enable the Court to arrive at better decisions. Oral argument plays a far greater role in our appellate process than in yours. A case in the House of Lords may involve days or even weeks of oral argument. And anyone who has seen a panel of five law lords cross questioning leading counsel for a day or two will see how rigorous the testing of the legal argument can be – it’s a bit like playing squash against five opponents simultaneously.

The duty of any advocate is never to seek to mislead the Court. That involves informing the Court of any decision one knows about whether for or against the proposition one is trying to make and then trying to distinguish the decisions which are unfavourable. There can be no question of not referring to a case which is adverse and hoping the opponent or the court will not bring it up.

Finally, the role of ‘amicus curiae’ is very different in our system. Sometimes, the Court will give permission to an ‘interested party’ to participate – but not as an ‘amicus’ because the role of the lawyer acting as amicus curiae is not to propound a specific interest but to assist the court neutrally in the public interest. So what are considered ‘amicus’ briefs in your system, in our system would more probably be ‘interested party’ briefs in ours.

Again, I think there is a distinction between our systems about matters of foreign law. In the English Courts, all foreign law is presumed to be identical to English law. It is for the party raising the proposition that foreign law is different to plead and prove that on the balance of probabilities. The issue is a question of fact, not law and it is proved by expert evidence of the foreign law. The party alleging the difference bears the burden of proof.

This can lead to amusing outcomes. I once had an interesting case where the issue was the effect of Indian law. The parties each adduced evidence from Indian experts, my clients had called a retired Chief Justice of an Indian state and the opponents a retired Chief Justice of another state. Enormous expense on both sides. Unsurprisingly in moderately high value litigation (the sum in issue was about £4m), the experts came to diametrically opposed conclusions.

Having considered all the evidence and heard argument, the High Court Judge said substantially this on the issue: “C alleges that Indian law on this point differs, and he bears the burden of proof. I have heard evidence from X and Y, both jurists of high distinction, and unfortunately they disagree. Who am I a mere puisne Judge to decide between two jurists of this calibre? I find that C has failed to discharge the burden of proof and I shall decide this case on the footing that Indian law is the same as English law”!.

I understand that in the USA, the common law of the USA is assumed to be that of England at the time of independence and that thereafter it may (as in England) be displaced by statute or developed by precedent. So, as with the other independent common law jurisdictions, common law starts off being identical to English common law and then diverges into a jurisprudence of its own. Accordingly, I assume that for US purposes, ascertaining what US common law is, is a matter of law, not a matter of fact and that this may involve US lawyers in looking at English decisions in order to ascertain what the common law of England was at a certain point in time and how it may have diverged thereafter.

I understand further that US Courts may treat the ascertainment of present foreign law as a matter of law, not a matter of fact.

Here we get into an interesting theoretical question. A judicial decision on a common law matter does not legislate – it declares what the common law always has been when properly understood.. But the English Court may come to one conclusion, the US Court to another, and other independent Commonwealth jurisdictions to yet others. It seems absurd – but this is one of the joys of the common law. That is why SCOTUS decisions are regarded as persuasive in the House of Lords, and I hope our decisions are afforded similar respect.

In this regard you speak of the argument of Solicitor-General before the Court. All I can say is that I did notice one passage where
the US Solicitor-General refers to the English wartime precedent of Liversidge v Anderson [1941] UKHL 1 (03 November 1941)

“I'd like to just offer you that the 1941 authority -- because this question of course, over time, by 1941, the British courts have relaxed the rule against controverting the facts of the return, and they addressed this question about what kind of factual inquiry is necessary when the government comes back and says that somebody is an enemy combatant, a prisoner of war, or, under the Emergency Detention Act of 1939, a threat to the realm.
And in two cases, Liverridge against Anderson and Green against Anderson, the law lords, in 1941, say that they are not going to look beyond what the government has provided in the return. They're not even, in the Green case, going to ask for an affidavit.


Liversidge was, of course decided at the height of the wartime emergency. The majority decided that under emergency regulations permitting internment of enemy aliens and others, the certificate of the Home Secretary that had “reasonable cause to believe…” was sufficient and the Court would not enquire into the reasonableness of the grounds.

I consider it contrary to my conception of the duty of Counsel to the Court for the Solicitor-General not to have informed the Court that post-war this decision has been disapproved and it is now the dissent of Lord Atkin which is held to be controlling.

It is worth citing an extract from the dissent – now frequently cited with approval by our Courts:-

Lord Atkin: I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive.

Their function is to give words their natural meaning, not perhaps in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850, 5 Ex. 378), cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman (1941, 3 All E.R., at p. 55),
"in a case in which the liberty of the subject is concerned, we" cannot go beyond the natural construction of the Statute."

In this country amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

In this case I have listened to arguments which might have been addressed acceptably to the Court of Kings Bench in the time of Charles I.

I protest, even if I do it alone, against a strained construction put upon words with the effect of giving an uncontrolled power of imprisonment to the Minister.

To recapitulate. The words have only one meaning: they are used with that meaning in statements of the common law and in statutes; they have never been used in the sense now imputed to them: they are used in the defence regulations in the natural meaning: arid when it is intended to express the meaning now imputed to them, different arid apt words are used in the defence regulations generally and in this
regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
I know of only one authority which might justify the suggested method of construction. "When I use a word," Humpty Dumpty said in rather a scornful tone, " it means just what I choose it to " mean, neither more nor less." "The question is," said Alice, " whether you can make words mean different things." “The "question is," said Humpty Dumpty, "which is to be master— " that's all." (Looking Glass, c. vi.)

After all this long discussion the question is whether the words "If a man has" can mean "If " a man thinks he has." I am of opinion that they cannot, and that the case should be decided accordingly.

If it be true, as for the foregoing reasons I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the two cases before us ought not to be difficult to make.”


The ACLJ and its brief
I know little of the ACLJ. But from the web site of the ACLJ its activities seem to me to mainly concerned with advocating the view point of a particular kind of Evangelical Christian on matters of social interest such as abortion or prayer in schools. To my way of thinking, there seems to be no need for the Court to learn what the views of the ACLJ are on the issues before it. Their views are no more worthy of consideration than any other section of the general public. In our practice , the ACLJ would certainly not qualify as an “interested party” on the issues any more than would the “South Harrow Ornithological Club”, or the “Great Western Railway Preservation Society”.

I turn now to the Brief. The lead Counsel seems to be a Mr Jay Sekulow whose activities are outlined in a link helpfully put up by Arne Langsetmo. It appears he studied at a place called “Mercer” and took at PhD at something called “Regent University”. I am sure the parchments are very pretty, but neither strikes me as the kind of internationally recognised centre of excellence which would give him special qualifications on the matters in issue before the Court, nor, from the post Arne put up, does he seem to be especially fitted by his post-qualification experience to inform the Court on anything, except perhaps on how to gull believing evangelicals into parting with their money to support an extravagant lifestyle.

[Perhaps, Bart, you have something to learn here – it’s plainly more lucrative than a DUI practice is likely to be.]

ACLJ Brief - Section II pages 10-13

The ACLJ brief fastens or two text books, written by Lord McNair in 1944 and 1956 respectively and to his opinions on the availability of habeas corpus relief to prisoners of war and enemy aliens. Those texts, of course, do not represent the modern law.

Insofar as Lord McNair opines that the writ will not go to release from internment a prisoner of war detained as a POW for the duration of hostilities, I believe that proposition to be correct. He was, of course, referring to a “declared war” and to a POW held in a POW facility. I do not read the paper as saying that a detained person would not have the right to apply, and for example, have the Court examine as a fact whether the detainee was or was not a prisoner of war. At the time, the majority opinion in Liversidge would still have been regarded as controlling, the Court would not have gone behind a certificate from the military that the person was detained as a POW.

Nowadays, I believe the Court would be prepared to go behind the certificate and consider the status of the prisoner and not confine itself to the face of the return. But if the Court considered the detainee was a POW, then the Court would not grant habeas relief because the laws and customs of war are that POWS may be detained humanely, paroled with or without conditions of exchange or released at the end of hostilities and all of those are matters for the Secretary of State for Defence.

See the many accounts of German and Italian POWs detained in the UK, many of whom were paroled during the war (for example to work on farms or other work in the national interest) and some of whom married here and are still here.

Where the ACLJ brief goes badly wrong in my view is where it seeks to equate POWs to the detainees at Guantanamo in all cases. It cites no authority for that proposition, merely makes assertions.

You assert the ACLJ brief “eviscerated” the Commonwealth Lawyers’ Association brief. I disagree. The verb “eviscerate” means “to remove entrails” or to “disembowel”. I would say that the only surgery performed by this brief is on the pocketbooks of the gullible who persuaded by this kind of rubbish to contribute to the welfare of Mr Sekulow.

I am not over hopeful about the outcome of this case. Thus far SCOTUS has been far too deferential to the Executive. Alas and alack, there is no "lion for liberty and the rule of law" on the bench ready to put an end to the madness of "King George".
 

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