Balkinization  

Monday, December 29, 2008

The Decline of the Political Question Doctrine

David Stras

I am very pleased to be a guest on Balkinization. Many thanks to Jack for permitting me to share a few thoughts here.

Although much of my research focuses on the intersection of law and political science, my first post will take up a lingering doctrinal matter from the Court's decision in Boumediene this past June. For those of us who teach federal courts, one of the most elusive concepts is the political question doctrine, primarily because it is so difficult to reconcile with the other justiciability doctrines such as standing, mootness, or ripeness. Unlike those three other doctrines, the political question doctrine is unrelated to the question of whether a particular plaintiff has a sufficient personal stake in a controversy to bring a lawsuit. Instead, the political question doctrine focuses on whether the resolution of a particular issue is a matter for the judiciary or one of the political departments of government.

Not surprisingly, the Court has limited the application of the political question doctrine to thorny areas that are at the intersection of law and public policy, such as Congress's ability to regulate its own internal processes and matters of foreign affairs. With respect to the latter category, the Court has long declined to interfere with sensitive questions of foreign policy, holding at various points in history that such questions of when a war begins and ends and whether to recognize a foreign government and grant diplomatic immunity to its officials are all nonjusticiable political questions. In fact, some scholars have recognized that the area of foreign affairs was the last bastion where the political question doctrine had "real bite." The question I pose is what is left of the political question doctrine after Boumediene v. Bush?

The answer, I believe, is not very much. As an initial matter, a majority of the Court has only employed the political question doctrine twice since 1964 (the year Baker v. Carr was decided) to dismiss a case, though various Justices have endorsed its use in a variety of contexts (e.g., treaty interpretation, political gerrymandering cases, etc.). Second, in Boumediene, the Court quickly dismissed the Government's argument that questions of sovereignty are matters for the political branches to conclusively decide. As the Court stated, "our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory . . . . When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right." The Court went on to conclude essentially that questions of de jure sovereignty (or a claim of right) are matters for the political branches to decide, but that questions of de facto sovereignty (or practical control over a territory) can be examined by the judicial branch.

Given that de jure sovereignty is the clearer purely legal question and that one of the lynchpins of the political question doctrine is the presence or absence of judicially manageable standards, I find the Court's abbreviated discussion of the political question doctrine quite significant, even astonishing. Questions of de facto sovereignty tend to be difficult to determine because of competing indicia of control and, as a result, judicially manageable standards seem to be fairly elusive. (However, I would freely admit that the United States' near-total control of Guantanamo Bay made the question of de facto sovereignty by the United States in Boumediene pretty clear.)

I also find the Court's discussion of the political question doctrine to be in stark contrast to its prior case law, which is quite deferential to the political branches on foreign policy questions. For instance, in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 383 U.S. 103 (1948), the Court held that it could not review decisions of the President to grant or deny certificates of necessity to air carriers wishing to establish air travel routes to foreign countries. As the Court stated:
[t]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the Government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of the kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
In the past, the Court has held that questions relating to sovereignty, such as whether to recognize a foreign government and grant diplomatic immunity to government officials, were among the "delicate" and "complex" matters that were better left to the "political departments." And as the Court freely concedes in Boumediene, it would have at least deferred to the Executive Branch if the outcome of the case depended on which country possessed de jure sovereignty over Guantanamo Bay. I am surprised, therefore, that not a single Justice on the Court would have dismissed this case on political question grounds, at least as the majority framed the case. (Perhaps the majority opinion could have taken sovereignty off the table by expanding its discussion of extraterritorial application of the Constitution and further distinguishing Eisentrager.)

This post is a long-winded way of saying that I wonder what is left of the political question doctrine after Boumediene, if anything? Is it, like the Rooker-Feldman doctrine after Saudi Basic, left for only the most exceptional of circumstances? More fundamentally, does the decline of the political question doctrine coincide with and portend of a federal judiciary that is more willing to involve itself with matters of cultural and particularly political significance that have traditionally been left to (and are arguably textually committed to) the political branches? I do not mean for this post to invite a free-for-all on whether the Court was wrong or right in granting habeas rights in Boumediene, a question that has been examined at length elsewhere, but to emphasize and begin a discussion on an aspect of the opinion that has been almost entirely ignored by the media and even constitutional law scholars.

UPDATE: I have been a bit surprised by some of the comments that seem to suggest that questions of sovereignty should not be a political question. I suspect that much of the skepticism on this issue is due to the fact that Guantanamo Bay presented such an easy case on de facto sovereignty. But suppose that the Supreme Court of the United States were to declare the United States as the de facto or de jure sovereign over Iraq on account of the occupation of US troops. I find it hard to believe that such a declaration would not impact foreign policy and thus affect the US's relationship with both Iraq and other middle East countries. In fact, I view such a scenario as almost the paradigmatic case for application of the political question doctrine, at least as the doctrine has been articulated by the Supreme Court.




Comments:

I think Boumediene has to be viewed in the context of the entire line of War on Terror cases. You started with the courts being extremely deferential towards the Bush Administration, and later becoming more and more frustrated to the point where you even had folks like Judge Luttig berating the Executive Branch. In terms of real-world implications, I don't think Boumediene stands for the proposition that the political question doctrine is no more; I think it stands for the proposition that the courts prefer to stay out of such situations, but will ultimately step in where necessitated by the failure of the political branches to do anything at all to address a troublesome situation.

As the years go on, we may find that this decision signals an increasingly greater willingness on the part of the courts to second-guess the elected branches, even on the most sensitive issues. But my prediction is that we will ultimately come to view it as a mere artifact of the Bush Administration's rather feckless approach towards these matters.
 

Excellent post, but I would take the critique the next logical step.

By ignoring the political question doctrine that correctly observes that foreign policy decisions "are wholly confided by our Constitution to the political departments of the Government, Executive and Legislative," the Boumediene Five not only trashed long time precedent as noted in the post, but also arrogated to itself the express constitutional powers of the elected branches to make foreign policy decisions setting rules for military Captures.
 

Steve M said...

But my prediction is that we will ultimately come to view it as a mere artifact of the Bush Administration's rather feckless approach towards these matters.

Boumediene had nothing at all to do with the Bush military policy. Rather, the Boumediene Five reversed key portions of the the Military Commissions Act, enacted by a bipartisan majority of Congress pursuant to its express Article I powers.
 

Very shortly into this comment, I was sure that it was coming from a Federalist Society member, or fellow traveler. This analysis could not have come from anyone else.

Then I read his bio on the U Minn. Law School web site, and confirmed it. The last line of Stras's bio states: "Following his year in practice, he clerked for The Honorable Clarence Thomas of the Supreme Court of the United States." Thomas, of course, is noted for his use of ultraconservative clerks only.

The professor's comment, to put it as tactfully as possible, does not make sense, at least not to anyone not already under the influence of the Adminstration's Kool-aid on Guantanamo.

The answer to the question, "what is left of the political question doctrine after Boumediene v. Bush?" is simple -- Boumediene did touch at al on the doctrine as it has been traditionally understood.

Stras's argument fails because he tries to link concepts that are unrelated in order to substantiate a groundless argument.

For example, Stras claims that the question of whether Guantanamo is under sufficient control of the U.S. Government to justify extending court jurisdiction over it is a "foreign policy question."

Huh? Either territory is subject to U.S. jurisdiction and sovereignty, by law, or it is not. It has nothing to do with foreign policy at all.

A better example of his non sequiturs is the statement that

"questions relating to sovereignty, such as whether to recognize a foreign government and grant diplomatic immunity to government officials, were among the "delicate" and "complex" matters that were better left to the "political departments." "

Stras badly twists the meaning of "sovereignty in order to use this as support. It is all too mindful of Through the Looking Glass (or is it Alice in Wonderland?) "Words mean what I want them to mean."

He has confused the --exercise-- within an area of sovereignty with the question of the --existence-- of sovereignty to exercise.

And the statement that the Government should be deferred to on de jure questions of whether a given territory or action is under U.S. sovereignty, this flies in the face of almost all of our jurisprudence, back to Madison v. Marbury. It is the duty of the courts to determine what the law is.

Under Stras's analysis, the federal government is free to rig the ill-treatment of persons anywhere it wants outside U.S. territorial boundries, and then claim absolute freedom from any judicial oversight.

Indeed, it has long since been revealed that that is exactly why Guantanamo was selected for the detainees in the first place. The administration thought it was being terribly clever, and that it could thereby shield itself against any judicial oversight of any kind.

That is a concept that was accepted and followed in the former U.S.S.R. and other totalitarian regimes -- but falls well outside the concepts of American traditions, at least as conceived by anyone other than John Yoo and his cohorts. Indeed, the founding fathers would be astounded at this assertion.

So there is a very good reason none of the comments and news stories on the case have mentioned the political question issue -- the case simply had nothing to do with it.

Ross Taylor
Tacoma, Washington
Amitted to fedral bar, 1977
 

Ross,

I am not sure that I understand most of your comment, but I am actually not as interested in the outcome of the case (or the ultimate result) as I am in its abbreviated discussion of the political question doctrine. As a matter of fact, I don't agree with some of the broad assertions of executive power that have been advanced by the Bush administration. But that is a post for another day.

I am only trying to treat the Court's two-page analysis of the political question doctrine on its own merits. Indeed, the Court itself found the political question doctrine potentially applicable to questions of de jure sovereignty, but ultimately concluded that habeas jurisdiction was to be determined by control, or de facto sovereignty, which was a matter that the Court could examine.
 

Dear Professor Stras:

Like Ross Taylor above, I do not think the "political question" arises at all in the Guantanamo Bay cases. I can quite understand the reluctance of any national court to enter upon the political question of whether the invasions of Afghanistan or Iraq were lawful, or even whether there could be such a beast as a "global war on terror".

But these were not questions it was necessary for the Courts to resolve in the context of habeas corpus.

The proper issue has only ever been whether the USA exercises the de facto attributes of a sovereign over the military facility. Since the facility now includes the ironically named "Camp Justice" - an example of Orwelllian newspeak on a par with "extraordinary rendition" (kidnapping) or "enhanced interrogation" (torture and/or inhuman and degrading treatment) under the command of a field officer of the armed forces of the United States, it should not have taken any judge worthy of his office more than 5 minutes to resolve that issue.

You wrote in response to Ross Taylor:-

"I am not sure that I understand most of your comment, but I am actually not as interested in the outcome of the case (or the ultimate result) as I am in its abbreviated discussion of the political question doctrine."

Come off it, Professor. On your Faculty Web Page you are described as having as "work in progress" a publication to be entitled "Deference, Retroactivity, and the Great Writ". - the very subject that is of perhaps most interest.

Boumediene has marked a reluctant return of US jurisprudence on the scope of the great writ to the historically expansive nature of the remedy. English and US practice diverged when the US Courts started to lay emphasis on the territorial issue of the place of detention. The English approach was to recognise the in personam nature of the remedy and therefore the key question was whether there was a person within the jurisdiction who ultimately controlled the detention and could be served with the writ? If the answer to that question was yes, then the issue (in terms of overseas territories) was whether there was a colonial court with jurisdiction to issue the writ - if so apply there, if not, the English Court would grant in a proper case. So, for example, in UK habeas cases in relation to persons detained in Iraq, the respondent has been HM Secretary of State for Defence and not the particular commandant of any facility.

As long ago as 2002, the English Court of Appeal said this in The Queen on the Application of Abbassi & Another -v- The Secretary of State for Foreign Affairs [2002] EWCA Civ. 1598:-

"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'.
....

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.
.....

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. However, there are a number of reasons why we consider that the applicants' claim to relief must be rejected:
....

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."

Well, that belief of the English Court of Appeal has not exactly been vindicated, has it, my dear Professor?

Since our Court expressed its view in 2002, the US "Justice" system has thus far reached final determinations in the cases of how many detainees?

Is that acceptable for habeas relief which should take priority over all other judicial business?

So, pray tell all us mere mortals, labouring in the real world as opposed to the groves of academe you inhabit, what are your conclusions (tentative or otherwise) on the degree of deference shown by the US Courts to the executive in the Guantanamo Bay cases?

Would you agree that there has been a wholly unwarranted degree of deference to the executive, that the delays have amounted to a denial of effective relief and that the conduct of the judiciary (with a very few shining exceptions) has brought the reputation of the US federal judiciary to a new low in the eyes of the world and if not, why not?
 

On the same day they handed down Boumediene, the Court also ruled in Munaf that the power of courts to issue the Writ extended to Camp Cropper in Iraq where the US exercises no sovereignty. The court rejected claims that political questions such as the UN mandate were relevant. The only test turned out to be whether the US exercised "chain of command" authority over the soldiers guarding the camp.

While the court found that a judicial power to issue the Writ applied in Boumediene, they did not rule on whether the Writ should be issued in those cases, or whether any detainee had any rights, or what type of proceeding should be held. All those questions were remanded to the District Court. In Munaf, however, they ruled that the District Court should not issue the Writ (or the case should be immediately dismissed) because although the judicial power to issue the Writ extended to Camp Cropper, the US did not have the power to release those accused of criminal activity in Iraq held for appearance before the Iraqi Central Criminal Court.

There may be a thousand interesting political questions, but they apply to the issues the Court remanded in Boumediene. The only question the court answered was whether the judicial power of the US, including the power to issue any court orders, extended to a US naval base. That answer was the same whether the naval base was in Norfolk or Guantanamo or Okinawa. If the President has authority to issue military orders directly to the commander of the brig, then the courts have authority to issue the Writ. Whether it is a good idea to issue the Writ, and what type of review should apply to the Response are questions that have not yet been litigated, and it is then that "political question" becomes a potential issue.
 

I actually think that the first commenter, Steve M, makes the some of the best points in this thread. Perhaps the Court's abbreviated discussion of the political question doctrine is more a product of the political climate of the times and the Court's view that the Executive had run amok in its assertions of executive power. Like many political scientists, I tend to believe that the political climate of the country can have an enormous impact on the Court's decisions.

Like Bush v. Gore, the Court's discussion of the political question doctrine may be good for Boumediene only. The problem, however, is that Justice Kennedy's discussion of the political question doctrine in the opinion is such a doctrinal mess that the Court will be forced to deal with it at some point in the future.
 

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Personally, I think Powell v. MacKormick killed the political question doctrine. Because the actual idea behind it was that the TEXT of the Constitution put certain matters outside of the judicial power granted to the courts under Article III.

Thus, it wasn't supposed to be "it's not a really good idea for courts to decide this" but rather "I can point to X provision that says courts CAN'T decide this".

Powell changed things in that in order to prevent the House of Representatives from screwing over Adam Clayton Powell, the Warren Court ignored a CLEAR textual mandate that each house gets to decide its members' qualifications.

Once that cat was out of the bag, there isn't anything left to the political question doctrine.

That said, and in contravention to both the author and Bart DePalma, there's not a word in the Constitution that says that the Supreme Court has no power to hear habeas petitions from military detainees. It isn't a political question. Deference to the military (i.e., Rokster v. Goldberg) is a different issue, but conservatives should think about whether the Bush Administration pissed away any earned deference by blatantly disregarding laws they didn't like.
 

Professor Stras's response to the key question whether the US Courts have for years been overly deferential to the Bush Administration on the issue of detainees:-

"Perhaps the Court's abbreviated discussion of the political question doctrine is more a product of the political climate of the times and the Court's view that the Executive had run amok in its assertions of executive power."

leads me to wonder whether the Federalist Society types have determined that now is the time to scuttle down the mooring lines of the sinking Bush Administration ship.

Readers may recollect a savage little poem called "Rat Week" penned by Osbert Sitwell about the socialites who deserted Edward VIII and Wallis Simpson as soon as the 1937 abdication was announced:-

"Where are the friends of yesterday
That fawned on Him,
That flattered Her,
Where are the friends of yesterday
Submitting to His every whim, Offering praise of Her as myrrh
To Him?

What do they say, that jolly crew?
Oh ...... Her they hardly knew,
They never found her really "nice"
(And here the sickened cock crew thrice)".

Howard Gilbert wrote:

"If the President has authority to issue military orders directly to the commander of the brig, then the courts have authority to issue the Writ. Whether it is a good idea to issue the Writ, and what type of review should apply to the Response are questions that have not yet been litigated, and it is then that "political question" becomes a potential issue."

I agree. For example, in one of the UK cases relating to Iraq the Court heard the application and on the return date determined that military commanders had been given lawful authority by the terms of the UN Mandate to detain for the duration of the emergency subject to 6-monthly review. So the Court had jurisdiction but as a matter of discretion declined to intervene at that point.

What is shocking is that it took the US Courts so long to get to the threshold. In the UK habeas corpus applications take priority over other judicial business: if need be, the Court will stop hearing another case in mid-presentation and make the parties wait while the application is interposed.

Perhaps the problem is that in the USA habeas petitions are still used as a last ditch review of the decisions of criminal courts and therefore the magic words "habeas corpus" have become devalued in the daily procedural practice of the Courts.
 

Ross,

Thanks for your comment. I admit to thinking this post was a long winded gloss on, "Goshdarn them activist judges!" Props, I suppose, to our hosts for inviting the occasional ideological counter-point.
 

Professor Stras,

If the old saw, "By their fruits so shall ye know them" applies, then you have cause for concern when your analysis yields unbridled approval from the direction of Colorado Springs. Of course you find Steve M's comment laudable, as it fits your "Goshdarn them activist judges" theme quite nicely (see the first sentence of the second paragraph of Steve M's comment.)

Mourad, Ross, Howard, always a pleasure to read, and learn from, your comments.
 

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Dilan said...

[The political question doctrine] wasn't supposed to be "it's not a really good idea for courts to decide this" but rather "I can point to X provision that says courts CAN'T decide this".

Powell changed things in that in order to prevent the House of Representatives from screwing over Adam Clayton Powell, the Warren Court ignored a CLEAR textual mandate that each house gets to decide its members' qualifications...

That said, and in contravention to both the author and Bart DePalma, there's not a word in the Constitution that says that the Supreme Court has no power to hear habeas petitions from military detainees...


Article III does not grant the judiciary any power it decides to exercise unless expressly denied by the Constitution.

The proper question is to which branch or branches does the Constitution grant the power to set rules for captures, including standards for determining who is an enemy eligible to be held as a prisoner of war (generic not Geneva Conventions) for the duration of a conflict.

Boumediene dealt with an act of Congress. Article I expressly grants Congress the power to set rules for Captures.

In the absence of an act of Congress, Article II generally grants the President as CiC the power to set rules for captures as an incident of that position.

Nowhere does Article III grant the judiciary power over setting rules for captured POWs or any other foreign policy question as correctly held in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp..

Thus, the Constitution grants the power to set rules for captures first to Congress, then the President as CiC and not at all to the judiciary.

The Suspension Clause implies a constitutional right to the common law habeas corpus that existed at that time. As the Boumediene Five freely admitted, there is no common law precedent for extending civilian court habeas corpus review over foreign enemy POWs. Indeed, the Boumediene Five made a poor attempt to distinguish the British precedent expressly holding that neither habeas corpus or any other rights of Englishmen extended to foreign POWs. Thus, there is no constitutional right to habeas corpus review.

Assuming however foreign enemy POWs have a constitutional right to challenge their POW status in civilian court through habeas corpus, the Boumediene Five threw the political question doctrine under the bus and unconstitutionally assumed the elected branches' power to set rules for captures by going beyond a review of whether the military was properly applying the Military Commissions Act and its own rules to the Gitmo detainees to having the district courts set their own rules of what constitutes a enemy combatant.
 

Professor Stras,

But did the political question doctrine really apply to this case? Baker says cases which are political in nature have tell-tale signs:

1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" (and as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions")

2. "A lack of judicially discoverable and manageable standards for resolving it;"

3. "The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"

4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"

5. "An unusual need for unquestioning adherence to a political decision already made;"

6."The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Here, the question was whether Congress violated the Constitution by suspending the writ without cause, contrary to the explicit guarantee of the privilege of the writ in the black-and-white text of the Constitution. So, factor one, instead of a textual commitment to the political branches, actually involves a textual commitment to the judicial department, to ensure the writ is available. Courts have been dealing with habeas claims for hundreds of years, so factor two doesn't favor the political branches, either. Whether an executive detention is lawful is the entire purpose of the power placed in the Courts for habeas, so factor three supports not applying the political question doctrine. Six doesnt' apply, since any habeas petition granted will necessarily contradict another department. Five is slightly more plausible, but there nature of the great writ is such that protecting people from unlawful detention by the executive (and the tyranny antithetical to our republican government that naturally follows) seems potentially trump that concern. Which leaves four, which is sort of like six, in the sense that anytime a habeas writ it granted, it will result in embarrassment to the executive, thus following four would result in no petitions ever being heard or granted – an absurd result, which cannot stand.

So, it would appear there was not a political question present here. Simply a Constitutional one – can Congress suspend the writ in violation of an express and explicit limitation on its power, and did the MCA do that. I fail to see where the political question is involved, mostly because, for the reasons I stated above, factor one actually favors the use of the judicial branch's use of its power to enforce a duty textually committed to it.
 

I was actually not going to respond to any further comments because I am working on another post, but Nerpzillicus raises an incredibly important point. It really was not necessary for the Court to draw this false distinction between de jure and de facto sovereignty and emasculate the political question doctrine in the process to reach its ultimate conclusion. I tried to subtly raise that point in the original post by stating that the majority could have taken sovereignty off the table by distinguishing/overruling Eisentrager or emphasizing the extraterroritorial reach of the Constitution.

One possibility is that the Court could have simply overruled Eisentrager to the extent it unduly focused on sovereignty and replaced it with a standard that better fit within the Court's own habeas jurisprudence. Custody, for instance, has been a touchstone of habeas jurisprudence for years and that concept could have been used to fit military detainees without ever touching on matters of sovereignty, which I still believe are questions solely for the political branches to decide. I am not necessarily endorsing this line of analysis, but saying only that it wouldn't have left us with a doctrinal mess.

As a side note, my guess is that at least a couple of the Justices in the majority (if not more) wanted to overrule Eisentrager explicitly, but they had to keep Justice Kennedy's vote. Thus, the group was willing to go along with Justice Kennedy's analysis, despite its incoherence, in order to keep him in the majority. It was almost certainly a strategic decision by Justice Stevens to permit Justice Kennedy to write (and control) the majority opinion.
 

Professor Stras,

Isn't it the preference of the court to avoid distinguishing/overruling cases if a decision can instead be reached on principle, even where such principles themselves need to be extended or refined? If that is in fact the preference of the court as an institution, do you take exception with such a preference?
 

Wow, I'm pretty surprised by the suggestion that I'm one of those "goshdarn those activist judges" people. First time for everything, I guess!
 

The original post said,
>>>>>>>For those of us who teach federal courts, one of the most elusive concepts is the political question doctrine, primarily because it is so difficult to reconcile with the other justiciability doctrines such as standing, mootness, or ripeness. <<<<<<<

Why does the political question doctrine need to be "reconciled" with those other justiciability doctrines? The political question doctrine is a separate doctrine with its own foundations.

>>>>>>> Unlike those three other doctrines, the political question doctrine is unrelated to the question of whether a particular plaintiff has a sufficient personal stake in a controversy to bring a lawsuit. Instead, the political question doctrine focuses on whether the resolution of a particular issue is a matter for the judiciary or one of the political departments of government. <<<<<<<

You neglected to mention the idea that there are some issues that no branch of government should ever decide -- an example is the evolution controversy, which unfortunately was decided in the Kitzmiller v. Dover intelligent design case. Also, in Massachusetts v. EPA, the Supreme Court suggested the possibility that no branch of government could satisfactorily decide the global-warming issue -- in requiring that the US EPA issue a ruling on the global-warming issue, the Supreme Court said,

Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time . . . . If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.

Some scientific questions may be unanswerable, imponderable, unfathomable, unprovable, untestable, unfalsifiable, contentious, a matter of opinion, beyond the expertise of judges, or the science may be subject to change.

Some non-justiciable questions should not be considered to be political questions -- there appears to be an unfortunate tendency to consider "non-justiciable question" and "political question" to be synonymous.

The original post said,
>>>>> . . . .the Court has limited the application of the political question doctrine to thorny areas that are at the intersection of law and public policy, such as Congress's ability to regulate its own internal processes and matters of foreign affairs. . . . In fact, some scholars have recognized that the area of foreign affairs was the last bastion where the political question doctrine had "real bite." <<<<<<<

What about Vieth v. Jubelirer, 541 US 267 (2004)? The syllabus of that decision says,

After Pennsylvania’s General Assembly adopted a congressional redistricting plan, plaintiffs-appellants sued to enjoin the plan’s implementation, alleging, inter alia, that it constituted a political gerrymander in violation of Article I and the Fourteenth Amendment’s Equal Protection Clause. The three-judge District Court dismissed the gerrymandering claim, and the plaintiffs appealed.

Held: The judgment is affirmed.

Justice Scalia, joined by The Chief Justice, Justice O’Connor, and Justice Thomas, concluded that political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist. They would therefore overrule Davis v. Bandemer, 478 U.S. 109, in which this Court held that political gerrymandering claims are justiciable, but could not agree upon a standard for assessing political gerrymandering claims . . .

. . . .Among the tests for determining the existence of a “nonjusticiable” or “political” question is a lack of judicially discoverable and manageable standards for resolving the question. Baker v. Carr, 369 U.S. 186, 217. Because the Bandemer Court was “not persuaded” that there are no such standards for deciding political gerrymandering cases, 478 U.S., at 123, such cases were justiciable. However, the six-Justice majority in Bandemer could not discern what the standards might be. For the past 18 years, the lower courts have simply applied the Bandemer plurality’s standard, almost invariably producing the same result as would have obtained had the question been nonjusticiable: judicial intervention has been refused. Eighteen years of judicial effort with virtually nothing to show for it justifies revisiting whether the standard promised by Bandemer exists.


So Vieth v. Jubelirer was a recent case that was not a foreign affairs case, yet the "political question" issue played an important role in it.

>>>>>> However, I would freely admit that the United States' near-total control of Guantanamo Bay made the question of de facto sovereignty by the United States in Boumediene pretty clear. <<<<<<

Yes, as the saying goes, possession is nine-tenths of the law. And so far as I know, the US government has never even consulted the Cuban government as to how to treat Guantanamo prisoners. To argue that de jure sovereignty was ever a real issue is absurd.

IMO the legal profession should pay more attention to the issue of non-justiciability, particularly in regard to questions that are not really "political questions" (i.e., not suitable for the legislative or executive branches) but are arguably non-justiciable, e.g., some controversial scientific questions like evolution and global warming -- in other words, questions that are not suitable for any branch of government. I discuss non-justiciability in several articles on my blog [1] [2] [3] [4].
 

Article III does not grant the judiciary any power it decides to exercise unless expressly denied by the Constitution.

Well, maybe Article III of Bart DePalma's imaginary constitution says that, but Article III of the actual one grants the "judicial power" to the courts to decide "cases or controversies" that arise under federal law.

Thus, as long as there is a case or controversy over military detention (or anything else) that arises under federal law, the courts have the power to adjudicate the dispute unless the Constitution's text commits the decision to another branch of government. And since Articles I and II contain no grant of power to determine the legality of military detention (only to set the rules under which the legality of detention will be determined), there's no political question.
 

Prof. Stras,

You make some very good points in your follow up, and I agree almost whole-heartedly. If the Court would have simply determined there was not political question (based on Baker), they may have been able to get rid of the government's sovereignty claims. Also, I do think it would have been appropriate to ditch the silly reasoning of Eisentrager, and finally simply rule that agents of the American government are answerable at all times, in all places, to American law when acting in the scope of their agency for the government. Obviously, the Court could, in appropriate circumstances, use abstention doctrines to avoid adjudicating sensitive matters (which, when it comes to foreign policy, is really what the political question doctrine is, a form of abstention. When it involves Congress setting its own rules or impeachment, the Court could simplify the doctrine by simply saying when the Constitution gives judicial power to the other branches in certain fields, it is a non-justiciable political question for which it does not have jurisdiction. When it is a foreign affairs matter, that meets the other justiciability thresholds, the Court could choose to abstain from certain issues, to avoid holding it does not have jurisdiction to adjudicate claims arising under the Constitution or the laws.)

But I think they could have simply limited Eisentrager to its facts. Those individuals were, by their own applications, admitted to be agents of Germany. (“The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing”). Here, AFAIK, the petitioners are claiming they were never engaged in combat with the US, and are not members of an organization for which the President has authority to engage in military action against under the AUMF. The situation is different, and the location of the alien was only one of the issues raised by Jackson in his opinion (they had already been tried by military commission, they were enemies). Further, Jackson notes that the court considered the applications, which admitted the petitioners were agents, and therefore enemy non-residents, so he could limit their rights to habeas. However, here we have petitions that allege the petitioners are non-resident non-enemies. Jackson does not describe the rights to be accorded to that class. So Eisentrager does not guide us on the appropriate scope of review for the petitioners in Boumediene.

Nevertheless, I don't think the political doctrine question really was more than a tangential issue. This was no longer a military detention matter once Congress passed laws regulating the holding of the prisoners. And, it really wasn't a foreign affairs matter, since in really involved individual rights of persons alleged unlawfully held. If anything, hopefully Boumediene signals that the political question doctrine will not be permitted to be manipulated by the political branches to try and avoid accountability to their duties and constraints under the Constitution. And if it modifies some of Eisentrager's over-the-top territorial nonsense, so be it.
 

This comment has been removed by the author.
 

Two comments:

1) This cannot be a political question: the constituion forbids bills of attainder and ex post facto laws. The President has no authority to designate an individual a convicted criminal, and Congress has no authority to authorize such a practice.

2) "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority..."

Here as well, Congress has no authority to abolish EQUITY -- and Boumediene was all about equity.
 

On the same day they handed down Boumediene, the Court also ruled in Munaf that the power of courts to issue the Writ extended to Camp Cropper in Iraq where the US exercises no sovereignty. The court rejected claims that political questions such as the UN mandate were relevant. The only test turned out to be whether the US exercised "chain of command" authority over the soldiers guarding the camp.

Howard, Munaf involved U.S. citizens, and so a completely different issue. Even this court probably wouldn't have ruled as it did if Munaf and Omar were Iraqis. Probably.
 

@Steve,

I didn't mean to say you actually support such a position, just that your comment left such an argument plausibly more open than did comments from others and was thus more appealing to Professor Tras. Truly sorry if you feel painted with a wrong-colored brush.
 

Dilan:

No one is arguing that the Court did not have jurisdiction to hear a constitutional question. Rather, the question is why the Court did not summarily deny the challenge based upon the political question doctrine because Article I granted Congress the power to set rules for Captures in the MCA.
 

Dilan noted

Thus, it wasn't supposed to be "it's not a really good idea for courts to decide this" but rather "I can point to X provision that says courts CAN'T decide this".

The "political thicket" was particularly raised as a bar in the apportionment area. There was a textual basis here. The equal protection clause.

But, lack of a textual basis alone wasn't (isn't) the test. Issues such as judicial ability and pragmatic concerns were raised as well.

At the very least, structural concerns are involved, even if some textual reason can be raised, as it could be in most cases given the breadth of various clauses such as EP and due process.

then, in a matter relevant to current events, Dilan cites a case involving the seating of a member of Congress:

CLEAR textual mandate that each house gets to decide its members' qualifications

Congress gets to do a lot of things. The Court here interpreted what "qualifications" the Congress had the power to "judge." Could Congress decide on race grounds to bar a member of Congress?

The Court held the relevant text had a certain history and meaning. The "political" nature of the matter made it controversial, but the fact there was a certain "text" involved doesn't seem to be conclusive.
 

Overheard: "Article I granted Congress the power to set rules for Captures"

Article I, Sec 8: "The Congress shall have Power To...declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures..."

Article I, Sec 9: "Section 9 - Limits on Congress...The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
 

The guest blogger here notes that the SC "long declined to interfere with sensitive questions of foreign policy."

In the first twenty years of its existence, the SC decided several cases that involved foreign policy, including an important one involving what direction it was acceptable to stop possibly enemy ships.

I don't know what exactly the term "foreign policy" means in this context, but it seems to me a rather open-ended one that affects any number of areas (including, e.g., who is given asylum under laws courts decide on a regular basis) so that the specific case cited should not be read too broadly.

I might note that the ruling was 5-4 and of the era where other matters deemed of "political" nature, including apportionment and various limits of state power (now understood), so might be suspect on that grounds alone. Consider the author also held laws against alleged commies that now seem outdated were acceptable in part because we should trust the gov't given the needs of the time.

Selective citation of "foreign policy" exceptions to adjudication are particuarly ill-advised in the current case. Where there is a specific textual bar, one that in part limits executive discretion even when "foreign policy" might come into play in particular.

And, one where separation of powers issues also arise, as to judicial power, here to check excesses that the Court held text was in place to check.

I'm not sure how "questions relating to sovereignty" changes this. Or, how this case by itself clearly puts the political question doctrine to bed.

You need more connective tissue to convince me of that.
 

First, I would point out that the quote Prof. Stras offered from Waterman Steamship was very telling. It read, in part, "[Political questions] are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil." If you take that for what it says, it is wholly inapplicable in Boumediene. The President and Congress are not "directly responsible" to Guantanamo detainees in the sense that is clearly indicated by the language, viz., electorally. [And, by the way, the citation given to Waterman Steamship was incorrect. It's 333 U.S. 103, not 383 U.S. 103.]

Second, Prof. Stras says that "de jure sovereignty is the clearer purely legal question." It's not clear to me why that is. It's not clear to me how to go about ordering legal questions by their "purity," either, for that matter.

Third, he also mentions the judicially manageable standards test and says, "Questions of de facto sovereignty tend to be difficult to determine because of competing indicia of control and, as a result, judicially manageable standards seem to be fairly elusive." Then he admits that in Boumediene, the question of de facto sovereignty was "pretty clear." I fail to see why Prof. Stras does not draw the simple conclusion (which the Court itself draws quite explicitly in the case): when the United States maintains "complete jurisdiction and control" over a territory, the "political question" of sovereignty is inapplicable. It's almost like an equitable estoppel claim. The government may not claim something contrary to the way it acts in pais. The government maintains "complete jurisdiction and control" over Gitmo. It may not come into court and claim that it does not. The emphasis on "complete" in the phrase "complete jurisdiction and control" also avoids any slippery slope arguments in response.
 

"Even this court probably wouldn't have ruled as it did if Munaf and Omar were Iraqis."

Citizenship was a key factor in the wrong argument (the one the court rejected). Until Boumediene, there was a belief that Habeas was some kind of right, probably because one of the first laws passed after the Constitution was adopted made it an effective right in domestic cases. The MCA removed the statute, leaving only common law Habeas. Boumediene then teaches us that common law Habeas is a power of the courts and not a right of the detainee.

Put another way, the Court rejected the "pull" theory that Habeas is drawn to the detainee based on his constitutional rights. Common law Habeas is a "push" that derives from the power of the judge without regard to the rights of the detainee.

Rights become important after you cross the threshold and ask if the detention is legal. Eisentrager pointed out that common international law allows the military to detain in wartime the citizens of an enemy country. Boumediene rejected the misunderstanding that Eisentrager was based on the fact that non-resident aliens have no constitutional rights. Instead, Eisentrager stands for the proposition that when a detention is self-evidently lawful as a universally accepted practice then issuing a meaningless Writ was a waste of time and an abuse of power.

However, if the same person had joint German and US citizenship then he would have additional rights that a court may consider because they might render the same detention illegal.

Had Munaf not been a US citizen, the court would still have, under Boumediene, the power to issue the Writ, but it would have no plausible legal question to raise about the detention. In the actual decision, the Court found that although Munaf was a citizen, there still wasn't a plausible legal question to raise about his detention and the petition should be summarily rejected.

Under the MCA Congress tried to remove from the courts the power to issue the Writ. Boumediene says that Congress cannot do this except by exercise of the Suspension clause. Having established that the court could issue the Writ, Boumediene did not even address the next question about whether the court should issue it. Every other question was remanded.

A detainee probably doesn't care if his Habeas petition was rejected because the court believed it had no jurisdition to consider the question or because the court believed there was no meaningful question to consider. The Supreme Court, however, regarded this distinction to be essential to the constitutional system of checks and balances.
 

Howard Gilbert:-

"Boumediene then teaches us that common law Habeas is a power of the courts and not a right of the detainee".

While both in the USA and the UK the forms of action no longer matter as they once did and we now concern ourself much more with the cause of action as opposed to the form, the fact that Habeas Corpus is a writ - and moreover one which issues "ex debito justitiae", although not as of course, is a powerful indicator that a right is being protected: the right not to be arbitrarily detained.

The power and, since the writ issues ex debito, the positive duty of the Court is to enquire and satisfy itself that the detention is authorised by law and, if not so satisfied, to order the release of the detained person - "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 in "ex parte Abbassi - see reference above).

The fact that the writ issues to vindicate a right and that the Court has a duty to enquire into the "why" of the detention is absolutely fundamental and therefore it is perhaps important to couch matters in terms of a fundamental duty vested in the court to enquire. The "power" part of the equation, that of ordering release, arises only after completion of the enquiry.

Likewise, as you point out, the idea the the right to apply for the writ depends on citizenship is plainly misconceived. The issue of citizenship arises at the stage of the enquiry into the legality of the detention since an alien (particularly an enemy alien) may be detained in circumstances where a citizen may not.

So, back one comes to the fact that for the Guantanamo detainees, 2009 will be with us tomorrow and the enquiry stage is not yet concluded: what does that say about the efficacy of US procedure in an absolutely fundamental matter of civil liberties (not to mention some of the appalling decisions en route to the Supreme Court) ?
 

I'd like to see Howard and Mourad expand on this "right" v "power" notion a bit more, and anyone else with an eye for such things. I'm inclined to think Howard's view is more correct, but am not wholly decided nor even certain on what I should properly base a preference.
 

Robert Link:

The distinction between "power" and "duty" is, I think, more that mere semantics. I suggest that outside the right to life, there is no right more fundamental in a free society than that a human being cannot be detained outside the law at the whim of the executive.

If you interpret "power" as meaning "jurisdiction" - it is unquestionable that at the time of the separation of the 13 colonies, that power was vested in the judiciary and your founding fathers wisely did not trust the executive to police itself, so the jurisdiction, the power to grant the writ, was firmly placed in the hands of the judiciary.

But, as the constitutional guardians of that right, the judiciary have a duty to act. That means that once an applicant moves for the writ to issue, the Court must proceed to enquire into the legality of the detention. So much so, that as I have noted, English procedure requires that if necessary, the Court must interrupt other business to hear the application.

In a flagrant case of executive abuse, sometimes the mere application does the trick. I recollect applying at 2pm before a Divisional Court (which interrupted a 12 day hearing for 30 minutes) and on reading the affidavit in support of the application, the Lord Chief Justice simply said: "I am going to adjourn this until 10.30 tomorrow morning. That will save your client the fee for issue of the writ. Telephone the police officer in charge of the case. Tell him that if he releases your client, that will be fine, but if he thinks he has grounds to continue to detain him, he or his counsel should be here before me tomorrow morning to explain why". The client was released within about 45 minutes of the telephone call during which time I suspect the telephone lines between the particular police station and the officers of the Solicitor to the Metropolitan Police were probably glowing red hot!

I do not dispute that often the duty can discharged very summarily - there will be cases which are self-evidently without merit - although in our jurisdiction the Court has ample means to discourage frivolous applications - which it exercises.

But I conceive that the emphasis on the duty to proceed to enquire is of importance. Time is of the essence. Even a day's unlawful detention is not to be tolerated if it can be avoided. Therefore the matter must take priority and in our system such cases at once go to the top of the list [US = the docket]. The Court is not deferential to the executive - it demands prompt and candid response to the application. I have seen a Home Secretary held in contempt for allowing an immigrant to be deported from the jurisdiction during the course of an application and ordered to take all possible steps to bring the applicant back within the jurisdiction and before the Court.

That is why I say that the cases of the Guantanamo bay detainees - which have been in the US Court system for so many years - exemplify what seems to me to be a breach of that duty insofar as the Courts have permitted the executive to delay and obfuscate and only now are the Courts beginning to turn to the merits.
 

Mourad said...

The power and, since the writ issues ex debito, the positive duty of the Court is to enquire and satisfy itself that the detention is authorised by law and, if not so satisfied, to order the release of the detained person - "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 in "ex parte Abbassi - see reference above)...

Likewise, as you point out, the idea the the right to apply for the writ depends on citizenship is plainly misconceived. The issue of citizenship arises at the stage of the enquiry into the legality of the detention since an alien (particularly an enemy alien) may be detained in circumstances where a citizen may not.


Misconceived or black letter law?

More to the point:

[*776] But by Gould, Blackstone, and Nares, Js., (absente De Grey, C.J.) these men, upon their own shewing, are enemy aliens and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.

The Case of the Three Spanish Sailors (96 Eng. Rep. 775, 2 Black. W. 1324 (1779)).

Habeas corpus has always been a right of the People, not an affirmative power of the Court, and never before extended to foreign prisoners of war warring or supporting a war on the People.

Thus, Howard has a point that the Boumediene Five effectively rewrote centuries of Anglo American habeas corpus common law and the Constitution to not only extend habeas corpus review to foreign POWs, but also to set the rules for when such POWs may be held. In sum, the Courts have gone beyond using habeas corpus to determine if a detention conforms with the law (in this case the MCA and applicable military rules) to setting their own rules of who may be held as a POW, where and for how long.
 

@Mourad,

The complimentary nature of rights and duties is non-trivial. If a person has a right, the government has a duty to protect that right, heads and tails of the same coin. But habeas for non-citizens would seem to be created by the notion that our government has a duty to comport itself, with respect to all persons under its control, according to certain principles (such as those we signed on to with the Geneva conventions, &c.) Accordingly even bona fide alien enemy unlawful combatants would be accorded habeas, their pump of their rights primed by our government's duty.

More to the point with the MCA, however, is the potential for abuse or mistake in which the status of alien unlawful combatant is not bona fide, as in the horror hypothetical of an Obama administration rounding up its political enemies in Colorado Springs. There is nothing in the MCA to preclude such a use, which in effect means habeas has been suspended even for lawful, non-combatant citizens. Such a result is unconstitutional on its face.
 

I understand it is popular with a certain type of thinker to argue that a) we're at war, and so b) military commissions are apt, but the simple fact is that the use of such commissions is really only justifiable when and where there is no access to proper courts. Those conditions simply do not apply in this so-called "war" on terror. Allowing miscreants to argue from premises a) and b) above is a complete waste of time, and the only proper response is the tried and true method of howling derisive laughter. Taking such arguments seriously is what got us into this mess in the first place and only visceral repudiation will fix the mess. Think of it as meta-framing: refusing to treat specious claims as anything other than what they are.
 

Robert:

1) The key distinction you are missing is that the People enjoy rights under the Constitution, while foreign enemies do not (at least not until Boumediene). Thus, the MCA cannot be used to deny the constitutional rights of the People of Colorado and cannot infringe upon constitutional rights that foreign enemies do not enjoy in the first instance.

2) The "certain type of thinker" who acknowledges the reality that we are at war includes everyone on the Supreme Court. Even the Boumediene Five do not dispute that the military can hold the enemy as POWs. Rather, they simply want to exercise Congress' Article I power to determine if, when and how this can take place.
 

Bart,

We've been down this road, and when pressed you admitted there is nothing in the four corners of the MCA which precludes it being used against you. Once caught in its net, whether as a good-faith error or an act of political oppression, the MCA would strip you of habeas rights just for starters. You know this, although you resisted admitting it for months. Why squander what little good will or credibility you might have built in recent times by trying to back away from it now?

As for the other, no matter how popular 22/7 might be, it's still not the right answer. Similarly, no matter how prevalent the "war" metaphor might be vis a vis "terror" it's still a splint on smallpox.
 

Common law Habeas as mentioned in the Suspension clause is something that nobody has encountered since the Judiciary Act of 1789 added a statutory Habeas with additional rights and procedures. Rasul and Munaf were decided based on statutory Habeas. Only after the MCA removed all statutory Habeas did the Court proceed to consider Boumediene based on common law Habeas.

It is not true that Habeas requires the existence of an individual right. It requires that the detention be illegal. In other words, if Congress passes a law that says that Roumanian citizens cannot be detained by US forces in Iraq, then Munaf's detention would have been illegal even if he were not a US citizen and had no specific rights. [However, it does appear that all civilians no matter where they are and what their status have an implied right to liberty unless their detention can be justified by some law. The constitution adds additional rules of due process that may be relaxed for aliens in general and do not apply at all for enemy aliens.]

However, enemy combatants held as prisoners of war do not fall under this rule because they are not deprived of liberty when "detained". Rather, a soldier loses his liberty when he enlists, after which he must go where he is told and do what he is told. A solder "detained" at Fort Dix for basic training may be held in a Federal facility surrounded by barbed wire and patrolled by armed guards, but he has no recourse to Habeas because he has changed his mind and wants out of the army.

Enemy soldiers also have a duty to follow orders, and when captured the detaining power becomes a "superior officer" in the prisoner's chain of command. If the US orders him to go to Guantanamo for the duration of the war, he has to follow that order according to the same rules as the Fort Dix soldier. He has not been deprived of life or liberty, so even if he is an American citizen he is not entitled to due process and does not have access to Habeas. This depends on two things: 1) there is a war, and 2) he is a soldier who enlisted in the enemy army. It does not depend on engaging in hostilities, or being on a battlefield, or personally wanting to fight the US, or being a terrorist, or any other incidental facts.

That is why Scalia was wrong in his Boumediene dissent, and Bart argues the wrong logic in some of his comments. The 435,000 Axis POWs held in the US during WWII would not have a right to Habeas under Boumediene, unless one of them claimed to be a civilian detained by mistaken identity.

The US alleges that the detainees at Guantanamo are enemy combatants who should not have access to the Writ. Lawyers for the detainees argue that they are innocent bystanders captured because they were in the wrong place at the wrong time. Some comments on this blog argue that there is no real war. Those are all merits questions that have been raised in previous cases and are now being litigated in the DC Circuit. I would agree that after seven years the Article III branch should have been able to decide whether we are at war or not, but either the answer to that question was not required to resolve any of the previous cases or else some die hard people will not accept the answer that the courts have given.

If there is a war, then some of the detainees at Guantanamo were clearly soldiers in the enemy army. We know of a few who admitted as much (Hamdi for example admitted he was a soldier but disputed that he was an enemy combatant against the US). If everything the US claims is true, then these individuals do not have the privilege of Habeas. However, since the truth of the government claims is in disputed, Habeas becomes the mechanism to test the allegations.

That the Article III courts have taken so long and not resolved this simple question is not the fault of the Bush administration. They have a theory and they have the right to propose that theory and the courts have an obligation to consider it. The fault is with the courts, and by implication with the Law Schools and accepted view of the judicial process that causes case after case to be resolved by bypassing all the core questions.

It is pretty obvious that there are cases (the Ughirs and 5 of the Boumediene Bosnians) where the government was clearly wrong and cases (Hamdi, other admitted front line soldiers, KSM and his four associates) where combatant status is not in dispute and the Writ does not apply. So there is no global statement that anyone can make about all the cases, not even that everyone is entitled to "his day in court". This was always going to be a case by case mess, but one that should have been addressed long ago.

Which brings us back to the political questions. Are we at war? Who is the enemy? What are the criteria for someone who can be said to enlist in the enemy army when that army is based on Shari'a instead of Western military practice? Some will argue that these are legal questions, but I agree with those who call them political questions. The constitution grants Congress certain War Powers, and it makes the President Commander in Chief. Article III grants the courts no specific role to decide if we should be at war or not.

However, you come to the political questions only after you grant the Writ and begin to evaluate the Response. At that point, deference to the political branches on political questions becomes appropriate. Boumediene doesn't change that. It is neither the blank check that some administration critics imagine nor the disastrous interference that some critics claim. It leaves it to the lower courts to do their job and not screw up.
 

Robert:-

Unfortunately for all of us, LSR Bart considers that his understanding of the law and the US constitution is superior to that of the Supreme Court of the United States, and probably also to that of the English Courts, the European Courts any any other judicial instance. But then my local psychiatric hospital is filled with persons who suffer similar delusions.

Pray do not pay attention to LSR Bart's misconceptions of English law. Above you will find the link to ex parte Abbassi in which our Court of Appeal makes it plain beyond peradventure that in England the protection of habeas corpus is available to anyone, regardless of citizenship. Nor is the rest of LSR Bart's customary drivel of much value.

Despite what he asserts, the Scotus Boumediene decision really decided only the threshold question of the availability of the remedy. I agree with much of what Howard Gilbert has just posted.

Howard Gilbert:-

I suspect that the US courts will be as reluctant as ours would be to enter into a determination of the legality or otherwise of the military adventures into which our respective governments entered in Afghanistan and Iraq. That issue is precisely the kind of "political question" which the Courts prefer to leave to the political branches and the possible verdict of international jurisdictions.

None of the detainees are enemy aliens. An Afghan or Iraqi citizen is not now an enemy alien any more than is a citizen of the EU or of Canada. The USA is not at war with any of these states. There is a US Ambassador in residence in Baghdad and one at Kabul. We are not at war with Algeria, Egypt or Pakistan and we maintain ambassadors to all those states. So enemy aliens in the conventional sense, the detainees are certainly not.

They may have been captured in the course of hostilities on the battlefield and they may therefore possibly be prisoners of war, or Geneva Convention protected civilians

But hostilities are now over and in the ordinary way prisoners of war properly so-called should be repatriated.

The issue whether there can be a "global war" not with a given state, but with an indeterminate class of people located anywhere on the globe and for an indeterminate duration is one which may well have to be decided in order properly to determine the status of some of the detainees,particularly those taken far from the fields of battle - some even in other countries.

I would hope that ultimately the final decision would be that what started as political hyperbole (similar to the "War on Drugs") is just that and the expression has no legal significance, because if it were held to have significance, then we really would be deep into an Orwellian 1984 situation and speaking as an inhabitant of "Airstrip One", I would be none too happy about that.

I do not share your view that the long delays in the process are not the fault of the Bush Administration.

1. If the USA had sought a UN Chapter 7 Mandate to go into Afghanistan (and it was there for the asking) the mandate would have provided for humane detention of disruptive elements reviewable at 6 monthly intervals. There is such a provision in both the Afghanistan Mandate and the Iraq Mandate under with UK forces are in both countries.

2. The initial mistake was the legal nonsense of the "war on terror" and the choice of Guantanamo Bay (and who knows where else) as legal "black holes", compounded by "extraordinary rendition" and "rendition to torture" - both of which are now sufficiently well documented to be certain to have occurred - even if the full extent of the illegality is as yet unknown.

4. The Administration tactic has been that of stonewalling - taking every possible interlocutory appeal and so forth and then collapsing only at the point where the government position has become untenable. And it has tried threatening our Government and our Courts in an effort to have them refuse to order disclosure of documents which the court had determined ought to be disclosed in the interests of justice. Who knows what undue influence has been tried on other more complaisant states we know not.

5. Yes, it is the privilege of a normal private defendant to fight a hopeless case in the hope that the plaintiff will run out of steam (most usually in the form of money). It is a phenomenon those who litigate against insured defendants know only too well (no letter is answered until the third time of writing, every discovery request is fought, etc, etc). At least here the defendant will usually be mulcted in costs if he goes too far.

But in exchange for the deference the Court gives, the government is not supposed to descend to that level but to co-operate, with utmost candour in the rapid ascertainment of the facts and the defining of the issues of law.

Viewed from outside, the degree of complaisance of the US judiciary in the bad conduct of the government gives rise to a concern that they have been excessively deferential.

The folly of the Administration is really almost beyond belief - in particular because going outside legality may have made fair trials of the guilty impossible to achieve. Still, better than 10 felons escape justice than that 1 innocent man be condemned.

What has been truly regrettable is that what were supposedly the best legal minds the Administration could find to serve in the Administration did such a terrible job. That does not say much for the Administration's recruitment capabilities nor for the law schools who taught these people. It makes it very worrying that these former participants in the débacle will be teaching students, ajudicating legal disputes, and practising law in other capacities and very likely perpetuating the errors in their thinking.
 

HowardGilbert said...

It is not true that Habeas requires the existence of an individual right. It requires that the detention be illegal. In other words, if Congress passes a law that says that Roumanian citizens cannot be detained by US forces in Iraq, then Munaf's detention would have been illegal even if he were not a US citizen and had no specific rights.

Wa are speaking of whether the Constitution guarantees habeas corpus review of the detention of foreign enemy POWs. The Boumediene Five held: "Petitioners have the constitutional privilege of habeas corpus." Thus, the basis of this review is a right/privilege held by the foreign POW.

If there was no individual right to habeas corpus review of the detention for foreign enemy POWs, then the Romanians in your scenario would have no recourse to the courts. Instead, the detention of Romanians would be a purely political issue between the elected branches.

That is why Scalia was wrong in his Boumediene dissent, and Bart argues the wrong logic in some of his comments. The 435,000 Axis POWs held in the US during WWII would not have a right to Habeas under Boumediene, unless one of them claimed to be a civilian detained by mistaken identity.

Enemy civilians can also be detained as POWs for the duration of the conflict to prevent them from rejoining the war effort against our country and likewise have no common law right to habeas corpus review. We have detained thousands of them during the world wars without ever extending habeas corpus review to them. Indeed, the petitioners denied habeas corpus review in the British cases of Schriever and Three Spanish Sailors were all civilians.
 

Mourad said...

1) ex parte Abbassi has nothing to do with the issue before the Boumediene Court - whether the common law habeas corpus review incorporated at the time of the enactment of the Constitution granted habeas corpus review to foreign POWs. Unlike your British court in Abbassi, the Supreme Court is not a common law court and may only apply the law as it exists in the Constitution and the common law incorporated by the Constitution provided no such right. Whether the Abbassi court changed British law over two centuries later is of no import to the United States.

2) Under the laws of war, the United States and Britain do not need to be at war with a nation state to detain enemy POWs. The POW need only be an enemy or an enemy supporter regardless of nationality.
 

2) Under the laws of war, the United States and Britain do not need to be at war with a nation state to detain enemy POWs. The POW need only be an enemy or an enemy supporter regardless of nationality.

# posted by Bart DePalma : 3:38 PM


So we can just arrest people, call them POWs or "enemy supporters", and then hold them forever without any hearing? How convenient for us.
 

Bartbuster: "So we can just arrest people, call them POWs or "enemy supporters", and then hold them forever without any hearing?"

Well, yeah, that was the whole point of the MCA, as long as one uses the magic words "Alien Unlawful Enemy Combatant". Call 'em AUEC, throw 'em in a hole, toss the key.
 

Mourad:

"None of the detainees are enemy aliens." Maybe, but it is not obvious based on the language actually used in Eisentrager. It is only in the West that we regard our view of citizenship as the "bright line" distinction. Clearly few of the detainees were born and raised in Afghanistan, but under the Taliban the Afghan government did not have a Western concept of citizenship and nationalization. They recognized the contribution of foreign volunteers who fought and died in the war against the Soviets and accorded those whom we would regard as "foreigners" (al Qaeda) a status equivalent to an Afghan tribe in both the military and government operations. Of the 45,000 front line troops facing the Norther Alliance, 10,000 were Pakistanis. This reflects the Taliban view that the war was between Pashtuns (on both sides of the Pakistan border) against the Tajiks, Uzbecks, and Hazaras (who the West regarded as Afghans but the Taliban regarded as outsiders and heretics).

Eisentrager happens to capture this exactly. While citizenship is the bright line for Americans, enemy aliens are described differently (emphasis added): "Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments."

And" "A nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts."

The Fourth Geneva Convention uses citizenship to determine who is a protected person, but that does not define who may be detained as an enemy alien under customary international law.

I propose that the US gets to define who is a US citizen under our law, and the Taliban decides who is a Mujihad under their law. We then get to detain as an enemy alien any supporter physically in Afghanistan operating as part of their army and government even if their passport lists them as Yemeni.

This is not a slam dunk either way, but the actual language used in Eisentrager means you have to do more than a superficial analysis.

The war is not over because the enemy did not surrender and there are still enemy soldiers fighting and Americans dying in Afghanistan. Again, while the Taliban government and army command may have moved over a border they do not recognize to the Pashtun areas of what we refer to as "Pakistani Tribal Areas", the reality on the ground outweighs theoretical arguments. Just as I do not recognize that War on Terror rhetoric allows the US to detain civilian Bosnians who may only have sympathized with al Qaeda, I also reject the theory that the war stopped being a war just because the enemy commander moved from one Pashtun tribal area to a different one out of reach of the US military.

Logically this means that most of the detainees should have EPW status and protection under the Third Geneva Convention, but in cases like Hamdan who everyone agrees to be a civilian I would argue he should be a Civilian Internee and be given the protection of the Fourth Geneva Convention as an Afghan citizen under Taliban rules of "naturalization".

You disagree. That is what the courts are supposed to be available to sort out. Which then brings us back to the big questions: is there a war, who is the enemy, who is a soldier, who is an enemy alien, what is Guantanamo, etc. When any of these questions got to the Supreme Court, it was narrowed down to the facts in that case and then bypassed by deciding something else. Hamdi, Rasul, Hamdan, and even Boumediene all asked big questions and got small answers, because that is the way judges are taught to operate. The court could have issued the Boumediene decision in Rasul. They could have provided dicta that would hint at Boumediene even if they were going to decide Rasul based on statutory Habeas. The constitution didn't change and the question was inevitably going to come back to the Court. That delay isn't someone else's fault.
 

bb/robert:

The military may not and has not simply declared folks enemy combatants and thrown them in a hole forever.

1) The law of war permits a military to detain the enemy for the duration of the war.

2) The Geneva Conventions require the military to hold a status hearing to determine of the status of the detainee as an enemy.

3) The Constitution permits Congress and the President to grant greater process such as the elaborate enemy combatant status tribunals, which require far more rights than the GCs. However, the Constitution does not affirmatively guarantee foreign POWs any rights whatsoever.

That is the sum and substance of the law applying to foreign POWs.
 

The military may not and has not simply declared folks enemy combatants and thrown them in a hole forever

1) The law of war permits a military to detain the enemy for the duration of the war.


# posted by Bart DePalma : 6:09 PM


So we release them when there is no more terror? How is that different from locking them up forever?
 

You people have a few hours to go, but here, at the Prime Meridian, we have just welcomed the start of 2009.

May I wish all of you a very Happy New Year, a return to the rule of law as opposed to government by executive fiat, and a fervent hope that 2009 will see the United States of America rediscover its vocation as an exemplar to the whole world of the the principles held by the citizens of British North America who, faithful to the ideals of the European Enlightenment, provided you folks with your present Constitution.
 

Would somebody please do us all a favour and provide Mr De Palma with a free ticket to the Spa of Embarrassing Illnesses.
 

HG loses me with many of his comments. Here are just a few:

The constitution adds additional rules of due process that may be relaxed for aliens in general and do not apply at all for enemy aliens.

Enemy aliens are "persons." They have some basic rights as such. The case cited btw spoke of "A nonresident enemy alien" ... Gitmo is not akin to any prison overseas somewhere. And, as Stevens noted, the ruling was overruled in significant part anyhow.

a soldier loses his liberty when he enlists, after which he must go where he is told and do what he is told.

within legal limits; a soldier is not a nonperson w/o ANY "liberty"

Enemy soldiers also have a duty to follow orders, and when captured the detaining power becomes a "superior officer" in the prisoner's chain of command.

legal orders; but if they have no "rights," apparently they could be forced to do anything open to torture if they do w/o any redress, even I guess, if this was done in a NY brig

Hamdi for example admitted he was a soldier but disputed that he was an enemy combatant against the US). If everything the US claims is true, then these individuals do not have the privilege of Habeas.

so even U.S. citizens (like Hamdi) would have NO privilege of habeas; I guess the "everything" part helps

This also confuses me:

It is not true that Habeas requires the existence of an individual right. It requires that the detention be illegal. In other words, if Congress passes a law that says that Roumanian citizens cannot be detained by US forces in Iraq, then Munaf's detention would have been illegal even if he were not a US citizen and had no specific rights.

There can be a positive law "right" by statute. The U.S. would lack a "power" and the relevant individuals would have a "specific right" to avoid being inflicted by such illegitimate power.

The two terms are different and have different components, but tend to be interlocked in the end all the same. As to habeas, Fed. 84. reads as if a "liberty" is involved here; in fact, listing it as a component of a "bill of rights."

The Fourth Geneva Convention uses citizenship to determine who is a protected person

All the same "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

To be honest, I find this citation of treaty obligations a bit besides the point. I don't understand how a just government, one that does what they "may of right do" (see Declaration of Independence) could deprive persons of the basic rights defended here.

Like slaves, even enemy aliens have some rights white men (et. al.) shall respect.
 

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To clarify, accord with M. on his happy new years comment.

I see he added a spa recommendation that I will leave alone.
 

Joe:-

Howard Gilbert is at least trying to argue for a judicial process which respects the rule of law.

We may disagree about the details.

This is after all a situation with little previous precedent After all, no previous US administration has ever claimed to be entitled to consider itself at war with an an indeterminate number of people of indeterminate nationalities.

I think the nearest comparable example was that of the 3rd Reich approach to the Jews and that is hardly a precedent which should commend itself to the only country in the world with a larger Jewish population than that of the State of Israel.
 

Mourad,

As gracious as you are interesting and informed. Happy 2009 to you too.
 

Mourad:

On behalf of the American soldiers you compared to SS concentration camp guards, the American judiciary system you have dismissed as savage and the American citizenry you consider unenlightened, we Yanks all appreciate how "interesting" and "graceful" such sentiments can be.

Have a Happy New Year.
 

"no previous US administration has ever claimed to be entitled to consider itself at war with an an indeterminate number of people of indeterminate nationalities"

This happens in every war, because any person of any nationality can enlist in an enemy army or one of its associated militia. The Axis in WWII consisted of Germany, Italy, Japan, Finland, Roumania, Bulgaria, Thailand and a few other states, but there were volunteer units of note from Croatia, Serbia, Hungary, and Albania. There were, for example, Yugoslavs on both sides. Anyone of any nationality inclined to do so could join up. Many Americans of German and Italian ancestry joined the German and Italian armies before Pearl Harbor, just as other Americans fought on the good side with units like the AVG in China.

Japan refused to regard captured Americans of the AVG (Flying Tigers) as POWs. They were not, after all, Chinese and the US was at the time a neutral country. Subsequently the US denounced mistreatment of Americans under the theory that nationality mattered, when it was enlistment, allegiance, and formal association that were supposed to determine military status.

The US allows non-citizens to join our army, and we do not discriminate based on national origin.

What is different is not the nationality of the enemy soldiers, but the uncertainty of "nationality" when dealing with enemy civilians. This is caused by an enemy that itself was careless about "nationality" and embraced anyone who agreed with their version of Islam. Their ideology rejects national distinctions and treats all Muslims as one nation.

This does not mean that anyone anywhere becomes an enemy alien simply by belief. They had to go to Afghanistan before the end of 2001. They had to live in the camps, take the training, and stand shoulder to shoulder with the Taliban. If at that point the Taliban regarded them as part of their "people", then we should regard them as enemy aliens. We don't need some paperwork that the Taliban didn't ever issue to anyone to establish citizenship by Western standards of documentation.
 

we Yanks all appreciate how "interesting" and "graceful" such sentiments can be.

# posted by Bart DePalma : 11:38 PM


We? "We" think you would make an excellent Nazi.

In any case, we're throwing you assholes under the bus. That alome makes it a good new year.
 

Overheard: "The military may not and has not simply declared folks enemy combatants and thrown them in a hole forever."

The speaker, however, has never managed to cite any text from the MCA which precludes such an outcome, or which would grant him rights to challenge a determination that he is an AEUC once such a determination were made, whether as a good-faith mistake or an act of political oppression. He has not cited such textual protections from the MCA because there is no such textual protection in the MCA. Instead, the text of the MCA strips one determined in error to be an AUEC, whether in good faith or as an act of political oppression, of habeas rights to challenge detention and of many important due process rights to challenge the determination. The gentleman from Colorado Springs was once before browbeaten into admitting this, but, rather dishonorably, chooses to pretend otherwise.
 

Addendum: I wrote earlier "The gentleman from Colorado Springs was once before browbeaten into admitting this..."

That may be a misstatement on my part. It might be the case that the browbeating failed to result in an actual acknowledgment of error on this matter. The closest I can find in the record at present is here, where he does not speak to the matter but instead runs when cornered. If any of the regulars can point me to something more like an actual admission by the gentleman from Colorado Springs that a person designated AEUC has no recourse, I would be grateful for the link.
 

Mourad, I respect the fact that HG is taking a more reasonable path than some others, which is partially why I responded, but I still find some of his basic premises wrong.
 

Joe: Thanks, and I will respond to your issues.

I do not assert that nonresident and enemy aliens have no rights, just that they do not enjoy "constitutional due process" as that has been defined by long precedent in domestic criminal cases. They have natural rights and some explicit rights, such as those under the Fourth Geneva Convention, but none of those rights provides that they cannot be detained by the military or that such detention is subject to Article III court review. The one resident enemy alien, al Marri, received judicial review of status before Judge Floyd and was found to be an enemy combatant, although that process was found deficient and will be repeated.

When a soldier enlists, he does not lose all his liberties. He still has rights of speech, religion, etc. However, he does lose the right to go where he wants. If a US soldier can be ordered to go to Guantanamo to serve as a guard, then the enemy soldier can be ordered to go to Guantanamo to sit inside the facility. Neither has lost his liberty. Both are following lawful orders of a superior. One happens to be playing the role of guard while the other is playing the role of "prisoner". The key here is that a POW is not a "prisoner" in the same sense as a criminal inmate. Traditionally he is simply a member of a unit of the enemy army placed hors de combat.

The US did, however, stretch the rules in its design of the camp. Every previous POW camp was designed as a military camp for disarmed soldiers surrounded by fences and guards. Gitmo is designed as a supermax prison with individual cells. If you treat captured enemy soldiers the same way you treat criminals, then it becomes harder to argue that they are not first entitled to criminal process. Common sense now clashes with legal theory.

"so even U.S. citizens (like Hamdi) would have NO privilege of habeas" Yes, but only if everyone accepts that they are POWs. This was addressed by in re Territo during WWII, where the Court found that an Italian POW born in the US had no legal rights from his US citizenship to challenge his detention as a POW. However, we have to be careful what we mean by "privilege" here. Boumediene assures us that the court has the power to issue the Writ, but Territo says that there are no issues for a court to consider after it issues the Writ. Hamdi in fact challenged his designation as an enemy combatant, and the Court found that he had a due process right to court review of the sole question of his combatant status, but then noted that due process here was significantly less than criminal process. Exactly what process in due will be determined if the al Marri case returns to District Court.

My comments on the Fourth Geneva convention apply to Article 4, not 2. It applies to citizens of enemy countries but not to citizens of third party non-belligerent nations. So it doesn't cover Hamdan unless you regard him as a naturalized Afghan.

Now for the big question. A judge has a positive duty to question any detention whose validity is not self evident. That duty falls upon the judge, and Habeas is his power to fulfil that duty. A right to due process may generate greater doubt that the detention is legal, but it is not a prerequisite. Because the judge could release a prisoner even if he had no legal rights (as to be distinguished from abstract natural rights) makes Habeas even more comprehensive.

This is the whole thrust of Boumediene. The government argued that under the MCA, the courts lacked jurisdiction to entertain the petition for Habeas. The decision poined out that Habeas is a sua sponte power that the courts exercise based on their jurisdiction over the prison and did not depend on the legal status of the prisoners. The geographic question was not whether the Constitution extended to Gitmo (which is still under litigation) but whether the power to issue court orders extended to it (which was never in dispute).

Common law or "constitutional" Habeas is part of the checks and balances system, not part of the Bill of Rights that chronologically followed it. It is a check by the Article III branch on actions of the Article II branch, a check that the Article I branch cannot block except by exercise of the Suspension Clause. It is like the Presidential veto and the Congressional override of the veto. That its purpose is to defend individual liberty is implicit, but not part of the mechanism, just as the rest of the constitutional mechanism of government may be motivated to protect liberty but derives from liberty only indirectly thorough the Preamble.
 

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HowardGilbert said...

The US did, however, stretch the rules in its design of the camp. Every previous POW camp was designed as a military camp for disarmed soldiers surrounded by fences and guards. Gitmo is designed as a supermax prison with individual cells. If you treat captured enemy soldiers the same way you treat criminals, then it becomes harder to argue that they are not first entitled to criminal process. Common sense now clashes with legal theory.

It is standard POW practice to isolate high value targets during interrogation so the POWs do not collude with one another. Once interrogation is finished, well behaved prisoners are allowed in the general population while trouble makers are kept in isolation.

Gitmo was set up as a collection area for mid range high value targets that were sent up from local prisons in the Middle East. (The high officers were sent to CIA detention facilities.) Thus, Gitmo detainees all started out in isolation for interrogation. However. once interrogation was over, the well behaved have been in common areas for years now, while those determined to no longer be dangers have been released by the hundreds if they could be found homes.
 

In an Update to his original post Professor Stras writes:-

"But suppose that the Supreme Court of the United States were to declare the United States as the de facto or de jure sovereign over Iraq on account of the occupation of US troops. I find it hard to believe that such a declaration would not impact foreign policy and thus affect the US's relationship with both Iraq and other middle East countries. In fact, I view such a scenario as almost the paradigmatic case for application of the political question doctrine, at least as the doctrine has been articulated by the Supreme Court."

This is, of course, an academic style hypothetical. The United States of America (and for that matter the UK) certainly invaded Iraq. That invasion was almost certainly unlawful as a matter of international law, but I would not expect the Courts of either jurisdiction to adjudicate on the legality or otherwise of the invasions because it would not be necessary for any of the issues before the Court and pre-eminently the sort of issue where a Court defers to the political branches - executive and legisalture.

Post invasion, the USA and the UK were occupying powers. That period which is now over, was covered by the customary law of belligerent occupation and in particular the Hague Convention of 1907 and the Fourth Geneva Convention of 12 August 1949.

I would not expect the US Supreme Court readily to accept as lawful any conduct inconsistent with the provisions of either Convention.

Professor Michael N. Schmitt, the Professor of International Law at the George C. Marshall European Center for Security Studies in Germany, served in the United States Air Force for 20 years before joining the Marshall Center faculty. During his military career, he specialized in operational and international law and was senior legal adviser to multiple Air Force units, including units conducting combat operations over Northern Iraq. He had been on the faculty of the Air Force Academy, where he was Deputy Head of the Department of Law, and was Assistant Director for Aerial Warfare in the Naval War College’s Center for Naval Warfare Studies. He has been a Visiting Scholar at Yale Law School and lectures and taught regularly at the International Institute of Humanitarian Law and the NATO School. He holds a BA and MA (Political Science) from Southwest Texas State University, an MA (National Security Policy and Strategic Studies) from the Naval War College, a JD from the University of Texas, and an LL.M from Yale University. In other words, he would have been a useful man to have around to advise on what the occupation powers could and could not do.

Was he asked to advise? I very much doubt it. But we know what his advice would have been because it was published in an article The Law of Belligerent Occupation:-

"It is important to understand that occupation does not imply an assumption of sovereignty over the territory; the Occupying Power is simply administering the area it has captured. That said, various attributes of sovereignty are suspended or limited during an occupation. Most notably, the Occupying Power temporarily assumes many of the executive functions of the former government, as well as some of its legislative and judicial responsibilities. In administering the occupied territory, any discrimination on the basis of race, political opinion, nationality, language, religion, and social origin is now forbidden as a matter of both treaty and customary international law."

"One of the most pressing tasks faced by any military government is the maintenance of law and order. With government buildings, stores, hospitals, and cultural facilities being looted, revenge killings taking place, and general lawlessness preventing the delivery of humanitarian aid, this has become an omnipresent concern for the coalition forces in Iraq. Their responsibility in this regard is unambiguously set forth in the U.S. Army’s Field Manual 27-10: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety.” Thus, although there have been assertions that the coalition forces are not police, in fact occupation law imposes policing responsibilities on them during an occupation.

Although occupation forces must maintain law and order, pre-existing civil and criminal laws of the occupied territory remain in effect to the extent they are apolitical, consistent with the maintenance of public order, and otherwise appropriate (e.g., discriminatory or inhumane laws are void); understandably, members of the occupying forces are immune from the jurisdiction of local law enforcement and judicial authorities. The Occupying Power may issue regulations, including penal regulations, necessary to meet its obligations under occupation law. In particular, measures necessary for the security of the occupying force and for the maintenance of law and order are typically promulgated. Common examples include censorship of the media, limitations on public gatherings, and control over travel and means of transportation (whether private or public). Penal provisions cannot be retroactive and do not come into effect until published in the inhabitants’ language. Overall, occupation law seeks a balance between the maintenance of order and the preservation of the pre-existing legal order."


Would Professor Stras care to comment on the US compliance with the law of belligerent occupation, on the fact that the Administration lawyers worked overtime to circumvent and frustrate it, and would he care to hazard a prediction on what SCOTUS might in due course have to say about that?

In fact, the Bush administation's occupying power effort was as incompetent as they come. Hardly surprising when one considers the personalities in charge:-

There were two Op-Plans developed successively by Douglas Feith's Pentagon Office of Special Plans.

Op-Plan A "Hand the Keys to Ahmed Chalabi".
================================
In this rose-tinted plan, a government was supposed to emerge as if by magic from a few conferences with the warring factions within Iraq. Former US General Jay Garner was put in charge of reconstruction. Garner's mandate was to start the process which would anoint Ahmed Chalabi, the Pentagon's Quisling choice as a President of Iraq prepared to sell off Iraq's oil to his Neoconservative friends and financial backers. Ahmed Chalabi is best known to the world's central bankers for his role in the collapses of banking institutions Petra Bank in Jordan and Mebco and Socofi in Switzerland. Chalabi is also well-known to police forces around the world as Jordan seeks his extradition on financial fraud charges connected with the collapse of Petra Bank. This "Enron-like" reputation for financial probity made him an attractive proposition to the Neoconservatives who saw Iraq as yielding handsome profits for their friends in the oil and other industrial sectors, who in due course would be duly grateful to Administration figures. Unfortunately, the principal personalities in Iraq would not have Chalabi foisted on them at any price and within a month General Garner was recalled to Washington.

Op=Plan B "Banana Republic of Mesopotamia" (aka Coalition Provisional Authority)
=========================================================
Faced with the prospect of an interim government dominated by Shia clerics of independent minds instead of one run by their Quisling candidate, the Bush Administration dropped the idea of a speedy transition to democracy and decided to set up an occupation charged with getting on with the asset stripping of Iraq as quickly as possible.

The man chosen by the Bush Administration to preside over the destiny of the Banana Republic of Mesopotamia was Paul Bremer III, a man whose principal qualification was that he had been a "gofer" for 6 successive US Secretaries of State. At the CPA Bremer became a "gofer" for Feith.

Then take a look at some of the CPA personnel:-
- Dan Amstutz: a Reagan administration veteran who had served as the president of the North American Export Grain Association. Oxfam's Director of Policy Kevin Watkins stated that that with his record of opening up developing economies to cheap American agricultural exports, "putting Dan Amstutz in charge of agricultural reconstruction in Iraq is like putting Saddam Hussein in the chair of a human rights commission.";
- Tom Foley: high-flying GOP fundraiser. Connecticut finance chair for Bush 2000 and a classmate of the President's at Harvard Business School. Close connections to many GOP lobbyists. No expertise in post conflict reconstruction;.
- Rich Galen: veteran GOP spin meister, former spokesman for Vice President Dan Quayle and onetime head of Newt Gingrich's GOPAC;
- Tom Korologos: veteran GOP lobbyist. Retired from Timmons & Company where he represented, inter alia, Boeing, Unocal, AT&T and the American Petroleum Institute. A long time buddy of Donald Rumsfeld;
- Peter McPherson a former Deputy Secretary of the Treasury - US1.8 billions of CPA funds cannot be accounted for.
- Michael H. Mobbs: previously at the Washington law firm where Douglas Feith was a partner.


Of course, in his role as a legal consultant to the Pentagon, Mr Mobbs was author of what have become known as the "Mobbs declarations" used in the "enemy combatant" cases;


A good clue to the objectives of the CPA can be had from these 2002 Heritage Foundation papers: In Post-War Iraq, Use Military Forces to Secure Vital U.S. Interests, Not for Nation-Building; Forging a Durable Post-War Political Settlement in Iraq and, importantly, The Road to Economic Prosperity for a Post-Saddam Iraq , a blueprint for the rape and pillage of Iraq's oil industry in favour of the USA.

Professor Anthony Cordesman of the Center for Strategic and International Studies published on 31st December 2002 a paper entitled "Planning for a Self-Inflicted Wound: US Policy to Reshape a Post-Saddam Iraq" which was to prove sadly prophetic for those who watched the activities of the gloriously inept Coalition Provisional Authority.

The hardest part of war is often the peace, and this is particularly likely to be the case if the US goes to war with Iraq. It is not that the US is not planning for such contingencies; it is the quality of such planning that is at issue. Unless it sharply improves, it may well become a self-inflicted wound based on a series of “syndromes” that grow out of ignorance, indifference to Iraq’s real needs, and ethnocentricity.

The US does not have to suffer from “Iraq War Peace Syndrome.” Some good studies and planning efforts are emerging, but they are the exception and not the norm, in an uncoordinated and faltering effort. Far too often, we are rushing our planning efforts without making adequate efforts to make up for our lack of knowledge. As a result, planners both outside and inside the US government may end up doing more harm than good, and in laying the groundwork for serious post-war friction and problems. ...

One of the most important things we need to do is to admit our level of ignorance and uncertainty. Far too many "experts" who are now working on post war planning have (a) never been in Iraq to the point of having practical knowledge of the country, and (b) have concentrated on the threat so long that they have little intelligence data on the workings of its government, civil society, and economy....

We must realize that one day after our forces enter any area, the world will hold us to blame for every bit of Iraqi suffering that follows, as well as for much of Saddam's legacy of economic mistakes and neglect. The first minute of the war is the beginning of the peace, and any plan that does not explicitly recognize this is dangerous. ...

The Revolutionary Guards, the secret police, and other Saddam loyalists are contemptible, but the idea we disband the entire army and security forces and start over with training and ground up new groups is impractical and dangerous. Many elements of the regular army are nationalist, not pro-Saddam. We don’t want 400,000 nationalists in the streets and hostile. We don’t want to leave a weak army in service and an angry army in the streets. Germany after World War I showed the impact that can have. By all means clean the army up, clean up the officer corps, provide political training, etc., but leave the professional and competent elements in tact. Leave Iraq with some dignity and co-opt the army rather than destroy it. Leaving the police in place, after the same purging, is even more important. The first priorities are food and security and then jobs and security. Trying to bring in inexperienced mixes of outsiders, training a new police force from the ground up, and recreate a police/legal system interface from the ground up is almost mission impossible in terms of manpower, cost, and timeliness. Cleaning up the existing force is not. ...

No war, however, can do more than provide a basis for making Iraq somewhat better and then giving the Iraqis control over their own destiny. No outcome of the war can reshape the Gulf or the Middle East. The idea of instant democratization coming out of the war and spreading throughout the region denies the laws of cause and effect and is ridiculous. So is the idea we know enough about national building to create an Iraqi United States. The best we can do is minimize our mistakes and the effect of the law of unintended consequences. To do this requires both realism and commitment. If we rely on miracles and good intentions, or act as occupiers rather than partners, we are almost certain to be far more unhappy on the tenth anniversary of the next war as we were on the tenth anniversary of the Gulf War."


Needless to say, none of the legal luminaries seemed to have much idea of the limitations imposed on US action by the law of belligerent occupation - Philippe Sands did a piece for Vanity Fair The Green Light on abusive interrogations and see his account on "killing Geneva" and his discussion with Douglas Feith from page 3 onwards.

But then, the Neoconservative lawyers in the Administration, most of them pillars of the Federalist Society, thought they knew better than everyone else.
 

Philippe Sands is a liar who completely misrepresented the statements of Douglas Feith during their interview.

Given the similarity in their tactics, it is unsurprising that Mourad is citing to Sands' lies.

As to Maurad's other misrepresentations:

1) The Coalition military did imprison anyone based on ex post facto criminal laws.

2) The disbanded Baathist military did not put 400,000 combatants on the streets fighting our troops.
 

The update sort of answers its own question; yes, Gitmo is a pretty clear case, so basically since few rules are absolute, it isn't deemed a non-justiciable question. The fact a more complex issue might notwithstanding.

As to HG, thank you for your response:

(1) I don't agree that enemy aliens have no "constitutional due process" rights. This is true even if the "process" in a given case (for the sake of argument) does not include Art. III review.

(2) I appreciate your clarification of the soldier discussion. But, again, this only underlines the "lawful orders" issue. What is "lawful" is often the rub.

(3) in re Territo: "The basis of the claimed illegal detention and restraint rests upon the allegation that petitioner was born in the United States and that at all times has been and is an American citizen." There can be other "basis" to raise habeas claims, including certain types of mistreatment. Such is my premise at least. So, this isn't conclusive.

(4) Hamilton if F. 84 cited habeas as one of many provisions in the original Constitution that served as a bill of rights.

The fact habeas (and certain provisions of Art. I, sec. 9 in general) has a checks and balances function is granted, but it remains that a liberty value is interlocked with it all the same.

I don't really see the difference at the end of the day, bottom line.

[I will leave the Geneva issue alone]
 

Should one be surprised that someone like Bart would post a libel of Philippe Sands QC who is not just the Professor of Law and Director of the Centre of International Courts and Tribunals at University College London, but also one of Her Majesty's Counsel and a very, very distinguished international lawyer who advises and acts for governments and international organisations? I suppose not.

I should point out that Sands is generally very careful not to make an allegation before he has full proof - see NYT on the Manning Memo. And, while Feith and the other Neocons are seeking to vindicate their positions No Longer in Power, Free To Talk, Neocons Seek To Rewrite History, Sands will keep them firmly in his sights. He has that kind of tenacity.

Meanwhile, Bart and his LSR friends can take heart, The Yes They Can Folks will be in the West Wing in 3 Weeks' Time. Perhaps the incoming team will consider these suggestions from Professor Sands: What next for Guantánamo Bay?. Coming from the authoritative and influential quarter they do, they are worthy of serious consideration.
 

Mourad:

Instead of addressing the charge that Sands misrepresented the Feith interview, you engaged in the logical fallacies of citation to authority, the red herrings of the Manning memorandum and some screed about rewriting history. I will take this as an admission of my original point that Sands lied.

BTW, your ongoing hope that Mr. Obama will repudiate the Bush national policies is quite charming in its willful naiveté. You will recall that this is the same Obama who voted to gut FISA to continue what you folks call "domestic spying," nominated the Bush Sec Def to continue the same defense policies, is widely reported to oppose the elimination of CIA coercive interrogation techniques you think are torture and has no intention of prosecuting the Bush Administration as Sands suggests.

So far as your point of view is concerned, meet the new boss, same as the old boss.
 

So far as your point of view is concerned, meet the new boss, same as the old boss.

Now you are back to claiming that Obama is a conservative? You really are priceless.
 

Prof. Stras:

UPDATE: I have been a bit surprised by some of the comments that seem to suggest that questions of sovereignty should not be a political question. I suspect that much of the skepticism on this issue is due to the fact that Guantanamo Bay presented such an easy case on de facto sovereignty.

On the contrary, I would suggest that Boumediene shows something quite different, to wit, that the "political branches" are themselves quite capable of getting it wrong (as evidenced by Prof. Stras's assertion/admission that the "sovereignty" of the U.S. over Guantánamo is an "easy case" despite the fact of the U.S. gummint's best lawyers insisting quite the opposite for reasons of its own.

Which puts a rather different spin on the following quote that Stras proffers:

[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the Government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of the kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

As I point out above, the Boumediene case puts the lie to the assertion in the last sentence (at least WRT "sovereignty" as a "political question"). The executive got it wrong, at least factually.

Instead, the bolded portion above has to be understood to mean that the "political branches" have to be trusted because they will have "the people whose welfare they advance or imperil" the most in mind, rather than that imperious and unaccountable judiciary (and what do they know, really?). But then "the people whose welfare they advance or imperil" has to be understood to be their own skinny a$$es in the maladministration, not the people of the United States, and certainly not the welfare of those immediately affected by such ad hoc determinations of "sovereignty" ... like the Boumediene petitioners. Of course the judiciary must stand aside (even knowing what both we and any common mortal can see is an "easy case"), because Father Gummint knows best and can be relied on to take care of us all because they're held accountable to a minority of the the population come election time and have all our interests in mind.

Cheers,
 

1) The key distinction you are missing is that the People enjoy rights under the Constitution, while foreign enemies do not (at least not until Boumediene).

In sum, "foreign enemies" (or such alleged or "designated" to be so) are simply not "people" then.... Perhaps "scum", "vermin", "tools of Satan", etc., but most certainly not "people". Don't even think that for a minute.

Cheers,
 

It is standard POW practice to isolate high value targets during interrogation so the POWs do not collude with one another...

... and such exigencies of course require stripping them naked, hooding, stress positions, extremes of temperature, sensory deprivation, shipping them half way around the world shackled to the floor of C-17s, etc., so that it is certain that they do not (and cannot) "collude with one another". It's for the protection of our troops, you see...

Cheers,
 

"Bart" DeTorquemada:

Instead of addressing the charge that Sands misrepresented the Feith interview, you engaged in the logical fallacies of citation to authority, the red herrings of the Manning memorandum and some screed about rewriting history. I will take this as an admission of my original point that Sands lied.

Perhaps I may intrude here. I looked at the Powerline screed, and can't find any evidence that "Philippe Sands is a liar" there (your words). Instead, I see that they claim that Sands "misrepresented" Feith's position (something quite different from "lying") along with a summary statement absent specifics at the end that Sands "is not entitled to misstate facts".

I think the reason is this: Feith relies on his "distinction" between the Geneva Conventions applying in the abstract to the U.S. military and whether the Taliban are entitled to GC3 treatment as POWs. This in fact reinforces Sands's contentions in that Feith at the very least argued that the GC3 (past CA3) didn't apply to the Taliban. That is unarguable. Saying that a GC exists and that the U.S. has some nebulous requirement to follow it but that it don't apply to a specific group in question (the Taliban held in Goantánamo) is not different from Sands's contention that Feith argued against at least one of the Geneva Conventions applying in full to the Taliban.

And then WRT the al Qaeda detainees at Guantánamo, Feith said (and Sands accurately reported) that these are wholly outside the Geneva Conventions (including CA3), as the Powerline article admits:

"Sands tried to support his claim that Feith wanted no Gitmo detainees to have Geneva by relying on a quotation in which Feith said that al Qaeda detainees have no Geneva protection. But Feith was clear that Taliban members do have such protection due to the international nature of our conflict with them."

There really is no other way to read this than to say that Feith basically said that the GCs didn't exist in any practical manner in Guantánamo. Sure, if we had a war with Britain, our military would be bound by the GCs, and Feith admits that. But on the substantive issue of applicability in Guantánamo, Sands charaterised Feith's comments perfectly well. No "misrepresentation". No "misstate[ment of] facts". Certainly no "lies". And the Powerline article does nothing to refute this, their equivocation about Feith's 'academic' nitpicking over the GCs being in force versus their applicability (and at what level) to any alleged Taliban in Guantánamo notwithstanding.

Powerline claims that Feith said that CA3 would require that Taliban (but not necessarily al Qaeda) "should receive 'humane treatment'". But CA3 requires more, including bans on:

"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;"

which arguably were violated for even some of the Taliban there, Feith's protestations that he'd claimed that Geneva applied notwithstanding.

Cheers,
 

Thank you Arne for putting the matter straight. I think that even Bart should have understood the meaning of my last post.

To accuse one of Her Majesty's Counsel of being a liar is seriously defamatory and, the libel having been published worldwide, it is actionable here in the UK.

While in practice I think Professor Sands would think it beneath his dignity to sue someone quite as insignificant as Bart, I do think it is frightfully bad form for Bart to call a fellow professional colleague a liar without even at attempt at justification.
 

Was the right to consular notification observed in the case of the Guantanamo detainees? A 2004 article said,

In December, the International Court of Justice heard testimony about a complaint Mexico has filed against the United States, claiming abuse of the right to consular notification for its citizens. The same international treaty that protects Americans abroad applies to foreigners in this country. The Vienna Convention, a 1963 treaty signed by 165 countries, says people traveling or living abroad have the right to contact their consulates for legal help when they are accused of a serious crime.

The world court has jurisdiction in disputes about the treaty . . . .

. . . . No one seems to dispute that foreign nationals, when arrested, must be told they have the right to contact their consulate.

The U.S. Department of State maintains a Web site with details, training material and various printed resources about the notification -- which, as is repeatedly stated, must take place "without delay" after an arrest.

"If we thumb our noses at this, what's going to protect us abroad?" asked Benton County Public Defender Jay Saxton.



Robert Link said ( 7:09 PM ) --
>>>>>>>
Overheard: "Article I granted Congress the power to set rules for Captures"

Article I, Sec 8: "The Congress shall have Power To...declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures..."

Article I, Sec 9: "Section 9 - Limits on Congress...The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
>>>>>>>>

Bart DePalma's problem is that he wants to apply the above "captures" clause in isolation without regard to other provisions of the Constitution. It is clear that the above "suspension" clause is controlling in regard to writs of habeas corpus. I assert that Congress does not have the right to declare that there is a permanent or indefinitely-long state of rebellion or invasion requiring suspension of habeas corpus.

BTW, I assert that the "jurisdiction stripping" doctrine does not apply because the "suspension" clause above is clear. One of the principles of "jurisdiction stripping" is that the Constitution gives Congress the power to make "exceptions" to the appellate jurisdiction of the Supreme Court in particular areas -- Article III says,

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish . . . . .

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


Also, I assert that Congress's power to "ordain and establish" inferior federal courts does not give Congress the power to restrict the jurisdiction of inferior federal courts.

As Ben Franklin said, "those who would sacrifice essential liberties for a little temporary safety deserve neither liberty nor safety."

The original post says,

>>>>>> UPDATE: I have been a bit surprised by some of the comments that seem to suggest that questions of sovereignty should not be a political question. I suspect that much of the skepticism on this issue is due to the fact that Guantanamo Bay presented such an easy case on de facto sovereignty. <<<<<<

Even if questions of sovereignty are usually political questions, the courts have or should have the right to step in where there has been "abuse of discretion" or "arbitrary and capricious" action by the other branches of government. The Administrative Procedures Act may apply.

Also, the statement "some scholars have recognized that the area of foreign affairs was the last bastion where the political question doctrine had 'real bite' " is misleading -- I gave the example of the recent case of Vieth v. Jubelirer (2004), where a plurality of the Supreme Court ruled that a particular case of political gerrymandering was a political question. Also, IMO it is wrong to say or imply that the only non-justiciable questions are political questions -- for example, I assert that some scientific questions, like evolution theory and global-warming theory, are non-justiciable questions that are not political questions.

>>>>>>> But suppose that the Supreme Court of the United States were to declare the United States as the de facto or de jure sovereign over Iraq on account of the occupation of US troops. <<<<<<<

That would not be a reasonable declaration because at any one time there are large areas of Iraq where US control is non-existent or incomplete. US sovereignty over a US base in Iraq is a different matter.
 

Arne:

Sands is a liar" there (your words). Instead, I see that they claim that Sands "misrepresented" Feith's position (something quite different from "lying")

Lying is intentionally communicating a false statement of fact. Misrepresenting a position is a false statement of fact. Sands was performing the interview and had access to a transcript, thus the false statement of fact was intentional and not negligent.

Your post again raises red herrings that have nothing to do with the Feith lies.

Sands' false statements of fact are that Feith admitted during an interview that he opposed granting and worked to ensure that any detainees at Guantanamo enjoyed the privileges of Article 3 of the Geneva Conventions.

In fact, Geneva Article 3 was never mentioned in the interview. Moreover, Feith's discussion concerning the GCs in general concerned the application of the GCs to the Afghanistan war but that Taliban fighters who do not follow the laws of war do not gain POW privileged, an obvious and uncontroversial distinction with which Sands agreed during the interview.

Feith explained that POW privileges were designed to encourage combatants to follow the laws of war and Sands replied: "I appreciate that."

Powerline continues:

To cite perhaps the most blatant example of distortion, Sands takes Feith's use of the word "absolutely" and applies it to the proposition that Feith intended to give no Geneva interrogation protections at all to any Guantanamo detainees. But Feith did not use the word "absolutely" to assent to this proposition. Here is the relevant portion of the interview:

Sands: At the time those issues were discussed, was it ever considered that this would have implications for the interrogation of people who were caught?

Feith: Oh yes, sure.

Sands: So the fact that they were outside the Geneva Conventions. . .

Feith: Absolutely. Hold on a second - you said outside the. . .

Sands: Sorry - they are not entitled to prisoner-of-war status?

Feith: That's a big difference.

Sands: So let's stick to your distinction, which I recognize.

Clearly, Feith did not use the word "absolutely" to signal his agreement with the view that Gitmo detainees have no rights. Rather, he was starting to agree with what he thought would be an accurate restatement by Sands of his distinction, but immediately rescinded his agreement when he realized that Sands was misstating the point - a mistake for which Sands quickly apologized, as he should do now.


Powerline only provides a thumbnail sketch of Sands' lies. Feith provided far more detail in a letter remonstrating Chairman Nadler for offering these lies during a hearing.
 

Mourad:

The fact that a liar has position and honors does not transform his statements from untrue to true. The Noble Peace Prize has been awarded to two recipients for the dissemination of lies and propaganda - I, Rigoberta Menchú for her substantially fictional autobiography I, Rigoberta Menchú and Al Gore for his almost completely fictional An Inconventinent Truth.

If anyone has a cause of action for slander, it is Mr. Feith against Sands.
 

Misrepresenting a position is a false statement of fact.

Baghdad, this is your "go to" move. Are you accusing him of stealing your best move?
 

Seriously, there are message boards where misrepresenting someone else's position is known as "Barting" them.
 

"Bart" DeTorquemada:

[Arne]: ... "Sands is a liar" there (your words). Instead, I see that they claim that Sands "misrepresented" Feith's position (something quite different from "lying")

Lying is intentionally communicating a false statement of fact....


Even if we assume arguendo such a definition of lying, that hardly makes any misrepresentation (if in fact shown) a lie, because a misrepresentation may be due to mistake or misunderstanding, and doesn't automatically include the requisite intent.

Misrepresenting a position is a false statement of fact....

No. Otherwise the Rethuglicans would be the biggest staters of false facts around....

But you (and Powerline) have still to show the "misrepresentation" even.

What is clear is that you have shown no lie, despite hurling that specific accusation at Sands.

... Sands was performing the interview and had access to a transcript, thus the false statement of fact was intentional and not negligent.

What "false statement"?

Your post again raises red herrings that have nothing to do with the Feith lies.

Huh? The one dragging in the Feith/Sands dust-up is complaining about "red herrings" here?!?!?

Sands' false statements of fact are that Feith admitted during an interview that he opposed granting and worked to ensure that any detainees at Guantanamo enjoyed the privileges of Article 3 of the Geneva Conventions.

Huh? Still hung over or did the "hair of the dog" bite you again? English, please. I don't want to take the time to try and torture out your intended meaning from the drabble of words here....

In fact, Geneva Article 3 was never mentioned in the interview....

Not exactly. The distinction between the GCs not affording POW status and not applying at all to al Qaeda (including the CA3 that applies even for those not considered POWS makes the CA3 argument implicit. And Sands correctly pointed out that Feith's position that the GCs didn't apply to al Qaeda at all carries the implication that CA3 doesn't apply to (alleged) al Qaeda detainees. That's unarguable.

... Moreover, Feith's discussion concerning the GCs in general concerned the application of the GCs to the Afghanistan war but that Taliban fighters who do not follow the laws of war do not gain POW privileged, an obvious and uncontroversial distinction with which Sands agreed during the interview.

Not exactly. I think that Sands was doing a bit of the interviewer's "um-hum" prodding. But even if it were true, Sands's own views are irrelevant here. Talk about "red herrings".

Feith explained that POW privileges were designed to encourage combatants to follow the laws of war and Sands replied: "I appreciate that."

What does that have to do with the price of tea in Sri Lanka?

Powerline continues:

To cite perhaps the most blatant example of distortion, Sands takes Feith's use of the word "absolutely" and applies it to the proposition that Feith intended to give no Geneva interrogation protections at all to any Guantanamo detainees. But Feith did not use the word "absolutely" to assent to this proposition. Here is the relevant portion of the interview:


Huh? Care to state where Sands actually did such a thing?

Sands: At the time those issues were discussed, was it ever considered that this would have implications for the interrogation of people who were caught?

Feith: Oh yes, sure.

Sands: So the fact that they were outside the Geneva Conventions. . .

Feith: Absolutely. Hold on a second - you said outside the. . .

Sands: Sorry - they are not entitled to prisoner-of-war status?

Feith: That's a big difference.

Sands: So let's stick to your distinction, which I recognize.

Clearly, Feith did not use the word "absolutely" to signal his agreement with the view that Gitmo detainees have no rights. Rather, he was starting to agree with what he thought would be an accurate restatement by Sands of his distinction, but immediately rescinded his agreement when he realized that Sands was misstating the point - a mistake for which Sands quickly apologized, as he should do now.


Where's the lie here?

Powerline only provides a thumbnail sketch of Sands' lies. Feith provided far more detail in a letter remonstrating Chairman Nadler for offering these lies during a hearing.

And Sands provided a letter as well here.

Feith is trying, after the fact, to rewrite history. In fact, while his view wasn't as extreme as that of Yoo (who argued that no laws and no conventions apply to the detainees, and additionally that the preznit can ignore such laws and treaties because of some heretofore-undiscovered regal privileges conferred by Article II as well as some preclusive "right to self-defence"), it was the view of the maladministration as reflected in numerous memos and papers (included in Greenberg's "Torture Papers"), and Feith shows no evidence that his recently-professed concern for the Geneva Conventions was the hallmark of his contribution, while the entire maladministration was in fact giving the GCs only lip service while seeking any and every way to circumvent their provisions WRT the situation at hand. If Feith can actually provide proof that he argued in favour of at least CA3 prohibitions against "humiliating and degrading treatment" for at least the (alleged) Taliban, in the face of maladministration opposition to such restraints, I'd say that Feith in fact believed in the GCs. But as it is, absent such, I can only conclude that Feith, as did essentially all the maladministration, looked on the GCs as something to be overcome or circumvented, not enforced or upheld.

Cheers,
 

... Al Gore for his almost completely fictional An Inconventinent Truth.

Yes, indeed. Nobel laureate climatologist "Bart" has shown numerous times that Gore's work is "almost completely fictional". In his own mind, he's a legend.

And speaking of "red herrings"....

As a side note, I'm going to have to chastise my own personal Nobel laureate acquaintance for his intemperate words on the subject when I see him this February. I'll let you know how that comes out.

Cheers,
 

Look, let's face it.

The 9-11 attack was a terrible atrocity. For years and years the citizens of the USA had imagined that they were safe between their two "shining seas" and that, short of the Tom Lehrer "we shall all go together when we go" event, American cities would never experience the likes of the London blitz, or the fire bombing of Hamburg or Dresden. That was for other less privileged people.

So over-reaction to 9-11 in the general population and even in the judiciary was to be expected. There are precedents for bad legal decisions on both sides of the pond in times of emergency. See Korematsu v. United States, 323 U.S. 214 (1944), or the classic dissenting judgment of Lord Atkin in Liversidge v Anderson [1942] AC 206, 245 now recognised to have been the more correct statement of the law.

At a time of national emergency such as 9-11, just as in 1939 when Germany invaded Poland, or later when the Japanese bombed Pearl Harbour, or during the Cuban missile crisis, the natural tendency is to rally behind the executive.

The USA was unfortunate in its leadership at the time of 9-11. That's life. Nobody can pretend that Lord North dealt with the situation in British North America with any competence, Neville Chamberlain was not the man to deal with Herr Hitler, Anthony Eden was wrong and Dwight Eisenhower was right about Suez.

George Walker Bush was not competent to deal with a mere hurricane, let alone with something major like 9-11 and the threat from Al-Quaida. Bush's own, not terribly coherent, born-again Christian (whatever that really means) instincts were perhaps overwhelmed by the Cheney/Rumsfeld Neoconservative faction which saw 9-11 as an opportunity rather than a disaster.

That faction, perhaps more than poor George himself gave the world the misconceived "global war on terror", and the expansive idea of the powers of the presidency which
go back to the Reagan era (i) with entirely foreseeable political consequences and (ii) with equally predictable legal consequences given the ideological splits in the Supreme Court.

Had there been a strong legal team in the executive, an Attorney-General of distinction with "cojones" as opposed to Ashcroft or Gonzales, things might have gone differently. Had there been a strong Chief Justice, as opposed to poor Reinquist, perhaps some signals could have been sent. But nobody who had served in the Mitchell-led Attorney-General's office under Nixon should ever have held subsequently an office of profit in the United States.

So now a weak and ideologically split Supreme Court is faced with the consequences of some incredibly stupid decisions, many of which undoubtedly will be found in due course to have been generated by the Cheney/Addington/Rumsfeld/Feith Axis.

I have to declare an interest. If I had to chose two persons I would like to see stand trial for ius cogens crimes, they would not include George Bush whom I consider to have been an essentially stupid man. But I would like to see Feith and especially Addington pay the price of their folly.

I think David Addington and Douglas Feith are pieces "of slimy refuse", but Bart would probably describe them as two of the "most intelligent, profound, sensitive and saintly personalities of our time". Time will tell who has the better view.

Meanwhile the US Courts have to wrestle with an incredibly difficult factual matrix. Their Oath is to "administer justice without respect to persons, and do equal right to the poor and to the rich". The world is watching their efforts. They are as the phrase goes "on world wide Candid Camera". We shall see how they do.
 

"If I had to chose two persons I would like to see stand trial for ius cogens crimes, they would not include George Bush whom I consider to have been an essentially stupid man."

Buck still has to stop somewhere. Stupidity can be a primary reason one is liable in any number of situations, so I don't know why he should be an exception.
 

Mourad:

I think David Addington and Douglas Feith are pieces "of slimy refuse", but Bart would probably describe them as two of the "most intelligent, profound, sensitive and saintly personalities of our time". Time will tell who has the better view.

:::chuckle:::

Who on Earth would want "profound, sensitive and saintly personalities" running a war?

Addington is reportedly a strongly opinionated SOB. He is also one for the most knowledgeable scholars of executive power. If I were a war time President seeking to recapture executive power lost in the aftermath of the Vietnam War defeat so I could win my war, Addington would be on a very short list to advise me.

Feith is a think tank bureaucrat who was simply doing his best to win a war of the type we had not seen for a century.

As for the "stupidity" of George Bush, let me remind you that it is the UK and not the US who has a domestic terrorist problem and the UK who lost its small part of the Iraq War to local Shia gangsters until the US trained Iraqi Army cleaned them out of Basra in a couple weeks.

Your own countrymen are wondering whether the UK has the stomach to remain even a second tier world power. Based on your posts, I would guess that the answer for the time being is no.
 

Mourad:

I think David Addington and Douglas Feith are pieces "of slimy refuse", but Bart would probably describe them as two of the "most intelligent, profound, sensitive and saintly personalities of our time". Time will tell who has the better view.

There is the dissenting view of General Tommy Franks concerning the true nature of Douglas Feith:

"[T]he fucking stupidest guy on the face of the earth."

Addington, of course, is just pure evil.

Cheers,
 

"Bart" DeTorquemada:

Who on Earth would want "profound, sensitive and saintly personalities" running a war?

You misspelled "running a country". Once you correct the typo, the choice is clear to most sapient individuals. See below.

Addington is reportedly a strongly opinionated SOB. He is also one for the most knowledgeable scholars of executive power. If I were a war time President seeking to recapture executive power lost in the aftermath of the Vietnam War defeat so I could win my war, Addington would be on a very short list to advise me.

You misspelled "erstwhile Hitler". We know that, but you apparently don't. See, e.g., this.

Cheers,
 

As for the "stupidity" of George Bush, let me remind you that it is the UK and not the US who has a domestic terrorist problem and the UK who lost its small part of the Iraq War to local Shia gangsters until the US trained Iraqi Army cleaned them out of Basra in a couple weeks

How does that make Bush any less of an idiot?
 

Feith is a think tank bureaucrat who was simply doing his best to win a war of the type we had not seen for a century....

"... and the Geneva Conventions be damned if they get in the way".

More of this current RW apologetics/revisionism: It's OK to twist (if not outright break) the laws if your intent is good (leaving aside the factuality of the premise of good intentions).

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." -- Justice Louis Brandeis,1928

"The greatest tyrannies are always perpetrated in the name of the noblest causes." -- Thomas Paine

Und so weiter.

Cheers,
 

Bart De Palma writes:-

"As for the "stupidity" of George Bush, let me remind you that it is the UK and not the US who has a domestic terrorist problem."

Yes, indeed we do. So does Germany, so does France, so does Spain, so does Indonesia and so forth around the world. And in case our pet Loathsome Spotted Reptile has not perceived the reality of that situation, would he care to reflect on the numbers of US citizens, civilian and military, living outside the USA and on the value of the US owned assets around the world which can be targeted by terrorists. There is a global terrorism problem.

The grim reality is that the USA simply cannot escape the consequences of its failed policies by relying on the two "shining seas" to keep its territory safe while everywhere else goes down the tubes. There will be further outrages around the world. All the surveillance in the world (and, boy, do we know about the extent of surveillance in London) will not ultimately serve to eradicate the phenomenon. Reduce it, yes. Contain it, yes. For the time being, yes.

The fundamental misconception of the soon to be defunct Administration is that the so-called "war on terrorism" can be won by military means. It cannot. This is a battle for hearts and minds and so far as I am concerned, it is a battle which is being lost on a daily basis.

The difference between LSR Bart and me is that while he sits up in his Νεφελοκοκκυγία (cloud cuckoo land) mountain retreat regurgitating Neocon propaganda, one of my duties as a member of my local community of Christians, Muslims and Jews, is to sit down in some meeting room or other with groups of Muslim youth (who happen to be a majority in the school system of my Borough) and work on their hearts and minds.

In the last 48 hours I have had one such a meeting. Many of the young people present had been watching the television footage of the events in Gaza. Not the sanitised version provided to the people of the USA. All I can say is that the USA has probably just taken a further step back in the battle for the hearts and minds of a many young people around the world. Because make no mistake: the USA will share the blame in the minds of many for the actions of the IDF. Anyone who thanks the USA will not be blamed is indeed living in cloud-cuckoo-land.

Ami Isseroff's Mid-East Web has some pieces suggesting the nature of the unfolding tragedy: The Likud and the Hamas - a Match made in Heaven? and Gaza tragedy unfolding. The last sentence of that piece is worth repeating:

"The characteristics of tragedy however, are that the outcome is foreseen. The protagonists are drawn inevitably to their own destruction by a succession of events which they seem to control, whereas in fact, their destinies are fore-ordained by the fates.

Likewise, the long term consequences of the phenomenally stupid decision to invade Iraq are still playing out in the "battle for hearts and minds". But I would refer to an op-ed in the Atlanta Journal Constitution by Jay Bookman Cheney articulates chilling truths and to this passage
in particular:-

"The American people were lied to not just about the justification for the war but about its cost, its length and its impact, not just on Iraq but on our standing in the world.

Cheney believes those deceptions were justified because in his view, it was all for our own good.

That same chilling arrogance was also apparent in Cheney’s response to a question about torture.

In his trademark deadpan style, the vice president endorsed the use of torture as necessary and productive while dismissing the possibility that any torture had actually occurred.

“On the question of so-called torture, we don’t do torture,” he said. “We never have. It’s not something that this administration subscribes to. Again, we proceeded very cautiously. We checked. We had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross.

“The professionals involved in that program were very, very cautious, very careful — wouldn’t do anything without making certain it was authorized and that it was legal.”

Accepting that explanation requires accepting the notion that words have no fixed meaning. What Bush and Cheney sanctioned wasn’t torture, they claim, because
administration lawyers changed the definition of the word, deciding for example that “torture” required inflicting pain equivalent to death or major organ failure. It also wasn’t torture because they had “the requisite opinions in order” and everything was authorized.

In the months and years to come, the American people will learn that torture had been far more widespread than they have been led to believe.

They will also come to understand that the atrocities at Abu Ghraib — a tragedy that Bush himself acknowledged has been our most serious setback in the war on terror — was not some low-level aberration but the inevitable consequence of behavior and examples set at the very highest levels of the U.S. government.

I’m not ready to argue that Bush, Cheney, Don Rumsfeld and others ought to be prosecuted for approving torture and thus committing a felony under U.S. law. That’s the kind of decision that can only be made after a full, honest, unbiased airing of the facts. But I do think it’s time those facts were brought to light."


As it happens, the new Administration has rather less time to form a view on how much light should be permitted to shine into the dark places of the Cheney-Rumsfeld Axis - as the New York Times points out: Obama’s View on Power Over Detainees Will Be
Tested Early
.

The Obama Administration will have just until 26th January 2009 to file its briefs in the DC Circuit Court of Appeals in the Rasul et al -v- Myers et al case. It will be most instructive to see the new Administration's position as to whether British citizens in US custody have rights or are to continue to be regarded as non-persons.

It will also be interesting to see whether the former Administration officials will continue to be represented by the Justice Department.
 

Who on Earth would want "profound, sensitive and saintly personalities" running a war?

You're right, Bart. The critical affairs of state are no place for wisdom and principles, much less an understanding of human nature.
 

Mourad said...

BD: As for the "stupidity" of George Bush, let me remind you that it is the UK and not the US who has a domestic terrorist problem."

Yes, indeed we do. So does Germany, so does France, so does Spain, so does Indonesia and so forth around the world.


Actually, Indonesia has crushed their al Qaeda problem. That leaves the EU and your enlightened policies of refusing the fight the very real war which Islamic fascism is waging against you.

And in case our pet Loathsome Spotted Reptile has not perceived the reality of that situation, would he care to reflect on the numbers of US citizens, civilian and military, living outside the USA and on the value of the US owned assets around the world which can be targeted by terrorists.

Actually, the fact that the enemy has failed to launch any substantial attacks against US interests outside of the Iraq and Afghan war zones is Exhibit 2 after safety in the United States in my argument as the the efficacy of the Bush policies to be continued by Obama.

All the surveillance in the world (and, boy, do we know about the extent of surveillance in London) will not ultimately serve to eradicate the phenomenon. Reduce it, yes. Contain it, yes. For the time being, yes.

Thank you for making the obvious admission as to the efficacy of the Bush intelligence gathering to be continued by Obama. No one claimed that intelligence gathering is perfect, just that it is necessary.

The fundamental misconception of the soon to be defunct Administration is that the so-called "war on terrorism" can be won by military means. It cannot. This is a battle for hearts and minds and so far as I am concerned, it is a battle which is being lost on a daily basis.

Actually, victory in the battle for hearts and minds in Iraq swung the Sunni and those under the thumb of Iranian trained militias over to our side and won the war in Iraq.

[O]ne of my duties as a member of my local community of Christians, Muslims and Jews, is to sit down in some meeting room or other with groups of Muslim youth (who happen to be a majority in the school system of my Borough) and work on their hearts and minds.

In the last 48 hours I have had one such a meeting. Many of the young people present had been watching the television footage of the events in Gaza...


In this meeting, did you take the terrorist group Hamas to task for its long stated objective of destroying Israel and instruct your pupils that terrorism is a dead end that the far weaker Palestinians will lose every time?

So long as the Palestinians dream of absorbing Israel into a greater Islamic Palestine, there will be no peace, no state of Palestine, only disproportionate Palestinian dead.

If the Palestinians recognized Israel and forswore terror, they could diplomatically isolate Israel and compel the creation of a Palestinian state covering nearly all of the pre-1967 lines. Indeed, Israel nearly conceded that state during the Clinton Administration and Arafat's response was another terror campaign.

Frankly, the sympathy I had for the Palestinian people vanished when they danced in the streets celebrating 9/11 and elected the terror group Hamas as their leadership. When the Palestinians want to wake up from this fascist nightmare and get serious about waging peace, I might listen again. Meanwhile, I wish the Israelis well in their campaign to root out and destroy Hamas, fascist stick and root.

I await your inevitable defense of Hamas terror as somehow "justified."
 

"Bart" DeClueless:

Actually, Indonesia has crushed their al Qaeda problem. ...

Not exactly, as Hertz would say. Which is in part why I was there a couple of years ago.

They did get some of the Bali bombers ... but that's hardly going to prevent attacks by others. As Mourad points out, until we change hearts and minds, there will be opportunity for terrorism. And we don't change hearts and minds at the point of a gun ... oh, yeah, that was the take-home lesson of Dubya's Iraq fiasco....

Cheers,
 

Actually, the fact that the enemy has failed to launch any substantial attacks against US interests outside of the Iraq and Afghan war zones is Exhibit 2 after safety in the United States in my argument as the the efficacy of the Bush policies to be continued by Obama.

That is the most idiotic argument I have ever heard. Except for all the attacks over the last 7 years, there haven't been any attacks. Amazing.

In fact, it was idiocy like this from fools like you which got Obama elected.
 

I might listen again

Too bad no one is listening to you.
 

Too bad no one is listening to you.

No one except a small klatch of amateur Bart floggers. To which I plead guilty.
 

On the Israel-Palestine issue and the legal issues relating to the present incursion into Gaza I would recommend a thread running on Opinio Juris as presenting an alternative view to the predictable sort of comments being posted elsewhere: Dershowitz on Israel and Proportionality.

On the thread there is a reference to an article by the Independent's Robert Fisk reposted on Common Dreams Leaders Lie, Civilians Die, and Lessons of History are Ignored in which Fisk makes a point in relation to the appropriate response to terrorism:

"Quite a lot of the dead this weekend appear to have been Hamas members, but what is it supposed to solve? Is Hamas going to say: "Wow, this blitz is awesome - we'd better recognise the state of Israel, fall in line with the Palestinian Authority, lay down our weapons and pray we are taken prisoner and locked up indefinitely and support a new American 'peace process' in the Middle East!" Is that what the Israelis and the Americans and Gordon Brown think Hamas is going to do?

Yes, let's remember Hamas's cynicism, the cynicism of all armed Islamist groups. Their need for Muslim martyrs is as crucial to them as Israel's need to create them. The lesson Israel thinks it is teaching - come to heel or we will crush you - is not the lesson Hamas is learning. Hamas needs violence to emphasise the oppression of the Palestinians - and relies on Israel to provide it. A few rockets into Israel and Israel obliges.

Not a whimper from Tony Blair, the peace envoy to the Middle East who's never been to Gaza in his current incarnation. Not a bloody word.

We hear the usual Israeli line. General Yaakov Amidror, the former head of the Israeli army's "research and assessment division" announced that "no country in the world would allow its citizens to be made the target of rocket attacks without taking vigorous steps to defend them". Quite so. But when the IRA were firing mortars over the border into Northern Ireland, when their guerrillas were crossing from the Republic to attack police stations and Protestants, did Britain unleash the RAF on the Irish Republic? Did the RAF bomb churches and tankers and police stations and zap 300 civilians to teach the Irish a lesson? No, it did not. Because the world would have seen it as criminal behaviour. We didn't want to lower ourselves to the IRA's level.

Yes, Israel deserves security. But these bloodbaths will not bring it. Not since 1948 have air raids protected Israel. Israel has bombed Lebanon thousands of times since 1975 and not one has eliminated "terrorism". So what was the reaction last night? The Israelis threaten ground attacks. Hamas waits for another battle. Our Western politicians crouch in their funk holes. And somewhere to the east - in a cave? a basement? on a mountainside? - a well-known man in a turban smiles."


Having referred to Fisk's article, Brien Leiter observes on the Opinio Juris thread:-

"What did the British do? They utilized police tactics, they infiltrated the IRA, and they negotiated to reach a political settlement. Hamas, as Professor O’Donnell has noted here and elsewhere, has a range of legitimate grievances, over which the Israelis could negotiate. The British strategy with the IRA eventually worked. The bloodbath strategy favored by Israel, in which each Israeli life is worth about 300 Palestinian lives, seems less strategically sound, even putting aside its morality."

As someone who served in Northern Ireland during what are referred to as "the troubles", I have to acknowledge that Catholics in Northern Ireland had many legitimate grievances, such as systematic discrimination in employment and housing, which had to be eliminated before any settlement became remotely possible (apply that norm to Israel-Palestine). Equally, I would observe that there were illegalities and abuses in the intelligence effort and miscarriages of justice in the courts - some of which took years to put right - thank God that we had by then abolished capital punishment (apply that norm to terrorism offences).

And equally, and more importantly, there was a conscious and systematic approach by the military seeking to be as low-key as possible even if that meant putting the lives of our men at some risk - for example by patrolling on foot and in "soft" order wherever possible, by the notorious "yellow cards" we were issued which required us to announce out loud an intention to open fire before doing so, by the the use of baton rounds rather than more lethal force, by quite deliberate abstention from the use of air power. And yet terrible events such as "Bloody Sunday" where a "gung ho" approach led to disaster still happened (apply that to belligerent occupation).

What LSR Bart and his fellows do not understand (and perhaps do not wish to understand) is that the UK once had the largest Empire in the history of the world. Its history is replete with episodes which have demonstrated that trying to repress insurrection and liberation struggles (whether they employ terrorist tacts or not) is futile in the long run. Either you negotiate with the rebels sooner, or you do so later on less advantageous terms. That was true with the American colonies (and the rebels committed some acts which would qualify as acts of terrorism under present legislation), it was true with our Indian Empire (the Jewel in the Imperial Crown), it was true in Malaya and in Kenya (and forget not that your next President's grandfather was a victim in our repression in that ex-colony). And yes, we had been there and done that in Iraq too. The graves are still there.

Under the George W. Bush presidency we have watched, the USA, the lead power in what the Neocons deemed "the New American Century" make precisely the same old mistakes and, regrettably, lives of our soldiers too have been lost in the process.

Eisenhower became immensely respected when he condemned the the Anglo/French/Israeli conspiracy over Suez. John F. Kennedy was a hero to the Algerians, because he spoke out against the French repression of their liberation struggle - I well recall seeing his photograph or a tapestry bearing his likeness in every home I visited in Algeria. Two of your great Presidents, one a Republican and one a Democrat, understood that need to take a "moral" approach to some issues.

The point now for this thread is that in the struggle against terrorism it is important to be seen to have just laws applied justly. It is essential to seek and take the moral high ground. What the incoming Administration does in relation to the detainees - and how the Courts go about applying US jurisprudence to human rights issues will be as important to the struggle against terrorism as any supposed military capability.
 

"Its history is replete with episodes which have demonstrated that trying to repress insurrection and liberation struggles (whether they employ terrorist tacts or not) is futile in the long run."

Not that really involved us over in the states. Surely not. "Insurrection" is such a bad thing, after all. It's like military rule. That never occurred here either. Oh wait ...

Strange how those who didn't like it -- i.e. the South -- overall liked it when done to others. The Bible Belt, however, is not always loyal to the Golden Rule.
 

This comment has been removed by the author.
 

Mourad:

The Unites States is not Great Britain. We have a long history of militarily eliminating insurrections of our own people or others. Iraq is just the latest success and hopefully Afghanistan/Pakistan will follow. In fact, our only failure at counter insurgency was Vietnam and that is only because LBJ declined to take the ground war to North Vietnam.

What Israel needs to do is ruthlessly crush Hamas, hand over the Gaza Strip to the PA and open the borders again. This option will provide the carrot (renewed economic viability) and the stick (making a signal example out of Hamas) while handing the territory back to the Palestinians to avoid the occupation dead end. The Israelis could sweeten the pot by beginning peace negotiations with the PA to make it clear that terrorist regimes are not the way to a Palestinian state.

What I am afraid of is that Israel will not destroy Hamas, but rather retreat again after giving Hamas some martyrs and then start the whole bloody process over again. The only way to deal with terrorist death cults is to grant their leadership the martyrdom they seek to inflict on their fighters and civilians and thus decapitate the hydra.
 

What I am afraid of is that Israel will not destroy Hamas,

# posted by Bart DePalma : 5:45 PM


Dumbfuck, Hamas was voted into power by the Palestinians, so the chances that it will be destroyed is just about ZERO. Israel has to give Gaza and the West Bank back to the Palestinians, or it will never see peace.
 

The only way to deal with terrorist death cults is to grant their leadership the martyrdom

Actually, we voted our terrorist death cult out of power.
 

Can you play match the quote to the speaker?

1-The only way to deal with terrorist death cults is to grant their leadership the martyrdom they seek to inflict on their fighters and civilians and thus decapitate the hydra.

2-But I say unto you, love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.

3-Hatred is never becalmed by hatred, it is only softened by love. This is an eternal law.

A) Jesus
B) Buddha
C) Bart
 

Iraq is just the latest success...

With successes like that, who needs failures?

Cheers,
 

mattski:

One can love your enemies as fellow children of God and still defend yourself when they seek to take your life. Indeed, Jesus' disciples were armed for what is presumably for self defense. Jesus told Peter to sheath his sword only so that God's plan to have Jesus to die for our sins could proceed.

On the subject of self defense:

Exodus 22: 2-3: "If the thief is found breaking in, and he is struck so that he dies, there shall be no guilt for his bloodshed."

Proverbs 25:26: "A righteous man who falters before the wicked is like a murky spring and a polluted well."

Psalm 144:1, "Blessed be the Lord my strength, who trains my hands for war and my fingers for battle"

Thomas Aquinas: "Without doubt one is allowed to resist against the unjust aggressor to one’s life, one’s goods or one’s physical integrity; sometimes, even 'til the aggressor’s death... In fact, this act is aimed at preserving one’s life or one’s goods and to make the aggressor powerless. Thus, it is a good act, which is the right of the victim."
 

As to the wisdom of decapitating terrorist groups and the "stupidity" of George Bush, the Times of London reports:

The top hierarchy of al-Qaeda has taken such a hit from US missile strikes that Osama bin Laden and his deputy have had to replace people in the terrorist organisation with men they have never met, according to Western intelligence sources.

A dozen of al-Qaeda’s “senior management” have been killed by Predator drone attacks, which have been so effective in locating their targets that the militant group has been forced to move from traditional outdoor training camps to classroom-style facilities that are hidden from view...

The killings have had a huge impact on the structure, organisation and effectiveness of al-Qaeda, limiting the capacity for commanders to liaise with each other, further separating the top command from the lower ranks and introducing a high degree of uncertainty and a constant awareness of the likelihood of death lurking in the skies.

Bin Laden, al-Qaeda’s figurehead leader and Ayman al-Zawahiri, his Egyptian deputy, have had to rely on the loyalty of their associates to stay alive and remain hidden from the American surveillance networks.

One can only hope that Mr. Obama is wise enough to continue George Bush's successful war policies against al Qaeda.
 

I love when wingnuts quote the Bible to justify war.
 

One can only hope that Mr. Obama is wise enough to continue George Bush's successful war policies against al Qaeda.

# posted by Bart DePalma : 9:22 PM


Not fucking likely. Obama was elected to end Bush's policies, and he knows it.
 

One can love your enemies as fellow children of God and still defend yourself when they seek to take your life....

Yep. That's what "blow his other cheek off" meant.

... Indeed, Jesus' disciples were armed for what is presumably for self defense.

BS. But "Bart"'s on BizarroWorld with a BizarroJaayyyzzuuuss....

Cheers,

P.S.: Curious coincidence -- the "word verification" for this comment is "dowar"....

Cheers,
 

"Bart" quotes the Holey Babble:

On the subject of self defense:

Exodus 22: 2-3: "If the thief is found breaking in, and he is struck so that he dies, there shall be no guilt for his bloodshed."

Proverbs 25:26: "A righteous man who falters before the wicked is like a murky spring and a polluted well."

Psalm 144:1, "Blessed be the Lord my strength, who trains my hands for war and my fingers for battle"


All OT. You know, the part that condones slavery, multiple wives, sends women out of town while menstruating, thinks bats are birds, and preaches "an eye for an eye". That's the part that Jesus said leves everybody blind.

Cheers,
 

LSR Bart wrote:

"The Unites [sic] States is not Great Britain. We have a long history of militarily eliminating insurrections of our own people or others."

I can only observe:-

1. The United States does not have a "long history" of anything - it has not been around for long enough.

2. It seems like poor Bart has been watching too many Westerns. I do not think the Indian Wars and the like qualify as episodes to be proud of.

3. It is premature to qualify the Enterprise of Iraq as a success in any shape or form. A very unstable state is being left behind. It is unlikely to be pro-American - more probably the influence of Iran has been greatly expanded. At what price in blood and treasure?

4. Don't count the Afghanistan/Pakistan chickens before they are hatched.

5. It seems like Bart is still making the mistake of considering Al-Quaida a "top down" command and control organisation.

6. It is well known that the Devil can quote scripture to his own ends.

7. The description of George W Bush's policies on terrorism as "wise" is the clue to the thinking behind LSR Bart's posts.

There is good reason to hope that the next President of the United States will be a good deal "wiser" than the soon-to-be-ex incumbent of that office. He may also be better advised. We shall see.

An early sign will be the approach he causes his Administration to take in the pending detainee litigation.
 

"Then Simon Peter, who had a sword, drew it and struck the high priest's servant, cutting off his right ear. The servant's name was Malchus."

It's likely having a small knife for self-defense or to cut fish for that matter was also something Jesus' peeps found useful while wandering around doing thier business, preaching their thing.

How relevant this is to the current discussion is something else. Anyway, the eye for an eye/blind bit has been attributed to Gandhi.
 

Anyway, the eye for an eye/blind bit has been attributed to Gandhi.

To many (even if not phrased that specific way). I think that the lesson of Jesus said such implicitly. It's rather obvious to any that actually think about it. I actually comment on similar (or related) issues over here.

Cheers,
 

BTW, we have this piece of encouraging news for "Bart" DeTorquemada....

Cheers,
 

And even better, Ms Johnsen has published a splendid paper entitled Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.

I commend it to LSR Bart as part of his continuing legal education. It might help to disabuse him of some of the many fallacies he has deployed in his poses here.
 

This comment has been removed by the author.
 

Mourad:

I commend it to LSR Bart as part of his continuing legal education. It might help to disabuse him of some of the many fallacies he has deployed in his poses here.

And I'm investing in cast-iron umbrella companies, as pigs might start flying.

Cheers,
 

Still more encouraging news for our pet Loathsome Spotted Reptile:-

It is reported that the President-Elect has just selected Leon Panetta as the next CIA Director
- see NYT Report here and here is a link to Panetta's views on Torture in Washington Monthly:-

"We cannot and we must not use torture under any circumstances. We are better than that."

The rule of law and respect for human rights is coming back. I'm sure dear Bart, who is so devoted to the US Constitution and the law, will be most gratified.
 

tes
 

HELLO!

This comment thread has drifted so far off-topic for so long that I feel I just have to say something to call attention to the fact that I am posting an on-topic comment.

The original post said,
>>>>>>> . . . as the Court freely concedes in Boumediene, it would have at least deferred to the Executive Branch if the outcome of the case depended on which country possessed de jure sovereignty over Guantanamo Bay. <<<<<<<

Where did the Court freely concede this? IMO the courts should not necessarily be required to "defer" to the other branches' decisions on all "political questions" -- IMO the "abuse of discretion" or "arbitrariness and capriciousness" standards should sometimes apply to political questions.

Also, the Boumediene syllabus said that the "Detainee Treatment Act of 2005" expressly applies to Guantanamo:

While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT [Combatant Status Review Tribunals] decisions.

So Congress wants to have its cake and eat it too -- making laws expressly for Guantanamo while claiming that Guantanamo is not officially under US sovereignty. What a joke.

Also, what if a US ship is in the territorial waters of a foreign country (either the 3-mile limit, the 12-mile limit, the 200-mile limit, or whatever)? Do the US Constitution and laws apply on board the ship?

Also, the US government asked the court to apply foreign laws and court precedents -- particularly British laws and court precedents -- in deciding the case. What happened to the big opposition to the idea of US courts applying foreign laws and court precedents?
 

Thanks, Larry. Good comments and nice to be back on track.

Part of the reason for the difficulty is that the U.S. gummint was trying to bend the law into something that was basically repugnant to common sense and justice, for their own reasons. Keep in mind they were basically trying to create a legal "black hole" where no laws applied. Trying to make legal sense of such a situation is of course a Sisyphean task ... as you point out very well in your comment.

Cheers,
 

Mourad said...

And even better, Ms Johnsen has published a splendid paper entitled Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.

Ah, the arrogance of lawyers. Some forget that they work for the client, not the other way around.

Johnsen may wish to read the opening command of Article II: "The executive Power shall be vested in a President of the United States of America." Funny, I did not read the provision of Article II granting any power at all to the OLC or any other lawyer serving at the pleasure of the President for the purpose of advising the President in decisions that are his or her's alone to make.

Mr. Obama will correct Johnsen's misperceptions of her role the first time he disagrees with one of her opinions. Johnsen will get a visit from Rahmbo Emmanuel and either Johnsen's opinion will change to conform to that of the CiC or she will be returning to academia.

It is reported that the President-Elect has just selected Leon Panetta as the next CIA Director
- see NYT Report here and here is a link to Panetta's views on Torture in Washington Monthly:-

"We cannot and we must not use torture under any circumstances. We are better than that."


You really are self delusional.

First, Mr. Bush and every member of is administration said the same thing repeatedly and yet you think they "torture."

Next, you may recall that Mr. Panetta was Clinton's chief of staff when he started the rendition program. Yes, Virginia, the Dems started rendition.

Mr. Obama opposes legislation prohibiting coercive interrogation or what you call torture. Obama, Panetta and the rest will simply decline to call it torture. Indeed, the Obama Administration will generally have no comment on the entire issue, the Dem press will not publish stories about the use of coercive interrogation and none of you on the left (except maybe Glenn Greenwald) will even raise a mouse-like squeak in protest. Instead, you will convince yourself that the One could not torture because, well he is The One.
 

First, Mr. Bush and every member of is administration said the same thing repeatedly and yet you think they "torture."

We don't "think" they tortured, we know they tortured. Cheney has admitted to it. Hell, he's proud of it.

The only self delusional one here is you.
 

And your claims that you can predict what Obama will do are laughable. Your next right prediction will be your first.
 

"Bart" DeLawless:

[Mourad]: And even better, Ms Johnsen has published a splendid paper entitled Faithfully Executing the Laws: Internal Legal Constraints on Executive Power.

["Bart"]: Ah, the arrogance of lawyers. Some forget that they work for the client, not the other way around.


The client is the people of the United States. "Bart" ignores the Clinton era cases that settled that matter.

["Bart"]: Johnsen may wish to read the opening command of Article II: "The executive Power shall be vested in a President of the United States of America." Funny, I did not read the provision of Article II granting any power at all to the OLC or any other lawyer serving at the pleasure of the President for the purpose of advising the President in decisions that are his or her's alone to make.

There are some constraints on what the preznit might do (contrary to your apparent position, "Bart"), as is hinted at by the title of the piece: "Internal Legal Constraints on Executive Power." These are, in part, but not in whole, the Constitution of the United States and the statutes passed pursuant thereto.

The OLC is perfectly free to tell the preznit (certainly one like Dubya, a law school reject and a moron to boot) what the law is.

The preznit may ignore OLC analysis, but he does so at his peril.

Prof. Lederman has suggested in other posts here that OLC opinions are "binding", in the sense that reliance on them confers some immunity from challenge or accountability (although it hardly is dispositive as to what the laws actually say; that is reserved for the courts ever since Marbury, and the judiciary as a co-equal branch and not subject to preznitential direction is quite free to disagree with the OLC).

What is emphatically not true is that "if the president [orders] it, that means that it is not illegal". While advisory in the sense alluded to above (i.e., subject to judicial inquiry and review), OLC opinions have more persuasive weight from a legal standpoint than do presnitential opinions.

Cheers,
 

"Bart" DeRWA:

Mr. Obama will correct Johnsen's misperceptions of her role the first time he disagrees with one of her opinions. Johnsen will get a visit from Rahmbo Emmanuel and either Johnsen's opinion will change to conform to that of the CiC or she will be returning to academia.

"Bart" mistakes Obama's staff for Duby... -- umm, sorry, Ctheney's -- thugs and goons.

Cheers,
 

I note that "Bart" is in denial. He assumes that we simply must have elected another RWA to office (and has been singing that same song ever since the election). Anything else would be unthinkable ... for him.

Cheers,
 

Bart DePalma said,
>>>>>> Ah, the arrogance of lawyers. Some forget that they work for the client, not the other way around.

. . . . . Funny, I did not read the provision of Article II granting any power at all to the OLC or any other lawyer serving at the pleasure of the President for the purpose of advising the President in decisions that are his or her's alone to make.

Mr. Obama will correct Johnson's misperceptions of her role the first time he disagrees with one of her opinions. Johnsen will get a visit from Rahmbo Emmanuel and either Johnsen's opinion will change to conform to that of the CiC or she will be returning to academia. <<<<<<<<

In the law, it is often not enough to just state an opinion -- you have to be able to support that opinion.

Arne Langsetmo said,
>>>>> The client is the people of the United States. . . . . The OLC is perfectly free to tell the preznit (certainly one like Dubya, a law school reject and a moron to boot) what the law is. <<<<<<

That's true -- the position of government attorneys is often different from that of a private attorney serving a private client. Normally, a private attorney will not disagree publicly with a private client even if he thinks that the client is wrong, but government attorneys often publicly disagree with administrators when not called upon to defend or support them in court -- for example, an article about the EPA Administrator's denial of California's request for a waiver of federal preemption of automotive greenhouse gas emissions standards said,

Environmental Protection Agency Administrator Stephen L. Johnson yesterday denied California's petition to limit greenhouse gas emissions from cars and trucks, overruling the unanimous recommendation of the agency's legal and technical staffs.

The mere fact that the EPA's legal and technical staffs disagreed with Johnson hurt him from the very start in facing legal challenges against the decision.

Of course, the attorneys of the vehicle manufacturers -- which supported Johnson -- did not publicly disagree with their clients even if they thought that their clients were wrong.

Incidentally, I thought Johnson was right, and I consider myself to be fairly knowledgeable about auto emissions laws -- I filed several federal lawsuits against California's unconstitutional "smog impact fee" on incoming out-of-state vehicles.
 

Larry Fafarman:

Incidentally, I thought Johnson was right, and I consider myself to be fairly knowledgeable about auto emissions laws -- I filed several federal lawsuits against California's unconstitutional "smog impact fee" on incoming out-of-state vehicles.

It is true that California's $300 import fee was garbage, intended (I think) mostly to benefit local auto dealers or just to jack people coming in-state. This is true because it didn't matter that cars from out-of-state had the same construction and emissions that in-state cars did (albeit one has to grant that the reason for this was that CA standards for emissions were made fleetwide because it was cheaper and/or easier for the car manufacturers, so in this sense, their vehicle requirements worked to reduce smog). What such cars lacked was the sticker ... and it didn't even matter if they met CA smog standards in the also-required smog check. As such, this law was ridiculous, and justly struck down (and if I'd been paying attention, I could have gotten my $300 back). But that hardly means that CA emission standards by themselves are a bad idea.

Cheers,
 

Arne Langsetmo said,
>>>>>> It is true that California's $300 import fee was garbage, intended (I think) mostly to benefit local auto dealers or just to jack people coming in-state. <<<<<<<

This is off-topic, but I want to respond to the issues you raised.

No, trying to benefit local auto dealers would have been a too-obvious violation of the so-called "dormant" commerce clause. The real purpose of the smog impact fee was to reduce the state deficit.

>>>>>> This is true because it didn't matter that cars from out-of-state had the same construction and emissions that in-state cars did (albeit one has to grant that the reason for this was that CA standards for emissions were made fleetwide because it was cheaper and/or easier for the car manufacturers, so in this sense, their vehicle requirements worked to reduce smog). <<<<<<

No, that is not the reason why the CA standards -- or standards close to the CA standards -- were made fleetwide (i.e., federal). Back when auto emissions regulations began in the late 1960's, Congress recognized that because of the high mobility of motor vehicles (air pollution is also highly mobile), very stringent auto emissions standards would be needed on all new cars sold anywhere in the USA -- at any one time, a large fraction of motor vehicles being operated in California or other areas with high air pollution are from out of state. There was therefore initially strong opposition to allowing California to be granted waivers of federal pre-emption of auto emissions standards. The waivers were allowed for the following reasons: (1) to use California as a "testing area" for new emissions control technologies and equipment and (2) to give California a small headstart in benefiting from these new technologies and equipment. These reasons were good when emissions control technologies were rapidly developing but became less and less valid as those technologies matured. For many years, the federal and California emissions standards were the same or nearly the same. Factory repair-manuals showed that the federal and California models of my 1978 4-cylinder American Motors Gremlin were exactly the same and the federal and California models of my 1990 Pontiac Grand Am differed only by the parts number on a computer chip in the engine-control computer (I don't even know if there was any actual difference in the chips).

>>>>>>> But that hardly means that CA emission standards by themselves are a bad idea. <<<<<<

As I noted above, the California waivers were a good idea in the beginning, but they have long outlived their usefulness. In later years, the California waivers caused tremendous problems, partly as the result of stupid decisions by the EPA and the courts.
 

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