Free Markets, Free People


Do Habeas Hearings Violate the Geneva Conventions?

Ed Morrissey highlights an order of a U.S. District Court regarding detainees at Bagram AFB:

A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.

U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.

Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

Unfortunately, I think Bates is correct here because of the ruling in Boumediene. As I pointed out in February:

Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.

Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.

But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):

Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.

There are a few problems with that conclusion:

(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).

(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).

(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.

In fact, on that last point, Judge Bates specifically noted that:

… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.

Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.

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6 Responses to Do Habeas Hearings Violate the Geneva Conventions?

  • Non-lawyer, here. Can they gain access to US jurisprudence and constitutional protections without being subjected to US law? I mean, aren’t the defendants guilty of violating the assault weapons ban for toting an AK-47? When was the last time they filed income taxes? If “ran the mixing board on the PA at a soccer stadium execution” isn’t a felony rap, at least ding their credit and slap them with a cave lien. They won’t be able to get a Netflix account for like seven years.

    • The short answer to your initial question is “yes.” 

      The reasoning behind the SCOTUS rulings is that habeas protections are historically designed to challenge the sovereign’s authority to keep someone penned up.  If the sovereign country recognizes such protections (as the U.S. does) then they must necessarily be applicable in all situations absent some exclusion.  Some exclusions include prisoners held captive in a theater of war, and those who are detained outside of territory controlled by the sovereign (see Boumediene).  Therefore, unless a prisoner is detained in circumstances fitting one of the exceptions, the sovereign’s authority to detain the prisoner is subject to challenge in a court of law.

      When you consider the fact that the supreme law governing the nation (the Constitution) is a document designed to limit the government, and which gives the Judicial branch the authority to determine when the government is acting outside its limits (see Marbury v. Madison), then it follows that any person subjected to the government’s authority has the right to challenge that authority using that judicial process.  That, in a nutshell, is essentially what the SCOTUS has decided.

  • So, essentially, it’s as I’ve been saying for the last four years.  While the anti Bush left has as tied up in knots over legal minutia, and gives our enemy the upper hand in our own legal system, using it against us, the left claims that they are taking the moral high road. 

    Alas, that so many on the right were willing to join them when this little circus started .

  • I would rather as a judge do what is constitutional even if it meant in a certain case, distinguishing or failing to apply a wretched SCOTUS opinion, than blindly following orders  that would turn the Constitution into a suicide pact. Shame on Bates, he did to the Constitution what (his relative?) Norman Bates did to the woman in the shower in Psycho.

  • Being forced to by this ruling, the military will now place all detainees under “official”  local control. Many “terriost” will never be hear from again.

    In the end I think it will prove the adage, “Be careful what you wish for… you may get it”

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