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The Supreme Court, Detainees, Habeas and Gitmo (update)
Posted by: McQ on Friday, June 13, 2008

I've read everything I can read on the 5-4 Supreme Court decision concerning the Gitmo detainees. I could regurgitate it all here but, frankly, that wouldn't be particularly useful. I'm sure you too have read all you can if you're interested in the case.

Essentially it leaves me undecided and here's why: I understand the argument that is being cited concerning habeas and when the privilege (and that is how it is defined) can or can't be suspended. My question has to do with when the protection of the US Constitution was extended to foreign detainees?

OTOH, the libertarian in me says "you can't hold people without charges indefinitely". That's simply a totalitarian trait I don't want to see get a foothold in this country.

This particular decision is being characterized as breaking new legal ground, but if I understand it correctly, it is instead more of the same. The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress changed the law to try to keep the detainees out of Federal Court. This is the third time the SC has essentially okayed their desire to petition civilian courts.

Of course those other occurrences were under a Republican Congress. I see little if any chance of Congress again addressing the situation and amending the law since it is now in Democratic hands and the majority of them want to see Gitmo closed.

Instead we're going to see this play out in Federal Court (and to be clear, this ruling doesn't effect war crimes trials, etc., that some detainees face). At this point I'm not so sure it is a bad thing. Sometimes the best thing that can happen is to have theory meet reality and deal with the consequences when they are clearer to everyone.

UPDATE: Michael W from A Second Hand Conjecture asks an important question and adds the following commentary in the comment section:
... the SCOTUS provided a road map for what sorts of hearings would meet constitutional muster, Congress and the military followed it, and then SCOTUS shot them down. Why?

[...]

The primary difference between this opinion and the previous ones concerning habeas is that the prior ones were decided on the basis of statutory habeas, while this was a case concerning Constitutional habeas. The reason that’s relevant is that under a Constitutional basis, the rights and privileges can theoretically be extended to anywhere the U.S. government acts, and (most importantly) the SCOTUS has the full power to plenary review of those actions and may hear constitutional challenges to the government’s actions. The practical application is that the U.S. Constitution is now deemed to extend beyond the borders of the United States, and to be equally applicable to both U.S. and foreign citizens, almost irrespective of geographic limits (with some major and minor caveats, of course). This is the most ground-breaking part of the opinion.

The opinion is a huge power grab on the part of the Judiciary, extending it’s reach into the administration and operation of our country’s affairs beyond even what Marbury v. Madison did by declaring judicial review an inherent power of the SCOTUS. Now, the SCOTUS has unprecedented review over the conduct of war and foreign policy.
He'll be writing about this at ASHC soon and I'll link to it when he does.
 
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Comments
Some of these guys have been detained based on classified information that may compromise America’s counter-terror efforts if made public in a federal court. I haven’t read the whole decision, does this mean if the government is not willing to release that information to the prosecution, the terror suspect could be released?
 
Written By: Jimmy the Dhimmi
URL: http://www.warning1938alert.ytmnd.com
Could each of the 250,000 German POW’s in the Second World War have applied for Habeus Corpus? That’s the point, they are the functional equivalent of POW’s...it’s not ILLEGAL to be a member of the Taliban. Just as it was not illegal to fight for Germany in WWII, but after you get captured or surrender we hold you until the war is over. In WWII that occurred on VE Day, in the GWoT it may never occur...that last bit is problematic, but holding these guys ought not be. IF, WWII had lasted 10 years we’d have held the Germans 10 years, all without charge and all without access to the Federal Court System.
 
Written By: Joe
URL: http://
Can someone please explain to me how this ruling at that of July 1942 ruling of the USSC, Ex Parte Quirin?

How can such similar conditions, produce such wildly variant a ruling? Wouldn’t Quirin have been considered overriding precident?

Example:
Could each of the 250,000 German POW’s in the Second World War have applied for Habeus Corpus?
No, and that in fact was the point of the Quirin ruling.
 
Written By: Bithead
URL: http://bitsblog.florack.us
Doesn’t this just mean that future military prisoners will not be held on US territory? This seems like a bad outcome for future prisoners.
 
Written By: JWG
URL: http://
How can such similar conditions, produce such wildly variant a ruling?
I’m not sure that Quirin supports your contention. From the ruling:
But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners’ contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission.
The difference is, in the case of Quirin, the court ruled against the petitioners because, if I read it correctly, it found the Proclamation in question legal and the tribunals properly constituted. In this latest case, as I understand it, the court found the opposite to be case.

Reading the two sentences above, it certainly appears the court was ready to consider the petitioners case if the same circumstances existed then as the court says exists today.
 
Written By: McQ
URL: http://www.QandO.net
"they are the functional equivalent of POW’s..."

Maybe, but not the Legal equivalent. Congress has not declared war on anyone, so no state of war exists, other than a rhetorical one.


As I understand it, in Quirin the argument is that the accused can be tried by military commission and thus have no right to be tried in federal courts. I get the impression the Bush administration position is that they can hold anyone they want for as long as they want without trying them at all, and the court is saying no, they have to be tried. I didn’t read all of Quirin, but the part I did read nowhere said the President can detain anyone for offenses ’against the laws of nations’ or the articles of war without trying them.

"Justice Department spokesman Peter Carr said Thursday’s decision should not affect war crimes trials. "Military commission trials will therefore continue to go forward," Carr said." (From McQ’s link)

If I understand correctly, then I agree with the court. If they have committed crimes, try them for it.
 
Written By: timactual
URL: http://
I plan to write something lengthy about the case over at ASHC, but I here are few points that may illuminate why this is a ground-breaking case:

1. This was essentially a result in search of an opinion. To understand why, just read the Roberts dissent and ask why didn’t the majority address Hamdi in any meaningful way? That case declared that Article 5 (of GCIII) type hearings would provide sufficient habeas protections for American detainees, and essentially approved proceedings that mirrored Army regulation 190-8 as suggested by Justice O’Connor. So that’s what was done in creating the Combat Status Review Tribunals (CSRTs), as explained by Secretary of the Navy Gordon England:
As you will recall, in last June’s Supreme Court decision in "Hamdi," Justice O’Connor explicitly suggested that a process based on existing military regulations— and she specifically cited Army regulation 190-8— might be sufficient to meet due process standards. You’ll also perhaps know that that Army regulation is what the U.S. uses to implement Article 5 of the Geneva Convention that deals with prisoners of war. So [if] our CSRT process incorporates that guidance from Article 5, Army regulation 190-8...
In short, the SCOTUS provided a road map for what sorts of hearings would meet constitutional muster, Congress and the military followed it, and then SCOTUS shot them down. Why?

2. The primary difference between this opinion and the previous ones concerning habeas is that the prior ones were decided on the basis of statutory habeas, while this was a case concerning Constitutional habeas. The reason that’s relevant is that under a Constitutional basis, the rights and privileges can theoretically be extended to anywhere the U.S. government acts, and (most importantly) the SCOTUS has the full power to plenary review of those actions and may hear constitutional challenges to the government’s actions. The practical application is that the U.S. Constitution is now deemed to extend beyond the borders of the United States, and to be equally applicable to both U.S. and foreign citizens, almost irrespective of geographic limits (with some major and minor caveats, of course). This is the most ground-breaking part of the opinion.

3. The opinion is a huge power grab on the part of the Judiciary, extending it’s reach into the administration and operation of our country’s affairs beyond even what Marbury v. Madison did by declaring judicial review an inherent power of the SCOTUS. Now, the SCOTUS has unprecedented review over the conduct of war and foreign policy.

4. As Bruce stated, there are very good reasons why the SCOTUS should have the power to not only prevent indeterminate and unjustified detention of persons regardless of citizenship. However, granting enemy combatants the full rights of American citizens during a time of war is well beyond the pale, and will likely have grave consequences.

Overall, I do think there are some good parts to this opinion, and I won’t say that the majority opinion is completely without legal basis (see, e.g., the discussion on the history of habeas and its use against the British Crown in the "excluded territories"). However, the arrogation of power to the SCOTUS and the extension of Constitutional protections beyond the actual jurisdiction of the United States is troublesome.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
as I understand it, the court found the opposite to be case.
On what basis?
 
Written By: Bithead
URL: http://bitsblog.florack.us
Some of these guys have been detained based on classified information that may compromise America’s counter-terror efforts if made public in a federal court. I haven’t read the whole decision, does this mean if the government is not willing to release that information to the prosecution, the terror suspect could be released?
Yes. Complicating the matter is the fact that we can’t legally send some of the detainees home because they may be subject to torture upon release (see, e.g., the case of the Uighurs).
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
Could each of the 250,000 German POW’s in the Second World War have applied for Habeus Corpus?
No. They were covered by the (prior) Geneva Conventions and the status hearings they were subjected to met procedural requirements.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
MichaelW there were NO status hearings for German POW’s...you raised your arms, flew the white flag and you went behind barbed wire....These guys are covered by previous conventions as well...as ILLEGAL combatants they can be shot!
 
Written By: Joe
URL: http://
Can someone please explain to me how this ruling at that of July 1942 ruling of the USSC, Ex Parte Quirin?
Quirin was distinguished on procedural grounds, i.e., that the saboteurs in Quirin were afforded counsel. (see Boumediene at p.58 of Slip Op.)
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
MichaelW there were NO status hearings for German POW’s...you raised your arms, flew the white flag and you went behind barbed wire....These guys are covered by previous conventions as well...as ILLEGAL combatants they can be shot!
They were still given status hearings, however, and that process apparently satisfied all requirements for procedural safeguards. Illegal combatants could be shot (and AFAIK still can be), but if detained would have been subject to some sort of status determination. Under the 1949 Geneva Conventions I expect that they would have been deemed supporters of the regular military, and thus amply covered by those rules. In the current GWOT, there’s no state, and no regular military, so "unlawful combatants" presents a problem since there is no such designation under the GC.

IOW, if Boumediene had been decided during WWII, I’m not sure it would have changed anything with respect to German soldiers held prisoner since they would have been subject to different, and legally sufficient, tribunals than what the current Gitmo detainees face.
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
They were still given status hearings, however ...
Scratch that; I’m wrong. There were no formal status hearings, but under prior conventions anybody captured was entitled to be treated as a POW, and no one had to divulge anything other than rank, name and serial number. And all POW’s were subject to the host nation’s laws, under which they could be tried if warranted. However, during this era of "civilized warfare" there were also inquiry offices where a nation was supposed to be able to get up-to-date information on the status of her POW’s, including whether or not they were charged with any crimes, etc.

As for whether Boumediene would extend habeas to POW’s held by the U.S. in Germany, the Kennedy opinion takes pains to differentiate between battlefield detentions and those on territory exclusive controlled by the U.S. such as Gitmo (although, I’m not very sanguine about that distinction having any lasting meaning).
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
Looks like a few hundred (or a few thousand) lawyers will be able to milk the system for a few years and try to out do each other grabbing headlines with claims of abuse. Lovely.
 
Written By: jpm100
URL: http://
And the new policy should be "Prisoners? BLAM! What prisoners? We don’t take prisoners any more."
 
Written By: SDN
URL: http://

 
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