Government: Detainee cases must start over
The Justice Department on Tuesday argued in a new legal brief in D.C. Circuit Court that detainees at the military prison camp at Guantanamo Bay, Cuba, cannot pursue any challenges to their wartime detention by relying on the Geneva Convention. Giving its fullest interpretation so far of the Supreme Court’s June 29 decision in Hamdan v. Rumsfeld, the Department also argued that Congress has required that all detainees’ claims against their detention must now be processed only by the Circuit Court under a narrower form of review. The detainees, it contended, can still raise all of their constitutional claims, but no Geneva treaty claims.
The D.C. Circuit is weighing hundreds of detainee cases involving individuals who have been held but have not been charged with any crimes, and do not now face any trials before military commissions. On July 26, the Circuit panel asked the government and detainees’ lawyers to file additional briefs to offer their views on the impact on the detention cases of the Hamdan ruling. (The Circuit Court is considering two packets of cases, Boumediene v. Bush, 05-5062, and Al Odah v. U.S., 05-5064.)
The government’s supplemental brief can be found here. The detainees’ lawyers are to respond by next Tuesday, and the government reply brief is due by Aug. 15.
The Justice Department, in arguing the Geneva point, said that the Hamdan ruling addressed prisoners’ rights under the Convention’s Common Article 3 only in the context of the war crimes “military commissions.” The Supreme Court, it contended, “did not disturb the venerable rule that treaties are presumed not to create rights judicially enforceable by private parties.” The several versions of the Convention, it said, were found not judicially enforceable in private lawsuits by the Supreme Court’s 1950 decision in Johnson v. Eisentrager, and the Hamdan ruling did not disturb that.
Thus, it summed up, “nothing in Hamdan undermines our contention that the Geneva Conventions create no rights judicially enforceable by private parties. For that reason, and those stated at length in our merits briefs, the treaty claims in these cases are not judicially enforceable.” But, in any event, it added, the treaty claims raised by the detainees “are meritless.” Hamdan only dealt with the Conventions in terms of criminal punishment by a court or tribunal, and refused to consider any application of the Conventions to detention of “enemy combatants.”
On the scope of Hamdan as it applies to the court-stripping Detainee Treatment Act of 2005, the Department’s brief conceded that the Supreme Court had taken away one of its prior arguments on jurisdiction under that Act: that all parts of the Act’s effective date provisions made it clear that all pending detainee cases must be shunted them all to the D.C. Circuit for exclusive review.
But, it went on, the Court did not undermine what the Department said was its “primary argument” — that any detainee who has had his combatant status reviewed by a military panel has lost all right to pursue a habeas challenge, and must only challenge a detention order before the Circuit Court. All of the detainees have had such a panel review, it said, and each of them is necessarily challenging the validity of the designation as an enemy combatant.
“Thus, the habeas claims in these appeals should still be transferred to this Court and adjudicated,” the brief concluded. “The transfer of jurisdiction should not delay prompt resolution of those issues by this Court.”
Wow, what an incredibly dishonest brief — but I’m glad to see it, because it shows plainly just how bankrupt the governments case truly is…
“In any event, nothing in Hamdan even arguably undermines our contention that the treaty claims raised here are meritless.”
That is a flat lie: there is plenty in Justice Stevens’ and Justice Kennedy’s opinions that more than arguably undermine the government’s position on treaty claims, for example:
[VI-D-i] * * *
The Court of Appeals, on the strength of [Eisentrager footnote 14], held that “the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court.” 415 F.3d, at 40.
Whatever else might be said about the Eisentrager footnote, it does not control this case. We may assume that “the obvious scheme” of the 1949 Conventions is identical in all relevant respects to that of the 1929 Convention, FN57 and even that that scheme would, absent some other provision of law, preclude Hamdan’s invocation of the Convention’s provisions as an independent source of law binding the Government’s actions and furnishing petitioner with any enforceable right. FN58 For, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U.S. 407 (1886), they are, as the Government does not dispute, part of the law of war. See Hamdi, 542 U.S., at 520-521 (plurality opinion). And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.
{ FN57 – But see, e.g., 4 Int’l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 21 (1958)(hereinafter GCIV Commentary)(the 1949 Geneva Conventions were written “first and foremost to protect individuals, and not to serve State interests”); GCIII Commentary 91 (“It was not …until the Conventions of 1949 …that the existence of ‘rights’ conferred in prisoners of war was affirmed”). }
{ FN58 – But see generally Brief for Louis Henkin et al. as Amici Curiae; 1 Int’l Comm. for the Red Cross, Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 84 (1952)(“It should be possible in States which are parties to the Convention …for the rules of the Convention to be evoked before an appropriate national court by the protected person who has suffered a violation”); GCII Commentary 92; GCIV Commentary 79. }
Hamdan v. Rumsfeld, No. 05-184, slip op. (Stevens, J., per curiam) at 64-65.
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I score that two footnotes to one, and Eisentrager footnote 14 isn’t a sound principle of law, because the Head Money Cases simply do not support the government’s outrageously fraudulenty arguments. I wrote a commentary almost a year ago looking at all of that in the D.C. Circuit’s opinion:
Charles Gittings, Commentary on Hamdan v. Rumsfeld (D.C. Cir.), PEGC (2005.09.01), at 2-10.
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As for the DTA, it’s an obvious bill of attainder. Among other things.
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One further comment. Yesterday, the Senate Judiciary Committee held a hearing on the nomination of Asst. AG Peter D. Keisler to the D.C. Circuit. Mr. Keisler’s name appears right after SG Clement’s on this brief – they are the #1 and #2 guys in charge of all the detainee cases.
As far as I am concerned, any lawyer who’d put his name on that brief is unfit to practice law, let alone sit on the federal bench — and these people aren’t just incompetent or mistaken:
They are engaged in a conspiracy to aid and abet WAR CRIMES pursuant to 18 USC 2441(c)(1-3), Geneva 1949, Hague IV 1907, and IMT 1945 (Nuremberg principles).
It’s utterly disgraceful, and there’s an excellent article today about that ugly fact…
Michael Scherer, WILL BUSH AND GONZALES GET AWAY WITH IT?, Salon (2006.08.02).
Charles Gittings
Comment by Charles Gittings — August 2, 2006 @ 2:37 am