Government: Detainees outside Constitution
The Bush Administration, insisting that Guantanamo Bay detainees “enjoy more procedural protections than any other captured enemy combatants in the history of warfare,” urged the Supreme Court on Tuesday to deny them any further legal remedies for their captivity. Specifically, the government brief argued that the Court should leave intact the “longstanding constitutional rule” that such detainees “may not invoke the protections of our Constitution.”
In a 74-page brief on the merits, filed jointly in Boumediene v. Bush (06-1195) and Al Odah v. U.S. , U.S. Solicitor General Paul D. Clement argued that Congress has given the prisoners “a constitutionally adequate substitute for challenging their detention,” so they have no need for traditional habeas remedies even if those were found to exist. The brief can be found here.
The “political branches” — Congress and the Executive — have struck “an appropriate balance” between freedom and the need to keep enemy combatants from returning to the battlefield against the U.S. , Clement contended. Quoting Justice Stephen G. Breyer in an opinion in a detainee case last year, the federal brief said that the the interbranch consultation “strengthens the Nation’s ability to determine — through democratic means — how best” to deal with national security threats during “an ongoing military conflict.”
At this stage, Clement suggested, the Court should not rule on the underlying question of whether the detainees’ imprisonment is legally justified. That should be left to the D.C. Circuit in the first instance, he argued.. Should the Court reach the merits, though, Clement added, it should find that the detention “is lawful.” For that assertion, the Solicitor General relied on the 9/11 Resolution passed by Congress in 2001.
The detainees at Guantanamo Bay who are involved in the two cases, the brief said, “are properly detained because they have been determined by a military tribunal to be ‘part of or supporting Taliban or al Qaida forces.” They may challenge that finding in the D.C. Circuit, “but they have provided no basis for upsetting that determination at this preliminary stage.”
The brief strenuously contested the detainees’ argument that they have a constitutional right, under the Suspension Clause, to pursue habeas relief in U.S. District Courts and that right “trumps” the alternative remedy Congress provided at the Circuit Court.
“First,” Clement said, “as aliens held outside the sovereign territory of the United States, [these detainees] enjoy no rights under the Suspension Clause. Second, even if they could invoke the Suspension Clause, it would not entitled them to relief because they seek an expansion of the writ well beyond its historic scope. And third, the [Detainee Treatment Act] in any event provides an adequat ealternative to any habeas rights [these detainees] may have.”
In defending the DTA process before the Circuit Court as an adequate substitute for traditional habeas review, the brief said that this issue is to be measured by a different “yardstick” — that is, habeas has only a “limited and deferential role” when asserted “in the context of wartime detentions.”
Clement’s recommendation that the Court let the DTA process run its course before any ruling by the Justices on the merits of the prisoners’ captivity was based in part on an argument that the Circuit Court needs to sort out just how that process is to work. “Important questions remain subject to consideration or elaboration as to the scope of the review available under the DTA and will be fleshed out on a case-by-case basis.” (There are presently about 130 DTA cases pending at the Circuit Court, and the procedures remain very much in dispute between the government and detainees’ lawyers.)
The brief, in discussing the DTA process, told the Court that some of the complications that have developed in the Circuit Court are traceable to the detainees’ lawyers. “The volume and nature of challenges that the detainees have made…have had an impact on the process,” Clement said.
The brief does not answer directly the complaints that military officers have made publicly about the alleged inadequacy of the military review process that precedes DTA review — that is, the work of the Combatant Status Review Tribunals. (CSRTs determine if a prisoner is or remains an enemy combatant, thus justifying continued detention. It is that kind of finding that the Circuit Court is to review in the DTA process.)
Only in concluding pages of the brief does the government make its backup argument about power to detain the Guantanamo Bay prisoners — the claim of “inherent” presidential authority, based on the Constitution’s Article II.
Four amicus briefs that were immediately available can be found here, and here, and here, and here
Meanwhile, the government also filed on Tuesday a reply to a pending petition in the Supreme Court by a Guantanamo detainee who claims permanent U.S. resident status (Paracha v. Bush, 07-153). Arguing that Saifullah Paracha, a Pakistani national and citizen, has forfeited his permanent resident status by leaving the U.S. , Clement contended that he should not be treated any differently in legal terms than other aliens at Guantanamo. The brief in opposition urges the Court to hold the case until after it decides the Boumediene/Al Odah cases.
The US Government cannot continue to keep the prisoners detained. They may be on Cuba, but the Court ruled in Rasul that they are in US Jurisdiction, “…by the express terms of its agreements with Cuba, the US excercises ‘complete jurisdiction and control’ over the [Naval Base]…” Since US rights apply to all, their detention must end.
In reality, a good way to end the conflict would be to just shut down the Guantanamo Prison, and move it inland (creating a new one).
Comment by Reuben Lack — October 9, 2007 @ 9:36 pm
I’m not sure the location of the prison – whether at Guantonama or some other USA location- is, legally, a big issue.
I do, however, think it is politically a big issue. The courts have made it pretty clear that they have serious problems with how Bush is running the camp, and yet in spite of that Bush continues to run that camp pretty much the way he wants to run it.
Lacking a military force under their control, federal courts rely on a certain amount of moral suasion to have their decisions implemented. If a court issues a decision and the executive ignores it or drags its feet implementing it, the only thing likely to force it to forthrightly comply is public outrage (or Congressional outrage).
But public outrage isn’t likely to muster over the plight of foreign detainees held on Cuba. The average American isn’t very concerned with the rights of enemy detainees, isn’t very concerned with what happens at off-shore military bases, and probably believes that the President – even one that about 70% think is incompetent – should have wide latitude in running military operations.
I predict that despite what the courts may rule, these camps will continue to operate pretty much as they have been operating, maybe with some window-dressing changes, until a new President takes office.
Comment by Stephen Jaros — October 9, 2007 @ 10:51 pm
Rasul was statutory. This is constitutional. Eisentrager controls.
Comment by Jacques MacKenzie — October 10, 2007 @ 2:11 pm
[...] 10th, 2007 by tekel Lyle Denniston has a post up at SCOTUSblog reviwing the government’s brief in Boumediene. This is the leading case that challenges the [...]
Pingback by Government Brief in Boumediene v. Bush: Some Are More Equal Than Others « tekel — October 10, 2007 @ 4:35 pm
The CJLF amicus brief argues that if one is not part of the population at the time of capture that the place of detention is immaterial, at least in a case where one is an “enemy”, relying on ancient cases, some English.
But, The Amistad, 40 U.S. (15 Pet.) 518 (1841), while styled in admiralty, amounted to a habeas ruling the other way. Indeed, the admiralty claims were largely dismissed in the end as inapplicable because the classification of the Africans as slaves was incorrect.
Surely, the way an analogous case was actually handled by U.S. cases in 1841 is more relevant than the way English cases handled those cases prior to the revolution, because the English constitution did not prioritize habeas corpus rights as above other laws by virtue of being in an organic document like the U.S. Constitution.
Enemies are not the only persons who don’t have full constitutional rights. In 1841, chattle slaves didn’t either. Thus, the classifications are analogous. But, assigning someone to the legal category of “enemy” or “chattle slave” is question begging, even in the face of sovereign and Presidential non-judicial determinations to the contrary.
The U.S. Courts still entertained the petition of the Africans captured on the high seas by the U.S. Navy and not integrated into the U.S. population, but ultimately detained on U.S. soil, who alleged that they were not in fact slaves, and hence entitled to liberty. The Africans’ claims in substance, if not form, were claims for habeas corpus.
The Africans won, over the protest of the President that this interfered with Presidential powers to conduct foreign affairs and violated separation of powers.
Also, while the administration has argued all along that the war in question is the “war on terrorism”, the Court in its prior rulings has strongly implied that the war in question is the war in Afghanistan with the Taliban. At what point is a claim that the authority to detain people has combatants has lapsed because the war is over?
Comment by ohwilleke — October 10, 2007 @ 7:42 pm
It is self evident that prisoners of war cannot have constitutional rights. The detaining power is required to allow captured officers to maintain command over lower rank captured soldiers inside a POW camp. They must maintain military order and discipline, and the US may not interfere under international law. If the constitutional rights of US civilians were available, then foreign soldiers might claim rights that they would not normally enjoy within their own army: freedom of speech, freedom of religion, etc., and then appeal to the US to protect these rights in violation of our obligation not to interfere in the normal chain of command. In particular, a soldier cannot have a constitutional right to a habeas hearing while, at the same time, his superior officer has an absolute right to order him not to request it or any other judicial process (because of some policy adopted by his commanders). Conceptually, a POW camp is a small piece of the foreign army, cut off but maintaining its ranks, rules, and regulations. The US cannot interfere by imposing its views on enemy POWs any more than al Qaeda can force captured US soldiers to convert to Islam and obey Sharia.
You should also note that soldiers in the US military do not have the same “consitutional rights” that civilians enjoy.
Habeas provides the mechanism by which a detained person can, through a court, demand that the government explain his detention. Habeas gets you into court, but what happens next depends on the reason provided in the government reply. If the government claims you have been quarantined by public health officials because you have a dangerous communicable disease, the issues, process, and testimony before the court will be all scientific and health related and have little in common with a criminal habeas hearing, or the hearing for an alien facing deportation. We don’t know what a POW habeas hearing would look like because it has never happened. During WWII 435,000 enemy POWs were brought to the US but not one demanded a habeas hearing.
Suspension means that you don’t even get into court. That hasn’t happened. The MCA doesn’t prevent you from requesting habeas, but if the government response to the habeas request is that the person is being detained because he has been found to be an enemy combatant by a CSRT, and the CSRT has subsequently been upheld by the DC Circuit, then the MCA asserts that another court has no jurisdiction to inquire further. Conceptually this is similar to other habeas limiting legislation that regulate the number and timing of criminal appeals.
In Rasul, the Supreme Court did not find that enemy combatants had either constitutional rights or rights to habeas corpus. This, however, was only clear for detainees who do not contest their combatant status. The Court did find that detainees who claim they are not combatants had the right to press that claim before an impartial tribunal, and if that tribunal was not provided by the military then it could be provided by some sort of habeas hearing. So far only one detainee, Al Marri, has been given a Federal court supervised combatant status review hearing. The other detainees have been given CSRTs by the military.
Military or judicial combatant status hearings are administrative procedures and not a criminal or normal judicial function. When people talk about “constitutional rights” they usually mean the rights given to criminal suspects. Enemy combatants are not criminal suspects. They are held under international law and not domestic law. When captured, they do not have a right to remain silent, but must give name, rank, and serial number. They do not have a right to an attorney, and none will be provided to them. Their rights are determined by the Geneva Convention and not by the US Constitution. If that were not the case there would ultimately be a conflict between our “supreme law of the land” and our obligation to obey the international law that all the other countries have accepted. There can’t be two sources of supreme law, so to avoid the inevitable dilemma, the constitution tends to not apply where international law directly applies, and that is particularly true of POWs.
However, someone who is held as a POW but who is a victim of mistaken identity does have rights. That is the real issue. Anyone who claims that detainees at Guantanamo obvious have constitutional rights is wrong and silly. Anyone who claims that they don’t have these rights is equally wrong. The question of whether they have rights or not depends on the determination of a question of fact that would normally be decided at the end of the process rather than at its start. The real question is then who gets to make the determination of the fact. If the CSRT finding has been made dispositive by the terms of the MCA, then that finding of fact may be binding on the courts for the purpose of determining jurisdiction. It is this idea, rather than “Suspension”, which is the more plausible interpretation of the MCA language.
Comment by Howard Gilbert — October 10, 2007 @ 10:56 pm
It is hard to agree with the following characteriztion of the MCA: “The MCA doesn’t prevent you from requesting habeas, but if the government response to the habeas request is that the person is being detained because he has been found to be an enemy combatant by a CSRT, and the CSRT has subsequently been upheld by the DC Circuit, then the MCA asserts that another court has no jurisdiction to inquire further. Conceptually this is similar to other habeas limiting legislation that regulate the number and timing of criminal appeals.”
While it is technically true that the MCA doesn’t prevent someone from filing anything in federal court — in the same sense that I could personally walk into the U.S. District Court for the District of Colorado this morning and file a Petition for Saddam Hussein, the late supreme leader of Iraq, that isn’t meaningful.
If, as in the MCA, there is no possibility of an evidentiary proceeding on the merits in a court, merely appellate review, then habeas corpus has been suspended. There may or may not be an adequate subsitute for habeas corpus review by a court. But, a CSRT isn’t such a beast. Further, the reason that people didn’t contest POW status in WWII is because it was not disupted.
When a bunch of guys on a field of battle in military uniforms with military weapons who speak the language of the country you are fighting wave a white flag and give you their name, rank and serial number nobody questions that they are POWs and you go straight on to how they are treated.
In contrast, when a bounty hunter in the middle of Afghanistan hands over a bunch of guys in chains to the local U.S. special operations post, and they are swiftly shunted off to a U.S. Navy base in Cuba, a bona fide dispute over the legal status of that detainee is to be expected.
Why is the government so afraid of genuine habeas corpus petitions to test enemy combatant status? The Justice Department prosecutes fifteen times as many criminals cases as there are detainees in Guantanamo Bay every month. The U.S. claims to have already investigated the facts in order to prepare for CSRTs and has been interrogating detainees for several years. There would be no doubt domestically or in the international community that the U.S. was not holding innocents if an Article III judge said so in a habeas petition.
You only fight a hearing on the merits so vehemently if you are convinced that you’d lose if the facts came out.
Comment by ohwilleke — October 11, 2007 @ 11:44 am
I do not claim that the CSRT is fair or adequate. I only point out that Suspension means you do not get to go before a judge at all, while the MCA lets the process start. At that point if you want to challenge the MCA you can. When Habeas is actually suspended in times of invasion or revolution, you don’t get to court and you cannot challenge anything.
Thus the MCA is more likely a violation of due process than a suspension. You get the form of habeas, but are stripped of any right to challenge a previous non-judicial decision.
Having said that, it is not much different from collateral estoppel where a previous finding of fact by a jury cannot be challenged no matter how obvious it is to you that the jury got the facts wrong. This is a legislatively created form of the same barrier when the facts are determined by the CSRT instead of the usual twelve not very bright people.
Comment by Howard Gilbert — October 11, 2007 @ 1:58 pm