Comments on: Commentary: A simple argument made confusing

By: Jacques McKenzie

Jacques McKenzie — Wed, 26 Mar 2008 14:52:55 +0000

Hope this is clearer stripped of snark.

Still sounds crazy! Maybe if you had a four-box matrix everything would be clearer!

By: James N. Markels

James N. Markels — Wed, 26 Mar 2008 12:59:27 +0000

Jacques: Stop being “mean-spirited”; you just made him extend a delicate feeler.

Roger: Isn’t this decision going to turn more on the facts and not on the law? If the Court accepts that Iraq is a sovereign nation that merely uses the U.S. military for some enforcement, then it seems that the SG’s argument will carry. If the Court sees the U.S. military as the extension of U.S. influence in Iraq, then Margulies’ argument has more weight.

By: Roger Friedman

Roger Friedman — Wed, 26 Mar 2008 09:45:09 +0000

Jacques –

1. Does a habeas action lie?

If you’re a US citizen being held in the US by the US government without a trial in time of peace, there’s no question that there is habeas jurisdiction in the district court. There have been cases where not all of these qualifications are strictly true in which district courts have been found not to have jurisdiction. There have been other cases in which not all of these qualifications are strictly true where courts have exercised jurisdiction but found the government’s response to be adequate and denied the writ, but have called it a dismissal for lack of jurisdiction. In yet other cases in which not all the qualifications are strictly true, the Supreme Court has found jurisdiction. These guys are US citizens being held by the US military, either under US command or UN command, depending on your point of view. They are out of the combat area, are not POWs or “unlawful combatants”, which makes them civilians, but the US considers them dangerous.

2. Why is the US holding them? Not for trial or after conviction in any US or international court. One has been convicted in an Iraqi court but had his conviction overturned, the other is to be tried in Iraqi court. In both cases, there is evidence that the US is using the Iraqi criminal procedure as a proxy for a prosecution of its own.

3. If that is not a good enough reason for holding them, to what relief are they entitled? Had they not been seized by the US, they would have been long gone from Iraq, even before the proceedings against them commenced. To release them now into Iraq would simply open them up to arrest, whereas otherwise they would have been entitled to an extradition proceeding, so that is the level of process they are due. I don’t know whether the Senate has even approved an extradition treaty with Iraq. Probably not, since the SG claimed a right to turn them over to the Iraqis under the law of war. However, the US also has an obligation under the Convention Against Torture not to turn them over under certain circumstances which may exist in the Iraqi jails.

Hope this is clearer stripped of snark.

By: Jacques McKenzie

Jacques McKenzie — Wed, 26 Mar 2008 08:58:41 +0000

Roger,

I don’t really understand your argument, but it sounds crazy.

By: Roger Friedman

Roger Friedman — Wed, 26 Mar 2008 06:34:22 +0000

Margulies’ argument was that US citizenship and de facto US control of the prisoner, outside of the immediate zone of combat and capture, suffices to support habeas jurisdiction. And he’s right, neither citizenship vel non nor control vel non are enough. He should have used Carter Phillips’ hedgehog strategy — know exactly what you need to win and hang onto it tenaciously — rather than try to limn the outer boundaries of a position.
Margulies’ other necessary point was that the US can hold a citizen without charges of its own solely in support of extradition pursuant to treaty, and merely granting habeas was not enough (OK, you’re outa here, enjoy your stay in Baghdad), the citizens needed to be restored to their liberty. Margulies never really got this out, and Roberts effectively used his partisan mean-spiritedness against it.
When Stevens says you’re not being clear, you’re not being clear. When Roberts says you’re not being clear, he thinks he’s got you trapped and just wants you to extend a feeler he can chop off.
Nor do I think it a coincidence that Garre, Mukasey and Sarkozy all gave short arguments. They know oral argument is just for show, it all depends on the writing, they know who’s writing, so they don’t need to argue. The smartest thing to come out of a Bush Justice Department forever. It requires more subtlety than in the Ninth Circuit, where Kozinski just asks appellees’ counsel, “Is there anything you’ve just heard that isn’t adequately covered in your brief?”

By: Jamie

Jamie — Wed, 26 Mar 2008 02:57:44 +0000

Of course, Bart. We all know that there is an international coalition running things in Iraq. We all know that Bulgaria and Tonga are deeply involved.

In fact, simply by invading a country and then saying “this is an international coalition” makes it so!

It’s just like when Cheney said he wasn’t part of the executive branch. If you just say it… it becomes real!!

Why didn’t they think of this with Guantanamo?? They could have just put up a cardboard sign that said “MNF-I” on top of the prison. Or wait, they should have changed the maps on Google so no one could find it! They could just say haven’t you ever seen the show “LOST?”

Oh, wait, the CIA did try that. Sorry. I guess that didn’t work so well. But we could still put up the cardboard sign. What do you say?

By: Bart DePalma

Bart DePalma — Wed, 26 Mar 2008 00:00:44 +0000

Generally, the more involved the argument advanced by an advocate or a judge, the weaker the proposition being advanced.

Margulies argument has no merit whatsoever, thus the confusion.