Boumediene/Al Odah Briefs
Today is the deadline for top-side briefs in the detainee cases. Mayer, Brown is very helpfully posting links to all of them here. [UPDATE: The brief in Boumediene is here. Note that the Boumediene case is not limited to the habeas question. The second question presented (”[w]hether Petitioners’ indefinite military imprisonment as ‘enemy combatants’ is unlawful, requiring the grant of habeas relief”) is directed at the issue of identifying the category of persons who Congress has authorized the military to indefinitely detain.]
Having only glanced at them quickly, this amicus brief stood out as particularly noteworthy: It’s filed on behalf of specialists in Israeli law, and it discusses the procedures and substantive rules that Israel uses in its detention practices. (The Israeli courts and legislature have considered these questions in considerable depth.) Particularly noteworthy is the discussion on pages 17-18 concerning the category of persons who are subject to military detention in Israel. The “substantive” issue of who Congress has authorized the U.S. military to detain indefinitely is the important second question presented in the Boumediene case (distinct from the question of whether petitioners have habeas rights and whether the MCA/DTA scheme is an adequate substitute for habeas)
Having read the Israeli law amicus, I am confirmed in my thinking that all of this prisoner of war stuff, be it on- or off-battlefield, belongs in the military courts. These courts apply the law of war and nobody is under any illusion that the liberties of free citizens is at stake. It is so very easy for the civil courts to become complicit in military processes and for these processes to penetrate into criminal law. The government should have to elect between putting someone through the military process or the civilian process. The idea, embodied in the FISA Court, that a totally ex parte procedure, not subject to later attack, should be considered valid for civil and criminal law purposes, is just a cheapening of the civilian court system. Likewise, the CSRT review process currently at issue in the DC Circuit, is a military process for which a civilian court is being used in order to be applied to civilians.
Which is not to say that a military process can be used against a US person found within the jurisdiction of the US where courts are open. Ex parte Milligan and the case holding that the wife of a GI could not be tried for murdering him in military courts, are quite clear. The government moved the Padilla case into civilian courts rather than justify his detention before the Supreme Court.
The machinery of war is fearsome, but it comes with its own brand of law and its own sources of law. While the Supreme Court needs to be available as the ultimate determiner of the law, the lower civilian courts should not be enforcing it. When the oar goes up in district court, you know that the customary law of the sea is being applied. I’d rather not see a drumhead there.
Comment by Roger Friedman — August 26, 2007 @ 12:11 am
Roger Friedman wrote:
“The machinery of war is fearsome, but it comes with its own brand of law and its own sources of law. While the Supreme Court needs to be available as the ultimate determiner of the law..”
Roger, is the Supreme Court’s power to review decisions of the Military Courts a power derived directly from the constitution (and thus not alterable by Congress), or is it a power derived from the UCMJ?
Comment by steve jaros — August 26, 2007 @ 12:03 pm
No doubt that the underlying power is constitutional. How constitutional issues are to be raised is up to Congress, provided that the scope of review is at least as broad as common law habeas corpus.
Comment by Roger Friedman — August 26, 2007 @ 4:28 pm
Ok … i looked up the UCMJ and it spells out that the SCOTUS has appellate power to review the decisions of the military court system.
So the power comes from the UCMJ, and therefore congress could change that and designate some other court as the ultimate appeals authority.
Comment by steve jaros — August 26, 2007 @ 5:38 pm
Theoretically, Congress could strip the Court of appellate jurisdiction. However, the Court would have to agree that its jurisdiction had been stripped. See City of Bourne for the Court’s view of its place vis-a-vis Congress in our polity. However, it has put up with extreme procedural and rule-of-decision restrictions in AEDPA.
Even if Congress did strip appellate jurisdiction, it would have to ensure the substance of habeas corpus as it existed in 1789. There may be other structural limitations as to which the Court could not be stripped of jurisdiction, such as the Bill of Attainder clause or the Grant of Nobility clause. After Hein, the fate of structural limitations may be in doubt.
Comment by Roger Friedman — August 26, 2007 @ 11:35 pm
1) IIRC, City of Boerne was about congress’s ability to “create” rights and impose them on the states that don’t exist in the Court’s interpretation of the constitution (it can’t do that). That strikes me as different from the Court’s appellate jurisdiction, which Congress has the power to limit re article 3 sec. 2.
2) Yes, if congress strips the court’s appellate power to review , then it would have to put that appellate power somewhere, in some lesser court.
3) Unless Bill of Attainder, Habeas, and Grant of Nobility fall under the court’s original jurisdiction (and i just don’t know if they do), congress could strip the court of those cases too, but they’d have to put the appellate power somewhere as well, though not necessarily in federal courts (state courts, which congress can’t limit, could play that role).
Comment by steve jaros — August 27, 2007 @ 8:03 am