Government: detainees have no constitutional rights
The Bush Administration told the Supreme Court on Monday that the Justices could put a stop to a foreign national’s challenge to a military war crimes trial without worrying about any constitutional violations, since detainees like him have no rights under the Constitution. In the latest court filing by the Justice Department on the meaning of the new Detainee Treatment Act, the Justice Department argued: “The Constitution does not guarantee aliens held abroad a right to habeas corpus.” As a result, it said, Salim Ahmed Hamdan, a Yemeni national, “cannot claim the protection of our Constitution.”
The Supreme Court is scheduled to consider the government’s motion to dismiss the Hamdan case (Hamdan v. Rumsfeld, docket 05-184), at the Justices’ private Conference this Friday.
Since Congress enacted the new detainee law, taking away much of the power of federal courts to hear challenges by captives now at the U.S. Navy prison in Guanatanamo Bay, Cuba, the administration has been seeking to have that law applied to pending cases, as well as any future habeas filings by detainees. In most of those legal papers, the government’s emphasis has been on its interpretation of the specific language of the new Act, contending that it clearly expresses Congress’ intent to wipe out all habeas claims, and substitute a more restricted form of judicial review — one that would be confined to appeals to the D.C. Circuit.
Attorneys for Hamdan and other Guantanamo detainees, however, have countered that Congress only meant to apply the new review procedures to detainee cases filed after last year, and not to hundreds of already pending cases. If, however, the courts were to interpret the new law as covering pending cases, those attorneys have said, it would raise serious constitutional questions — including “grave” questions about Congress’ power to suspend the writ of habeas corpus, and its power to deny the Supreme Court authority to hear any form of habeas challenge by a detainee.
The defense lawyers have said that the Court’s role in the overall plan of the Constitution is at stake in this dispute.
But the Administration reply brief in the Supreme Court sought to remove any constitutional implications from the Hamdan case, contending that Congress clearly has the authority to wipe out all existing habeas remedies and to fashion a new, more restricted form of court review in place of those remedies.
The language of the Detainee Act, it contended, not only eliminates detainees’ rights to bring ordinary habeas challenges in the lower federal courts, with appeals to the Supreme Court, but also removes the highest Court’s jurisdiction to hear an “original” habeas petition — one that could be heard and decided only by the highest Court..
And, the argument went on, reading the Act that broadly does not raise any serious constitutional questions. The Court might consider the suspension-of-the-writ argument later, it suggested, if Hamdan is convicted by a military tribunal and then appeals that conviction. But, the brief’s main argument about a lack of any constitutional problem is that Hamdan, “as an alien enemy combatant detained outside the United States,” “is not entitled to any constitutional protection under the Suspension Clause.” That, it argued, has been settled at least since the Supreme Court’s World War II era decision in Johnson v. Eisentrager, in 1950.
The first seven words of the Constitution are: “We the People of the United States..”; thereafter,the Bill of Rights refers to the “people” in outlining the protections from government they enjoy. I’m thinking that they’re one and the same “People”…which would seem to leave foreign detainees outside the constitutional scope.
There may very well be legitimate complaints about the detention of some of these individuals however, violation of their US constitutional rights is not one of them.
Comment by Trusader — February 14, 2006 @ 2:10 am
Article 1 sec 9 doesn’t mention “the people”. It merely says that a writ of Habeas Corpus can’t be denied (unless there’s a rebellion).
And it’s not in the Bill of Rights.
Comment by penneyrb — February 14, 2006 @ 2:51 am
mea culpa - I should have remembered that Hamilton specifically referred to the Writ provision as an example of why we didn’t need a Bill of Rights
Comment by Trusader — February 14, 2006 @ 8:56 am
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Whether the Guantanamo detainees are among the holders of the privilege referred to remains to be determined. Saying that they are not is not the same thing as saying they have no constitutional rights. Whether the Due Process Clause applies and, if so, what process is due are matters that Congress quite clearly left to the Court of Appeals to decide on its review of the final judgment of the military commission.
Comment by Kent Scheidegger — February 14, 2006 @ 10:34 am
Congress, if it had the will, could address the proverbial purse-strings issue for Guantanamo, itself an internationally disputed holding, thereby lessening the detention-on-foreign-soil localization. Actually, it seems the foreignness of the site argument is begging both interpretations: that Guantanamo is not US, but that our forces have held it in confiscatory status for numerous decades.
On the habeas crux, I think it was clear in the slight allusions in Justice Alito’s hearing, he looks unfavorably on denaturing habeas; so the administration would look to narrow that exposure, first clearing away all the other cases into the DC court where a favorable ruling ostensibly would be more likely; though, the very recent Luttig opinion in the matter bodes ill for even that recourse. The Supreme court is going to have to engage its utmost ingenuity to balance this out now, there; as the administration’s case seems to have been bolstered only slightly, if at all, by Graham-Levin.
Comment by JohnL — February 14, 2006 @ 1:19 pm
I feel like we’re in an alternate universe where Rasul and Hamdi weren’t decided. Wasn’t the basic holding of Rasul that Guantanamo Bay is not beyond the reach of the Constitution? And, wasn’t Hamdi’s famous line that the President does not get a blank check even in wartime?
Is this litigation strategy simply a ploy to see if Alito and Roberts have changed the balance of power on the Court?
Comment by ohwilleke — February 14, 2006 @ 1:23 pm
“We the people of the United States” has never been particularly inclusive - see women’s voting rights, Native Americans being counted as one whole person, slavery, etc. It’s interesting that this case has come up for decision quicker than Padilla, as the Government’s case is far weaker against a U.S. Citizen, and it’s a case that should be heard under the “capable of repetition yet evading review” exception to mootness. It would be interesting to hear the cases together, a la the affirmative action cases out of Michigan. Is it the nature of citizenship that protects human rights in this country? Is is reciprocal treaties? Or something more fundamental in the law.
Comment by jus tertii — February 14, 2006 @ 1:35 pm
Even if it is, it seems to me that the outcome Hamdi remains the best the government can expect. Even if our Fearless Leader and Brother Sam are everything the left fears (which is unlikely) and therefore joins Brother Clarence in pushing for precisely that blank cheque, that still leaves the government with only three votes. Given the writings in Hamdi, it seems to me almost inconceivable that the government can entice two more Justices to its position - and if anyone disagrees, feel free to suggest which two. Even if the Hamdi ruling has bit the dust, the least likely possible outcome is an outcome more favorable to the government; with or without the new additions, the most likely outcome, as I see it, is that the Court will either stand pat on Hamdi, or move in the direction of either Souter’s or Our Hero’s opinions in that case.
Comment by Simon — February 14, 2006 @ 2:17 pm
Looking at this from a purely “strict constructionist” viewpoint (not that I normally subscribe to such nonsense), to seems obvious to conclude all persons, including those who are foreign nationals held abroad, have the privelege.
Looking back to the roots of habeas corpus, such as the Habeas Corpus Act of 1679, we find language such as: “relief of all persons imprisoned” and “any person or persons shall bring”. Current writings on the history of the writ still describe it as “a legal procedure to which you have an undeniable right” and “demanded by anyone who believes they are unlawfully detained”. Clearly terms of absolute right to all. And important enough the US Constitution expressly preserves it in all but the most dire of circumstances.
Furthermore, as a final remedy against tyrrany, its purpose is frustrated by allowing such exemptions. It is meant to force proof that a particular detention is lawful, and thus the detainer is acting within the law. Without the writ, the detainer can act arbitrarily without consequence, as has been demonstrated here.
As for Trusaders comment, I would note: the preamble’s “the people” denotes the grantors or power to the government. Presumably, the grantors could grant rights to people outside their own class. It also uses “of the United States” where later uses of “the people” do not generally. Presumably these two groups of people are thus different, the class denoted in the bill of rights being broader, including people not “of the United States”.
Comment by hermanthe — February 14, 2006 @ 2:28 pm
The government’s argument that the DTA provides an “adequate and effective” substitute to habeas review is not backed up by anything. All they do is cite to a case that says the petitioner has the burden of proving it’s inadequate, and then they state conclusorily that it is adequate. But although the government uses it in its colloquial sense, “adequate and effective” is a legal/constitutional term of art, and there is some caselaw indicating that it means ‘a substitute that allows all the same issues to be raised’.
Also, as to the government’s reliance on Eisentrager: they seem to want to force the Court to rule on the territorial status of Guantanamo. Could someone who knows a little more about the international law of war and territory speak to this? Also, to the poster above, what did you mean by “confiscatory status”?
Comment by YLS 08 — February 14, 2006 @ 8:07 pm
Simon (and anyone else who may know), why do you think Chief Justice Roberts will participate in this case, after having been a member of the panel on the Court of Appeals?
Another intriguing question: The motion to dismiss has nothing to do with whether the Court of Appeals decision was correct when entered. It is based on a subsequently enacted statute. Can the CJ participate in the decision of that motion?
In the nineteenth century, the circuit justices were active participants in the circuit court. It was a major part of their job. If I understand correctly, they routinely participated in review of their own decisions. When did participation below become grounds for recusal?
Comment by Kent Scheidegger — February 14, 2006 @ 8:27 pm
I don’t think you can really get away with that. In for a dime, in for a dollar; you can’t declare that the Constitution is flexiable, evolving and amorphous when it suits you, it either means what it meant when it was adopted for all purposes, or it doesn’t. If you believe that the Constitution is a living, evolving entity (”not that I normally subscribe to such nonsense”), why shouldn’t we conclude that “people” means only citizens? After all, we’re talking about a document of no fixed meaning; a document which should be read in terms of its purpose over its text. If the present needs of “the people’s” security suggest that a modern reading is needed, why shouldn’t the judges spring into action — holy habeas corpus, Breyerman! — and update its meaning to fit present needs? Sure, we could amend it the old-fashioned way, but by that time, Al Qaeda could have struck again; what we need is an amorphous, evolving Constitution which a class of platonic guardians can interpret according to the best needs of society.
You can’t just appeal to textualism or the original meaning becaue it suits you. It either is or is not authoritative: if it is, it always is; if it isn’t, it never is. I’m more interested to hear someone who believes that it isn’t explain why an evolving document shouldn’t be construed to provide increased security for Americans, since that was clearly its purpose, even if it isn’t necessarily what it says.
Comment by Simon — February 15, 2006 @ 8:59 am
Well, that’s a fair point, but even if he recuses, I would say that only goes to strengthen my point (viz., that the majority opinion in Hamdi was the best the government would get out of that case, then or now), doesn’t it?
Comment by Simon — February 15, 2006 @ 9:18 am
“the Justice Department argued: “The Constitution does not guarantee aliens held abroad a right to habeas corpus.”
In either Hamdi or Padilla, I forget which, there was some stipulation over who holds sovereignty over Gitmo. The Justice Departments statement of ‘held abroad’ is unclear in this regard. Are they speaking of rendition?
Comment by Stella — February 15, 2006 @ 9:41 am
Regarding recusal: Prior to the Evarts Act of 1891, it was common for district judges holding the old circuit court to hear appeals from their own decisions. The Evarts Act created the circuit courts of appeals and gave the Supreme Court, for the first time, the discretionary power to select some cases by means of the writ of certiorari. It also barred a “judge before whom a cause or question may have been tried or heard in a district court, or existing circuits court” from sitting on “the trial or hearing of such cause or question in the circuit court of appeals.” The descendant of this provision is now codified at 28 USC 47. While neither the Evarts Act provision nor 28 USC 47 directly applies to a Supreme Court Justice who heard a case in the court of appeals, it is closely analogous.
Comment by Hartnett — February 15, 2006 @ 10:51 am
Regarding the possible outcome: The legal landscape has changed since Rasul and Hamdi. Congress has amended the habeas statute. If that amendment applies to pending cases — a big if — any attempt to exercise habeas jurisdiction runs aground on the landmark decision in Ex parte Bollman, 8 US 75 (1807). Bollman insisted that federal courts, including the Supreme Court, lack the power to issue habeas unless that power is given by statute. That may be a reason to interpret the amendment not to apply to pending cases, although such an interpretation only defers the problem to later cases. Does anyone think it is likely that Bollman will be overruled? Note in this regard what I think may be the most significant aspect of the President’s signing statement, “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner . . . consistent with the constitutional limitations on the judicial power . . . . “
Comment by Hartnett — February 15, 2006 @ 10:57 am
The Rasul v. Bush case (citiations omitted) held as follows in the majority 6-3 opinion:
“As explained above, Eisentrager itself erects no bar to the exercise of federal court jurisdiction over the petitioners’ habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “ ‘privilege of litigation’ ” in U.S. courts. The courts of the United States have traditionally been open to nonresident aliens. And indeed, 28 U.S.C. § 1350 explicitly confers the privilege of suing for an actionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims.
VI
Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims.”
Comment by ohwilleke — February 15, 2006 @ 2:02 pm
The Justice Department argument closely echos the dissenting opinion of Justice Scalia in the Rasul v. Bush case which was joined by Thomas and Rehnquist.
That opinion begins:
“The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950). The Court’s contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)–a decision that dealt with a different issue and did not so much as mention Eisentrager–is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding.”
Since when are dissenting opinions the law, and majority opinions to be disregarded.
Comment by ohwilleke — February 15, 2006 @ 2:06 pm
I don’t believe it is fair to suggest that the Justice Department is “disregard[ing]” Rasul v. Bush. That decision interpreted the habeas statute, 18 USC 2241, as granting federal courts jurisdiction to hear the claims of Guantantamo detainees. Following that decision, Congress amended Sec. 2241 to remove that jurisdiction from the courts. Hamdan can (and does) argue that Congress did not intend its actions to apply retroactively to him and, in the alternative, any effort to strip the federal courts of habeas jurisdiction is unconstitutional. But Rasul does not speak to either of those two claims; rather, it was a statutory-interpretation decision involving a statute that has since been amended. Justice Scalia wrote in dissent that he “would leave it to Congress to change Section 2241.” The fact that Congress has taken Justice Scalia up on his invitation certainly does not mean that the Justice Department (by arguing for its interpretation of the DTA) is adopting the dissenting position and ignoring the majority opinion.
Comment by Richard Samp — February 15, 2006 @ 4:24 pm
Harnett, thanks for the info on recusal. Regarding Bollman, the language you refer to is dictum, not holding. Given that the First Congress did provide for habeas by statute, there has not been an occasion to decide if federal-court habeas is constitutionally required for federal prisoners. (The original Judiciary Act did categorically forbid federal habeas for state prisoners, so that is not in doubt unless one subscribes to the “living constitution” doctrine.)
I do not think it will be necessary in the Guantanamo cases to decide if the Suspension Clause requires the writ of habeas corpus in its common law extent, because these prisoners are not within the common law extent. (More on that coming next week, if the Court hasn’t drop-kicked the case by then.)
Expanding on Richard’s comment, Rasul expressly distinguished Eisentrager’s constitutional holding from its statutory one. It is still good law on the constitutional point.
Comment by Kent Scheidegger — February 15, 2006 @ 6:30 pm
One of the fundamental points of Rasul is that Guantanamo Bay is not a foreign country. This is the main point where I think the Justice Department is ignoring the precedent.
Comment by ohwilleke — February 15, 2006 @ 7:04 pm
I don’t think that Bollman can be dismissed so readily as dictum. Bollman’s counsel argued that the Supreme Court had the inherent authority to issue writs of habeas corpus. (Swartout’s counsel, having made and lost a similar argument in Marbury regarding mandamus, did not do so again.) Marshall began the opinion for the court by responding to this argument:
“As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.
Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.
This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.
To enable the court to decide on such question, the power to determine it must he given by written law.
The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.”
In other words, part of the rationale for the decision was that the Court had to rely on the statute because it otherwise would have lacked the authority to issue the writ.
And even if this statement in Bollman can be treated as dictum, it is foundational and deeply embedded in the law of habeas corpus. As the Supreme Court put it in 1996, “we have long recognized that ‘the power to award the writ by any of the courts of the United States, must be given by written law.’” Felker v. Turpin, 518 U.S. 651 (citing Bollman).
Comment by Hartnett — February 16, 2006 @ 10:33 am