QandO

June 28, 2004

Not so fast, Mr. President
Posted by Dale Franks

The Supreme Court swept aside the Bush Administration's presumed wartime powers vis a vis the terror-related detentions of foreigners. I have long been uncomfortable with the Bush Administrations blanket declaration of a wartime right to hold anyone they with, for as long as they wish, without any access to the legal system. Evidently, the Supreme Court is uncomfortable, too.

Let's take a look at each case individually, in order to more completely understand the court's position.

The first case is HAMDI v. RUMSFELD. At issue in HAMDI was the following question: Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

The Court's response to these questions is as follows:

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker...

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant...

We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.

This seems to me like a fairly reasonable compromise. It allows military authorities to hold prisoners during combat operations, since POW status is not punitive. Once an enemy combatant is to be held for a longer period, then he must be notified, and given an opportunity to plead his case against detention before the courts. In doing so, however, the government has a rebuttable presumption that the detainee is an enemy combatant. This is different from, say, a criminal proceeding, where the defendant has a presumption of innocence. The ruling gives due regards to the military and security concerns of the government, while, at the same time, allowing the detainee a chance to get a hearing in a neutral venue.

The voting on this was all over the map, ideologically. Justice O'Connor wrote the decision, and concurring were Justices Rehnquist, Kennedy, Breyer, Souter and Ginsburg. Dissenting were Justices Scalia, Stevens, and Thomas.

Yeah, you read that right: Stevens and Scalia.

The next case at issue was RASUL v. BUSH. The central question in RASUL was tis question: Do the Federal Courts have the jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay?

According, to the Supremes, they sure do.

The Bush Administration's contention has been that Guantanamo Bay is located in a heathen foreign land where US Courts have no reach. But, the Supremes' response put a bullet in the head of that argument.

Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within "the territorial jurisdiction" of the United States...By the express terms of its agreements with Cuba, the United States exercises "complete jurisdiction and control" over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses...Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base...Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship. Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241.

Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called "exempt jurisdictions," where ordinary writs did not run, and all other dominions under the sovereign's control. As Lord Mansfield wrote in 1759, even if a territory was "no part of the realm," there was "no doubt" as to the court's power to issue writs of habeas corpus if the territory was "under the subjection of the Crown..." Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of "the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown..."

In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians...We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.

So, we can now expect a flurry of habeas petitions in the Federal court on behalf of detainees in Guantanamo. Interestingly enough, however, though the Court ruled that Federal courts have jurisdiction in Guantanamo, they didn't rule about what the practical impacts of their decision would be. Indeed, Justice Stevens explicitly acknowledges this.

Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners' claims are not here addressed.

Which means that lower courts are going to have to play it by ear, when these habeas petitions reach them.

This provides a compelling lesson in how the other two branches of government respond when the executive tells them to sod off. In essence, the Bush Administration told the Federal Courts to mind their own business, and that they didn't have any right to go poking their nose around in Guantanamo. Unsurprisingly, the decision of the Federal court system was that they could poke their nose into Guantanamo any time they pleased. And, since the Federal court system was the only place to decide this under our system, they had the home field advantage.

The Government's argument was pretty stupid though. If you are a civilian worker at Guantanamo, and you do something very bad, you'll find yourself in Federal custody in a New York minute. So, it's a bit disingenuous for the Government to claim that Guantanamo doesn't fall under Federal court jurisdiction in this case, when they cheerfully agree that the courts have jurisdiction in every other possible circumstance.

Voting went down more or less ideological lines on this one, with Justice Stevens writing, joined by Justices O'Connor, Souter, Ginsburg, Breyer, and Kennedy. Justices Rehnquist, Scalia, and Thomas dissented.

Finally, the Court ruled on RUMSFELD v. PADILLA, in the case of Mr. Padilla's indefinite detention. In essence, the court punted on this one on technical grounds, but also, one expects, because HAMDI demolishes the government's incommunicado detentions. Padilla will now refile his habeas petition, where it will be considered in light of HAMDI. In any case, by dismissing on a technicality, the Court reached no Constitutional principles to expound.

Although, having said that, the four dissenters in this case--Stevens, Souter, Ginsburg, and Breyer--clearly wanted to.

The petition for a writ of habeas corpus filed in this case raises questions of profound importance to the Nation. The arguments set forth by the Court do not justify avoidance of our duty to answer those questions. It is quite wrong to characterize the proceeding as a "simple challenge to physical custody," ante, at 13, that should be resolved by slavish application of a "bright-line rule," ante, at 21, designed to prevent "rampant forum shopping" by litigious prison inmates, ante, at 19. As the Court's opinion itself demonstrates, that rule is riddled with exceptions fashioned to protect the high office of the Great Writ. This is an exceptional case that we clearly have jurisdiction to decide.

In other words, we really, really wanted to rule on the merits, overturn the detention, and make new law. Or, at least, enforce the bright-line rule on habeas corpus.

But, the general principle is that if the court doesn't have to approach the Constitution to make a ruling, it doesn't. And, it's clear to me that Stevens makes the argument above because he thinks that, in the absence of the technical considerations that allowed the court to punt on this one, he would've probably ended up with a majority for his position, with Kennedy and O'Connor probably joining him.

I suspect the majority felt that, since HAMDI had already been decided on the merits, a further reinforcement through this case was unnecessary. Stevens doesn't seem very happy about it, though.

Overall, the decisions amount to a complete trashing of the Bush Administration's position on these detentions, and opens the door for the Federal courts to involve themselves in these types of cases.

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