(or, "What Habeas Corpus Is and Isn't")
(Tenth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman's S. AMDT 2517 to bill S. 1042. Senator Graham's full floor speech is here.
This post and the one following it delve more than the others into the legal questions involved. Before beginning, I should say that I am very, very far from an expert on either habeas corpus in general or the Guantanamo litigation in particular. I have talked to some people who know much more about these issues than me--they should get much of the credit for what I get right; I should get all of the blame for what I screw up.)
"For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out....they are not entitled to this status. They are not criminal defendants."--Senator Lindsey Graham.
Graham is correct to state that the Guantanamo detainees are not criminal defendants and do not have the rights of criminal defendants in U.S. courts. But here is what is essential to understand: no one is arguing that they are.
The Supreme Court held in HamdI v. Rumsfeld that the President had the authority to hold a U.S. citizen as an enemy combatant rather than charging him with a crime. All of the judges who disagreed with that interpretation did so only because Hamdan was a U.S. citizen. So are they going to suddenly turn around and hold that non-U.S. citizens on Guantanamo must be brought up on criminal charges or released? No. There is no possibility of that. The detainees' lawyers are not seeking it. They know damn well that if they do, they will lose.
I don't think Graham is genuinely confused about this point. As a JAG lawyer he must know that habeas is not synonymous with civilian criminal trials. I don't know that he was actively trying to mislead people about it; it may only be that he thought it made good rhetoric. But whatever his intent, I think he has misled several other senators into thinking that the question is whether the Guantanamo detainees will be tried by a military trial of some sort (a court martial, a military commission, or what have you) or as civilians under U.S. criminal law.
For example, a spokesmen for Democratic Senator Ben Nelson told the N.Y. Times that Nelson supported Graham's amendment because "[h]e thinks they should stay in the military tribunal system, and if that system is broken, we should fix it, not move them out of it"--indicating a belief that allowing habeas moves detainees out of military detention and into civilian courts. And I strongly suspect that Ron Wyden believes something similar, because no one knows how the hell else to explain his vote on this.
It drives me crazy that they may have voted for this amendment because they misunderstood not only the underlying facts, but what the bill itself actually does. Habeas does not necessarily mean a civilian criminal trial. Habeas does not necessarily mean a civilian criminal trial! It means you can go to court, and petition the court to require the executive to "produce the body"--to prove that he is detaining you lawfully, and has not just thrown you into prison because he wants to and he controls the army & police.
For a U.S. civilians on U.S. soil, the only way for the executive to ultimately successfully prove this is to show that you were convicted of a crime after a jury trial that complied fully with all of the protections in the bill of rights--Miranda, the exclusionary rule, the right to counsel, the whole shebang. But for soldiers who are court martialed, the requirements are somewhat different. For immigrants in deportation proceedings, the executive only has to show that you were in the country illegally and are a flight risk or a danger to the community. In some cases habeas gets you a hell of a lot less than that.
Exactly what does habeas get the people in Guantanamo? In one sense, we don't know yet. The courts were deciding this in Hamdan v. Rumsfeld, which the Supreme Court was going to decide next term, and Al Odah v. United States, currently before the D.C. Circuit. And this post is long enough without me getting into those cases--let me sum up by saying: the detainees' attorneys are arguing that they have a right to a military trial that complies with the Due Process clause of the Fifth Amendment and/or the Geneva Conventions and which shows they really are enemy combatants; the governments' attorneys are arguing that they don't get any of those things. (Again, this is a gross, gross oversimplification.) But let me say again: one thing no one is arguing, and we know damn well the detainees will not get, them is a court-ordered civilian criminal trial with all the trimmings. That is not a possible outcome of these cases.
But in the short term, this is what habeas got the people in Guantanamo: the key to the courthouse door. Lawyers could file petitions on their behalf, asking the government to prove that they were being held lawfullly. They could learn of their lawyers' existence, and meet with them. They could make allegations of abuse to their lawyers. Their lawyers could tell the court, and ask the court to order that it be stopped. Their lawyers, when they read that their clients were about to be shipped off to Egypt or Uzbekistan or God knows where, could ask the court to order the government not to do this without 72 hours advance notice. When they found out that their clients had been determined not to be enemy combatants by the CSRTs, their lawyers could petition for their release.
They may not have any of those things if Graham's amendment passes:
A senior Pentagon lawyer who asked not to be named said that the Graham amendment will have another consequence. The same Pentagon bill also contains a clause, sponsored by Graham and the Arizona Republican John McCain, to outlaw torture at US detention camps - a move up to now fiercely resisted by the White House. 'If detainees can't talk to lawyers or file cases, how will anyone ever find out if they have been abused,' the lawyer said.
Most of the evidence of abuse at Guantanamo has emerged from lawyers' discussions with their clients.