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June 12, 2008

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thanks for explaining this.

If I got anything wrong, I very much hope the lawyers will let me know.

What the Court actually did was assert their own power in violation of Article III, Section 2:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In the 2005 DTA and the 2006 MCA, Congress clearly indicated that the appellate jurisdiction ended with DC Circuit.

Second, 9/11 wasn't just a terrorist attack; it was an invasion, answered by Congress with the 2001 AUMF. The fact that we haven't been attacked since, and possibly have kept further terrorists out, doesn't preclude that we weren't already invaded.

Third, it doesn't matter how long we keep the terrorists in custody. They were captured by the military during a time of war, mostly on the battlefield. We can keep them forever until Congress decides to revoke the above-mentioned AUMF. As far as trying those detainees, it is entirely the fault of Congress (back in 2001) for not setting up a system in the first place, and the Supreme Court for overreaching in this and other decisions.

Lastly, Kennedy's opinion states that any place in the world that is under the control of the military, an arm of the government, overrides de jure sovereignty of the country itself. Kennedy has very much extended what constitutes U.S. territory, which has never been done by any judge or Justice.

This was a terrible decision.

Seriously, the New York Times should fire Bill Kristol and hire you, hilzoy. You rock!

CharleyCarp puts it succinctly over in the other thread:

Habeas and the Fifth Amendment apply to persons, not just citizens.

Just think - if it had been Bork instead of Kennedy...

Second, 9/11 wasn't just a terrorist attack; it was an invasion,

Riiiiiigggghhhht.

We're starting to get them in droves, aren't we.

SteveIL: Second, 9/11 wasn't just a terrorist attack; it was an invasion, ...

19 guys armed with box cutters is an invasion? I suppose wearing an anti-war T-shirt to a Republican campaign rally is an insurrection then.

One interesting thing: in considering the application of precedents, etc., the court takes very seriously the difference between (a) not taking some part of the US constitution to hold when we are dealing with some place in which a quite different, but fully developed, legal system holds, and (b) taking it not to hold when there is nothing else.

One reason it takes a lot of the earlier precedents not to be on point is precisely that they are dealing with (a). And cases in which there really is a different legal system, and (say) the government has taken possession of the place in which that system exists, and is trying to work out how to integrate it legally rather than just tossing all its existing laws overboard really do seem different from cases like Guantanamo, in which there is no existing anything.

The majority is generally interested in the question: against what backdrop does this occur? And is that backdrop (e.g.) one of robust legal institutions that substantially protect defendants' rights, or not?

"9/11 wasn't just a terrorist attack; it was an invasion..."

No doubt the existence of any crime at all constitutes an insurrection.

Good to know our basic Constitutional rights have such robust protections.

Third, it doesn't matter how long we keep the terrorists in custody.

Ever heard of petitio principii?

"9/11 was an invasion" = David Horowitz meme.

I'd like to counter SteveIL's claims. The claim that the 9/11 attacks constituted an invasion is obviously incorrect; an invasion is an unwelcome entry by foreign military forces with the intent of capturing territory. The 9/11 attackers clearly had no intention of capturing territory, because they died by their own intention in their attack. Moreover, Congress's AUMF most clearly did NOT declare war. The Administration proposed a wording that would have constituted a legal declaration of war, and Congress explicitly rejected that wording for the stated reason that it did not want to give the Administration the powers that go with a state of war. Accordingly, the Administration can claim NO wartime powers.

Accordingly, your claim that they were captured during a time of war is legally incorrect. The President was not given a declaration of war and so his employment of military forces does not constitute a war in legal terms. The capture of these people by military personnel is no different than their capture by FBI agents. The law still applies here.

Lastly, the claim that the decision overrides foreign sovereignty in foreign lands is incorrect; BOTH nations enjoy de jure sovereignty over actions taken by US personnel in their lands, except as where specifically addressed by treaty -- which is the case in Guantanamo. The Administration position that it can carry out any actions it chooses -- including murdering anybody it can get to Guantanamo -- is fundamentally inimically to the very idea of the Constitution: that government should be governed by law.

Exactly, Phil. If one only assumes that all detainees are terrorists, then the problem simply disappears, doesn't it? The fact that a significant number of detainees have been fount to NOT be terrorists and been released, or in more than 100 cases not been released, somehow never invalidates the argument.

the terrorists

Does that mean that if George Bush suspects that I'm a terrorist, regardless of the reason, that I am one? Or should someone look into it further?

Steve1L:

Calling the 9/11 attack an invasion is ridiculous, and even Congress has not done so. Neither the DTA nor the MCA is a Suspension under the Constitution, and they make no pretense of being one. Instead, they are predicated on the view that the Suspension Clause wasn't relevant. Wrong.

Nothing in the DTA or MCA precluded Supreme Court review of decisions from the DC Circuit -- as the sponsors of each made clear in debate. (This wouldn't matter here anyway, since this isn't a DTA/MCA case).

They were mostly not captured by our military, nearly all not on a battlefield, and nothing about the AUMF allows for the endless detention of civilian non-combatants.

The decision does not say that anywhere our military overrides de jure sovereignty. Nothing supports the contention, and today's Munaf decision makes it perfectly clear that this is not what's happening at all.

Does that mean that if George Bush suspects that I'm a terrorist, regardless of the reason, that I am one?

Of course it does to this Administration...

hilzoy,

Thanks for posting this, and from the standpoint of a non-lawyer this decision seems to be a good-news, bad-news situation. The decision itself is very good news, the narrowness of the majority is bad news.


One interesting thing: in considering the application of precedents, etc., the court takes very seriously the difference between (a) not taking some part of the US constitution to hold when we are dealing with some place in which a quite different, but fully developed, legal system holds, and (b) taking it not to hold when there is nothing else.

I'm not a legal mind, nor do I want this to turn into a threadjack, so comment on this question or not as apropos, but this made a thought pop into my head: to what extent do the protections of the US Constitution apply to people in space (e.g. near Earth orbit, the Moon, Mars, etc.)? At some point in the future a sufficiently large number of human beings will be working and living off-Earth for criminal and legal issues to arise that involve the courts, or so I would think. What legal system will have juristiction over them?

Any takers?

in space, no one can hear you petition for due process scream.

"9/11 wasn't just a terrorist attack; it was an invasion..."

First of all, it wasn't.

But even if it was, so what? Invasions don't last forever, otherwise every country in the world should probably be considered to be under invasion. If all the "invaders" die during the invasion isn't it over?

They may have left some hidden pods around. Take no chances -- burn everything.

They may have left some hidden pods around. Take no chances -- burn everything.

I say we take off and nuke the entire site from orbit. It's the only way to be sure.

There's an additional Suspension point: it's not just whether there's an invasion, but also whether the public safety requires suspension. No one can identify the public safety benefit of moving the prisoners' cases from one set of courtrooms to another in the same courthouse. In short, a completely frivolous line of argument.

in space, no one can hear you petition for due process scream.

Show of hands:

Who thinks that the Bush Admin would not seriously consider building a orbital prison (L5-itmo?) and using the Shuttle to ferry the inmates up to it, if that would put them beyond the reach of the courts?

Who thinks that the Bush Admin would not seriously consider building a orbital prison (L5-itmo?) and using the Shuttle to ferry the inmates up to it, if that would put them beyond the reach of the courts?

Wouldn't it be too hard to waterboard people in zero gravity?

ThatLeftTurnInABQ: Don't give them any ideas.

One thing that creeped me out about Scalia's dissent was his mention of detainees that "have returned to the battlefield" (my emphasis). The implication is that they were guilty to start with, and that the military had incorrectly decided their cases.

What's wrong with this picture?

Re: hairshirthedonist at 02:12 PM

Haven't you heard? Guilty until proven Republican.

One thing that creeped me out about Scalia's dissent

what creeped me out was that so much of it sounded like it was written by some 3rd-rate dittohead troll.

    The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

and

    And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

    ...

    Turns out they were just kidding.

and

    The Nation will live to regret what the Court has done today. I dissent.

boo hoo

Third rate dittohead troll indeed! Amazing that the guy is on the SCOTUS......

Scalia just needs to "get over it".

Ages of the majority:

Stevens 88
Ginsburg 75
Kennedy 71
Breyer 69
Souter 68


Ages of the minority:

Scalia 72
Thomas 60
Alito 58
Roberts 55

Scared for the future? I am.

Thanks for getting to the heart of this, Hilzoy.

Emptywheel reports on a Center for Constitutional Rights' conference call after the decision.

I don't yet understand what the Munaf and Omar decisions mean. But I figure another couple of days of commentary will help clarify.

Bush says he'll "abide by" the decision. Sort of the way he "executes the laws" generally, I suppose.

I'd suggest that the post title is more congruent with the text of SteveL's post, but that might anger the kitty.

Steve 1L's views have taken hold at RedState, unfortunately, resulting in some really foolish arguments.

My views regarding this matter are exactly the same as CharleyCarp's posted on June 12, 2008 at 02:14 PM. There is no way to read the DTA and MCA as satisfying the suspension clause.

What the Court actually did was assert their own power in violation of Article III, Section 2:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In the 2005 DTA and the 2006 MCA, Congress clearly indicated that the appellate jurisdiction ended with DC Circuit.

IANAL. But:

We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975) )). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.

...

To the extent any doubt remains about Congress’ intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. It intended to create a more limited procedure. See, e.g., 151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA “extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court” and agreeing that the bill “create[s] in their place a very limited judicial review of certain military administrative decisions”); id., at S14268 (statement of Sen. Kyl) (“It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review. It is a limited judicial review of its own nature”).

It is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. The present cases thus test the limits of the Suspension Clause in ways that Hayman and Swain did not.

Essentially, Congress did not have the right to limit jurisdiction of the courts in this case, as they were doing so to effect a de facto stripping of habeas corpus outside of the Suspension Clause. In this regard, DTA and MCA were unconstitutional; a fairly transparent end-run around the Suspension Clause.

Steve 1L's views have taken hold at RedState, unfortunately, resulting in some really foolish arguments.

I'm shocked.

This was a terrible decision.

If I understand the decision correctly, what the court upheld was the right of people held by the US in territory under our control to file a petition of habeas corpus. In other words, the US government will have to demonstrate that it has a good reason to hold you, in order to keep holding you.

It's not a get out of jail free card. It's not a free ride for terrorists. It's not an invitation to frivolous or baseless lawsuits.

It's the privilege of asking the US government to explain why you're being held by them, and to offer reason why you, perhaps, ought not be held.

Congress can still suspend habeas if that's necessary in the context of invasion or insurrection. 9/11 was neither. We've experienced no meaningful example of either in this country since the Civil War.

Habeas goes back to the earliest legal precedents in English common law. There is no principle in our legal tradition that is more fundamental.

Bush screwed up, and how he wants to cover his sorry behind. The court said no. That is all.

Thanks -

Red Staters should just go whole hog -- we are always being invaded, and therefore habeus can be suspended forever.
______________

Although hilzoy's analysis is useful in summarizing the basic legal issues, there is a practical way to understand this decision without indulging the legal details.

Habeus exists to prevent arbitray detention by the executive -- it is a procedure that requires the executive to justify to the judiciary the legal basis for detention.

This decision makes it clear that it is a basic right -- something that had never been explicitly decided because no one had previously had the balls to challenge it so blatantly. The right does not depend on citizenship (it never has) -- the executive simply cannot arbitrarily detain people period, and Congress cannot legislate away the right to a habeus petition. Also, the notion that habeus cannot apply if the government incarcerates persons outside formal US territory was shot down -- that was always a terrible argument for circumventing the law.

At its core, this is a separation of powers decision -- that the executive and the legislature do not have the power to deny the courts their constitutional power to review via a habeus petition the detention of a person by the executive.

If someone is shown to be an enemy combatant, habeus review ends at that point. This is all about requiring the government to have a fair forum for determining that question. It presents no difficulties, and in fact has always been observed in the past because we did not have disgusting pigs in control of our government advocating the abolishment of habeus rights. Thank god they have not yet suceeded.

Red Staters should just go whole hog -- we are always being invaded, and therefore habeus can be suspended forever.
______________

Although hilzoy's analysis is useful in summarizing the basic legal issues, there is a practical way to understand this decision without indulging the legal details.

Habeus exists to prevent arbitray detention by the executive -- it is a procedure that requires the executive to justify to the judiciary the legal basis for detention.

This decision makes it clear that it is a basic right -- something that had never been explicitly decided because no one had previously had the balls to challenge it so blatantly. The right does not depend on citizenship (it never has) -- the executive simply cannot arbitrarily detain people period, and Congress cannot legislate away the right to a habeus petition. Also, the notion that habeus cannot apply if the government incarcerates persons outside formal US territory was shot down -- that was always a terrible argument for circumventing the law.

At its core, this is a separation of powers decision -- that the executive and the legislature do not have the power to deny the courts their constitutional power to review via a habeus petition the detention of a person by the executive.

If someone is shown to be an enemy combatant, habeus review ends at that point. This is all about requiring the government to have a fair forum for determining that question. It presents no difficulties, and in fact has always been observed in the past because we did not have disgusting pigs in control of our government advocating the abolishment of habeus rights. Thank god they have not yet suceeded.

Would the minority be as pro-Executive with a Democratic President?

von: eep. I had imagined that SteveIL was a sort of lone autodidact with his own peculiar theory. (In my nightmares, I am like this.)

Reading the RedState post was therefore scary, because I honestly cannot see how that argument gets off the ground.

I admire you for heading into the fray there.

If I understand the decision correctly, what the court upheld was the right of people held by the US in territory under our control to file a petition of habeas corpus. In other words, the US government will have to demonstrate that it has a good reason to hold you, in order to keep holding you.

I happen to agree with the Court's decision, but you do see the potential problems with a broad read of the Court's opinion, right? There is no plausible extension of Habeus, for instance, to battlefields -- or even conquered nations. Gitmo is (or should be) an unusual, if not unique, case. This decision probably reflects the limits of the privilege,* and was appropriate decided 5-4.

von

*Yes, despite Kennedy's characteristic overbroad language and posturing.

I admire you for heading into the fray there

Leon's a good sort and a smart lawyer. He's clearly taken with what he perceives as a setback and very concerned about the national security effects. It's not unreasonable for him to be concerned, even though he ended up pretty far out on a limb.

(For clarity, my 9:32 p.m. post is not at all based on the clearly incorrect arguments of Steve 1L, but on the arguments advanced primarily by Judge Roberts in his dissent and acknowledged in Kennedy's majority opinion.) (Scalia's dissent in uncharacteristically bad.)

I agree with dm on what the limits of habeas should be, but recognize that my view on this might not command 5 votes. I think the Constitution imposes limits on the government of the United States, and that conduct beyond these limits is ultra vires. As noted, it's not a majority view.

Interestingly, Chief Justice Roberts' decision in Munaf goes further, on the jurisdictional question. I haven't taken the time to work out what a merits case might be that would justify a successful petition under the pair of cases. Maybe if you captured a Yemeni in Afghanistan, and held him without trial in a CIA prison in Romania. I'm not going to look at a RedState thread to see what they're saying about the jurisdictional ruling in Munaf -- somehow I doubt that the government's loss here is viewed as a betrayal.

Katherine, what do you think of my hypothetical?

I'd just like to say that I'm amazed that the Court decided to grapple with the issue of the Insular Cases head-on. That's really the elephant in the room and they emphatically put it to bed. Well done! I'm going to go read it again.

w/r/t von's concern -- my reading of the opinion is that it's intended to inject a pragmatic analysis into the line of cases grappling with Constitutional protections as they apply in different jurisdictional contexts, rather than continuing the useless project of attempting to formulate an equation to determine what protections apply in states, unincorporated territories, soon-to-be incorporated territories, never-to-be-incorporated territories, tribal reservations, etc., etc. That line of cases is a disaster, and it's high time that the Court put an end to it.

The pragmatic analysis should be flexible enough to accommodate battlefield detentions. Clearly, the habeas right itself is intended to be flexible in certain situations, or there wouldn't be a Suspension Clause at all. I read the Court's decision as holding that habeus protections should be circumscribed by the rights of individuals, not legislative or jurisdictional bait-and-switch. This result is long, long overdue.

What does "habeus" mean? (If anything.)

Habeas corpus apparently means 'you have the body'. (A command to produce the defendant before the court. More recently, the defendant does not need to appear in person to state his or her plea to the court; motions on his or her behalf seem to do the trick.)

What I meant was, several people have written "habeus" instead of (or in addition to) "habeas." I just wondered if there is actually a second or variant word that means something a little different.

There is no plausible extension of Habeus, for instance, to battlefields -- or even conquered nations.

And it never has been so extended, nor does this decision constitute authority that it should. Past decisions have made it clear that when we are dealing with battlefields and conquered nations, habeus has no role with regard to POWs or enemy combatants, except initially to allow a review that the person detained can fairly be said to be a POW or enemy combatant. Also, the recent problems have nothing to do with habeus allegedly being forced into battlefield contexts or in ruling conquered nations.

Clearly, we are dealing with a difficult new situation with terrorists and unlawful combatants, to which the Bush administration responded with lawlessness. The problem here is the thoughtless detention of thousands based on little or no evidence -- people turned in by bounty hunters or even held mistakenly. Then we have tortured or otherwise mistreated thousands of these people, and used their statements obtained in such circumstances to justify the detention of others who never even know who or what has been said against them.

The need to deny habeus to such people now became part of the need to cover up what has been going on, and perpetuate the lie that these people are all terrorists and need to be detained to make us safe.

Restoring habeus is the first step in forcing lawbreakers to institute a proper method for dealing with terrorist suspects and unlawful combatants. Denying habeus means that these people can run amok forever, and imperil our own country as we become the hated pariah that has abandoned its own values because cowards are afraid to fight terrorists within the rule of law.

I submit that the easiest way to understand the ruling is that the burden of proof on why a Habeas Corpus does not apply is on the government. That is, a person is assumed to be able to petition the courts for a writ of habeas corpus when ever the US government hold them in detention. It is up the the detaining authority to show why this right (or as the Constitution says 'Privilege') has does not apply to the individual in question.

James -- the right always applies. But it is just a procedural right. You have to justify my detention, and the petition for the writ is the procedure to have it heard by the judiciary.

The law governing who can be detained and under what circumstances is another story, but if you never have a meaningful hearing (which is what the writ guarantees), then there is no law.

What I meant was, several people have written "habeus" instead of (or in addition to) "habeas." I just wondered if there is actually a second or variant word that means something a little different.

Typo on my part. Should be "habeas."

I guess most people think -us is the standard Latin ending. They do not know that habeas is a grammatical form of verb, not a noun.

dmbeaster: Past decisions have made it clear that when we are dealing with battlefields and conquered nations, habeus has no role with regard to POWs or enemy combatants, except initially to allow a review that the person detained can fairly be said to be a POW or enemy combatant.

...and let's not forget that even that very minimal degree of due process has been denied the thousands of extra-judicial prisoners held by the US.

There are over five hundred children being held in US detention camps, without the basic legal rights that they are entitled to as enemy prisoners, without the basic human rights they are entitled to as children in US custody.

What I meant was, several people have written "habeus" instead of (or in addition to) "habeas." I just wondered if there is actually a second or variant word that means something a little different.

(Repeated) typo on mine as well. It's one of those errors that get stuck in my head and then repeated unthinkingly. My apologies.

Alternatively, further evidence for the patriarchy: There must be a masc. ending on everything.

what von said

Thanks for the clarification. I didn't need to be so nitpicky, but not being a lawyer I wasn't entirely sure.

Counterbalancing the depressing evidence of the patriarchy is the pleasing knowledge that there are still people alive and breathing who know something about Latin nouns and verbs.... ;)

A number of people trace this decision to British Common Law, by which I assume we all mean Magna Carta of 1215.

I think this understates the case. Without even getting into Roman law, about which I know nothing, the North German and Scandinavian tribes of the 8th to 12th centuries had healthy traditions of civil liberties, from which, e.g., our property and inheritance laws are largely descended.

Their attitude, I think, can be summed up as "The King is a nice guy, but if he messes with me, fuck 'im."

America needs a Congress that will take this attitude to the Bush, Cheney, Feith, Addington gang of traitors and criminals.

Good article, and I agree with you Hilzoy--and I'm a conservative. But I would like to bring up something that is somewhat underplayed. The DC Appeals Court will still need to modify habeas procedures to protect against information dissemination, etc. That is a legitimate concern. And future detainees will still need to undergo the CSRT, as I understand it. Will the procedures the court uses end up looking a lot like those of the DTA? And result in more appeals about the constitutionality of them? The judiciary is less biased than the military/executive, but are they competent enough (and politically neutral enough) to make consistently stable rulings regarding military information and evidence?

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Whatnot


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