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June 13, 2008

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The most surprising and laudable part of the majority's opinion, to my mind (though it's not necessarily the most judicially sound part) is the sweeping language they used to basically short-circuit all of the nonsense that comes from the Insular Cases: "questions of extraterritoriality turn on objective factors and practical concerns, not formalism."

That's pretty huge -- the Administration has basically used the state of judicial confusion surrounding those cases to jam up the process for years now, and the Court just called their bluff.

Yes, well, it'll be interesting to watch Bush & Co ignore this one.

Because they will. You know they will. There are currently 35 criminal charges against Bush, any one of which would justify removing him from office: what's a 36th?

Thank goodness for this decision!

Of course, the core problem is with the political branches. In Congress, a bipartisan majority passed the Military Commissions Act in each house, with one quarter of Senate Democrats voting in favor of it along with all the Republicans except Chaffee. (Incidentally, in addition to trying to do away with habeas, the MCA also retroactively gives torture the cover of law.)

Pass me the earplugs. The "activist judges" howl will be deafening.
I also agree with Jesurgislac: The administration will ignore it and even gloat about ignoring it.

"activist judges"

Darn activist judges imposing newfangled, unprecedented requirements like habeas corpus.


"There are currently 35 criminal charges against Bush"

I believe you must be talking about the 35 http://kucinich.house.gov/News/DocumentSingle.aspx?DocumentID=93581>articles of impeachment recently proposed by Rep. Dennis Kucinich.

First, they're not criminal charges, they're impeachment charges.

Second, many of them would be laughed out of court if a prosecutor tried to bring them as criminal charges, because they complain of actions which aren't, you know, illegal. In fact, a lot of them are just flat out false, unless your understanding of "secret" is different from mine.

Mind, you strip off the garbage, there's still enough to justify impeaching Bush. But 35 "criminal charges"? Not a chance.

It's interesting to know that some Republicans still have a bouncy, cheerful, insouciant attitude towards the crimes of the Bush administration, Brett. Thanks for sharing.

DTA review was intended by Congress to be a sham from the beginning. That's what the narrow standard of review was about -- but as facts emerged about how CSRTs were conducted, it became apparent that even the silly and narrow scope of review wouldn't help the government. Although the Circuit is limited to determining whether the government followed its own procedures in conducting the CSRTs, as it turns out the answer is no in virtually every single case. They didn't follow the CSRT procedures. Ever. And the government's position, in Bismullah and other cases, is that it is simply not capable of complying with the Circuit's discovery orders, and, really, I'm not making this up, can't prove that it did actually follow the CSRT rules.

The government's plan, if Bismullah is not overturned, is to conduct a new CSRT for every prisoner with a DTA action. That is, it's not ever going to let the Circuit rule on a 2004 CSRT. (It has indeed recently asked that Haji Bismullah's case be put on hold so it can give him a new CSRT). What cure is there for years of detention based on a decision the government will decline to defend? Does the Chief think the DC Circuit has the power to turn back time?

That said, I'm looking forward to the DC Circuit's ruling in Parhat, another DTA case. The panel -- even Judge Sentelle -- was unimpressed with the government's position on what, and against whom, this war "on terror" is.

Jesurgislac, I won't comment on the merits of the impeachment articles because I haven't read them through. But on the issue of what kind of "charge" they are, Brett is totally right (and, no offense Brett, I don't often think that). Impeachment articles are not criminal charges, and they shouldn't be described that way.

I'm hoping that the revoltingly un-judicial language of Scalia's dissent, and his failure to meet the majority's arguments (even to try to do so) will put an end to talk of his brilliance. And provide serious food for thought when Pres. Obama is nominating to fill the next vacancy on the court.

He's a thug. Given that, it's a good thing that he puts his thuggishness on display.

Jesurgislac, I don't think Brett is defending Bush when he points out that a number of Kucinich's articles do not, in fact, reflect high crimes or misdemeanors.

In fact, I suspect that Kucinich's purpose in introducing the articles was not to lead to impeachment, but to enter a full account of Bush's behavior while in office into the Congressional record. It's the only way I can explain his inclusion of things like failing to plan for Katrina or not buying enough body armor for soldiers in Iraq.

Illegal wiretapping, detention, and torture? Yeah. Slam dunk. But there are a number of things in there that, while reprehensible, don't rise to the level of impeachable offense.

Amen, Nell.

I wonder what Scalia said from the bench yesterday: his rant from the bench in Hamdan was far less tempered than his written opinion.

Mark, no offense.

I have read the entire bill of impeachment, and it's a mish-mash of quite serious charges of malfeasance, mere policy differences, and even some things Congress damned well DID authorize. On that level of justification, the Republicans could have brought Clinton up on a couple dozen charges, without even breaking into a sweat.

For instance, bombing that pharmaceutical plant in Sudan, which turned out to NOT be making chemical warfare agents.

Jes, I find it interesting that I can concede that Bush has committed eminently impeachable acts, and if I don't agree with you on every last item, I STILL get accused of defending him.

Earbucket, I'm far from a scholar on this topic, but I recall from the last time around some discussion of 18th century impeachment for 'high crimes and misdemeanors' being applied to what we would call negligence or incompetence.

Jes, I find it interesting that I can concede that Bush has committed eminently impeachable acts, and if I don't agree with you on every last item, I STILL get accused of defending him.

But not surprised, no?

I think that's a bad standard, though, CharleyCarp. On those grounds, you could make a case for impeaching nearly every president who's sat in the Oval Office. They've all done things that could legitimately be described as incompetent and/or negligent.

Now, Bush certainly sets a new standard for both incompetence and negligence in office, but being bad at the job isn't a crime. He's committed a whole pile of high crimes that would more than justify removing him from office if Congress weren't full of people who value their own political careers more than the Constitution. Adding in more accusations as padding just detracts from the seriousness of those charges.

No, not surprised; I think we're all aware that only monsters fail to agree with Jes about, well, everything. ;)

"'high crimes and misdemeanors' being applied to what we would call negligence or incompetence."

Yeah, I'm of the school of thought that Congress can impeach for bad table manners, if you've got the votes to do it. But that doesn't make bad table manners a criminal charge...

I also find it interesting that Brett preferred to leap up and yell about how the 35 impeachment charges against Bush ought not to be described as criminal charges, and then complain about my response to his yell, than about the point I was making:

Bush & Co will ignore the Supreme Court's ruling, and nothing will be done to enforce it or against Bush for ignoring it.

I'm not sure, Jes, what exactly you mean by ignore the ruling. Certainly, Justice Department lawyers will respond to motions filed by prisoners in their pending cases, and will show up to argue them. When a judge sets a hearing, the government will participate. Should a judge order the release of a prisoner, I suppose the government will appeal.

On a bigger scale, I won't be surprised if the government tries to limit the burden of having to litigate 180 cases at the same time. I know I would. I also know that if I was a judge, I'd tell them that they'd bought themselves a 4 year holiday since Rasul, and so now it's time to staff up and get it done.

We'll see what Judge Lamberth tries to do with this.

Jes, I did that because they're not criminal charges. Many of them aren't even matters that COULD be criminal charges. You've got some objection to people accurately pointing out mistakes? Apparently you do.

Bush will ignore the ruling? Well, that adds another legitimate impeachment charge to the bill, doesn't it? It isn't me who's keeping Congress from impeaching his ass, you want to complain, complain to Pelosi.

I'm fine with him being impeached. I haven't known a President since I came of age who didn't do SOMETHING impeachable, and it's only getting worse as time goes by, and nothing is done about it.

CharleyCarp: I'm not sure, Jes, what exactly you mean by ignore the ruling.

I mean that the prisoners held in Guantanamo Bay - those still there and those who have now been released - will not be allowed to know on what evidence they were arrested and on what evidence the US government continued to imprison them. At least, so long as Bush - or McCain - is President.

(Still less do I anticipate that anything will change at all for the thousands of other prisoners held by the US in other detention camps.)

I'm not saying this to decry the importance of a court decision. I'm saying this because Bush & Co have demonstrated, again and again and again, that they can and will do anything. They're above the law. It doesn't matter what they do: no one will attempt to bring their crimes home to them. It doesn't matter what the courts say: the prisoners will remain in indefinite detention so long as it would be dangerous to Bush & Co to have them released.

The charges against Bush rather make Bill Clinton's BJ look like small potatoes.

Well, the charges against Clinton made Clinton's BJ look like small potatoes, too, so that's only fair.

We could probably inaugurate them in the morning and shuttle them via the limo to the steps of Congress for impeachment after lunch on the same day.

I've never understood the term "small potatoes".

You would think people would use the term "big potatoes" for the big stuff, but they don't.

Small potatoes are yummy --- sliced and sauteed in a little butter and olive oil, or just steamed and tossed with some pesto.

I think the American people should be impeached for choosing one of themselves to run the place.

You'd think, after all this time and heartache, that they would contract the job out to the experts.

Interestingly my mom asked me about this case and my take was this: Roberts is almost certainly right, and the majority decision wrong from a substantive legal point of view. The President, in war, almost certainly does have some of the powers claimed by the Administration. And in our legal system the District Court is definitely supposed to have first crack at the issue.

The problem is that Bush abuses those powers by extending them indefinitely and in non-war situations. He is using them to detain people who don't have anything to do with the war such as it is, and he isn't even trying to sort out who is who. That can't be right either.

If this case had come in December 2002, I would have been more sympathetic to the Bush argument because the time wasn't ridiculously extended. But at this point some of the people have been in there for six years. That is ridiculous.

But on the other hand I think it is important to acknowledge that the Court is saying ENOUGH to Bush, but that the Constitutional basis actually outlined isn't that great, and that procedure of cutting out the lower courts isn't that good either.

The President, in war, almost certainly does have some of the powers claimed by the Administration

was there a declaration of war?

I won't be surprised if the government tries to limit the burden of having to litigate 180 cases at the same time.

It is actually probably in the thousands since the decision it not limited to Gitmo.

That's what happens when you spend years ignoring and obfuscating the law.

Roberts is almost certainly right, and the majority decision wrong from a substantive legal point of view.

The same problem arose during the 50s and 60s with civil rights cases and nefarious schemes to avoid compliance with the law and prior Supreme Court decisions. And the Court response was ultimately similar.

And actually, Roberts is wrong as to law -- the issue he discusses is a discretionary one with the court. What Robert's argues is a decent argument as to the discretionary decision by the court as to how far it should go in deciding various points, as opposed to deferring issues for further litigation in the lower courts. There is no law that requires that be done -- just a long tradition by the court in using its powers in a limited fashion in order to preserve legitimacy.

So your point is in fact a legal refutation of Roberts -- that the time for lower court deference is over given the long history of bad faith and obfuscation by the government.

Hmm.

I thought the heart of the case was the claim that habeas extends to the detainees, and that the executive does not get to deny Constitutional rights to people where it has complete control by signing away formal sovereignty.

I see Roberts' case about granting cert (for non-lawyers: the idea is that that the Supreme Court does not get to hear cases before available remedies have been exhausted, nor should it just leap to answer questions it does not have to answer. It should take cases, and answer questions, only when required to do so, rather than just randomly opining about everything. Here, that would mean: the petitioners should have gone through their CSRTs, challenged them in DC Circuit court as the statute provides, and only then gotten to the Supreme Court.)

But if there is any exception for extraordinary circumstances, this would surely be a time to invoke it, given not only the fact that some of these detainees have been in custody for six years, but more importantly, the fact that there is, at this point, no reason whatsoever to think that the Executive is acting in good faith.

I don't know if there is any such legal principle as: courts do not need to let themselves be jerked around forever, especially when someone's basic rights are at stake. But if there is, I think that it should be very sparingly applied, but it surely applies here.

And I'm a lot more comfortable with it since it does not involve, say, altering the meaning of a statute or the Constitution for "realist" reasons, but deciding not to be bound, in one instance, by customary rules of the order in which courts get to hear a case. -- I mean, saying "we will too hear this now, even though that's not normal" seems to me entirely different from saying "we will suspend habeas corpus, or arrogate to ourselves the right to declare a war, or suspend the bill of rights, even though that's not the way things are normally done."

Roberts entire jurisprudence is based on using every possible pretext to keep people's cases out of court & deny them their rights by default. I dislike him as much as Scalia, no joke.

Right - let me be a bit more clear. The heart of the case is extending habeas rights - that's correct.

What I meant though was that the DC Circuit stuff was the crux of reasoning that supported that particular holding. Generally speaking, you can take away habeas so long as there is some valid substitute that vindicates one's rights. The key legal dispute then (in deciding whether to extend habeas) is the effectiveness of the DC Circuit.

Roberts argument is pretty strong (given that the DC Circuit presumably has the power to reach the same result -- i.e., it's not all that narrow). My point is that the Court looked beyond to more real-world considerations and stopped ignoring the obvious.

I'm literally running out the door but can explain more later

"Roberts argument is pretty strong (given that the DC Circuit presumably has the power to reach the same result -- i.e., it's not all that narrow)"

Why presumably? I think that's flat wrong.

I think the Supremes stepping in and preempting lower courts is not only appropriate, but obligatory.

"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."

We aren't dealing with rebellion or invasion, so habeas corpus must stand. Note: it doesn't say "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless you can figure a way to do it by diddling around in the lower courts and repeatedly raising flimsy legalistic excuses." The Bush administration has suspended habeas corpus by shenanigans in the court system and therefore the shenanigans must be stopped, for Constitutional reasons. And the Supremes are trying to stop it and protect the Constitution, by the only possible method.

(flat wrong after the D.C. Circuit decision in Boumedienne, that is, which was cut off any constitutional review of the CSRTs & was binding stare decisis in the Circuit until it was overturned by the Supreme Court.)

small potatoes are yummy

Particularly when served with big cheese. The appropriate beverage is small beer.

Brett: You seriously believe Clinton's BJ is the equivalent of state-sponsored torture, warrantless wiretaps of US citizens and the like?

M'kay.

More on topic--isn't Scalia acting more like a right-wing talk show host than a jurist in Boumediene?

I realize that Publius' post is not about impeachment; however, since the comments have raised that topic, please allow me a few observations.

Removal from office is not the only remedy in cases of impeachment. Article I, § 3 of the Constitution states that "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States".

The expiration of an official's term of office does not make impeachment moot; the Congress can still consider disqualification from holding office in the future. This is more than a hypothetical. John Quincy Adams served in the House of Representatives after serving as President. William Howard Taft served as Chief Justice of the United States. During the past half-century, Richard Nixon served as president after leaving office as Vice-president. Hubert Humphrey served as U.S. Senator after serving as Vice-president. Walter Mondale served as U.S. Ambassador to Japan, and he was nominated to run for the Senate from Minnesota after Paul Wellstone's death in a plane crash.

I do not favor bringing articles of impeachment during this election year, but in light of the current Administration's Herculean efforts to block official inquiry into its conduct, I hope that Rep. Kucinich or another member of the next Congress will continue to pursue impeachment of President Bush. The conduct of Vice-president Cheney and former Attorney General Gonzales would also merit investigation.

"Brett: You seriously believe Clinton's BJ is the equivalent of state-sponsored torture, warrantless wiretaps of US citizens and the like?"

No, I seriously believe that receiving a BJ wasn't one of the charges brought against him by the House.

I also seriously believe that, if the Republican House leadership had approached Clinton's impeachment in the same spirit Kucinich displays, they could have brought charges quite similar to those Kucinich lists for Bush. I've already cited Clinton bombing a pharmaceutical plant in Sudan on flimsy evidence, subsequently proven false, that it was manufacturing chemical weapons. I don't recall his getting a declaration of war for Bosnia, either.

No, if you really wanted, you could assemble a similar list for Clinton, different in detail, but substantially similar in nature. Presidential usurpations of power are not a new phenomenon. 'bout time we did something about them, but then, I thought that during the Clinton administration, too.

It's interesting to know that some Republicans still cry "But Clinton did it too!" when faced with the crimes of the Bush administration, Brett. Thanks for sharing.

John in Nashville: I do not favor bringing articles of impeachment during this election year, but in light of the current Administration's Herculean efforts to block official inquiry into its conduct, I hope that Rep. Kucinich or another member of the next Congress will continue to pursue impeachment of President Bush. The conduct of Vice-president Cheney and former Attorney General Gonzales would also merit investigation.

Not to mention Condoleezza Rice, Donald Rumsfeld, Colin Powell, and John Ashcroft.

This from James Poulos summarizes my thoughts on the issue (and why I think that the Supreme Court law as decided by the majority is probably wrong, but why I have trouble getting worked up about it):

But the real problem is the interminable detention period, which has no reasonable judicial excuse. The dissenters are quite right that America has offered a quite generous set of procedural protections for enemy combatants. But these are mocked when a detainee is an indefinite prisoner with indefinitely incomprehensible status. The problem is not the legal process but what happens when the federal government holds that process, at its whim, in open-ended abeyance. The federal government still gets a lot of leeway, and the benefit of the doubt, from the Court, especially in wartime. But ours is so nonobviously wartime, and the Bush administration has been so lax, opaque, and seemingly quite pointless in its interminable detention of a wide range of variably important prisoners, that today´s ruling seems to me to confirm the wisdom of both the majority and the dissent. I suspect the ruling will, if anything, cause most of these detainees to actually be tried, which would be nice, but not released, which would not be. And that strikes me as not only nice but just.

The important thing to remember on this note is that the unilateral detention of enemy combatants, including holding without trial, takes on an entirely different flavor when it´s maintained for many years instead of many months. Whereas the latter is eminently reasonable on paper, the former has, in practice, proven rather ridiculous. Hopefully what this ruling will not do is contribute to a great attack on the whole idea of enemy combatanthood, which is a real and important category to keep properly integrated into our legal system. Sadly, pushing these kinds of questions to the Supreme Court tends to flatten out the distinctions that a healthy legislature and executive ought to be able to sustain responsibly without training wheels, manacles, or admonitions.

It's interesting that some people don't realize that "Clinton did it too" involves admitting that Bush did it. But I guess the point here is that it's not enough for Bush to be bad, he has to be uniquely bad. Just don't want to face up to the possiblity that there's something systematically wrong with our political culture, that cuts across party lines, I guess.

Clinton got impeached, and deserved it on more counts than they actually brought. Bush deserves to be impeached, though some of the charges Kucinich lists are loony, and why did Democrats wait so long?

It's interesting that some people don't realize that "Clinton did it too" involves admitting that Bush did it.

Except that since "Clinton did it too!" is largely fantasy, not fact, it actually exculpates Bush. Unless of course you're a Republican suffering from Clinton Derangement Syndrome, who has to bring up Bill Clinton in a thread concerning itself with the Bush administration's unprecedented crimes.

I suppose if you're a Republican convinced that Clinton was the Baddest President Ever, it would seem to be a bit of a Damascene conversion to admit that Bush is just as bad.

and why did Democrats wait so long?

Is this the most politically naive question ever asked?

Sebastian: The important thing to remember on this note is that the unilateral detention of enemy combatants, including holding without trial, takes on an entirely different flavor when it´s maintained for many years instead of many months. Whereas the latter is eminently reasonable on paper, the former has, in practice, proven rather ridiculous.

Does James Poulos also acknowledge that many of those held by the US in extrajudicial detention - including hundreds of children - are not actually enemy combatants at all, nor did the US ever have any good reason to suppose that they were?

Or that so far from the provision for "enemy combatants" being "generous", it was actually a complete abridgement of the rights they were entitled to under the Geneva Convention?

"But Clinton did it too!" might be a good way to describe Brett's position if he weren't advocating for Bush's impeachment.

katherine - what the dc circuit held in boumed. was technically review under the new statute right?

I'm genuinuely curious here so help me out. From my reading, the DC Circuit is allowed to review constitutionality of the procedures. If the CSRTs can't allow for new facts, then the DC Circuit should be able to take that account, right?

From my reading, you can only reach the majority's conclusion by presuming that the DC Circuit is a bunch of tools (which they are) and that the process will never get resolved that way. I agree with that in this particular case -- the government shouldn't be rewarded by the bad faith evasion.

But again, unless i'm reading something wrong, you have to assume the DC Circuit sucks to get here.

If I'm wrong, please tell me why. In particular, I want to know why the DC Circuit's review of the standards/procedures are too narrow (in a doctrinal sense). I'd be more than happy (to say the least) to write a new post explaining why Roberts was actually wrong on that.

So, Publius, how does this affect your recent argument that Roberts & Alito are better than people feared they would be?

(Not being a lawyer, my take on that question is sorta simple. No one ever lost a bet judging a Bush appointee to be maximally hackish, incompetent and malevolent. On the other hand, a lot of people have been burned in assuming the opposite -- that this appointee (usually) has a long record of being good, etc., so will be okay. (See, e.g., Scott Horton on Mukasey.) So I presume that Roberts & Alito will be terrible because Bush appointed them. I bet that that will get me a more accurate record of prediction than any careful reading of their records. I'd say so far Boumediene is a notch in my column on this one, although given your admiration for Roberts's argument, you may differ.)

SF

sorry i meant "was NOT techincally review under the new statute". In other words, the DC Circu lower decision isn't really a review under the DTA/MCA, right?

I guess I was reading comments a lot longer than I thought. My last comment is obsolete.

Kennedy's majority opinion addressed Roberts's point well enough: these people have been waiting for a hearing for six years, and we can see already that the DTE system cannot provide a complete remedy, especially as the DC Circuit has been ducking the issues as hard as it can. Not impressed by Roberts's opinion, exhaustion of remedies is important but it's not holy writ. We require exhaustion of remedies to give the government the chance to do things right and to stop prisoners from abusing the system. It makes sense to skip it in extreme circumstances, when the government has already had many chances and it, not the prisoners, are abusing the system.

What impressed me most about the majority opinion is how good the lawyering must have been. The reasoning is much tighter than Kennedy's usual, which is probably due to good briefs. It is clear that the lawyers for the petitioners anticipated just about every question that came up.

In particular, they made it easy for Kennedy to make a narrow holding: that under these extreme circumstances, this exact statute is not an adequate substitute for habeas. They did this by, among other things, choosing the right petitioners and developing their facts. Kennedy said that even if everything else was okay, it was not okay to deny Mr. Nechla the opportunity both during and after the tribunal hearing to call his employer to testify that he was not in al Qaeda. This is a basic fairness issue grounded in actual facts, and I think it impressed Kennedy deeply. Although the opinion is full of lofty, abstract sentiments, I doubt that Kennedy would have voted as he did without a solid example that the problem had real consequences.

I am also impressed with Kennedy's closing threat to the political branches that if they don't start paying some attention to the Constitution, the Court will begin scrutinizing war powers more closely. Although phrased politely, that is a powerful threat.

"From my reading, the DC Circuit is allowed to review constitutionality of the procedures. If the CSRTs can't allow for new facts, then the DC Circuit should be able to take that account, right"

Again, the D.C. Circuit had concluded, in a binding precedent, that the detainees had no constitutional rights, so it wasn't going to do constitutional review. The Supreme Court was just supposed to twiddle its thumbs and pretend that this hadn't happened? In Roberts land perhaps, which is all about "judicial restraint" for the express purpose of letting the executive jerk people around & deny them their rights forever and ever and ever.

publius, I'm not sure about this and don't have time to do the necessary research, but I think Kennedy may have thought that even if the DC Circuit were doing its job, there would be a real problem. If the DC Circuit held that the procedures created by the Secretary were unconstitutional, the only remedy would be remand for a new CSRT under better rules, which the Secretary would have to create in his own good time. The recent record of the DoD suggests that they would a) stall, b) make illusory changes, and c) refuse to use their own procedure. It could easily cycle back and forth between the DoD and the CoA for decades. Simpler and more fair to just short-circuit the process and let a court, just once, look at the evidence, with the power to order a release and not just a remand.

katherine's point (if correct) changes things -- she's saying that the DC Circuit had ruled that the detainees had no constitutional rights on anything, period.

So I'm just trying to think through this -- if they all have no rights, then that necessarily means that the procedures have to be ok, right? so that would make the DC Circuit review pointless.

Even if that's right, I think it supports my point. You have to assume the DC Circuit is a bunch of tools to reach the majority conclusion.

Roberts also does not appear to honestly characterize the majority's statements about DC Circuit review, or the actual facts about DC Circuit review, any more than he honestly characterizes the CSRTs. Again, this doesn't rely on me thinking that Randolph & Sentelle suck; this relies on actual decisions that the D.C. Circuit has made, which are binding within the Circuit.

next question -- let's say it goes back through the process in the DTA. The DC Circuit reviews and says "no constitutional rights."

Does the Supreme Court then have appellate jurisdiction? Or does the DTA/MCA cut that off?

Well, the Supreme Court could have said: "yes they do have constitutional rights, now determine if the CSRTs are constitutional," except that based on other D.C. Circuit decisions re: admissibility of exculpatory evidence they couldn't do that either. And all of this abstention stuff is a matter of custom & prudence as much as anything, so weighing the prudential facts of "these people have waited 6 years for a hearing with a real opportunity to prove innocence" does not seem out of bounds. Unless your Roberts & looking for excuses to shut the court house door, like he does with standing doctrine & a million other things.

Unless your Roberts & looking for excuses to shut the court house door, like he does with standing doctrine & a million other things.

Scalia too. A great deal of conservative judicial doctrines can be summarized as "Go away, this is someone ELSE's problem!" I appreciate the arguments for judicial modesty, but sometimes it looks like they're just avoiding work.

Here's what I found from Lederman in Feb 2007:

Therefore, the court did not reach the question of whether the D.C. Circuit review, prescribed in the MCA and DTA, would be an adequate substitute for habeas rights in the event the court is wrong about whether these detainees have constitutionally protected rights to petition for habeas.

I think we get to teh same point, but you strengthen the argument. The Court (from a purely abstract doctrinal perspective) could have said (1) gitmo is our land; (2) they have rights; (3) go do your review.

My point is that they assumed that the DC Circuit would come out the wrong way in the future (i.e., they're tools) so they just preempted them. That's what I mean by "outside considerations".

You're right of course that the DC Circuit had already shown its hand, but technically speaking, i don't think they reached that precise issue below. But everyone knows what they would do...

Again, i'm sort of talking out loud for feedback -- does that sound right? (i want to post on this later)

Generally speaking, you can take away habeas so long as there is some valid substitute that vindicates one's rights.

Legally, I think this is incorrect, though it all depends on exactly what you mean. The Suspension Clause as interpreted in this decision would prevent an abrogation of habeas in favor of something less but allegedly "still good enough." The alternative procedure has to be at least equal to habeas procedural rights.

The wrinkle here is that we are simply talking about procedure, and there is plenty of legal authority that Congress can legislate procedure concerning habeas petitions (the classic one being limitations on habeas review in the federal court if a state court has fully reviewed the question). But I do not think that means that it is OK to bar habeas so long as a weaker version of procedure is provided.

And frankly, think about how intellectually dishonest Robert's opening line is:

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

No -- since habeas has always been available, the CSRT's are a significant dilution of rights. Roberts' argument makes sense only if you start from a premise that aliens detained as enemy combatants have no rights, until the Congress so generously set up CSRT's for them. Robert's knows that is bogus -- his opening line is a political polemic written purely for that purpose.

"My point is that they assumed that the DC Circuit would come out the wrong way in the future (i.e., they're tools) so they just preempted them. That's what I mean by "outside considerations". "

They're not just tools. The D.C. had made other decisions under which review could not have been effective even on remand with instruction that the Constitution applied, because they decided that the DTA meant that they couldn't consider exculpatory evidence. The majority discusses this. Roberts' dismissal of it is wrong & barely good faith. And you know, for someone eager to concede that Roberts is right about what the D.C. Circuit had not gotten a chance to decide yet, you don't seem totally up to speed on what they'd decided.

well, marty lederman contradicted what you said -- the DC Circuit didn't decide what you said they did.

leave no ally unalienated, eh katherine?

In other words, you keep saying: "they know the D.C. Circuit would come out wrong", but the D.C. Circuit HAD come out wrong already. And why are you giving any fucking credibility to Roberts' characterization of the process, when he is making so many false & dishonest statements about the CSRTs? This line for instance: "The CSRTs provided ample opportunity for detainees to introduce exculpatory evidence—whether documentary in nature or from live witnesses—before the military tribunals." That's utter bullsh*t. Recognizing it as such is not judicially illegitimate behavior justified by extreme circumstances; it's a basic part of judges doing their jobs. Roberts consistently doesn't, and he's a terrible judge for that reason.

What are you talking about? Lederman didn't contradict me.

You said that the DC Circuit had already ruled they had no rights. My point is that decision wasn't part of the CSRT review process. As Lederman said here, they didn't reach this question and the Court could have corrected their assumption (e.g. Gitmo=foreign) and sent it back.

They didn't b/c of what they thought the DC Circuit would do.

What's annoying is that I was basically agreeing with you and asking for constructive input.

and rather than offering input, you opted to insult

Another point about the CSRTs. The opinion does not hold them unconstitutional or that they cannot be used. It just holds that they cannot be used as a substitute for habeas, and also that the District Court as to recently seized persons can delay habeas review until after a timely CSRT hearing.

I would imagine that the military will not bother further with CSRTs since they exist purely as a fig leaf to justify denial of habeas review. The military can get back into the business of expeditious adminstrative proceedings to resolve these questions, and allow detainees a habeas proceeding to test that decision. But that will require the military to go on the record as to the justification for detention, which is exactly what this entire farcical process was intended to avoid -- accountability regarding detentions.

"They didn't b/c of what they thought the DC Circuit would do."

Correction: what the D.C. Circuit already HAD done in Bismullah. Roberts "getting the better" of that argument depends on people who should know better swallowing his outright lies about the CSRT process. And your post implies, misleadingly, due to either not reading the Circuit decision in Boumedienne or poor phrasing, that the D.C. Circuit was engaged in ongoing constitutional review that the Supreme Court cut off. All of which annoyed me.

I've written several replies explaining this in more detial that the comments ate & have lost patience for this. In general, you have real contrarian streak about jurisprudence that implies taking a lot of gratuitous shots at other liberals that alienates THEM.

i don't think it's contrarian but in any event it never crosses over into personal insulting, which is your general MO if anyone disagrees with you

Bismullah shows not just that the D.C. Circuit are jerks; it also makes it impossible for the DTA to be an adequate substitute for habeas. Glibly talking about how the liberal result is determined by politics & not law is reinforcing a right wing talking point.

My gross "personal insult" that first set you off are "you don't seem totally up to speed on what they'd decided". You didn't seem up to speed on it, though maybe I jumped to conclusions there--if so I think it's partly because your writing was fairly confusing. Anyway, I think you just insulted me more personally that.

publius:

I don't think Katherine is not mad at you but at the dishonest crap argued by Roberts, which is the point about which you seek clarification.

I think you got it right with the observation that Bismullah was the last straw, but note this line from the Kennedy's opinion concerning Bismullah:

The order denying rehearing was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases.

The issue not addressed, of course, was the adequacy of SCRT reviews. I do not think that the primary concern was that D.C. Circuit idiots would get it wrong or act in bad faith, but that with so much confusion and disagreement after so many years of delay, it was necessary for the Supreme Court to chart a clear path NOW.

This paragraph, in particular, was what led me to believe you were unfamiliar with the Circuit decision in Boumedienne, & I would've thought you didn't read Bismullah if you hadn't mentioned it specifically:

"He explains that if there are constitutional problems with the CSRT procedures, then the D.C. Circuit gets the first crack at them. What’s more, the D.C. Circuit by the very terms of the statute is free to reach the same conclusion that the Court did. There’s nothing, Roberts says, that the Court held today that the D.C. Circuit couldn’t have held. Thus, the Court is jumping the gun, throwing out a statute before the D.C. Circuit has considered any procedural challenges."

This was extremely confusing at best.

counsel: I am fascinated and impressed by your exchange. I beg both of you to cease being offended by each other and instead to argue in good faith like the professionals that you are.

[a fellow member of the bar]

fair enough, but just say that, particularly given that I was asking for your expertise on it. if i'm wrong, i'll say so -- hell, i was asking you to help me clarify my thoughts to help my follow-up.

fair enough, but just say that, particularly given that I was asking for your expertise on it. if i'm wrong, i'll say so -- hell, i was asking you to help me clarify my thoughts to help my follow-up.

2:225: Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.

66:2 "Allah has already ordained for you, (O men), the dissolution of your oaths"

Our legal system is not designed to accommodate Muslims. Their God directs them to lie to Infidels. The Supreme Court does not understand this.

We should establish a separate legal system to try Muslims. If we continue to be stupid and end up losing this ideological battle, I may take Katherine as a wife. She sounds feisty.

Why do you give Roberts' prudential arguments for remand the status of legal doctrine, whereas the majority's prudential arguments against it are just "outside considerations of policy & politics?" Especially when Roberts' argument, especially Part D, relies very very heavily on mischaracterization of the facts.

I won't address Bill directly, but I note for those who may find him a source of amusement that his logic would also require separate courts for Jews, because our religion grants us remission of oaths from year to year.

Christians, of course, never lie, which is why our naive system of justice provides no procedures for ferreting out truth, nor sanctions for misleading the tribunal.

So that means atheists don't have to go to court, right? Since they're godless relativists who believe in nozzink, they just do they want!

For us Kantian/Foucauldian agnostics, the entire universe is a court. :)

publius, I have to agree with the above -- Katherine's vitriol, with the exception of "you don't seem entirely up to speed," was directed at Roberts, not you, though it could have been clearer.

That said, "you don't seem up to speed" is pretty mild, but it's still unnecessary -- publius just has a different reading of Roberts' opinion. Unlike Scalia's opinion, I think Roberts' argument is one on which reasonable people can disagree (or at least disagree for different reasons), especially this soon after the decision while we're all still digesting it.

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

And why are you people even taking this line with a straight face? Hello -- Ex parte Quirin?

Great thread, many thanks to all. A quick question: can someone unpack the meaning of CSRT and DTA for me?

Thanks -

Katherine - there are two parts to Roberts opinion. The first is that CRST are just awesome -- that part is intellectually dishonest and political, as I said in the post.

The second part is that the statute on its face allows the DC Circuit to reach any conclusion that the Court did. So, the issue is whether to go ahead and decide now or let teh DC Circuit do so. This is the crux of our debate (and the one I'm writing a follow-up post on). I say that the DC Circuit hadn't technically ruled on it, which they normally would get the first crack. You argue that they actually have.

In any event, I think Roberts still was wrong (as I said). And so he's either wrong b/c the DC Circuit had already decided OR everyone knew how it would decide and so further delay would be pointless

If you've read as many CSRT transcripts as I have Roberts' opinion is NOT in the category of things about which "reasonable people can disagree" (publius does not, of course, say otherwise about that portion of the decision). He's slicker & more professional but no better than Scalia.

The clear contrast between Obama & McCain on this one is a refreshing break from the usual portrayal of Saint McMaverick's defiance of the administration on torture and GTMO, isn't it?

No, see the 1:15 comment. I realize that they could rule on whether the CSRTs were an adequate substitute on remand once the Supreme Court reversed them on the question of habeas's inadequacy. But they already had their original opportunity for constitutional review, and declined to take it, because they held that the constitution didn't apply to GTMO & the prisoners had no rights, meaning that the ongoing review in the Circuit was meaningless. As I said above, the original post does not make clear that you're talking about D.C. Circuit review on hypothetical remand as opposed to D.C. Circuit review that had already taken place. (Maybe I'm the only one this confused, but Hilzoy saying that Roberts' arguments might be a reason not to have granted cert. implies otherwise). It's illegitimate for the court to prematurely take the case, but what issues to decide & what to remand are prudential. (The blank check in Hamdan that Roberts signed onto as a Circuit Judge decided issues that the Court didn't need to decide.) I also think you understate the importance of Bismullah: it doesn't just show that the D.C. Circuit judges suck; as the majority holds, the refusal to look at exculpatory evidence is enough by itself to render D.C. Circuit review of the CSRTs an inadequate substitute. "But the gov't will do a NEW better CSRT!, & dick around for three more years & THEN you can introduce that evidence & then they can remand again" is not a substitute. Habeas is specifically designed to cut through these formalistic games. There's nothing legally suspect about the majority treating it that way.

habeas's applicability, rather.

I haven't read the whole thread, so forgive me if I'm redundant. The DC Circuit heard argument on the adequacy of DTA review in Boumediene but did not reach it, in light of its holding that Gitmo is beyond the reach of the constitution. The dissenter did reach the issue and found the procedures inadequate. This sort of this happens all thed time and people getting all worked up about the majority deciding an issue that was before the court beloiw, but not ruled on by it, is meaningless pearl clutching.

Let's spell it out for the non-lawyers. An appellate court can affirm on any basis evident in the record. this means that as a matter of course, it finds that while the proffered basis of decision from the court below are error, the appellate court can -- on questions of law -- rule on an issue that was argued but not decided by all the judges.

I wonder why there's no clutching of pearls on this with regard to the Chief's explicit decision to do exactly this in Munaf?

On the policy side -- and I think the holding here is absolutely based on the law -- you also have the Circuit and the government basically flouting Rasul. Four years ago, the Court said prisoners had habeas rights and, in a footnote, said that if the allegations are true, had stated a constitutional claim.

ALL THE TIME

Charley: Or, indeed, to to decide the whole case base on assumptions about the Iraqi gov'ts future actions that may prove entirely false.

This line for instance: "The CSRTs provided ample opportunity for detainees to introduce exculpatory evidence—whether documentary in nature or from live witnesses—before the military tribunals." That's utter bullsh*t. Recognizing it as such is not judicially illegitimate behavior justified by extreme circumstances; it's a basic part of judges doing their jobs. Roberts consistently doesn't, and he's a terrible judge for that reason.

This is true.

but certainly not passed on below. As Roberts himself acknowledged. And even if he has the facts wrong, this wasn't some wild deviation from established practice.

To put Roberts tactics in a simpler perspective (as noted by CharleyCarp), there are many many doctrines of Supreme Court jurisprudence that encourage the court to act in a limited fashion. So how does he use them?

When you are playing defense in litigation, you win even if no result is achieved. By definition, you want to make sure that nothing happens, and it is not necessary to have a decision on the merits that nothing should happen. You win if procedurally you engineer the same result even if it is no result on the merits.

Roberts and other conservatives love to argue these doctrines for this purpose when they seek to prevent a ruling. If its a topic on which they want to achieve a result, they dump those doctrines immediately. I have yet to see a conservative exercise such restraint on a topic for which they want to make a ruling, and they will break all of these rules if need to get a result they want. The classic example, of course, is Gore v. Bush.

Russell, I'll take a shot from memory:

We have to start with Rasul. Four years ago, the Supreme Court overruled the DC Circuit, and said that prisoners can file habeas cases. The government responded by jerry-rigging a system for drumhead trials -- the CSRTs -- and conducted 550 of them in 7 or 8 months. This was a group of officers who reviewed evidence that was cherry picked for them to decide if there was any evidence that the prisoner was an enemy combatant. They so found nearly all the time, and when they didn't, they convened a new CSRT to try again. And sometimes again. the prisoner could call witnesses, but very few were allowed. Even fellow prisoners were deemed 'unavailable' and I don't think any outside witnesses, although a lot were called, testified at all. The prisoner was not allowed to see the evidence or know where testimony about them came from. Instead, they were asked to respond to particular charges: e.g., 'is it true that you met Osama bin Laden.' The guy could say no, but if someone else had said yes, that was that.

The idea was to have an administrative procedure to which the district court would defer when it heard the post-Rasul habeas cases. When the first cases came in, the government moved to dismiss them arguing, contra Rasul, that the prisoners had no constitutional or other legal rights. One district judge agreed and dismised the cases before him (Boumediene et al) and the other disagreed, and went on to find the CSRTs inadequate. These were appealed in January 2005.

While the appeal was pending, the government got Congress to pass the DTA (at the end of 2005), which would cancel the pending cases, and replace them with a limited review in the DC Circuit -- as described above. The parties filed supplemental briefing on the point, and, in a related case, the Supreme Court said that the DTA had not been properly worded to cut off pending cases. Congress then reina=stated the DTA, with proper language, in the MCA in the fall of 06.

The Circuit finally decided the case in early 07, ruling that the prisoners had no constoitutional rights, so the removal of habeas was proper. It did not reach the question of the adequacy of DTA review as a substitute, although it could have done so as an alternative holding. Judge Rogers did so in her dissent.

The Supreme Court denied cert, with two Justices (Kennedy and Stevens) saying that the prisoners should exhaust the DTA. Then, on reconsideration, they were given an up-to-date picture of how the DTA was going (including, I think, enough facts to see that the SG had made misleading statements about the status of DTA review in opposing cert) they apperently flipped, and cert was granted. Which required 5 votes.

And here we are.

The Russert news is up at the NY Times, TPM, etc. as well.

russell:

Re CSRT's and DTA, from the syllabus for Boumediene:

In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed,
holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights. While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to . . . consider . . . an application for . . . habeas corpus filed by or on behalf of an alien detained . . . at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001.”

Hope that helps.

Brick Oven Bill,

> If we continue to be stupid and
> end up losing this ideological
> battle, I may ...

I think that the continuation of this sentence is unconscionable.

I am going to lay out my reasoning.

I see the point you are trying to make. You are suggesting that if liberals do not reform their ways, America will lose its values and this will result in great suffering to the women of the country, including those of us who comment here.

That's all well and good---wrong, I think, crazy, even, but fine to say.

The problem I have is that you describe that abuse of women as something that, if it happens, you'd like to get in on. In fact, if it happens---as best as I can read your post---you're looking forward to violating the personal autonomy of one of the commenters here.

This is a problem for several reasons.

First, even if the point you're trying to make is about the behavior of others, you are the person speaking here. You may be projecting this onto others, but it's your voice expressing that interest in monstrous and inhuman behavior. You're the one suggesting a kind of salacious pleasure in the destruction of human souls.

Second, by doing so, you're taking the overall thrust of your comment from fearmongering into personal intimidation. I don't think it's reasonable to deny that there is subtext when men tell women about those *other* men who would like to hurt them, using the kinds of coded legitimating language ("take to wife", "feisty") that those *other* men would use. I think it's a kind of deliberate equivocation between direct intimidation and pointing up the monstrous behavior of others. The fact is, this equivocation is equally beneficial to the monster and the non-monster: the monster gains deniability in the threat, while the non-monster gains the weight of intimidation accordant to saying the kind of thing a monster might. Both of them gain the opportunity to laugh it off if anyone protests.

Jenna

Charley and dm, many thanks for the explanations, they are very helpful.

Thanks!

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Whatnot


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