Why Are They Doing This? (Special Habeas-Stripping Edition)

by hilzoy

As most of you know, the "compromise bill" (pdf) on military tribunals, like the various drafts that preceded it, would strip habeas rights from any alien enemy combatant detained outside the US. According to the AP, we are now holding about 14,000 detainees abroad. We have scheduled military commissions for ten of them. Of the remaining 13,990, the 450 or so at Guantanamo have already been stripped of their habeas rights, and the Graham Amendment last year said those whose cases had not already been filed could onlycontest their detention on the grounds that their Combatant Status Review Tribunals had not followed proper procedure. That leaves roughly 13,540 detainees who will be deprived of any right to contest their detention if the "compromise bill" becomes law.

I asked myself: why, exactly, are Lindsey Graham and the administration so eager to strip detainees of habeas corpus rights? In what follows, I will consider the reasons they have given, and ask whether they are plausible. (Answer: no.) In a subsequent post, I'll consider an alternative explanation.

So: why do the administration and Sen. Graham claim that we need to strip detainees of their right ro habeas corpus? Here's Alberto Gonzales testifying before the Senate Judiciary Committee on July 18, 2006:

"Second, we must eliminate the hundreds of lawsuits from Guantanamo detainees that are clogging our court system. In many instances, military commissions, not our civilian courts, are the appropriate place to try terrorists."

Here's a Word version of Lindsey Graham's speech explaining why he sought to strip habeas rights from Guantanamo detainees:

"If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security because the habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States. Three hundred of them have lawyers in Federal court and more to follow. We cannot run the place."

And here's an op-ed Graham wrote last December:

"In the past, federal courts have reviewed military tribunal verdicts involving enemy combatants who were charged with war crimes, but for the first time in the history of warfare, enemy prisoners were granted access to our federal courts to bring lawsuits against our own forces regarding their detention.

There are now close to 200 habeas petitions filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access and the right to view DVDs.

These lawsuits are undermining our ability to gain good intelligence and are placing federal courts in a role never before known in wartime."

Some of these arguments are easy to dismiss. For instance: Gonzales argues that sometimes issues should be heard by military tribunals. This is surely true, but it's beside the point for two reasons. First, before you file a habeas motion, you have to have exhausted all your other remedies. If a military tribunal was available to you, you'd have to use it before filing a habeas petition. Second, and more importantly, the vast majority of detainees do not have, and will never have, military tribunals. As I noted above, we are now holding about 14,000 detainees abroad, and we have scheduled military commissions for ten of them. The possibility that some of those ten might file petitions better heard by military tribunals -- petitions that the courts could easily dismiss -- is hardly an argument for depriving the remaining 13,990 of their legal rights.

Graham claims that what's at issue is giving "a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen." This is absurd. You don't have to be a citizen to have habeas rights in this country. As the Supreme Court held in Rasul:

"Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute's geographical coverage to vary depending on the detainee's citizenship."

(§2241 is the section of the US Code dealing with habeas rights.) I'm sure Senator Graham is aware of this fact.

Senator Graham argues that we have never given enemy detainees access to our courts before. I don't think this is true -- the plaintiffs in Quirin and Yamashita made it all the way to the Supreme Court, which would be odd if they had never had access to our courts in the first place. Moreover, the current Supreme Court disagrees with Graham: it held that our existing statutes do give detainees these rights; that's why the administration is trying to pass a law taking those rights away, instead of fighting to preserve the status quo. Most importantly, however, the fact (if it is one) that we have never done something before is not a particularly good argument for not doing it now. If it were, we would still be walking around on all fours in the savannah.

Graham claims that these lawsuits are undermining our ability to gain good intelligence." This one is harder for me to evaluate, since I have never been to Guantanamo. However, I can't really see how it could be true. Every prison in the United States has to cope with the fact that some of its inmates are involved in litigation. Somehow, they have managed. Why, exactly, is Guantanamo supposed to be so different that what is a routine fact of life at every other prison is an unmanageably onerous job there?

Graham says that habeas petitions interfere with interrogations, and that presumably is a difference between Guantanamo and other prisons: in most other prisons, detainees are not being interrogated for intelligence. However, it's hard for me to see how a habeas petition would interfere with interrogation, unless those interrogations involved illegal or unconstitutional treatment. Is the idea that lawyers' visits to their clients are so frequent that there's no time for interrogations? That's absurd. Is it that the interrogators are kept so busy answering requests for documents that they cannot interrogate the prisoners? Absurd as well. At worst, the Department of Defense might need to detail an extra person to Guantanamo to deal with legal issues; but that seems a small price to pay for ensuring that the detainees have basic legal rights.

The only remaining possibility is that what habeas claims interfere with is precisely our ability to interrogate detainees in illegal or unconstitutional ways. But that, one might think, is something that we ought to interfere with. If not -- if we believe that some form of interrogation should be allowed to proceed -- then surely we should make it legal, rather than stripping detainees of their legal rights.

There remains Gonzales' claim that habeas claims "are clogging our court system." This one is pretty easy to refute. First of all, while no one seems to know the exact number of habeas cases filed by the Guantanamo detainees, estimates range from 160 to 200. If that's enough to bring down the DC [UPDATE: District and] Circuit Courts, which are hearing most if not all of these cases, then we need to hire more judges.

Oddly enough, however, Republican Senators spent the 1990s being quite reluctant to confirm judges to the DC Circuit court. Why? Because -- and I am not making this up -- its caseload was too light to justify filling its vacancies. Here are some of the statements they made, quoted by Sen. Schumer (the relevant parts of the Congressional Record don't seem to be online):

"• Senator Sessions: “[The eleventh] judgeship, more than any other judgeship in America, is not needed.” (1997)

• Senator Grassley: “I can confidently conclude that the D.C. Circuit does not need 12 judges or even 11 judges.” (1997)

• Senator Kyl: “If . . . another vacancy occurs, thereby opening up the 11th seat again, I plan to vote against filling the seat -- and, of course, the 12th seat -- unless there is a significant increase in the caseload or some other extraordinary circumstance.” (1997)

• More recently, at a hearing on the D.C. Circuit, Senator Sessions, citing the Chief Judge of the D.C. Circuit, reaffirmed his view: “I thought ten was too many. . . I will oppose going above ten unless the caseload is up.” (2002)

In making their case, Senators expressed alarm at the thought of spending an estimated $1 million per year in taxpayer funds to finance an unneeded judgeship. Indeed, my friend from Alabama suggested that filling the 11th seat would be “an unjust burden on the taxpayers of America.”

At the time, Senators Lott, Ashcroft, Thurmond, Hatch, and Faircloth made similar declarations."

Ah, you may be saying, but that was before habeas cases started flooding out of Guantanamo, swamping the DC Circuit Court with frivolous claims. Oddly enough, however, the caseload of the DC Circuit court has dropped since then. From Sen. Schumer again:

"Here are some statistics from the Administrative Office of the United States Courts:

• as measured by written decisions per active judge, the workload has declined by 17 percent since 1997;

• as measured by number of appeals resolved on the merits per active judge, it has declined by 21 percent;

• as measured by total number of appeals filed, it has declined by 10 percent;

• and as measured by total number of appeals resolved, the caseload has declined by a whopping 37 percent."

I couldn't find statistics going back to 1997 online, but I have found them for George W. Bush's entire Presidency. Using them, we can see exactly how true it is that the DC Circuit Court has been overwhelmed by litigation coming out of Guantanamo. Here are the numbers of pending cases on various dates:

• April 1, 2000: 1265


• March 31, 2001: 1319


• March 31, 2002: 1188


• March 31, 2003: 1001


• March 31, 2004: 1102


• March 31, 2005: 1313

So it turns out that despite the deluge of frivolous lawsuits pouring forth from Guantanamo, the caseload at the DC Circuit Court is actually lower than it was before 9/11. This makes me rather doubt that the Court has been overwhelmed.

[Update: here are the civil caseload figures for the DC District Court:

• March 31, 2000: 3238
• March 31, 2001: 3340
• March 31, 2002: 3220
• March 31, 2003: 3592
• March 31, 2004: 3308
• March 31, 2005: 3309

Swamped. Swamped, I tell you. End update.]

And did you know that in 2004, there were "18,432 noncapital habeas corpus petitions filed by state prisoners in U.S. district courts, and 6,774 in U.S. courts of appeals"? Clearly, another 160-200 would be impossible for our judicial system to handle.

Moreover, Patricia Wald, a retired judge from the DC Circuit Court, says that the Court can deal with these cases quite easily:

"CONAN: Another argument from the other side involves time, that habeas corpus suits have hampered the war effort, tied up the courts. This is just going to bog things down.

Judge WALD: Well, as a former member of the D.C. circuit, where most of the action - if it’s allowed to continue - will probably be, and where indeed after the Rasul decisions - to my knowledge all, but certainly the large majority of habeas petitions were brought in the district courts. The federal district courts are pretty savvy, and they - for instance, in that situation, where hundreds of petitions were brought after the Rasul decision - were able very nicely or very expeditiously to divide them into sort of lead cases - and not class actions, but lead cases - and sent up those lead cases to be decided up the line so that the law that was made in those cases would affect all the other cases, and you wouldn’t re-litigate each case.

You would say, for instance, one of the questions was what’s the scope of things that can be raised in this habeas? Okay, you get it decided once. They next time, the next 300 cases, the court has got precedent to say you can’t bring that up. You can’t bring that up, or this is the only way you can do it.

The federal courts have dealt with everything from the asbestos-litigation controversies through the flu-vaccine controversies, which they often have to do in hundreds of cases that come out of mass torts, etc."

You can see this principle in action in a number of court documents. In this one (pdf), for instance, one and the same order is issued simultaneously in one hundred separate cases -- the list of cases goes on for four pages, and the very same order resolves the very same issue in all of them, all at once.

So I conclude that the claim that the Courts are overwhelmed by the cases coming out of Guantanamo is false. Since I've already refuted the other arguments made by the main supporters of stripping habeas from detainees, I'm left with a question: why, exactly, are they trying so hard to do this?

Stay tuned.

Comments

[Joe]

As usual, thank you.

It appears, and since the three amigos seems to think our reputation matters so much this is key, that they want to have their cake and eat it too. Claim to have protections, but not actually let them have actual bite.

Doesn't really pass the smell test. But, note the name of the Bush bill -- something about bringing terrorists to justice. Well, clearly, the point is proven. They are already terrorists, right?

Sandy Levinson also made a telling point over at TNR, maybe Dems aren't going out of their way to call Republicans the "party of torture" (a spin-off on "party of death") because they fear the public wouldn't care. Maybe, this legislation -- again "just for show" -- is meant to salve their consciences.

Actually trying these cases, allowing them to bring GC claims etc., might ruin it.

[Joe]

btw I retain my belief that stripping habeas is unconstitutional. The matter hasn't be forced, I assume, give statutory protection, but I don't see a "only citizens" exception. Also, this is no "suspension," which is temporary. Finally, due process still holds ... and that requires true judicial review.

[gwangung]

I would have thought it would be a very powerful statement to SHOW that we treat people who AREN'T of our tribe the same way as those who ARE of our tribe.

That's a sign of strength. A sign of confidence. And a sign that we are most definitely not like them.

Guess I'm wrong.

[CharleyCarp]

A quick point on interrogation: nothing about habeas necessarily means that interrogation can't take place, although obviously some conditions may not be 'optimal' once the prisoner realizes that he has human rights of some kind. This isn't a meaningful issue in Guantanamo, though, because interrogation seems to be mostly over. I mean, there's no point in interrogating people who never knew anything important (both shepherds and Taliban privates would fall into this category) or even someone who knew something relevant in 2001, but is 5 years out of touch with operations.

[bob mcmanus]

"although obviously some conditions may not be 'optimal' once the prisoner realizes that he has human rights of some kind."

CC pretty much handled what came to my mind, that despair might help in interrogations.

[matttbastard]

Newsday:

Most Democrats remained silent about the deal Friday, though Rep. Ike Skelton (D-Mo.) called parts of deal "promising" and Rep. Edward Markey (D-Mass.) condemned it as "legal mumbo-jumbo" that allows torture.

"The key to this deal will be whether Congress exercises real oversight over the CIA interrogation program," said California Rep. Jane Harman, who as the top Democrat on the House Intelligence Committee has been briefed on how the CIA handles terrorism suspects.

Yet as Republican leaders in the Senate and House prepared to act quickly on the legislation next week, Democrats appear ready to go along, to rebut GOP charges that they are weak on national security.

AP chief congressional correspondent David Espo has more on the 'get tough' election strategy that will likely lead to the latest Democratic rollover:

Six weeks before elections, the Democratic strategy for the war on terror is one part attack
President Bush and one part agree with him. The goal is to court voters dissatisfied with the job the administration has done, yet avoid being tagged as soft on
Osama bin Laden.

"Democrats are united behind the need to work on a bipartisan basis to bring terrorists to justice, and to do it in a manner consistent with our laws, our values and our national security," Senate Democratic Leader Harry Reid said a few hours after Bush and rebellious Republicans ended a week-long dispute and compromised on a plan for interrogating and trying terror suspects.

He didn't quite say so, but it seems likely the deal announced Thursday — and blessed by Sen. John McCain of Arizona as well as Bush — will draw significant Democratic support when it reaches the Senate floor.

[...]

Democrats, primed by poll-tested advice, are projecting strength this time, determined not to let Bush and the Republicans outflank them once again.

"Welcome the national security debate and engage in it," several top strategists advised in a recent memo. Another recommendation: "stress the seriousness of the threat and Democrats' determination to address it using statements such as: "We need stronger tools to monitor, hunt down and kill terrorists."

Third, Democrats were advised to accuse Bush of mismanaging the war in Iraq. Not coincidentally, they intend to hold a public forum on Monday and say former top-ranking military officers who served in Iraq will testify about mismanagement in the conflict.

Finally, the memo from Democracy Corps says "stress that Democrats offer a 'better way to fight terrorism.'" Example: call for the inspection of all cargo containers entering the country

No mention of detainee treatment or Geneva obligations in the gameplan, so I think it's safe to rule out any chance of a filibuster. The Dems appear wary of potentially alienating an electorate that it believes is more concerned with personal 'security' than the rights of 'terrorists'.

Yet according to a recent CBS/NY Times poll, "[m]ost Americans, 56 percent, say torture is never justified, while 35 percent say sometimes it is." An even larger percentage, 63%, believe the US should adhere to international agreements.

Unless the Dems grow a pair, give the electorate some moral credit, and tell the unvarnished truth about the 'compromise' bill, the Bush admin will be successful in its longstanding bid to 'define down' torture into something more palatable to mainstream sensibilities, thus enshrining torture in US law.

Unfortunately, seeing how they were utterly gamed this week by McCain, Warner, Graham and the White House, I really don't think that the Dems are up to the responsibility. As Dan Froomkin says, "the American public deserves to hear a full and open debate on this important moral issue. And if Congress won't host it, then it's up to the Fourth Estate to rise to the challenge." Froomkin also gives voice to a silent concern of mine:

Have the senators been assured that Vice President Cheney won't get Bush to attach a "signing statement" to this bill, asserting his inherent powers, as he did the last time he signed torture legislation?

Is Bush planning to once again use his patented signing statement sidestep?

[dmbeaster]

To highlight the grotesque nature of this torture bull, imagine the typical Abu Gharib photos and then add the caption "Sen. McCain and Pres. Bush have made this legal."

If they are going to immunize torturers retroactively in order to ease the worry of the CIA, how about Lyndie England? Does she get out of jail now?

[Ginger Yellow]

btw I retain my belief that stripping habeas is unconstitutional. The matter hasn't be forced, I assume, give statutory protection, but I don't see a "only citizens" exception. Also, this is no "suspension," which is temporary. Finally, due process still holds ... and that requires true judicial review.

Moreover, the constitution only allows suspension "in Cases of Rebellion or Invasion", neither of which apply.

[John Thullen]

I fully expect to see Lyndie England's face in political attack ads in the last few days before the election.

Democratic attack ads? No, baby. She'll be trotted out by swift-boating Democrat haters to warn the American people in select close races around the country that Democrats are planning to raise taxes. She might even put Katheline Harris over the top.

There will a hooded taxpayer in soft focus in the background being tasered and vivisected as she points out that blastocysts everywhere are in danger from government-loving, atheistic, baby-killing, terrorist-loving, mortal and dhimmitudinous homosexual enemies of America.

The scum at Redstate will feature her with an introduction that starts "While I understand Lyndie's behavior at Abu Ghraib, she is doing her time like a man. And, I must say she has a good point or two about our true enemies within, who as good as fire the weapons that kill our soldiers in Iraq."

(Parody? No. It's barely paraphrase.)

The Republican Party, in the year 2006, just won a midterm election with the cattle prod strategy.

2008 will look like Shi-ite versus Sunni in American streets.

Terror is very, very good for the Republican Party. What's not to like?