Patterico's Pontifications

12/5/2007

Gitmo Cases Heard Today

Filed under: General,Law — Patterico @ 7:21 am

The Gitmo cases are being heard today. The AP has a report here.

I never heard whether the Court will be releasing the audio of the argument today, but it wouldn’t surprise me. If so, I’ll be very interested to hear it.

My take is that the Administration is certain to lose this case — and that, very possibly, it should. I started reading one of the petitioner’s briefs recently and found it persuasive. I’m withholding final judgment on the proper outcome until I’ve read all the briefs and heard the argument. But I know enough to confidently predict that the Administration will lose.

90 Responses to “Gitmo Cases Heard Today”

  1. Excuse me, but people picked up on a battlefield with weapons and no uniform have no call to be protected by the Geneva Conventions, nor the US Constitution. They are terrorists.

    This is a war against terrorism. POWs are held until the hostilities are over and then only released after due deliberation by the military. There are no set terms for POWs, nor should there be for terrorists. POWs do not get tried in US courts for actions not in the US. Neither should terrorists.

    PCD (09d6a8)

  2. Excuse me, PCD but are you saying that all of the Gitmo detainees are people picked up on the battlefield?

    Are you worried that forcing the Admin. to better define or do away with the term “unlawful combatant” will allow persons picked up on a battlefield to go free?
    I agree that that would be a bad thing.

    EdWood (c2268a)

  3. PCD: Where was Boumedien picked up? Not on a battlefield. Did he have weapons? No.
    .
    There isn’t a “one size fits all” rule here, the rule depends on the circumstances of the detainee. There is a fundamental due process issue involved. Otherwise, any one of us could be in a similar situation, albeit at the hands of a different country who decided to take our liberty, and hold us without meaningful recourse to challenge the justification for being detained.

    cboldt (3d73dd)

  4. The audio will stream on CSPAN-3 starting soon, if it hasn’t started already. HowAppealing and SCOTUSblog have links.

    cboldt (3d73dd)

  5. Give me a break, when we start to give terroist rights this country is doomed…

    red (6f01f1)

  6. cboldt – Please explain the fundamental due process at issue here. Specifically, explain to us how a foreigner, picked up in a foreign land, from the field of battle in a war we are engaged in within the parameters of the rules of war, is entitled to access to the American legal system.

    JD (2c9284)

  7. Some of the detainees deserve to be there, some do not. Some of the detainees want to be there, some do not.

    As much as I agree with the concept of Guantanamo, I believe that the process should have been created with more foresight. However, I do not assign the lack of foresight to any devious desire to deny the detainees their “rights”, I assign it to the tight time frame officials had to make a decision on what to do with the people stacking up in Afghanistan.

    What is upsetting is the cult-like mantra that Guantanamo is a torture center and an example of a miscarriage of justice. As much as the Administration can be blamed for lacking foresight, Guantanamo’s critics can be blamed for not only lacking foresight of their own, but also hindsight.

    Maydayog (f81ab3)

  8. Specifically, explain to us how a foreigner, picked up in a foreign land, from the field of battle in a war we are engaged in within the parameters of the rules of war

    JD, are you asserting that this description fits every single one of the 305 detainees?

    Moops (444e9b)

  9. C-SPAN3 is starting the audio stream. Runs about 1:20, and will replay Saturday as well.

    cboldt (3d73dd)

  10. JD – the fundamental due process issue asserted by Boumediene is that he wasn’t on a battlefield (he was being released by Bosnian authorities, back to the streets of Bosnia), and that he hasn’t been given any opportunity to challenge the basis of his detention … he can’t rebut the evidence, because he hasn’t been told what the evidence is. He also hasn’t been charged.
    .
    It’s an “interesting” conundrum for the detainee. What recourse would an American have, if similarly taken (from the US or a US base), then held by Russian military (or Chinese, or any other foreign government), with no right of access to the foreign country’s court. Would we say there was an issue with fundamental due process in that case?

    cboldt (3d73dd)

  11. the fundamental due process issue asserted by Boumediene is that he wasn’t on a battlefield (he was being released by Bosnian authorities, back to the streets of Bosnia), and that he hasn’t been given any opportunity to challenge the basis of his detention …

    Has he been in front of a tribunal?

    Pablo (99243e)

  12. For the record: above and beyond the diplomatic efforts of the detainees’ home nations, the MCA and DTA do in fact give aliens judged to be enemy combatants by the CSRTs a means of challenging that adjudication. The MCA provides for review of the legality and constitutionality of CSRT procedures in the D.C. Circuit Court of Appeals, with discretionary review in SCOTUS. This is far more process than enemy aliens have historically been accorded.

    Even if the Court overrules Johnson v. Eisentrager and decides that a) enemy aliens have habeas corpus rights under the Suspension Clause of the Constitution, and b) Congress has not validly suspended those rights here, it will still have to decide c) whether the MCA’s provisions for review in the D.C. Circuit are an adequate alternative to habeas. I think the answer to that question, should the Court reach it (which it probably should not, given the crystal clear language of the MCA’s jurisdiction-stripping provisions, and the merits), is plainly “yes,” but I agree with Patterico that the Court will almost certainly not see things that way.

    NYC 3L (625631)

  13. cboldt – Do you know of any precedents where the U.S. has given aliens (alleged combatants) detained outside of the U.S. or its territories or possessions the rights of habeas corpus?

    daleyrocks (906622)

  14. Pablo: Yes, Boumediene has been in front of a CSRT tribunal. But he asserts that there is a lack of specificity in the charge, more or less that he hasn’t been told what constitutes the evidence that justifies detention without charge.
    .
    daleyrocks: No. I know of no such precedent. Do you know of any precedent where a person was taken from a civilian environment and held by a foreign country without being charged?

    cboldt (3d73dd)

  15. cboldt – There is no requirement for us to charge enemy combatants with any crime. The CSRT is to review their status. Surely this is not news to you.

    daleyrocks (906622)

  16. The BBC has an interesting article on the 16th Century background of all this:

    http://news.bbc.co.uk/2/hi/americas/7127194.stm

    JayHub (0a6237)

  17. daleyrocks: Sorry I wasn’t more precise for you. When I said “charge” I didn’t mean for it to be taken narrowly as “charged with a crime.”
    .
    I meant for it to be taken as “held without sufficient reason.” Surely you admit that some of the GTMO detainees were so held.
    .
    I understand that once one reaches the conclusion “enemy combatant,” holding them becomes less problematic. What Boumediene is challenging is that very finding. The circumstances of his capture make it fairly easy for him to mount that challenge.
    .
    And, if you are of the mind that all the people under detention are, without a doubt, enemy combatants, then we have nothing to discuss. Your mind is convinced.

    cboldt (3d73dd)

  18. I really see people here wanting to just turn loose ALL the detainees. cboldt is trying to treat this as a CIVIL action, not actions of Terrorism outside the articles of War.

    All I have to say is that to let every one have to be Mirandized and allowed a shyster when they are caught with an IED, an AK47 or an RPG in a combat zone is suicidal, if not sheer idiotcy.

    PCD (09d6a8)

  19. cboldt – Glad you cleared that up.

    “The circumstances of his capture make it fairly easy for him to mount that challenge.”

    Certainly there are many arguing on his behalf and I am not familiar with his background in Bosnia. The purpose of the CSRT’s is to allow detainees to challenge the status of their detention. I am not of the mind that everyone we have detained has been rightfully detained, but I do not believe all the stories of innocent shepherds being sold into detention promoted by the left on the other hand.

    daleyrocks (906622)

  20. Nope, moops. When in doubt, your assumptions should be assumed to be wrong.

    JD (2c9284)

  21. The circumstances of his capture make it fairly easy for him to mount that challenge.

    I highly doubt this.

    All one would have to prove to me is that he was engaged in acts of war before his detention in Bosnia and intended to commit more after his release to justify detaining him as a combatant. Considering that the acts of war are also by definition, thanks to his allegiance, war crimes makes it all the easier.

    chaos (9c54c6)

  22. daleyrocks: The purpose of the CSRT’s is to allow detainees to challenge the status of their detention.
    .
    I’d say to allow them to challenge the basis for their detention. I’m not sure if the allegations of evidence to be precluded from CSRT and DC Circuit review, as described by Mr. Waxman in his rebuttal, are accurate, but if they are, he describes a particular circumstance that fails to meet my sense of fundamental due process. The supposed “al Queda cohort, who blew himself up in a suicide attack” is still alive, and living among civilians in Dresden, Germany. That evidence would be precluded in a CSRT hearing (says Waxman).
    .
    PCD: cboldt is trying to treat this as a CIVIL action, not actions of Terrorism outside the articles of War.
    .
    Negative. I’m just arguing “not one size for all.” If the evidence is that a person is in fact a terrorist, I sure wouldn’t hold them for life. I’d kill ‘em.

    cboldt (3d73dd)

  23. No one has ever addressed this simple issue. It’s been 6 years. Why haven’t the people detained either been tried and found guilty or innocent, or executed as applicaple under the Geneva convention for unlawful combatants?

    What purpose does keeping people in suspended animation for 6 years serve? Even if we executed everyone there after a fair trial, there would be less outrage than there is over the status quo.

    Minturn (2a8465)

  24. For those who claim to know that some or many of the Gitmo detainees are innocent civilians, please provide their names and the condition of their capture. No hearsay please.

    tmac (5408eb)

  25. For those who claim to know that some or many of the Gitmo detainees are innocent civilians, please provide their names and the condition of their capture. No hearsay please.

    I do not know their names, nor would I reveal them if I did, but in my opinion some of the detainees do not belong in Guantanamo.

    Maydayog (f81ab3)

  26. One of the interesting things I’ve seen reported elsewhere is the concept that GITMO is, essentially, a territory of the United States (attributed to Justice Kennedy). I would be deeply interested in knowing how a base on foreign soil is U.S. “territory”?

    A U.S. territory is normally property ceded to, or purchased by, the United States Government from a foreign government. Hence, Guam, Puerto Rico, and the U.S. Virgin Islands are territories, and their governments were created by Acts of Congress. Meanwhile, U.S. bases in Germany, Italy, Okinawa, etc., are NOT U.S. “territories.” The persons at those bases (both military and civilian) have their jurisdiction defined by a Status of Forces Agreement with the host government. Thus, military personnel are prosecuted by the Uniform Code of Military Justice, and U.S. civilian dependants are subject to federal prosecution in the U.S.

    Although I may be mistaken, GITMO is a U.S. base due to a treaty with pre-Castro Cuba. Since we don’t have formal diplomatic ties with Cuba due to Castro’s nationalization of U.S. property following his revolution, we don’t have a jurisdiction agreement with Cuba over GITMO. How does GITMO become U.S. territory where the Supreme Court can assert its purported jurisdiction? The Law of Land Warfare certainly does confer such jurisdiction to the Supreme Court.

    509th Bob (96a8a6)

  27. Heck, the government claims that some of the detainees shouldn’t remain in detention. I don’t know what the government’s basis for that is, but even the government hasn’t demonstrated unequivocal certainty in its justification for ongoing detention.

    cboldt (3d73dd)

  28. Nope, moops. When in doubt, your assumptions should be assumed to be wrong.

    Then your comment is pointless. I should probably assume that of all your comments, when in doubt.

    No hearsay please.

    Hearsay evidence is admissible in proceedings before the CSRTs.

    Moops (444e9b)

  29. Oops! Law of Land Warfare does NOT confer jurisdiction to the Supreme Court.

    509th Bob (96a8a6)

  30. JD, are you asserting that this description fits every single one of the 305 detainees?

    moops (love the name, btw),

    Even if it does not fit every single one of the 305 detainees, or even of the detainees who have been released…

    JD still has a pertinent point.

    Maydayog (f81ab3)

  31. cboldt – basis or status, no difference in my mind. We are talking about the same thing. The government is obviously releasing prisoners as it determines they have been wrongly detained, better detained by their home countries, or of no danger. I find it very interesting that many of the prisoners do not want to go back to their home countries. Is that because of their innocence?

    daleyrocks (906622)

  32. “The government is obviously releasing prisoners as it determines they have been wrongly detained, better detained by their home countries, or of no danger. I find it very interesting that many of the prisoners do not want to go back to their home countries. Is that because of their innocence?”

    I repeat myself again and again.
    INNOCENT, BUT IN LIMBO AT GUANTÁNAMO
    Five Chinese Muslims, captured in Pakistan by mistake, try to get the US Supreme Court to take their case.

    And there are others, documented.

    blah (fb88b3)

  33. blah and cboldt – I will rephrase what I read as daleyrock’s question at #31. When answering, please restrict yourself to only the terms of this question before moving on to other remarks:

    GIVEN: A detainee does NOT want to go back to their home country, despite being offered the option. In this case and only this case, do you think that is because they are innocent?

    (Implied: “Yes” or “no” only)

    (daleyrocks, please correct me if I’m misreading your question)

    Dave (391b76)

  34. blah – As of the end of 2005, about 20 countries have turned down our requests to take the Uighurs. Albania has taken five. They want to attack the Chinese government, which would cause us some diplomatic problems granting them asylum in this country. What are your suggestions?

    daleyrocks (906622)

  35. Dave – You’re on the right track. If these prisoners are a bunch of innocent shopkeepers, religious students and shepherds sold into captivity by bounty hunters, why would they object to going home? Is something wrong with that picture?

    daleyrocks (906622)

  36. “In this case and only this case, do you think that is because they are innocent?”
    To be returned into the clutches of what, the government of the PRC? Syria? Are these governments you now support?
    What is someone “guilty” of by the act of opposing these governments?

    More to read

    blah (fb88b3)

  37. blah – Do you have a suggestion for the Uighurs or are you just complaining?

    daleyrocks (906622)

  38. GIVEN: A detainee does NOT want to go back to their home country, despite being offered the option. In this case and only this case, do you think that is because they are innocent?
    .
    I assume if they are given the option of going back to their home country, our government has determined they are “innocent.” If we have reason to hold them, they are guilty, and we should continue to hold them.
    .
    But, assuming the absurd hypothetical you posit, that the government wants to return “guilty” people, I would say that the detainee is comparing treatment there with treatment in GTMO.
    .
    If, OTOH, you mean that there is uncertainty as between innocence and guilt; and a detainee chooses GTMO; my answer has to follow the uncertainty as to guilt and innocence — but I’m pretty sure detainees look to treatment by captors, regardless of a factual determination of guilt. I know I would. And I’d rather be in GTMO than Syria. Guess that makes me guilty, eh?

    cboldt (3d73dd)

  39. I assume if they are given the option of going back to their home country, our government has determined they are “innocent.”

    This is an incorrect assumption.

    But, assuming the absurd hypothetical you posit, that the government wants to return “guilty” people, I would say that the detainee is comparing treatment there with treatment in GTMO.

    It is not an absurd hypothetical.

    Maydayog (f81ab3)

  40. cboldt – “but I’m pretty sure detainees look to treatment by captors, regardless of a factual determination of guilt.” Absolutely. Our standards of determining whether someone is an enemy combatant or a threat may differ from that detainee’s home country. That creates a dilemma for both ourselves and some of the detainees, doesn’t it.

    daleyrocks (906622)

  41. Here’s the story of one group of prisoners.
    From Sarajevo to Guantanamo: The Strange Case of the Algerian Six

    And here’s good coverage of today’s argument on Law.com

    blah (fb88b3)

  42. If the Court does indeed extend constitutional habeas rights to enemy detainees, then does this not mean that every combatant/soldier captured overseas in every war in the future also must be given access to civilian courts and a habeas hearing?

    And will this just be limited to habeas? How many appeals? Endless?

    As I understand the history, the US has never – never – extended habeas rights to those we have captured in the 60+ wars (large and small) we have been a party to. Furthermore, I cannot think – and I’ve heard no one document it – no country has ever engaged in such an action.

    Is there an example?

    Think about the implications of what will happen and apply them backwards. During WWII, we had captured something like 150,000 German males during the march eastward. Imagine having to give habeas hearings to each one of those detainees.

    Impossible. And dangerous. And would have made the war more difficult and onerous to fight. Meaning more soldiers would be killed.

    We all like to play the game of “If the Founders were here they would say ‘A’”, but I cannot believe that Madison et al. intended for the Constitution to be applied to enemy combatants held overseas.

    Now, whether Guantanamo is indeed foreign soil is another debate.

    My guess is that the Court will rule in favor of the detainees. Kennedy with the deciding vote but he’ll try to narrowly draw lines so that it only applies to Guantanamo and not future wars.

    SteveMG (b4f536)

  43. That’s indeed the problem, SteveMG, this kind of legal argument will give us a completely ridiculous Supreme Court ruling I expect.

    SPQR (26be8b)

  44. No.
    Simply no.

    The Guantanamo cases are about the grey area of irregular combatants. Soldiers have rights and prisoners in civilian courts have rights, each under different jurisdiction. Where do the people in Guantanamo fit in?
    read this and or this

    blah (fb88b3)

  45. I have started reading all the papers on this case, as well as the trascript from today’s hearing. You can find it here:

    http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-1195.pdf

    I’m hard-pressed to see how it is Patterico thinks the Gov’t will lose this case. It seems pretty clear to me that there is no basis for habeas review here, which is exactly what the DC Circuit said. I don’t see Kennedy being the 5th vote given his prior votes in Rasul and Hamdi, and some of his questions today.

    I’ll have more on this later, probably a new post with my view on the proceedings.

    wls (dfa1f1)

  46. “Waxman told the justices about Murat Kornaz, a German resident and Guantánamo detainee who was released in 2006 after years of unsuccessful efforts to prove that he had no relationship to terrorists. Coincidentally, The Washington Post ran a lengthy story about Kornaz on Wednesday.
    Kornaz was able to win his freedom only because he had a lawyer — which the new appeals process does not guarantee — and because he was able to obtain information about the charges against him and then prove the information was false, according to Waxman.
    Those opportunities would not be available to detainees under the appeals process envisioned by Congress, Waxman said. “That is why it is inadequate.”

    blah (fb88b3)

  47. Soldiers have rights and prisoners in civilian courts have rights, each under different jurisdiction. Where do the people in Guantanamo fit in?

    Fit in in our Constitution?

    How can the Court rule that alien enemy detainees (non-soldiers) have Constitutional habeas rights but alien enemy soldiers do not? Simply because one group wears a uniform and the other group doesn’t?

    Either aliens (any variety) held *overseas have habeas rights or they don’t. If they wear uniforms, they lose habeas rights; if they take the uniforms off, they give up/not have habeas rights?

    That can’t withstand Constitutional scrutiny. ACLU/CCR lawyers will be all over it.

    I don’t believe that these detainees have habeas rights (constitutional not statutory). But if I thought they did – or the Court rules they do – we must – must – extend those rights to uniformed detainees/soldiers as well.

    No other way around it that I can see.

    *Assuming that Guantanamo is overseas, i.e., not sovereign US territory (which it apparently is to at least 5 Supremes).

    SteveMG (b4f536)

  48. tmac@#24:

    For those who claim to know that some or many of the Gitmo detainees are innocent civilians, please provide their names and the condition of their capture. No hearsay please.

    His name is Murat Kurnaz, a German national, who was pulled off a bus in Pakistan in December 2001. He was finally released in August 2006.

    I read about him this morning in the WP. AJB@#37 already posted a link, but here it is
    again.

    I remember something about some British tourists that got swept up being released last year as well, and I’m sure there are other instances, but I’m too lazy to go searching for links so feel free to discount that as heresay.

    I agree these are likely just exceptions, but clearly a better process needs to be worked out. We would find this absolutely unacceptable if it was our own citizens being treated in such a reckless manner by another country. Look at our collective outrage over the incarceration of the British teacher in Sudan – and at least she ostensibly broke some (stupid, stupid) law. Murat was just some poor kid on vacation in the wrong place at the wrong time.

    Bob Loblaw (23d1c4)

  49. “Specifically, explain to us how a foreigner, picked up in a foreign land, from the field of battle in a war we are engaged in within the parameters of the rules of war, is entitled to access to the American legal system.”

    At one level, the court can determine whether these people are entitled to access. Next, it can determine whether these facts (foreigner, foreign land, field of battle, war we are engaged in within within paramaters) are true.

    Or congress could just pass a law that gives them access.

    whitd (10527e)

  50. People are missing an important point here. It is very well established that POWs do not have the right to habeas corpus. That’s not at issue here. The question here is whether Boumedien is a POW in the first place. He claims that he isn’t, that he never waged war against the USA or its allies, he’s just some random stranger who’s been picked up and held, he knows not why. So those who claim that he has no right to a hearing because POWs have no such right are begging the question.

    We don’t know whether he has a right to habeas, because as far as I know this question has never come up before. But if he does have the right, all the government needs to establish is that he did fight for the enemy, and at that point the case is over. The government does not have to explain its reasons for keeping him, it can keep him essentially until it decides to let him go, and no court can inquire further into the matter. He could be waving a presidential pardon and release order, and claiming that the commandant of Guantanamo is refusing to obey the order, and no civilian court would have the jurisdiction to hear that claim. (That was established in The Case of Three Spanish Sailors.)

    Now in the case of 99% of POWs there is no question about the circumstances of their capture. It’s clear that they were taking part in war against the USA, and therefore they are POWs and the government can hold them as such. If they petition for habeas, claiming not to have done so, then it would be a simple matter for the government to prove otherwise, and charge them with perjury, sentence to be served after the war is over and they would be ready to go home. So they’d be stupid to make such a frivolous petition.

    The problem here is, what if the evidence that Boumedien was an enemy fighter is secret, and can’t be revealed in an open court? In an ordinary criminal case, if the government can’t present its evidence then it has to let the criminal go. There’s no such thing as secret testimony and anonymous witnesses, etc. In wartime, though, that’s not acceptable. We can’t let enemy fighters go, to rejoin the fray, and accept it as the price we pay for liberty. So what do we do when we know (or strongly suspect) that someone is an enemy fighter, but we can’t prove it by the standards of a civilian court? It’s a problem.

    Milhouse (f10fb3)

  51. I agree these are likely just exceptions, but clearly a better process needs to be worked out.

    Why isn’t the current process – MCA and DTA w/one habeas appeal to the DC Federal Courts – acceptable?

    As has been noted, near the end of WWII, the US was holding something like 150,000 German males. I’m reasonably sure that a number of those men – probably in the thousands – were simply German males swept up during the war.

    The problem we face is that the ACLU and Center for Constitutional Rights will not accept anything less than full trials in civilian courts for each detainee. Right to counsel, discovery, endless appeals, the whole nine yards.

    The standard that it is better that a thousand guilty men go free instead of one innocent man going to jail simply cannot work in a war.

    It’s war; not a criminal act.

    SteveMG (b4f536)

  52. 509th Bob, at 26: we have a lease on Guantanamo, signed with the first independant government of Cuba (when we granted them independance after the Spanish American war). We have made payments on that lease every year since the revolution. Castro has never accepted the payment.

    JD: I note that you haven’t answered the question posed in #10. I submit that if the Russian government were to pick up an American citizen in the US, and transport him to a Russian base in Cuba, where he would be held indefinitely under the theory that he was somehow involved in supporting the Chechnyan insurgency against the Russian government, we would be outraged, and would consider it to be a crime against humanity. Why is it any different if we do it?

    SteveMG, at 48: how do you distinguish between those who have habeus rights and those who do not? Are you saying that no aliens have habeus rights? No aliens apprehended outside the US?

    I take you to be saying that there is no way to distinguish between aliens apprehended on the field of battle and aliens apprehended in some other country far from the field of battle. If that’s true, you can’t draw the line between those with habeus rights and those who do not where I want to; so where would you draw it?

    aphrael (e0cdc9)

  53. It is odd that this silly issue has suddenly become a controversy. And its an example of the dangerous tendency for US courts to think that they should be at the center of every problem in the world. Six decades ago, the Supreme Court had no dilemma in seeing these issues as not their business.

    What this silliness really means, however, is that the US will close down Guantanamo. Now all the BDS sufferers think this will be a wonderful solution, but in fact it means that the US will simply house its prisoners in more secret facilities around the world. Those facilities will have less transparency, less supervision by IRC, etc. More of our prisoners will be held by allied governments. And more of our prisoners will be mistreated. And our troops will have less incentive to accept surrendering enemy.

    This nonsense will make a few people puff themselves up with their self importance while benefiting no one.

    SPQR (26be8b)

  54. Six decades ago the issue never came up. As far as I know no prisoner ever claimed not to have been serving the enemy. In the two 18th century cases that have been cited as precedent in this case, the petitioners openly admitted to having served the enemy and to have been properly taken as POWs. They sought habeas anyway, and their cases established the principle that POWs have no access to the civilian court system, that no civilian court can order the release of a POW no matter how good a case he mades for why he should not be held.

    But we don’t know how the court would have ruled had either Schiever or the Spanish Sailors denied ever having waged war, and claimed that they were innocent civilians kidnapped by evil people. Maybe it would have said “if you’re being held as a POW we have no jurisdiction”, but maybe it would have asked the government why it was holding them; if it had done that, perhaps it would have taken the government’s sworn word and not demanded proof, or maybe it wouldn’t have. We don’t know, because in those cases it never even got that far.

    Milhouse (f10fb3)

  55. Soldiers have rights as POW’s, they are not the issue. The links I posted explained this. Here’s the Wikipedia link. I’ll post the first paragraphs with the footnotes stripped, but you should go there and follow them:

    Civilians who directly engage in hostilities, are considered unlawful combatants or unprivileged combatants/belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action.[1] Once a combatant is found by a competent tribunal to be an unlawful combatant, he or she no longer has the rights and privileges accorded to a prisoner of war (POW), but he retains all the rights any other civilian would have under municipal and international law in the same situation.[2]
    Article 5 of the GCIII states that the status of detainee may be determined by a “competent tribunal”. Until such time, he is to be treated as a prisoner of war.[3] After a “competent tribunal” has determined his status, the “Detaining Power” may choose to accord the detained unlawful combatant the rights and privileges of the POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be “treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial”.[4]

    blah (fb88b3)

  56. If that’s true, you can’t draw the line between those with habeus rights and those who do not where I want to; so where would you draw it?

    Well, to be a bit (well, a lot) sneaky, I’m not drawing it. I’m interpreting what I think the Constitution says.

    And it’s not whether I like it or not. Whether it’s fair or not. Just or not. Good or not. Dangerous or not. Or whether the US looks good in the eyes of the world or not.

    It’s whether it’s constitutional or not.

    I’ll stay with what I understand to be the 200+ years of the law in this country. I.e., Aliens held overseas do not have habeas rights under our constitution.

    No Anglo-American court has ever given it to them before, as I understand it.

    Should we establish statutory habeas rights? Yep. But, it seems to me that the current process – as tortured (ahem) as it is – works. DTA/MCA with one appeal to the DC Federal Court.

    Why isn’t that a sufficient safeguard?

    SteveMG (b4f536)

  57. Milhouse, the issue did arise. Ex Parte Quirin was a habeus case regarding captured German “unlawful combatants” who had been captured in the continental US and tried by military courts.

    SPQR (26be8b)

  58. SPQR,

    But did the detainees in Quirin deny they were fighting for and/or acting on behalf of Germany? I think that’s Milhouse’s point.

    DRJ (a6fcd2)

  59. Actually, I think one did deny that he was fighting for Germany, claiming he was going to turn himself in voluntarily. But I don’t think that is a valid distinction because what they were disputing was the denial of a habeus right itself as well as being tried outside the civil court system even though they were picked up on the continental US.

    SPQR (26be8b)

  60. Soldiers have rights as POW’s, they are not the issue

    Yes, but those are statutory rights.

    The issue on the table is whether aliens – soldier or non-uniformed combatants – held overseas have constitutional habeas rights.

    It’s the contention by several of us – and I cannot see how it can be argued otherwise – that if constitutional habeas rights are extended to aliens held overseas, it doesn’t matter whether those aliens are soldiers or not.

    Aliens qua aliens have habeas constitutional rights. Soldiers, sailors, terrorists, whatever form they are in.

    The current detainees have also been given statutory habeas rights. Limited, to be sure.

    But the critics say that that is not enough. They want full constitutional habeas rights in civilian courts.

    SteveMG (b4f536)

  61. I should correct my #60, as in fact two of the eight German saboteurs actually did walk into the FBI offices to turn themselves in, and all eight were later sentenced to death. The Supreme Court refused their petition, and the two who surrendered had their sentence commuted while the remaining six, including a naturalized US citizen, were executed days after the Supreme Court’s order.

    SPQR (26be8b)

  62. SteveMG: the constitution doesn’t define habeas corpus, it seems to draw on some pre-existing definition at English common law. :)

    So, wht you are saying is that an alien *held* overseas has no habeas rights. I have three questions, then:

    (a) does an alien held in the US have habeas rights? I assume from your phrasing the answer would be yes.
    (b) does a US citizen held overseas have habeas rights? I assume from your phrasing the answer would be yes.
    (c) does an alien apprehended in the US and moved overseas have habeas rights? I assume from your phrasing the answer would be no … but ISTM that such a rule would make habeas rights for aliens held in the US meaningless.

    No Anglo-American court has ever given it to them before, as I understand it.

    I don’t know about the situation in other common law countries. But I don’t think you can find an analagous situation in US history, where an alien was apprehended in a country removed from the battle. So there’s no real precedent.

    aphrael (e0cdc9)

  63. Aphrael, what battle was going on in Chicago in 1942 when Haupt, a naturalized US citizen, was arrested?

    SPQR (26be8b)

  64. SPQR: a naturalized US citizen is a US citizen, no? So therefore he’s not an alien. As a non-alien, he can’t possibly have been an alien apprehended in a country removed from the battle.

    But I should amend me statement to say ‘an alien apprehended in a foreign country removed from the battle’. An alien apprehended in the US is covered by a different set of rules than an alien apprehended overseas.

    aphrael (e0cdc9)

  65. “The current detainees have also been given statutory habeas rights. Limited, to be sure.”
    Read #47
    And again, I’ll say that the answers to your questions are in the links I supplied.

    I’m out

    blah (fb88b3)

  66. the constitution doesn’t define habeas corpus

    Okay, got me. ‘Course it doesn’t define a “right to privacy” either but we infer that right from the Fourth, et cetera.

    Answers (and you’re pushing my understanding of the law real hard here):

    (a) yes;
    (b) yes; and
    (c) yes.

    If they’re apprehended here, and they’re here legally, they have constitutional habeas rights.

    If they’re not here legally, they don’t have constitutional habeas rights.

    Statutory? Yes; Constitutional? No.

    My turn: Why isn’t the DTA/MCA a sufficient safeguard?

    SteveMG (b4f536)

  67. Aphrael, I would think that a U.S. citizen apprehended in the US itself and yet being denied habeus is a far more influential precedent.

    But that case dates from a time when it wasn’t considered good sport to interfere with the conduct of military operations for frivolous political posturing.

    SPQR (26be8b)

  68. But I don’t think you can find an analagous situation in US history, where an alien was apprehended in a country removed from the battle. So there’s no real precedent.

    Well, we captured/kidnapped something like 3,000 German and Italian physicists and scientists far from the battlefield during WWII.

    Brought them back here and questioned them extensively, mostly about the status of the German nuclear program but also other areas.

    Google: Moe Berg.

    SteveMG (b4f536)

  69. Ah, good point Steve. I’d forgotten about that program – fascinating little episode with Berg working in an intel op to find people who had worked on Axis nuclear weapon programs.

    SPQR (26be8b)

  70. SPQR,
    We have no occasion now to define [*46] with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons [**20] according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries

    Ex Parte Quirin seems to say that the people being tried conceded facts which were plainly within the boundaries of military tribunals.

    What recourse for those who do *not* concede such facts? I don’t see how Quirin has precedential value for that question.

    aphrael (e0cdc9)

  71. (a) does an alien held in the US have habeas rights?
    .
    SteveMG: (a) yes

    JUSTICE SCALIA: Counsel, we had 400,000 German prisoners in this country during World War II. And not a — you say it’s clear in the Vietnam example that the Chief Justice gave you, it’s clear that habeas would lie. 400,000 of these people. It never occurred to them.

    And so, the issue of access to an independent finder of fact perhaps doesn’t turn on the geographic site of detention.

    cboldt (3d73dd)

  72. Well, we captured/kidnapped something like 3,000 German and Italian physicists and scientists far from the battlefield during WWII. Brought them back here and questioned them extensively …
    .
    And not a single habeas corpus case? Although, I suspect they were quite clear about the rationale for being nabbed and detained.

    cboldt (3d73dd)

  73. Let’s track back, you capture Mohammed Atta in the spring of 2001; on one of his many trips between the US, Spain, Czechoslovakia? He’s just a German educated, Egyptian born urban planner with a pilots license. He has prayed at a radical mosque, but is that crime. Al Hamzi and AlMidhar, are a different story, but then again they were let into the country; so how dangerous could they have been,do you let him go; if not what do you charge him with. Consider the 35 Gitmo detainees who have been released; and subsequently have been terminated for being insurgents. The last a Russian national terminated by the SVR. Or more to the point, the computer engineer fromFallujah, who was briefly detained, and then released because it was determined he posed no threat. Next thing we knew he blew himself up at that wedding shower at that hotel in Amman. Muriel Dubuque, the Belgian national who blew herself in
    Baghdad almost two years ago; she would certainly appear to be a civilian, by these lights, Raed al Banna, a Jordanian attorney who lived in L.A, was
    turned back from returning to the US; detonated himself in Hillah, Iraq. All person had they been detained or even continue to be detained; the facts would have prompted their release.

    Of course, some will bring up the evil arm of the
    Patriot Act in the case of Brandon Mayfield. Remember him, the former Army explosives expert and attorney, Muslim convert, who represented the
    Portland cell; one of whose key figures were tied to the Madrid bombing. He was detained because a
    partial fingerprint seemed to tie him to the blast.

    narciso (d671ab)

  74. SteveMG@#52

    Why isn’t the current process – MCA and DTA w/one habeas appeal to the DC Federal Courts – acceptable?

    Based on outcome.
    Here’s an earlier story on Murat Kurnaz. It’s disgraceful. More worthy of Kafka than US law.

    Bob Loblaw (23d1c4)

  75. From one angle the question here is remarkably simple: can the President of the United States lock people up indefinitely on his own say-so? That was the question in Padilla, and has been the question in all these various lawsuits.

    From a legal standpoint, questions of citizenship, circumstances of capture, and the construction of a law-free zone at Gitmo create distinct arguments at law. But that one principle is the same in every case.

    Many of these prisoners are not battlefield detainees and, unlike scientists, they are not rear-echelon contributors to and employees of the military. (I just checked: Heisenberg’s institute, for example, was a unit of the German Army.) Our refusal to provide anything but pitiful kangaroo courts so bad the prosecutors have been known to retch for those detained in error is a national disgrace founded, I would guess, in Bush’s conviction, with his remaining disciples’ perfervid agreement, that he never errs. I suppose that if you wish to jettison Anglo-American habeas tradition for a Presidentíssimo, you’d better believe he’s also omniscient.

    Andrew J. Lazarus (de52b9)

  76. (b) does a US citizen held overseas have habeas rights?
    .
    There are plenty of cases of US citizens held by foreign governments, and habeas rights do not pertain. We have some expectation that the country that asserts detention and perhaps penalty will justify their action.
    .
    There is the one US fellow who is suing Rumsfeld for something resembling absence of habeas. The fellow was detained by US forces, in Iraq, for 90 days or so. For those 90 days, he had no access to US Courts. Name is Donald Vance.
    .
    I can imagine a DTA/MCA regime that didn’t stir up the sort of criticism that is currently taking place, where the DTA/MCA regime falls well short of what we normally think of as “usual protections” in criminal allegation proceedings.
    .
    I got a charge out of Clement’s assertion that Congress was slow about promulgating the MCA/DTA, “And the fact that they didn’t immediately take effect, I think, is not an accident. It is a product of the fact that Congress in this area was providing unprecedented review.”
    .
    Heheh. That’s a hoot. “Unprecedented” is right … they looked at it and decided to leave it alone. They didn’t act until SCOTUS ruled the administration’s system of CSRT lacked the hand of Congress, and was, for that reason, unconstitutional. IOW, Congress got spanked by SCOTUS for failing to act.

    cboldt (3d73dd)

  77. The broader implications of this case are clear from a national security viewpoint and from the soldier’s viewpoint.

    In future wars if the US allows terrorists who violate the rules of warand the Geneva convention protection and access to US courts what will happen if you fight a conventional war with hundreds of thousands of prisoners. Will they then be denied access making a mockery of our justice system?

    I cannot think of something impacting more adversely on the troops morale realizing the government will go to such an extent to protect those who target innocents and sell their videos of beheading captives while doing nothing to protect our servicemen who fall into these people’s clutches.

    Finally, what soldier will think twice about accepting a surrender knowing the complications and risks he places himself in when the whole issue can be disposed of in a much less risky manner. Is this what our courts want.

    This entire issue is a joke. The courts are intervening in an area where they have no jurisdiction. No enemy soldier has ever had access to US courts. Just one more example of our judiciary running amok.

    Thomas Jackson (bf83e0)

  78. Aphrael, while I think you are arguing in good faith, I think that quotation does not really mean what you want it to mean. The line is discussing jurisdiction in terms of what kind of offenses would fall within the jurisdiction of a military tribunal. Not whether or not a detainee would have the right to avoid the military tribunal by a factual dispute within an offense otherwise within the tribunal’s jurisdiction.

    SPQR (26be8b)

  79. Based on outcome.
    Here’s an earlier story on Murat Kurnaz. It’s disgraceful. More worthy of Kafka than US law.

    Well, Kurnaz was processed in 2004 while the DTA and MCA were passed in 2005. Under the current law, Kurnaz has the right to appeal the tribunal’s ruling in Federal District Court.

    Second, even civilian courts falsely imprison innocent people. Civilian prosecutors withhold exculpatory evidence, et cetera. No perfect system.

    As I noted above, it seems to me that the requirement that a thousand guilty men go free before one innocent man goes to jail simply can’t be used during a war.

    I know, I know, easy for me to say since I wasn’t Kurnaz.

    SteveMG (b4f536)

  80. SteveMG, at 67:

    ‘Course it doesn’t define a “right to privacy” either but we infer that right from the Fourth, et cetera.

    Sure. My point is simply that to say you are “going by the constitutional definition” of a term not defined in the constitution is misleading. You’re either operating based on your understanding of how the term was used in the 1770s, or your personal views of how it should be used now. :)

    If they’re apprehended here, and they’re here legally, they have constitutional habeas rights.

    If they’re not here legally, they don’t have constitutional habeas rights.

    That seems a bizarre distinction to me. I would be somewhat surprised if the traditional common law doctrine applied only to those who were in the country legally; nor am I sure that I understand what it meant to be in Virginia illegally in 1710, for example.

    My turn: Why isn’t the DTA/MCA a sufficient safeguard?

    As a policy matter, for what I’m interested in, it may be. I don’t remember the details of the scheme established by those laws. *If* the scheme allows (a) a review by an independent tribunal whose members are not answerable for their jobs to either party in the case, and (b) those being detained have an opportunity to rebut the allegations under which they are detained, then it should suffice. But it’s not terribly clear to me that the second condition I listed is actually met.

    That said, I think that a very good argument can be made that Guantanamo is in effect part of the United States (the state of Cuba has *never* exercised jurisdiction over it), meaning that aliens detained at Guantanamo have habeas rights.

    aphrael (db0b5a)

  81. SPQR, at 68: it’s been a long time since i’ve read ex parte quirin, and my understanding of legal analysis has changed considerably in that time. Nonetheless, under a quick scan of it, I see two potential interpretations:
    (a) in war time, any person accused of war crimes can be tried by a military tribunal, with no appeal;
    (b) in war time, any person who concedes facts which would establish that they are war criminals can be tried by a military tribunal, with no appeal.

    (Part of the trouble i’m having with the case is that it seems to take the findings of the tribunal as fact in a way that implies the outcome would be different if the facts were not true; this seems to me to be dodging the question entirely — but it may be a result of the procedural posture of the case).

    I find (a) troubling, because it means that, in wartime, the military can apprehend anyone off the street, accuse them of war crimes, and try them in secrecy with no appeal. In the hands of corrupt men, that power would be the essence of tryanny; I have a very hard time believing that such a scheme is what the founders believed themselves to be establishing.

    interfere with the conduct of military operations for frivolous political posturing

    While some may be doing that, I think that’s an unfair characterization if applied to everyone who is concerned with the administration’s legal position on this issue. If a wartime government has the power to hold someone indefinitely, based on nothing other than their *claim* that he is a war criminal, and with that person having no effective way to rebut the allegations, then no man is protected from arbitrary state detention by anything other than the voluntary restraint of those in power. Being concerned about that outcome, and the danger that those in power may someday choose not to exercise restraint, is not mere frivolous political posturing.

    aphrael (db0b5a)

  82. cboldt, at 77: I should think it was clear from context that i was speaking of US citizens held by the US government in detention facilities overseas.

    aphrael (db0b5a)

  83. #58, #60, #62:

    But did the detainees in Quirin deny they were fighting for and/or acting on behalf of Germany? I think that’s Milhouse’s point.

    Actually, I think one did deny that he was fighting for Germany, claiming he was going to turn himself in voluntarily [...] in fact two of the eight German saboteurs actually did walk into the FBI offices to turn themselves in, and all eight were later sentenced to death.

    In other words, they didn’t deny it. They admitted being German servicemen, but claimed that their hearts weren’t in it, they were good people, they had no personal enmity to the USA, etc. None of that changed the fact that they were German servicemen, and therefore had no right to habeas.

    Their case sounds almost exactly like that of Schiever in the 18th century, and he lost too, on the same grounds. Actually, his case was even better, because he wasn’t even an enemy citizen, he (claimed he) was a neutral citizen who was siezed by the enemy and forcibly conscripted into its armed forces, and had tried several times to desert. That didn’t get him habeas.

    But I don’t think that is a valid distinction because what they were disputing was the denial of a habeus right itself as well as being tried outside the civil court system even though they were picked up on the continental US.

    Exactly, and that’s why they lost. But what would have happened had they denied the entire story? Would the government not have had to prove in civilian court that they were indeed enemy fighters? Once it had convinced the court of that, then the right of habeas would disappear, and it wouldn’t have to prove anything else, or to submit its treatment of them to any court’s review. The Three Spanish Sailors had a tale of woe that (if true) surely entitled them to relief, but the court told them to take it up with the Admiralty court, because as POWs the civilian court had no jurisdiction.

    Milhouse (f10fb3)

  84. Aphrael, you wrote: “If a wartime government has the power to hold someone indefinitely, based on nothing other than their *claim* that he is a war criminal, and with that person having no effective way to rebut the allegations, then no man is protected from arbitrary state detention by anything other than the voluntary restraint of those in power. Being concerned about that outcome, and the danger that those in power may someday choose not to exercise restraint, is not mere frivolous political posturing.”

    Then you need to propose an amendment to the Consitution, as the Constitution explicitly gives that power to the government. Art I sec 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.

    Milhouse,
    There is nothing in the case, despite Aphrael’s belief, to suggest that if they denied the allegations that the jurisdiction of the military tribunal would be defeated. It is not the factual disputes that create or defeat jurisdiction, it is the allegations.

    SPQR (26be8b)

  85. Thomas Jackson, at 78: you presume the people being held are enemy soldiers. How do you protect people who are not soldiers from being picked up arbitrarily at the whim of the executive, and interred indefinitely without recourse?

    aphrael (db0b5a)

  86. SOQR, The section that I quoted is from a part of the opinion which is going to great lengths to distinguish Milligan, which held that the law of war can not be applied to citizens in states which have upheld the authority of the government. It does so explicitly by arguing that the distinction is based on the facts of Milligan:

    From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established.

    Which is to say that the Court seems to be saying that Milligan could not be tried by military tribunal because he was not a belligerent, but the defendants in Quirin could because they were belligerents.

    aphrael (db0b5a)

  87. Every time the Court has ruled in favor of the terrorists, the Congress has taken jurisdiction from the courts and put it back into the hands of the Executive.
    How many times will we be forced to watch this kabuki dance until the Robed Wonders get the message?

    Another Drew (8018ee)

  88. blah seems to have posted the same Wiki link twice in this link which unfortunately for him actually supports the case that we are currently doing nothing in conflict with applicable international law or custom with the prisoners at Guantanamo.

    daleyrocks (906622)

  89. AD,

    Maybe this third time will be the charm, but it seems to me that the petitioners’ law firms and law school advocates are the ones who keep revisiting the issue.

    DRJ (a6fcd2)


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