Belated Blogging on Boumediene v. Bush

OK, back to posting about original documents. This one will address Boumediene v. Bush, the June 12 decision in which the Supreme Court decided, 5-4, that detainees at GTMO had the right to habeas corpus.

Let there be no doubt about Boumediene. It is a result-oriented case. In other words, the majority decided the result it wanted and arranged law and history to support its views. Such an approach is normally (and rightly) criticized. In this case, however, the alternative, as practiced by the dissent, was to ignore the real world altogether and write, instead, for a sterile, lifeless land of papers and precedents, while ignoring ugly flesh-and-blood realities.

The Detainee Treatment Act (DTA) and Military Commissions Act (MCA), passed in response to the Supreme Court's previous finding, states that except for the military commissions and review by the DC Circuit, "no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement" of any of the GTMO detainees. The effect is, of course, to allow them some very minimal rights on paper, but deny any means of enforcing those rights. Much of the case turned on the question of whether aliens held outside US territory have the right to habeas corpus.

Justice Kennedy, writing for the majority, concludes that the evidence is mixed, and that no past case exactly matches the circumstances at GTMO. At the time the US Constitution was adopted habeas corpus applied in India and Ireland, but unlike GTMO, there were English judges in India and Ireland. It did not apply in Scotland and Hanover, but unlike GTMO, neither Scotland nor Hanover was under English law. There is no precedent for a territory like GTMO, nominally under Cuban sovereignty, but for all intents and purposes entirely under US law. Since the adoption of the Constitution, the Supreme court has held that at least parts of it (including habeas corpus) apply in territories under permanent US control, but GTMO is not permanently subject to US authority. Finally, Kennedy discusses at length the case of Johnson v. Eisentrager, in which the Supreme court denied habeas to Germans convicted of war crimes following WWII. He finds that the GTMO detainees are not equivalent because the German prisoners in Eisentrager had actually received a meaningful trial and been convicted, and were being held in a German prison where US jurisdiction was much weaker than in GTMO.

Kennedy then moves on to explain why it is important to extend habeas corpus to GTMO; to prevent to Bush Administration from creating a law-free zone:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal contraints. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.

The decision is weak, however, in explaining why the procedures set forth in the MCA are not an adequate substitute for habeas corpus and what should take their place. Possible reasons the decision lists include that detainees have limited ability to rebut the government case, do not have the assistance of counsel, do not know all evidence against them (because much of it is classified), and have no limits on hearsay evidence. However, the Court declines to say that any of these, by themselves or even in combination, prove that the procedures set forth by the MCA are inadequate. It does say that the review allowed is inadequate because it does not allow the detainee to present evidence discovered after the hearing. But simply modifying the procedure to allow such evidence would not necessarily be sufficient because of all the other problems.

The court also makes no coherent attempt to address its recent decision of Hamdi v. Bush. In that decision, the Court held that a citizen held as an enemy combatant may file a habeas petition challenging his designation. Seeking to balance individual rights against military necessity, the Court agreed that, to avoid unduly burdening the military, hearsay should be admissible and classified documents need not be revealed. The Court suggested that the military submit an affidavit summarizing battlefield records as evidence that the detainee was an enemy combatant. Once the government presented a sufficient case, the burden woudl shift to the detainee to present evidence that he was not an enemy combatant. The MCA used this procedure as its model.

The decision is also maddenly vague about what is a sufficient procedure. It does hold that (1) a habeas court should not intervene the minute a detainee arrives at GTMO, but should act well before six years of detention, (2) habeas does not vest until after a status hearing, (3) the government may insist on venue only in the DC Circuit, and (4) some restrictions are appropriate to prevent dissemination of classified information.

In fact, there is no great secret why Justice Kennedy and the majority found that GTMO tribunals were not an adequate substitute for habeas corpus. Because the military status hearings were deliberately rigged against the detainees, and because the Bush Administration was going out of its way to prevent meaningful review on appeal. The dissenting opinions, however polished their arguments in theory, go out of their way to ignore these inconvenient facts.

Justice Roberts writes the earlier and milder dissent pointing out, reasonably enough, that the majority fails to say what is wrong with existing procedures and what would be an adequate substitute. Will any detainees who are wrongfully held win a speedier release by these vague, undetermined procedures yet to be established? And what about Hamdi? These are very reasonable questions. Less convincing is Roberts' argument that the procedures under the MCA and DTA are not only adequate but "the most generous set of procedures ever afforded aliens detained by this country as enemy combatants." Roberts argues that it is particularly generous to allow detainees a "personal representative" to act as their lawyer and to allow this represetative access to classified documents, a privilege not even allowed to regular prisoners of war.

A group of retired military officers presented a brief to the Court refuting these arguments. They point out that these tribunals, unlike traditional military hearings admit evidence gained by torture. Taking place away from the pressures of combat, these hearings can afford to be more thorough that a battlefield determination, yet they are not. And, quite simply, these hearings are politically tainted, with immense pressure to find all detainees to be enemy combatants. Justice Roberts is forced to ignore all these grim realities -- as well as the grimmer reality that detainees are facing indefinite detention (some now for six years) under often abusive conditions and their only hope of release rigged against them.

Justice Scalia's dissent is, predictably, a good deal more strident and uncompromising than Roberts'. He warns that this decision "will almost certainly cause more Americans to be killed" because even without the protection of habeas corpus, 30 released prisoners have already returned to combat. (This contention has been strenuously disputed by researchers). He argues with great heat that no court up until now has ever granted habeus to foreigners held on foreign territory. And he argues that, in any case, prisoners of war, even if held on US soil, have never been allowed habeas corpus.

Both Scalia and Roberts accuse the court of not really caring what becomes of detainees, but only making their decision as a power grab by the courts. This seems an exact reversal of reality. It was the Bush Administration that made the huge power grab. By declaring itself not bound by statutes or treaties mandating the humane treatment of prisoners, by holding detainees beyond the usual reach of the courts, the Administration was trying to create a law-free zone where it could do whatever it wanted. The majority was determined to stop this power grab and uphold basic human rights, even if it took a bit of stretching to do so. Even Scalia acknowledges as much and is outraged that the court would interfere. ("The President relied on our settled precedent in Johnson v. Eisentrager . . . when he established the prison at Guantanamo bay for enemy aliens. Citing that case, the President's Office of Legal Counsel advised him "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].") How dare the Supreme Court break faith with the President who was counting on us to allow his law-free zone?

This is the best analysis of the decision and refutation of Scalia that I have seen:

The reason no civilian court ever reviewed POW status for those captured in WW2 is that POW status is an unproblemmatic preserve of military justice as far as the Conventions are concerned. If the detainees at Gitmo had been afforded POW status from word one, there would already have been military trials for those accused of war crimes - trials including the full panoply of jurisprudence including habeas corpus rights. Those found guilty would have been sentenced, perhaps to death, and those found innocent either held until the close of hostilities legally as POWs or released as no longer a threat at the military's convenience. Those who successfully challenged their POW stutus through their pursuit of a writ of habeas corpus would have become civilian detainees for trial, including further habeas rights, by the civilian system. Again, the guilty would have been sentenced and the innocent released. No combat lawyers, no battlefield Miranda readings.

The problem, then, is caused by the introduction of the entirely spurious designation of "enemy combatant" - a creature neither fish nor fowl and a designation designed entirely to slip through the cracks of previously established military and civilian judicial processes. The only reason ever to invent this designation was to keep detainees beyond the reach of due process, including habeas rights, as a hedge against prosecutions for torture during interrogations.