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Detention & Habeas Corpus
By Jonathan Hafetz – 03/30/06
*Cross-posted from ACSBlog
On March 28, the Supreme Court heard arguments in the high-stakes
legal challenge to the military commissions established by the
President to try suspected terrorists at Guant√°namo. The case, Hamdan v. Rumsfeld,
raises a plethora of complex questions of constitutional, military, and
international law. If Petitioner Salim Ahmed Hamdan wins, which he
should, it will not just be because he is right on the law. It will
also be because the administration has offended deeply rooted values in
its continuing quest for unchecked executive power.
Judicial Independence. The threshold question in the case
is whether the Supreme Court still has the power to hear Hamdan's
appeal in light of the recently enacted Detainee Treatment Act of 2005
("DTA"). That act purports to eliminate jurisdiction over habeas corpus
petitions filed by detainees at Guantanamo, while providing for
limited review of "final decisions" of military commissions. Hamdan
argues that Congress did not divest the Supreme Court of jurisdiction
over his case and, moreover, could not do so without raising a serious
constitutional problem under the Suspension Clause.
The Supreme Court has resisted previous assertions of executive power that threaten its jurisdiction. In Rasul v. Bush,
decided almost two years ago, the Court squarely rejected the
government's claim that federal courts lacked habeas jurisdiction over
detentions at Guantanamo. It affirmed that detainees there, including
Hamdan, have the right to test the legality of their confinement.
After Rasul, a district court granted Hamdan's challenge to
the military commissions. The District of Columbia Circuit reversed
that decision. Then, two days after the Supreme Court announced it
would hear Hamdan's appeal, Senator Lindsey Graham, with the Bush
administration's backing, introduced legislation in Congress intended
to strip the Supreme Court of jurisdiction over the case. The ensuing
skirmish evoked the specter of Ex parte McCardle, a much-criticized Reconstruction-era case in which Congress eliminated the Court's jurisdiction over a pending habeas appeal.
The
legislation that emerged, while not a model of clarity, supports the
conclusion that Congress did not intend to eliminate habeas corpus in Hamdan
or any other pending case by a Guantanamo detainee. But canons of
statutory construction aside, the Court will likely view the DTA as an
attempted assault on its independence, an effort by the administration
to take away its power to decide a case it feared it might lose, just
like the President's eleventh hour decision to indict Jose Padilla
after more than three years of military detention in an effort to
short-circuit Supreme Court review of his case. Further, if
jurisdiction in Hamdan were limited to the DTA, it could
forever foreclose review of the very questions now before the Court:
whether the commissions are authorized and whether they violate the
Geneva Conventions. Because the DTA constitutes such an affront to the
Court's institutional role in preserving the separation of powers, the
Court should reject the government's jurisdictional and abstention
arguments, and reach the merits.
Rule of Law. The government's main contention in Hamdan
rests on a fundamental contradiction. The government claims that the
laws of war authorize military commissions, but refuses to acknowledge
that those same laws impose constraints on such commissions. The
government relies on a provision of the Uniform Code of Military Justice
(UCMJ) which preserves the jurisdiction of military commissions
concurrent with courts-martial. That provision, however, expressly
limits a military commission's jurisdiction to "offenders or offenses
that by statute or the law of war may be tried by military
commissions."
The President has charged Hamdan only with conspiracy. Yet, both the
War Crimes Act of 1996 and every war major war crime tribunal in the
past half-century make clear that conspiracy alone does not violate the
laws of war. The reason is simple: conspiracy is a notoriously elastic
charge and, if used as the basis for war crimes trials, would
inevitably lead to prosecutorial abuses.
The President similarly seeks to avoid the procedural safeguards of the laws of war. The Geneva Conventions (and the military's own regulations
implementing them) require that a prisoner be afforded a hearing before
a competent tribunal to determine his status. If he is determined to be
a prisoner of war, he may not be tried by a military commission.
Hamdan, however, has not been provided that threshold hearing. In
addition, the laws of war mandate that if Hamdan is to be tried, it
must be by "a regularly constituted court" that "affords all the
judicial guarantees which are recognized as indispensable by civilized
people." The commissions flunk that test because, among other things,
they deny Hamdan and other defendants the right to be present
throughout their trial and to confront the witnesses and evidence
against them.
Hamdan's arguments on these points appeared to have significant
traction with a number of Justices, and for good reason. The President
cannot invoke the laws of war to accrete power but discard them
whenever they impose constraints on the exercise of that power. The
rule of law, in short, means that the President cannot make up or bend
the law to serve his purposes.
Fairness. Hamdan argues that the military commissions
violate the UCMJ because they do not conform to the procedures of
courts-martial. The government asserts that only those procedures
specifically made applicable in the UCMJ to military commissions apply
to those commissions. The Court's construction of the UCMJ's text will
likely be colored by its underlying assessment of whether Hamdan (or
any one else) can ever get a fair trial before these tribunals.
The commissions are flawed in numerous respects, but perhaps most
significantly by denying a defendant the right to be present for his
trial and to confront the witnesses against him. The Court, through
Justice Scalia, has previously described the right of confrontation as
a "principle of the common law, founded on natural justice." That right
is guaranteed not only in civilian trials but in military trials under
the UCMJ as well. Further, Justice Scalia explained that this right was
designed to prevent the use of ex parte statements made
during custodial interrogations, precisely the type of evidence the
government seeks to use to bolster its case against Hamdan and others.
In a speech he gave two weeks ago in Switzerland that prompted calls for his recusal from Hamdan,
Justice Scalia said combatants captured during wartime are not entitled
to a jury trial in civilian courts. The appropriateness of those
comments aside, they miss the mark. The question is not whether Hamdan
must necessarily be tried by jury in a civilian court instead of by
military commission; rather, it is whether he can lawfully be tried by
the current military commissions at Guant√°namo which, among other
failings, deny Hamdan the right of confrontation. The district court
believed Hamdan could not be tried before such a commission, and the
Supreme Court should not uphold a trial that deprives any defendant of
a right it has said is founded on natural justice.
Tradition. The commissions also offend tradition. The history of military commissions is relevant in
Hamdan
because it provides evidence of what the laws of war have authorized
over time. But history is important for another reason, one that cannot
help but escape the Court's notice. Military commissions have typically
been used as emergency measures, gap-fillers for occupied territory or
situations when the civilian courts were not open and functioning. On
the rare occasion in which military commissions have exceeded those
narrow limits, as in
Ex parte Quirin, they have been severely
criticized. The current commissions forebode something very different:
the unilateral creation by the President of a new,
ad hoc,
and open-ended military justice system, unfettered by the established
protections of civilian criminal trials or courts-martial, with
jurisdiction to try a virtually limitless class of non-citizens in an
amorphous "war on terrorism" that the administration says could last
generations. With the rest of the world watching, the Court should be
very reluctant to sanction such a dramatic break with tradition, at
least not without the inter-branch checks, procedural safeguards, and
other guarantees that the commissions lack.
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Jonathan Hafetz – 03/28/06
*Cross-posted from ACSBlog
Does a federal court have the power to consider evidence that a
Guantanamo prisoner is a chicken farmer who was mistaken for a Taliban
minister because he had a similar name? That was the basic issue before
the U.S. Court of Appeals for the District of Columbia Circuit at the
March 22 oral argument in cases affecting the approximately 500
detainees at Guantanamo.
The court of appeals is now reviewing the impact of recent legislation, the Detainee Treatment Act of 2005
("DTA"), on cases challenging detentions at Guantanamo. The statute
purports to eliminate district court habeas corpus jurisdiction while
creating a new "exclusive review" mechanism in the circuit that, unlike
habeas, provides no inquiry into the facts. The appeals court must
decide whether the DTA applies retroactively to eliminate habeas corpus
in pending cases. Beneath the nuances of statutory construction, lays a
question as old as the common law writ of habeas itself: can an
individual be deprived of his liberty indefinitely without a meaningful
opportunity to contest the government's accusations?
The government evidently thinks so, and designed Guantanamo
precisely to avoid judicial scrutiny into its detention decisions. For
over two-and-a-half years, the government argued vigorously that no
federal court could review the lawfulness of a prisoner's military
confinement at Guant√°namo. In June 2004, the U.S. Supreme Court
rejected that argument, ruling in Rasul v. Bush that Guantanamo detainees have the right to file habeas corpus petitions in federal district court.
Nine days after Rasul was decided, the Defense Department created the Combatant Status Review Tribunal
(CSRT), establishing a mechanism to determine whether a prisoner is an
"enemy combatant." But the CSRT is a perfect storm of substantive
overbreadth and procedural inadequacy. First, the CSRT expanded the
Supreme Court's narrow definition of "enemy combatant" in Hamdi v. Rumsfeld,
limiting that term to persons who engaged in combat against the United
States or its allies on an Afghani battlefield. The CSRT, by contrast,
defines an "enemy combatant" to include mere affiliation with al Qaeda
or associated groups, and enlarges the battlefield from Afghanistan to
the rest of the world. Second, the CSRT denies fundamental safeguards,
including the right to see and confront the government's evidence, to
present witnesses, to the assistance of counsel, and to an independent
decisionmaker.
Hoping to short-circuit a judicial inquiry into the facts, the government moved to dismiss the habeas cases. Despite Rasul,
the government argued that the detainees had no constitutional or legal
rights to enforce through habeas and, in any event, that the CSRT
satisfied any rights they had. In January 2005, District Judge Joyce
Hens Green, who had been designated by the other judges to coordinate
proceedings and rule on common issues, denied the motion.
Judge Green found that the CSRT violated the Due Process Clause of the
Fifth Amendment because it permitted secret evidence and evidence
secured by torture; denied access to counsel; and used a vague and
overly broad definition of enemy combatant that would encompass even
"[a] little old lady in Switzerland who writes checks to what she
thinks is a charity that helps orphans in Afghanistan but [what] really
is a front to finance al-Qaeda activities." Judge Green further found
that the Geneva Conventions protected members of the Taliban. But
another district judge, Richard J. Leon, had decided to hear the two
habeas cases assigned to him separately. He granted the government's motion,
finding the detainees had no protections under the Constitution, laws,
or treaties of the United States, and dismissed the petitions. Judge
Leon's decision prompted a stay in the district court habeas litigation
pending appellate resolution of disputed legal issues.
The circuit court heard argument in the appeals of the two district
court decisions in September 2005. Then, following the DTA's passage in
December, the panel ordered additional briefing and scheduled last
week's argument to address the statute's impact on the pending cases.
The circuit court's construction of the DTA will turn in part on its
understanding of habeas corpus. It should conclude that the DTA does
not eliminate habeas jurisdiction in pending cases. Statutes are
presumed not to apply retroactively when they speak to the substantive
rights of the parties - in this case, the petitioners' habeas corpus
rights against indefinite executive detention. Further, construing the
DTA to eliminate habeas without providing an adequate substitute for
its searching factual inquiry into executive detention would raise a
serious constitutional question.
As the Supreme Court has explained,
the Suspension Clause of the Constitution, at a minimum, protects the
writ of habeas corpus as it existed in 1789. At common law, and as
codified by statute two years before the Bill of Rights was adopted, a
habeas petitioner had the right to contest the executive's allegations
and to submit evidence demonstrating his detention was illegal. That
core protection is what prevented the king from locking a prisoner in
the tower without an opportunity to prove his innocence, and it is what
makes the Great Writ so vital to Guantanamo today.
During the argument, the panel questioned the government about the
review available to the detainees if habeas were eliminated. The
government acknowledged that the circuit court could decide the legal
question of whether the detainees had any enforceable rights (which it
maintained they did not). But it argued that the court could not, under
any circumstances, consider evidence submitted by a detainee, even if
it proved he was innocent or had made statements under torture.
The circumstances surrounding the Guantanamo detainees' capture
underscore the importance of the meaningful factual inquiry habeas
corpus guarantees. A recent study
shows that most detainees were seized amid the post-September 11 chaos
in Afghanistan and Pakistan, where United States forces dropped
leaflets offering "millions of dollars [to help] the anti-Taliban
forces capture al Qaida and Taliban murderers." An astounding
eighty-six percent of detainees were handed over to the United States
by Pakistan or the Northern Alliance during that time, when the United
States offered large bounties for capture of suspected enemies.
The factual basis for continued detention in many cases appears flimsy at best. A 2002 CIA report
concluded that "a substantial number of the detainees appeared to be
either low-level militants . . . or simply innocents in the wrong place
at the wrong time." According to the government's own data,
fewer than half of all Guantanamo detainees committed any hostile act
against the United States and only 8 per cent were classified as al
Qaeda fighters. One prisoner, for example, remains at Guant√°namo
simply because he owns a type of cheap watch supposedly favored by al
Qaeda. Another prisoner is a farmer arrested for wearing an olive green
military jacket, a remnant from Afghanistan's constant wars over the
past decades. Yet, all of the Guantanamo detainees may be held for
life, without ever facing charges or trial in a military or civilian
court.
These problems are compounded by the CSRT's reliance on evidence
obtained through torture or other forms of coercion. The CSRT permits
consideration of any evidence "relevant and helpful to resolution of
the issue before it," which the government says includes evidence
obtained by torture. For example, Mohammed al-Qahtani,
a Guantanamo detainee whose prolonged physical and psychological abuse
is documented in a government interrogation log, implicated not only
himself but 30 fellow prisoners as well.
Under the government's view of the DTA, no court will ever hear
evidence that a prisoner or government informant was tortured. No court
will ever consider evidence exonerating a prisoner
even though the CSRT said that evidence was "unavailable." No court, in
short, will be able to look behind the government's accusations to the
facts showing an innocent man has been wrongly imprisoned, potentially
for life.
Much more is at stake than the fate of individual detainees. By
guaranteeing a searching factual and legal inquiry into the basis for
prisoner's confinement, habeas corpus checks the arbitrary exercise of
executive power and ensures that the government remains accountable for
its detention decisions. If this inquiry is eliminated, there is little
hope for the rule of law at Guantanamo or elsewhere.
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
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