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Junking Checks and Balances?

By Aziz Huq – 09/28/06

*Cross-posted from The Huffington Post

"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.

The Military Commissions Act of 2006, of MCA, passed by the House and Senate and likely to be signed by the President tomorrow is a wholesale assault on the idea of a limited government under law. It will be taken by the Bush Administration as a blank check to torture, to detain indefinitely without just cause, and to trample the values that win America respect in the world. From tomorrow, counter-terrorism is the "land of do as you please" for the President and the wise men of the Defense Department--those savants who brought you Iraq, the gift that keeps on giving (at least if you're a jihadist).

The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring those limits are respected. These are the basic tools of accountability. The MCA frontally attacks both of these--although only time will tell whether it succeeds.

How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.

The MCA says nothing explicit about the detention power. Indeed, I would argue that nothing in the legislation ought to be read to imply a detention power. Of course, that's not what David Addington and his colleague Alberto Gonzales will tell us. Rather, they will contend--publicly or not, it's hard to predict--that the MCA allows the executive branch power to detain literally anyone it wants provided it complies with a token gesture at procedure.

Here's how the Addington play for detention power will work. The opening definition of the Act describes elaborately what an "unlawful enemy combatant" is. Why? The term is a neologism. The laws of war do not use or define this term. Indeed, it is a mutation of a phrase used in a subordinate clause of a 1942 Supreme Court opinion. Nothing else in the Act directly turns on this definition--although only an "alien unlawful enemy combatant" can be subject to trial by military commission. So why bother with the elaborate definition? And why extend the definition to U.S. citizens as well as non-citizens?

Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision, stated that an "enemy combatant" captured in hostilities could be held for the duration of those hostilities. The Court made very clear it was talking about only the limited context of the ground war in Afghanistan, not some amorphous and unending "war on terror." But Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.

There are two ways in which you--citizen or non-citizen, resident of Topeka or Timbuktu--can become an "unlawful enemy combatant."

The first way is if you engage "in hostilities" or "purposefully and materially support" hostilities. This sounds reasonable enough until you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support? Would purposely giving to a charity that then gave money to Hamas count, even if you knew nothing about the Hamas? What about writing an editorial that gave "aid and comfort" to the enemy--say, by criticizing the Administration's Iraq policy?

The second way is--if it's even possible--more dangerous: You are designated an enemy combatant by a Combatant Status Review Tribunal--the Potemkin proceedings jerry-rigged at Guantánamo--or you are designated by "another competent tribunal" created by the Defense Secretary.

It's the latter that catches in the throat, because the MCA does not define what Rumsfeld's "competent tribunal" must look like. Rummy himself with the always-fair-and-impartial Addington? Five Syrian torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip coins for your liberty? Sure, why not? The MCA doesn't stop the executive from using any of these, provided Rumsfeld gave them power and hence made them "competent."

At least for non-citizens, moreover, that would be that: For the first time in U.S. history, an Act of Congress singles out a group of persons--non-citizens--and deprives them of any right to challenge their detention wherever they are picked up. No non-citizen would, the MCA seems to say, be able to challenge this detention. And while citizens are certainly entitled to a hearing, the Government will fight tooth and nail to make sure this hearing doesn't allow any effective inquiry into the facts on which a detention is based. So no judicial review--and no accountability.

The same dynamic is at play in the anti-torture rules. The MCA alters a criminal statute called the War Crimes Act, which imposed criminal sanctions for certain violations of the laws of war.

Until recently, the United States could proudly point to a long history of supporting a universal ban on torture, and to a strong record in ensuring that those who in fact tortured did not escape accountability. No longer. Now a gamut of horrendous kinds of treatment will be non-criminal--and, the Bush Administration will argue, within the discretion of the President.

Start with the substantive anti-torture rules themselves (which cover both torture and the lesser "cruel and inhuman" treatment). The MCA contains an incredibly complex and convoluted set of definitions. Despite all the cant about clarity, the rules no longer in plain English--as they were in Common Article 3 of the Geneva Conventions --and they are so full of holes they might have been tortured themselves.

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so--but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.

Second, in another convoluted section, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children--all long-recognized as forms of torture--that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change--foreshadowed in the August 2002 OLC memo--has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information--well, that's just dandy.

Once again, it's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

There are two reasons for hope. First, any reading of the Act that reaches an untrammeled detention power may be unconstitutional. The Supreme Court in the 2004 case of Rasul v. Bush--in what one day will be called "famous footnote 15"--strongly hinted that even non-citizens captured overseas have Due Process rights. Combined with another clause of the Constitution called the Suspension Clause, this means the unchecked detention power and the jurisdiction-strip are likely unconstitutional.

Second, even if the War Crimes Act has been amended, the Due Process Clause also ought still to protect detainees held overseas: Torture is un-American. It's also unconstitutional--and that doesn't change depending on where it's done. Moreover, the law of war, embodied in the Geneva Conventions, is clear: There is no "specific intent" requirement for torture. Countries--whether it's the United States or North Korea--cannot unilaterally define down the rules against torture.

"Unchecked and unbalanced" government--I argue at length in a forthcoming book--is antithetical to American government. The MCA is also anathema to our best traditions. We must hope it is our traditions that win, and not the selfish partisan posturing that animated this week's votes.

 Aziz Huq: "Junking Checks and Balances?" (pdf)

Tags: Justice, Liberty & National Security, Checks & Balances

Fighting Back Against the Attacks on Legal Services

09/05/06

*Cross-posteed from TortDeform.com

We’re going to use this space each month to discuss events affecting the ability of low-income people to access the courts. Our first post, and many others, will focus on civil legal aid programs, which represent low-income people in cases concerning child custody, eviction, public benefits and other basic human needs. These programs play an essential role in ensuring that low-income people are able to go to court to defend their rights. They also play a crucial role in helping the courts satisfy their mandate of providing equal justice for all.

Proving the maxim that no good turn goes unpunished, a legal aid program that for decades has represented rural Californians is being forced to fight for its very survival. Earlier this month, California Rural Legal Assistance, Inc. (“CRLA”) came under attack from the Legal Services Corporation’s Office of the Inspector General. LSC is the federal entity that doles out Congressional funding to local legal aid non-profits around the country. Its Inspector General is charged with ensuring that LSC and local programs use their federal funds properly. But sometimes the Inspector General becomes overzealous, becoming an enforcer not of federal law but rather an ally of industries that resent being sued by legal aid programs.

In its September 14, 2006 report, the Inspector General claims that CRLA violated LSC regulations by soliciting clients, handling a fee-generating case, requesting attorney fees, and associating with political campaigns. CRLA has rebutted the charges. We’re not going to weigh in here on who is right. Instead, we want to flag some particularly disturbing aspects of the report that undermine its credibility: 1) it relies on the use of “secret” sources, 2) it attacks the use of “impact” litigation to help large numbers of low-income people, 3) it challenges the ability of low-income people to obtain the protection of the attorney-client privilege, and 4) the accusations are driven, at least in part, by the interests of industries CRLA sues.

Secret Witnesses

The Inspector General’s report is based on conversations with two confidential sources. Without knowing the identities of the sources, there is no way for CRLA, LSC or you, dear reader, to assess the witnesses’ credibility or the truth of their allegations. It will come as no surprise that an organization that sues the powerful on behalf of the weak ends up with enemies. For all we know, the witnesses could be linked to people CRLA has sued. They could be disgruntled former employees. Or they could be upstanding whistleblowers who are telling the truth. We just don’t know. At the very least, it seems wildly unfair that CRLA is being placed under a magnifying glass while the secret witnesses accusing CRLA of wrongdoing remain in the shadows.

Attacks on Attorney-Client Privilege

Alarmingly, the Inspector General is trying to compel CRLA to turn over the names of its clients, even though clients will be wary in the future of approaching CRLA if they know their identities might become public.

Tags: Justice, Civil Justice, Civil Legal Aid

History’s Lesson about Domestic Surveillance

By Jonathan Hafetz – 05/23/06

*Cross-posted from ACSBlog

 The plot thickened in the domestic spying controversy with the recent disclosure that the National Security Agency has been collecting phone call records of tens of millions of Americans. This revelation, by individuals familiar with the program, follows the President's admission in December that the NSA has been eavesdropping without warrants on international calls and emails of individuals with suspected links to terrorism if one party is in the United States.

Whose telephone calls is the NSA listening to? Whose phone records is it subjecting to "data mining" to develop more comprehensive profiles? We do not know the precise targets of secret NSA surveillance since the administration has blocked any congressional investigation into the agency's operational details. To be sure, the President says the NSA investigates only those with "known links" to al Qaeda and other terrorist groups. But history cautions against accepting that explanation at face value.

Throughout the Cold War, presidents of both parties spied on American citizens, and did so with increasing frequency and audacity.

Created by secret presidential directive in 1952, the NSA soon grew into a vast intelligence-gathering machine which spread ever-deeper into Americans' private lives and communications. One NSA program, known as Operation Shamrock, intercepted millions of telegrams to and from the United States. The NSA placed the names of law-abiding American citizens on 'watch lists,' and then disseminated their private communications to other government agencies such as the FBI and CIA.

It's easy now to dismiss these Cold War-era abuses as the product of misguided communist hysteria. But that would obscure the dangers unchecked surveillance poses to free speech and privacy rights today.

The NSA will inevitably view wholly legitimate activity through the lens of national security if permitted to operate in secret and without external checks. The agency's definition of "terrorist threat" will become increasingly elastic, causing it to target an ever-expanding range of lawful activity.

During the 1950s and 60s, the NSA and other agencies looked at the struggle for racial equality in vague, Cold War terms like "subversive activity." National icons like Dr. King -- whom we now think of as American as apple pie -- were considered security threats. Dr. King and other civil rights and anti-war leaders were not only subjected to illegal surveillance, but the information gathered was used to undermine their work.

If history is any guide, today's surveillance dragnet will inescapably sweep in those at the forefront of this generation's civil and human rights struggles. Intelligence agencies, for example, may view legitimate advocacy on behalf of Arab and Muslims in the United States or against the war in Iraq in terms of the administration's amorphous and ubiquitous "war on terrorism." Similarly, journalists and others investigating politically sensitive topics such as abuse at Guant√°namo Bay or secret CIA-run prisons are prone to an ever-expanding net of government spying.

Constitutional freedoms have already been chilled by fears that the government is eavesdropping on private conversations. Civil rights organizations worry their outreach and advocacy efforts are being monitored; human rights lawyers avoid talking to clients and witnesses; and journalists and their sources are afraid to communicate with each other.

History not only highlights the dangers of unchecked surveillance; it also points to a solution. In the mid-1970s, the Church Committee conducted a far-reaching Senate investigation into U.S. intelligence agencies, including the NSA. The Committee's fourteen reports helped prompt significant legislative reforms, including the Foreign Intelligence Surveillance Act of 1978, which carefully regulates intelligence-gathering, including of suspected terrorists.

An investigation of this administration's intelligence activities is necessary to vindicate the principles of openness and accountability on which a democratic society depends. Thus far, however, the only people being investigated are the officials who helped make the existence of the secret spying program known to the American public.

In addition, any further surveillance must be conducted in accordance with the statutory framework established by Congress and the Fourth Amendment. The NSA, for example, must obtain a warrant from the Foreign Intelligence Surveillance Court before eavesdropping on telephone calls of American citizens and residents. If current procedures need to be fine-tuned, then any necessary changes must be made by the legislature, not by executive fiat.

Circumventing legal checks ultimately does not protect America's security. Instead, it jeopardizes the country's tradition of constitutional freedoms and commitment to the rule of law.

Jonathan Hafetz: "History's Lesson About Domestic Surveillance" (PDF)

Tags: Justice, Liberty & National Security, Domestic Counterterrorism

The Runaway Executive: Trying to Escape Accountability Yet Again

By Jonathan Hafetz – 05/09/06

The Bush administration's blatant disregard for the legal process has become so routine that almost nothing it does is surprising at this point. Its most recent machination is to try to circumvent judicial review in the case of two Uighurs, an ethnic group from western China, detained without charge at Guantanamo. The men had been imprisoned for more than four years even though the government concedes they are "non-enemy combatants," or, in other words, innocent.

The case, Qassim v. Bush, was scheduled for oral argument in the U.S. Court of Appeals for the District of Columbia Circuit on Monday morning, May 8. However, late the previous Friday afternoon the government moved to dismiss the case as moot, asserting that the two detainees in Qassim, along with three other Uighurs, had been transferred to Albania for resettlement as refugees. The government claimed its extensive efforts to find a safe home for the Uighurs, who could not be returned to China for fear of torture, had finally "come to fruition."

It is difficult to believe the timing of the release was coincidental. It is far more likely that the government transferred the Uighurs to avoid an adverse ruling and to insulate its conduct from judicial scrutiny. A loss in Qassim would invalidate a key aspect of the government's detention regime at Guantanamo and reinforce the vitality of habeas corpus, which guarantees both the right to test the lawfulness of a prisoner's detention and an effective remedy where that detention is illegal. Further, the government feared that the court might order the Uighur's release in the United States where they could seek asylum, which, as Georgetown law professor David Luban observes, is the least we owe them after four-plus years' wrongful imprisonment at Guantanamo.

If the government succeeds in mooting the Qassim case, the district's court decision grudgingly upholding the Uighurs' continued detention would stand, and the administration would remain free to indefinitely detain the next group of non-enemy combatants. (There at least four more still in legal limbo). In short, the system of detention-without-remedy at Guant√°namo would remain intact.

Such last-minute ploys have become the modus operandi of an Executive branch bent on avoiding accountability for its detention and interrogation policy. In Hamdi v. Rumsfeld, for example, the Supreme Court rejected the government's contention that it could detain the petitioner, Yasser Hamdi, without due process, and ordered that he be given a fair hearing. Then, when confronted with its hearsay allegations being tested in federal court, the government agreed to release Hamdi even though it had previously said he was a dangerous terrorist whose detention was crucial to national security.

More recently, the government ducked Supreme Court review in the case of Jose Padilla, an American citizen imprisoned by the military for three-and-a-half years without charge. Just before its brief opposing Padilla's petition for certiorari was due, the government announced it had criminally charged Padilla and sought his transfer to civilian custody. Even though the Court ultimately declined to review the legality of Padilla's military detention, three Justices warned the government against any future manipulation of the legal process.

The Executive's attempt to avert a ruling in Qassim is thus part of an all-too-familiar pattern of circumventing the checks and balances at the heart of the Constitution. Sure, Congress still has the power to pass laws, but the President consistently says those laws do not bind him. As Charlie Savage of The Boston Globe recently reported, President Bush has issued signing statements claiming the authority to disobey more than 750 statutes since he took office, far more than any predecessor. When taken to court over its failure to follow the law, the administration simply moots the case to prevent the Judiciary from invalidating its action. This way, the President remains accountable to no one but himself.

The D.C. Circuit has granted a continuance of the oral argument in Qassim to give the Uighurs' counsel an opportunity to investigate the circumstances surrounding their clients' last-minute transfer to Albania. But even if the Uighurs' release in Albania is unconditional and consistent with U.S. obligations under international law (including the Convention Against Torture), there are good reasons to avoid dismissing the case on mootness grounds. Clearly, this is a situation capable of repetition, yet evading review. The government can continue to detain other concededly innocent detainees, forcing them to conduct protracted litigation before shipping them off to another country at the eleventh hour to avert a court order halting the illegal practice. If that is how the government is permitted to operate, the bedrock democratic principles of accountability and the rule of law will be empty slogans.

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus

The Runaway Executive: Trying to Escape Accountability Yet Again

By Jonathan Hafetz – 05/09/06

Cross posted from the American Constitution Society

The Bush administration's blatant disregard for the legal process has become so routine that almost nothing it does is surprising at this point. Its most recent machination is to try to circumvent judicial review in the case of two Uighurs, an ethnic group from western China, detained without charge at Guantanamo. The men had been imprisoned for more than four years even though the government concedes they are "non-enemy combatants," or, in other words, innocent.

The case, Qassim v. Bush, was scheduled for oral argument in the U.S. Court of Appeals for the District of Columbia Circuit on Monday morning, May 8. However, late the previous Friday afternoon the government moved to dismiss the case as moot, asserting that the two detainees in Qassim, along with three other Uighurs, had been transferred to Albania for resettlement as refugees. The government claimed its extensive efforts to find a safe home for the Uighurs, who could not be returned to China for fear of torture, had finally "come to fruition."

It is difficult to believe the timing of the release was coincidental. It is far more likely that the government transferred the Uighurs to avoid an adverse ruling and to insulate its conduct from judicial scrutiny. A loss in Qassim would invalidate a key aspect of the government's detention regime at Guantanamo and reinforce the vitality of habeas corpus, which guarantees both the right to test the lawfulness of a prisoner's detention and an effective remedy where that detention is illegal. Further, the government feared that the court might order the Uighur's release in the United States where they could seek asylum, which, as Georgetown law professor David Luban observes, is the least we owe them after four-plus years' wrongful imprisonment at Guantanamo.

If the government succeeds in mooting the Qassim case, the district's court decision grudgingly upholding the Uighurs' continued detention would stand, and the administration would remain free to indefinitely detain the next group of non-enemy combatants. (There at least four more still in legal limbo). In short, the system of detention-without-remedy at Guantanamo would remain intact.

Such last-minute ploys have become the modus operandi of an Executive branch bent on avoiding accountability for its detention and interrogation policy. In Hamdi v. Rumsfeld, for example, the Supreme Court rejected the government's contention that it could detain the petitioner, Yasser Hamdi, without due process, and ordered that he be given a fair hearing. Then, when confronted with its hearsay allegations being tested in federal court, the government agreed to release Hamdi even though it had previously said he was a dangerous terrorist whose detention was crucial to national security.

More recently, the government ducked Supreme Court review in the case of Jose Padilla, an American citizen imprisoned by the military for three-and-a-half years without charge. Just before its brief opposing Padilla's petition for certiorari was due, the government announced it had criminally charged Padilla and sought his transfer to civilian custody. Even though the Court ultimately declined to review the legality of Padilla's military detention, three Justices warned the government against any future manipulation of the legal process.

The Executive's attempt to avert a ruling in Qassim is thus part of an all-too-familiar pattern of circumventing the checks and balances at the heart of the Constitution. Sure, Congress still has the power to pass laws, but the President consistently says those laws do not bind him. As Charlie Savage of The Boston Globe recently reported, President Bush has issued signing statements claiming the authority to disobey more than 750 statutes since he took office, far more than any predecessor. When taken to court over its failure to follow the law, the administration simply moots the case to prevent the Judiciary from invalidating its action. This way, the President remains accountable to no one but himself.

The D.C. Circuit has granted a continuance of the oral argument in Qassim to give the Uighurs' counsel an opportunity to investigate the circumstances surrounding their clients' last-minute transfer to Albania. But even if the Uighurs' release in Albania is unconditional and consistent with U.S. obligations under international law (including the Convention Against Torture), there are good reasons to avoid dismissing the case on mootness grounds. Clearly, this is a situation capable of repetition, yet evading review. The government can continue to detain other concededly innocent detainees, forcing them to conduct protracted litigation before shipping them off to another country at the eleventh hour to avert a court order halting the illegal practice. If that is how the government is permitted to operate, the bedrock democratic principles of accountability and the rule of law will be empty slogans.

Jonathan Hafetz: "The Runaway Executive: Trying to Escape Accountability Once Again" (PDF) 

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus

The First (and Quite Bad) Legal Interpretation of the Military Comissions Act of 2006

By Aziz Huq – 04/06/06

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

A Question of Values: Why Hamdan Should Win

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.

Jonathan Hafetz: "A Question of Values: Why Hamdan Should Win" (PDF)

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

DC Circuit Considers Fate of Habeas Corpus and the Rule of Law at Guantanamo

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