Compromise Over Detainee Jurisdiction:
From the Washington Post today:
A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.This is an important development, but it's somewhat difficult to know exactly what it means without looking at the text of the compromise bill. If anyone has a link to the text or the text itself, I hope you'll consider posting it in the comment section so the rest of us can take a look.
The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.
Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.
Text of the proposed compromise
Is it just me or Section (e)(2) is very confusing?
Alternative Bingaman's amendment is here:
Bingaman's amendment
But the habeas exception also applies only to alien DOD Gitmo detainees.
Excuse me for not caring one second about the so-called constitutional rights of scum we pick up off the battlefield. hey should consider themselves lucky our fine men and women didn't kill them to begin with.
Incidentally, and solely because I have a low sense of humor, I would love to see some detainee's lawyer take his client's case to a Cuban court.
"The Congress shall have power to . . . define and punish piracies and felonies committed on the high seas, and offenses against the law of nations . . . declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water . . . make rules for the government and regulation of the land and naval forces . . . [and] make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Oh, and "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
Don't forget the point here is that they aren't all soldiers. Under your logic, we would have let a number of innocent sheep farmers rot in Gitmo for years just because they happened to be picked up near the battlefield...and we still took 3 years from that group that finally got let go. Is three years from an innocent person's life enough to satisfy your sense that they should have just been killed even though they weren't fighting us?
I have no problem with a little legal wrangling to be sure that people we accuse of being enemy combatants really are.
This is a response to the shameful situation at Gitmo where we assumed that people were "scum" without any legal process to determine whether or not they in fact were "scum." If the tribunals determine that they really were combatants, then all bets are off. But I have *never* understood the resistance to at least bringing charges of guilt. Apparently the fact that they were near a battlefield is enough for us to do whatever we want with them.
Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have.
Legally correct. Morally? Again, what is wrong with simply bringing official charges rather than assuming guilt? Even if they are terrorists, why is it wrong to be sure that they *are* terrorists before keeping them indefinitely?
I still don't understand the logic of resistance to this.
I don't see any limitation of habeas to citizens in that clause. But regardless, whether or not habeas extends automatically to non-citizens, certainly the prior clauses I quoted authorize Congress to make laws respecting the rules for military detentions and military trials of citizens and non-citizens alike.
I don't see any limitation of habeas to citizens in that clause.
There are plenty of clauses of the Constitution that do not explicitly contain the disclaimer: "By the way, this does not apply to non-citizens." That doesn't mean our Constitution is universal law that applies to everybody anywhere in the world. Such a reading is just wrong.
I don't mean that as an argumentative question, but a legal one. Where is the legal authority for their treatment found?
Proven murderers get habeas appeals for reasons of procedural fairness, not for reasons of morality. I have never heard before that it is a moral duty to waste money.
I believe they are still inprisoned, but that the military has agreed to release them if they can find a host country. (Though, perhaps those countries have already been identified, I don't know.)
(Note that this was largely after one of their lawyers, Sabin Willett [a noted bankruptcy lawyer/author in Boston], finally was allowed to interview some of them AFTER they were granted the right to counsel, and only then AFTER he conducted a barage of press interviews to generate publicity. Note, too, that the 22 total released constituted ~4% of the Gitmo population.)
Why? The parts of our Constitution that, as a matter of logic, must apply only to U.S. Citizens do in fact contain express terms limiting them to citizens. E.g. the right to vote. Why assume that the founders just forgot to include those limitations in the other clauses?
That's kind of silly. In the absence of an explicit bar, e.g., Congressional statute or a treaty, the President, in matters of foreign affairs, can do whatever the $%^&he wants. This is why other nation-states have armies.
But my problem is that the people at Gitmo had never had any charges of *anything* proven? The fact that these were *proven* murderers makes your analogy precisely inapplicable to my problem with this situation.
Hmm, what you refer to isn't in the Constitution. It's in amendments to the Constitution that were drafted after the Founding. You can't treat the amenders and the Founders as the same group of persons and simply merge their linguistic habits; that is why sovereign immunity (at least for awhile under federalism doctrine), could not be abrogated by Art. I, but could be under the Reconstruction Amendments.
Besides, there is no federal right to vote, as Bush v. Gore noted. Ability to vote is subject to the whimsy of state legislatures. If the vote is granted, it must be granted equally. You have a right to equal treatment in the provision of the vote; but there is no per se right to vote in the Constitution.
Depends what you mean by "resident". How is that being determined? Are you backdating current INS policy to the Founding? If so, your question makes no sense. Are you talking about an ambassador or a consul? Who is holding him; federal or state authorities? Not enough facts.
Well, I guess that's my question. The real debate here, then, isn't legal, right? It's about other things: presidential prerogative, military strategy (intelligence reasons), politics, and ethics. Appeals to habeas aren't legal appeals but moral appeals to intuitions about how detainees of any sort should be treated.
My question was really about on what grounds arguments for their treatment can be made.
Hmm, no it doesn't. The point was that heabes appeals are provided for reasons of procedural fairness. In other words, even where we can prove the person does not deserve any reciprocal moral duty from us, we still give them habeas. So habeas simply isn't a matter of morality.
Medis
Good research if it pertained. Yes congress can set rules, before the fact. Its a law thing. You seemed to not be able to find the part about the President being commander in chief and setting the rules for combat on an as need basis. And habeas shall not be suspended...Unless..
I seem to remember four hijacked airplains killing more than 3000 of our citizens on our soil. Soundstome like the invasion of public saftey requirerment has been met. BTW a huge bypartisan vote of conress agreed. You may not want to bring up that habeas argument again
No, it is legal. In the absence of these proposed laws, the President can treat these guys like crap. And after they are passed, he can move them to black sites and continue to do so. I don't forsee us, say, joining the ICC or signing a "No Black Sites" treaty any time soon.
Granted. But can you tell me, then, why it is legally and/or morally acceptable to hold people only on suspicion without charge in *this* case? Particularly when there have been so far 22 people who, after a lot of pressure, were determined not to have been enemy combatants? What is the best argument offered to hold potentially innocent people in this case?
Saying that habeas applies to unlawful detentions of non-citizens by the United States does not convert the Constitution into universal law, because it is still limited to detentions by the United States.
Regardless, none of this is relevant to statutory habeas. Again, Congress is clearly authorized to regulate military detentions and trials of citizens and non-citizens alike, and in Rasul the Supreme Court held that statutory habeas did in fact extend to non-citizens held overseas (at least where the US exercises exclusive jurisdiction). And insofar as this compromise modifies the holding of Rasul, it does so only with respect to the exact same non-citizens who will be subject to the later provisions.
I don't understand your reply. You originally wrote, "Last I checked, this sort of stuff rests with the Executive Branch. Not Judicial, nor Legislative." I pointed out that the Constitution does in fact authorize Congress to pass laws regulating this subject matter. You reply, "Yes congress can set rules, before the fact. Its a law thing."
So how is that consistent with your original claim?
Had you drawn your argument as narrowly as you have done now in the beginning, we would not have been arguing. I would note, however, that it is quite easily to simply render the detainees into the custody of someone else abroad, in which case the US would not have exclusive jurisdiction. In think Rasul is a very narrow decision and does little, if anything, more than reasonably apply Eisentrager to current facts.
Because the Supreme Court said it was ok in laying out its "some evidence" standard.
The logic is simple. The executive branch has the constitutional power to do exactly what it is doing. Remember these detainees are not, not innocent goat farmers.
How do you know that some of them aren't?
Okay, JackJohn, here are the additional facts you requested. By "resident," I mean someone who has lived (perhaps legally, perhaps not) in the United States for a number of years, but has not been naturalized as a citizen. He is being held in the United States by the federal government, who has not charged him with a crime. He files a habeas petition to challenge his detention. What result?
In any case, you still haven't addressed whether the strong version of your thesis (i.e. non-citizens have no right to habeas protected by article I, section 9) has any historical support.
So long as we have "some evidence," that is all we need. Hey, that's what O'Connor said.
Originally, the only thing I did is quote the Constitution. But in any event, I think we are agreed that Congress has more than enough authority to pass this law. Rendition is another issue, of course, although I would not be surprised to see Congress address that issue as well in the near future.
jvarisco,
Rasul was a statutory interpretation case, so Congress is free to change the statute. Interestingly, though, I would actually take passage of this amendment to imply that Congress was ratifying the holding of Rasul, while at the same time carving out an exception.
Actually, I did. First, I never set forth any thesis; I challenged some claims that Medis made. He clarified his argument and I agreed with his revision. Perhaps it was unclear, so I'll post the colloquy in order.
Medis:
Jack John:
I don't see how I have changed my "original" argument. In response to your claim about habeas, I noted that nothing in the text of the Constitution rules out the possibility that constitutional habeas would apply to non-citizens, and I further noted in another reply (the one you quote) that such an interpretation would not convert constitutional habeas into "universal law."
But as I have also argued, Congress in any event is authorized to pass laws regulating this subject matter, which is an independent and sufficient answer to corngrower's original claim. I take that is what you have in mind as my "narrow" argument, but it has been my main argument all along.
I never said that Congress lacked the authority to pass this law! I objected to your method of reading the Constitution and the use of constitutional habeas to imply that alien detainees have free-standing habeas rights at the constitutional level.
Rendition, however, I do not believe is a seperable issue. It goes to the President's foreign affairs power in the absence of Congressional regulation to the contrary. It also goes to the extent to which one can construe Eisentrager to stand for the proposition that alien detainees have free-standing habeas rights. Eisentrager leaves open the option of simply removing the detainees from U.S. control/jurisdiction -- i.e., rendering them to, e.g., Egypt. If detainess had free-standing rights, then Eisentrager would have been wrongly decided -- at the constitutional level -- for leaving that option on the table. I don't think it was.
Nothing in the text supports this claim, either, and Eisentrager can easily be read against this conclusion. Not to mention the fact that if Congress thought this issue were constitutional, they wouldn't be fixing it at the statutory level.
Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have.
Perhaps I'm misreading, but this seems like a claim that aliens are simply outside the scope of the Suspension Clause. If you've backed off from that claim, so be it. If you haven't, I've yet to see any evidence that in 1789 the common law writ of habeas corpus would have applied only to citizens. Forgive me if I've missed something.
One more thing: your characterization of Rasul would perhaps be accurate if Justice Kennedy had spoken for the Court, but Justice Stevens' opinion seems far broader. As I read that opinion, it holds that the statutory predicate to Eisentrager -- that 2241 did not apply outside the territory of the United States -- is simply no longer good law. It's hard to see that holding as merely an application of Eisentrager to "current facts."
There is really nothing more boring than arguing about who said what in the past, so I'm going to stop doing that.
As for rendition, I don't think that issue is really answered one way or another by Rasul. To be sure, Rasul is only about statutory habeas, but it does not place a sharp limit on when statutory habeas applies. Rather, the general rule seems to be that "the reach of the writ depend[s] not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.'"
So, in a rendition case, we would have to ask and answer this "practical question." I'm not sure how that would come out, and it certainly seems like it could depend on the facts of the case.
Yes, privilege. You know, a privilege and immunity of citizenship. Which aliens do not have."
Jack, you know you really should check out Crooked Timber's and other's (Obisidian Wings, particularly) on the subject, with sharp detail pointed out to the root of habeus corpus in the British Magna Carta, which absolutely applied to noncitizens.
Good point. This gives me an opportunity to clarify. I don't think Stevens' view is actually the law. In other words, I agree that there is language suggesting that in the opinion (hey, I said "little, if anything"), but I don't think the court really held that. Let me put it this way: Lawrence v. Texas can be read very broadly, but lower courts applying it afterwards narrowed it. I haven't seen any indication that Stevens' view has been taken seriously by lower courts or by other branches of government. I mean, do you think Kelo is the law? As for the "current" facts play-on-words, I simply mean that Eisentrager was decided many years ago and Rasul was decided more recently.
Perhaps I'm misreading, but this seems like a claim that aliens are simply outside the scope of the Suspension Clause.
No, it was a challenge to Medis to prove up his claim made in sacrastic tone. I wasn't making a positive case; I was pointing out that he hadn't made a strong case that his reading was, well, right. One could easily make the argument that aliens are outside the scope of the Suspension Clause by reading the word privilege to be synonmous with the word privilege in the privileges and immunities clause, for instance, which is a dead letter, and thus open to all sorts of absurd interpretations, e.g., by Clarence Thomas.
I later did make the claim that the Constitution does not provide aliens with free-standing habeas rights, but I believe that because I think Eisentrager was rightly decided and because the Suspension Clause is directed toward Congress: it is a limitation on the exercise of Congressional power to regulate, not a grant of individual rights to aliens. That would be an over-reading of the clause.
Stevens' opinion in Rasul got 5 votes, and district courts have subsequently been granting habeas review to alien Gitmo detainees. One of those cases, Hamdan, has now worked its way back up to the Supreme Court. I think that makes Rasul as much good law as any Supreme Court opinion.
However, I think it is naive to believe that military culture doesn't include "ways and means" that in the past have resulted in the crossing of fine lines, or even been in the outright disregard of legal standards.
When torture and related activities are pushed further underground, they becomes impossible to monitor. So it begs the question, how much of this is window dressing? And do people really believe that with the passing of this legislation, physical coercion of suspects in U.S. custody will actually end? Excuse me for remaining dubious.
It probably won't all come to an end. But a lot of people (including people inside the military) seem to think that the current conditions are far worse than they have been in the past, and a major contributing factor has been the lack of clear rules.
This is plainly an executive branch thingy. My original point is that a law before the Senate now, would have to be passed by the House, and then the President would have to sign away his Constitutional athourity and sign it. A resolution passed by the Senate would only cover the Senate
I would also note that the Magna Carta may have been a source for writing the Constitution, but writing a Constitution and interpreting it are two different things. We do not live in Britain. The suspension clause is a limitation on Congressional power, i.e., a way to prevent a tyrannical legislature, like the one Britain had, given that it had no written constitution.
Obviously, the President could refuse to sign it, in which case Congress could pass it anyway if they had a sufficient number of votes.
On the larger issue: the Constitution clearly authorizes Congress to regulate the conduct of wars. It also clearly authorizes the President to act as Commander in Chief. You seem to think there is necessarily a conflict here, but I don't see why.
In general, the President must faithfully execute the laws of the United States, but that does not put him into conflict with Congress simply because Congress makes the laws that the President must execute. Rather, it just means that Congress has a major role to play in specifying the actual duties of the President.
Applying this basic dynamic to war in particular, when acting as Commander in Chief, the President will have to faithfully execute the laws that Congress passes with respect to war. But again, that does not somehow put him into conflict with Congress. Rather, it simply means that Congress is specifying some of his actual duties as Commander in Chief.
And that is the basic structure of government the Constitution contemplates.
You are ignoring Rehnquist's rejection of Stevens' functionalist approach in Padilla and the fact that Hamdan, as decided by the panel with Roberts on it, engaged in no such functionalist analysis. The question, also, was whether Rasul was read narrowly or broadly, not whether courts merely cited to it. My point is that Rasul is being cited to, but it is being applied as if Eisentrager is still the law.
"Hmm, what you refer to isn't in the Constitution. It's in amendments to the Constitution that were drafted after the Founding."
It's the third sentence of the Constitution, dude. Not exactly buried.
"Besides, there is no federal right to vote, as Bush v. Gore noted."
This is a non-sequitur. "right to vote" is shorthand for rights governing permissible restrictions on the right to vote, and, in my opinion, a fair term to use on an internet chat board, in much the same way that I might say that censorship by a state government violates the First Amendment on a chatboard, even if that's not literally true.
As far as I know, neither Rehnquist nor Stevens cite Eisentrager or Rasul in Padilla. That is not surprising, because Padilla is a venue case, and just doesn't reach the relevant issue in Rasul and Eisentrager.
Judge Randolph's opinion for the DC Circuit in Hamdan specifically notes that Rasul had overruled this aspect of Eisentrager. He goes on to note, however, that Rasul did not overrule the holding of Eisentrager with respect to the Geneva Conventions.
I don't see how you are getting any undermining of Rasul out of these cases.
Well, no. I took you to mean "a federal right to vote" because you said there was a right to vote in the federal Constitution. That is what I argued against. I noted that the equality provisions at issue in Bush v. Gore are in the 14th Amendment, which post-dates the Constitution. It isn't a non-sequitur; it's what we were arguing about.
Sorry, I forgot to address one point. Whether rendition places someone outside of the control of the United States for the purposes of statutory habeas seems to depend on the exact facts of the case. So, while it may be true that rendition in some cases could moot application of statutory habeas, that is not necessarily true in all cases. And the United States may not be able to get what it wants in all (or even many) cases by giving up control of its detainees.
As far as I know, neither Rehnquist nor Stevens cite Eisentrager or Rasul in Padilla. That is not surprising, because Padilla is a venue case
If you read Padilla, you'd note that Rehnquist and Stevens are having an argument about what kind of political philosophy to read into the Constitution when the answer isn't clear. Rehnquist clearly rejects Stevens "functionalist" approach, based on the analyzing the prerorgatives of the Crown. If you can't see it, I can't help you. But it really isn't hard to see.
No. That presumes the court gets review. The court doesn't have any jurisdiction if the detainee is in someone else's territory and under the functional control of someone else. And the same principles apply to venue within the United States. See Padilla.
I don't think that's an accurate reading of what is written there.
That strikes me as the equivalent of saying that every time Scalia or Thomas dissent on originalist grounds, all of their majority opinions which rely on originalist reasoning become bad law. The fact is that the Court simply does not address this issue in Padilla, because it was not presented by the case.
You're ignoring Senator Graham's amendment to the budget!
On rendition:
Right, the question is whether given the facts of a particular rendition case, the United States nonetheless retains sufficient control to trigger the application of statutory habeas. All I am suggesting is that this is fact-specific inquiry.
Here is the relevant language from Hamdan:
"This aspect of Eisentrager is still good law and demands
our adherence. Rasul v. Bush, 124 S. Ct. 2686 (2004), decided a different and 'narrow' question: whether federal courts had jurisdiction under 28 U.S.C. § 2241 'to consider challenges to the legality of the detention of foreign nationals' at Guantanamo
Bay. Id. at 2690. The Court’s decision in Rasul had nothing to say about enforcing any Geneva Convention. Its holding that federal courts had habeas corpus jurisdiction had no effect on Eisentrager’s interpretation of the 1929 Geneva Convention. That interpretation, we believe, leads to the conclusion that the 1949 Geneva Convention cannot be judicially enforced."
That seem perfectly clear to me.
Hmm, no, it isn't. They are addressing specifically how to determine what the functionality of the Crown is. My point is that such analysis, in constitutional precedent, is so narrowed by Padilla that applying it on the basis of Rasul to future cases would yield a result consistent with Eisentrager. You are simply evading my point by pretending I do not understand that the factual matrices of the cases were different.
How does that langauge support your claim that Rasul overruled Eisentrager?
I'm not sure what your reference to Kelo is supposed to show. Obviously, you can't mean that all 5-4 decisions are not good law, so I'm not sure what is the special relationship between Rasul and Kelo, as opposed to Kelo and any other Supreme Court decision.
I think you perfectly well understand my argument and are running from it. You know perfectly well that the Congress does not respect Kelo and many congresspersons think it is unconstitutional. That fits quite well with my prior statement: "I haven't seen any indication that Stevens' view has been taken seriously by lower courts or by other branches of government. I mean, do you think Kelo is the law?" I don't think Dred Scott was "the law" when it was decided, because it was wrongly decided. Your claim that a decision "got 5 votes" simply doesn't prove that it was rightly decided. That the decision isn't taken seriously is an indication that it was wrongly decided, that's all.
Furthermore, your quotation to Hamdan only proves my point that Rasul has been narrowed by further courts, not interpreted broadly. Hamdan preserved one part of Eisentrager. Rehnquist's majority opinion in Padilla so narrowed the usage of Stevens' functional analysis (which is used more broadly in Rasul) that one cannot say with certainty that it is the law. My point is that one could apply Rasul in the future using its functional analysis as narrowed by Padilla -- and that is what looks likely, as the SCOTUS nominee on deck ain't no Stevens, and lower courts have not been kind to Rasul, as your quote proves.
On Padilla:
I really don't understand your claim. I guess you think it is obvious, but I don't see how Padilla addresses the issues in Eisentrager and Rasul, and apparently neither did Rehnquist or Stevens. Indeed, the issue in Padilla is incredibly narrow: they all agree on the general rule (the immediate custodian rule), and the only issue is whether given the circumstances and timing of Padilla's transfer, the "special circumstances" exception to this general rule applies.
On Hamdan: What do you think Randolph means when he writes, "This aspect of Eisentrager is still good law"? What is the other aspect of Eisentrager that is not still good law?
If I say I like oranges, it does not mean I hate apples.
On Padilla: Here, I will go find a good quote. Hold on to your panties.
I am far more distressed by this proposed amendment to the defense appropriations bill than by the Supreme Court ruilng in Rasul v. Bush because Congress really does have jurisdiction here. Rasul v. Bush is vulnerable to defiance by the Executive branch because the majority was plain wrong on the law, violated separation of powers and, more importantly for public relations purposes, the Court contradicted itself that same day in either the Hamdi or Padilla decision on the geographic jurisdiction of the district courts in question. If Hamdi (or Padilla - I can't keep those decisions straight) had to refile his habeas petition in the district court jurisdiction where he was being held, the holding in Rasul v. Bush was wrong because Guantamano was not in the geographic jurisdiction of any district court.
So the President can prove, to the public, that the Supreme Court overreached itself on the law in Rasul v. Bush as well as violating separation of powers.
But Congress does have jurisdiction in this matter. This proposed amendment is constitutional, though disastrously unwise.
The only reason Congress is acting is that President Bush has utterly failed to assert Executive branch perogatives here. He won't defend his office, so the other branches of government are encroaching on it with impunity.
As I suggested above, Congress could actually reverse Rasul by statute at any time. Rather than doing that, however, they apparently just decided to create a narrow exception instead.
I think that actually undermines your view that Congress does not see Rasul as good law.
I don't understand your answer to my question about Hamdan. Randolph did not simply cite Eisentrager, but rather distinguished two different aspects of it.
But I suspect everyone else is finding this really boring, so I will stop.
Me:
The Post:
So, I'm a little foggy. Congress can enact laws taking constitutuinal power away from the President? So, for instance can the President overrule the Judicial branch by Presidential decree? I guess my Jr High Social studies that taught me about three Brances of Govt not being able to Control each other is sooo 1970s. Can congress pass a law that takes away the athority of the President to appoint judges? I guess they could. Only one more than 1/2 of the House would have to agree and then 2/3 of the senate could overide a presidential Veto. I guess that the Republicans are in the cat bird seat to take over the govt next year. All they need are enough senators in the next election and Kaput the constitution no longer matters.
The general rule is that any two branches of the federal government can gang up on the third. A President can defy the Supreme Court, and challenge it to find him in contempt, if Congress refuses to take any action against the President on the matter.
Rehnquist is explicitly rejecting a functional approach to the cases, which was central to Rasul.
Tom makes this point more succinctly than I have:
That's right, Tom. The geographic, or territorial approach, used in Padilla was from Eisentrager. The functional approach used in Rasul was rejected in Padilla, see the quote above.
On Hamdan: My point is that Hamdan is not overruling Eisentrager. It is narrowing Rasul. My point is not that Rasul did not claim to overrule Eisentrager; it is that Padilla narrowed Rasul, for the reasons above.
I would also note that the "secret transfers" that Stevens refers to in Padilla would have the same effect in a Rasul-type case with a rendition -- the Court, in Stevens' view, would treat the person as being within the functional control of the US because he was in US custody before he was rendered.
Status hearings and military trials in accordance with the Geneva Conventions have long been held during times of war, and the Brits have in fact been holding status hearings for all their detainees in this war. It isn't that hard in practice.
Tom,
Padilla actually limits its holding to avoid the conflict. The Court states: "Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." This all makes sense, because the motivating concern in Padilla is forum shopping. But that is not a problem when the detainee is outside the United States.
corngrower,
I don't understand your post. My point was that in providing laws on some subject, which the President must then faithfully execute, Congress is not taking power away from the President. Rather, when it makes laws, Congress is specifying the duties of the President as the executor of the laws.
And of course that is not an affront to the Constitution--indeed, it is how the basic structure of the Constitution works. This basic analysis does not change just because we are talking about Congress making laws to regulate war, as opposed to other laws within its enumerated powers.
Indeed, during the Revolutionary War, General Washington asked for, and received, Articles of War from Congress. As President, he asked the First Congress to ratify the Articles of War. By doing so, General, and then President, Washington was not trying to give up his role as Commander in Chief. Instead, he was asking Congress to play its part in regulating war.
That is a mistatement of the case. By contrast, Rehnquist notes that there IS conflict and that the conflict poses an open question of law to be decided in future cases:
So the question is still, does Stevens' functionalist approach apply in future cases. The indications suggest the answer is: NO. Read the bolded part.
Just FYI, I believe that you are quoting Justice Kennedy's concurrence in Padilla.
Rasul tried to distinguish Eisentrager by saying that the latter concerned the constitutional habeas right as opposed to the statutory one, but the statutory one is quite specific about having to file within the geographic jurisdiction of the district court where the petitioner is being held. No federal statute that I know of gives the D.C. District Court habeas jurisdiction over the entire world outside the 50 states or the territories, all of which have their own district courts.
This whole Gitmo thing has become such a sideshow and the proposed legislation will just add more clowns to the three-ring circus.
For future reference, the use of "I" is a real tipoff.
I have read this debate with some interest, but your latest attempt at evasion strikes me as quite ridiculous, in all candor. What difference does it make if the last paragraph "Jack John" quoted is from Kennedy's concurrence? Jack John earlier quoted from Rehnquist, who expressly rejects Stevens' functionalist approach. Rehnquist, God bless him, is dead, but that rejection is still the law.
Let's say it does make a difference? Is it one in your favor? Kennedy, in contrast to Rehnquist, is alive, and voted with Rehnquist specifically because he believed that "there is no established exception ... to the rule that the action must be brought in the district court with authority over the territory in question." That is an even stronger case for Jack John's position: because Kennedy is now the swing vote on a closely-divided court.
I mean, give it up, man.
Actually, the statute doesn't use the word "geographic".
But Tom, if the Suspension Clause vests aliens with a constitutional right to habeas, and our constitution's habeas provision is UNIVERSAL LAW, then it does! This is why I said to Medis earlier: our Constitution does not set out universal law. Sigh.
The U.S. military captures an AQ fighter on the battlefield. The big brains seem to be in agreement that it's wrong to hold the person indefinitely. Okay, I'm cool with that. What should we do with the person to dispose of his case?
1) A trial in U.S. courts is forbidden under the Geneva Conventions. Assuming the person has status as some kind of lawful combatant - something the big brains seem to believe - then we can't put him in the courts. It's not like providing scientific and sporting equipment admonitions in the Conventions, it's a clear "though shalt not."
2) Okay, fine. Let's repatriate them. But consider that most of the nations that the AQ fighters come from - including America, apparently if I believe the big brains - will torture the AQ fighters if they are repatriated. That's against the UN Convention Against Torture etc., which has been encoded into U.S. law.
So what do we do with them? Seriously, what do we do? Do we put them into the immigration system and let them amble about Manhattan? Treat them as political asylum seekers, since most countries in the world would persecute them for their political views? I'm being a little flip here, but I'd like to know what the big brains suggest.
If you follow Steven's functionalist approach, yes. You can pretend that because we had them before we gave them to someone else, they are still within our control. If you think that Padilla rejected Stevens' functionalist approach, that Hamdan further narrowed Rasul, that the Congress is further gutting what is left of Rasul, and that Alito would reject Stevens' functionalist approach as well, then the answer is NO.
Yes, and we did that under Eisentrager. Ahem.
Render them to a country that tells us they won't torture him. And trust that country. Wink. Nod.
That would be true if we were talking about a piece of the concurrence that didn't agree with Rehnquist's decision. But what I quoted was this: "there is no established exception to the rule that the action must be brought in the district court with authority over the territory in question." If there is no established exception, there is no established exception. That's a statement of fact about what is the state of the law, even though it is not a legal holding. Either is it true or not. My argument is that it is true.
I think you would agree, no?
BTW, Holmes famously argued that the law is made up of predictions, so it's not some loony view.
I wasn't trying to address the substance of Jack John's post. As I previously noted, I don't think Padilla reaches the relevant issue in Rasul, and thus I don't think the dispute between Rehnquist and Stevens in Padilla is particularly relevant to that issue. I really was just noting for Jack John's information that he had started quoting from Kennedy's concurrence.
Hmm, I never said all of that! I think the Supreme Court, or any other court could say that the functionalist approach is not the way to read the cases, and cite Padilla to that effect. That would not dispose of the case; it would only answer the question of what appraoch to take. They could also cite to Hamdan to say that Rasul's application is not as broad as was originally thought, and so cannot be relied upon broadly. Finally, they could argue that it was further gutted by Graham's bill, if it passes, and so is no longer good law, at all.
Medis is not addressing what "the law is" -- Medis is someone who posited that the Suspension Clause gives aliens individual constitutional rights. What a crock.
1. Then bringing it up is irrelevant...?
2. Everyone who can read can see that Padilla and Rasul do not share the same facts. Jack John says that. You are doing yourself and your own argument a disservice by evading the question. Jack John has made clear that the question is not whether courts cite to Rasul, but how broadly they interpret it. He (?) has made a strong case that it is interpreted narrowly for specific reasons, and will likely be interpreted narrowly in the future. Congress seems poised to erase it from our precedent, which means Padilla's rejection of the functionalist approach will stand. In that world, the piece of Eisentrager that was salvaged by Hamdan and the approach in Padilla that was borrowed from Eisentrager suggest, as others here have impliedly argued, that Eisentrager would be, well, resurrected, in totality. That would be the practical impact of Graham's bill. So it is quite disingenous to say that Rasul is good law: Justices have narrowed it, judges have narrowed, and Congress is seeking to eradicate it. As Jack John says, all indications suggest it was wrongly decided on the day it was decided, just like Dred Scott. Why don't you respond to that?
What is more important is that the Court no longer bothers to overrule its past decisions when it contradicts itself like this. Rather it just "grandly ignores" such conflicts, as Judge Posner has noted.
This practice has the effect of making the Supreme Court and the law less predictable. The Defense Department chose Guantamano as a location for holding unlawful combatant foreign prisoners in the belief that the location was not subject to habeas jurisdiction, relying on Eisentrager for the constitutional writ of habeas corpus, and the plain wording of the habeas statute for the statutory writ.
The holding in Rasul came as a most unwelcome surprise for the Executive branch. It was a straightforward power grab by the Supreme Court. It should have elicited defiance by the Bush administration but, as we have repeatedly seen, the Bush administration runs from a fight and can be bullied.
This has now led to Congress getting in on the act - if the Supreme Court can trample on separation of powers at the Executive branch's expense, so can Congress. The Graham amendment is a perfect example.
Walter Russell Mead noted in his Special Providence that a failure of executive branch will in prosecuting a war effectively will cause a major drop in public support for the war. This Bush administration is getting there. You can find an early edition chapter of Mead's chapter on the Jacksonian tradition at Steve den Beste's web site below, followed by my excerpts of its most pertinent parts to this legal discussion:
http://denbeste.nu/external/Mead01.html
Just an aside, but the Geneva Conventions allow trials for both ordinary crimes and war crimes. So your AQ detainee could well be subject to a trial and conviction for some crime.
Rasul probably doesn't have full precedntial value, folks.
I've already addressed the substance of Jack John's claims about Padilla and Hamdan--not to his satisfaction, or yours apparently, but I don't see much point in just repeating my arguments. To briefly summarize, I don't think either Padilla or Hamdan narrows Rasul in anyway, nor do I think they resurrect any relevant part of Eisentrager. I also think this latest amendment to the habeas statute actually ratifies the holding of Rasul while carving out a limited exception.
Medis now: I've already addressed the substance of Jack John's claims about Padilla and Hamdan
Uh, when? You just said you weren't trying to.
Then why did the Senate reject the Bingaman adendment to it (which was drafted to save Rasul)? And why is the Bush administration (which hates Rasul) happy with the Graham amendment?
Again, I don't see how any subsequent case has overruled any part of Rasul. In Padilla, there just isn't any overlap of actual issues, and as I have noted before, they don't even cite to Eisentrager or Rasul in Padilla. And Hamdan talks about how much of Eisentrager survived Rasul, not the other way around.
Before that post, of course.
Kirk,
I am referring to the Graham-Levin compromise.
We're not talking about lawful combatants. The subject is only the unlawful variety. They have no rights under the Geneva Convention save not to be treated too harshly, and to really expedient military trials of the sort Skorzeny's Nazi commandoes got during the 1944 Battle of the Bulge. My late uncle Virgil was an MP captain in the 1st Army at the time and was briefed on the procedure to follow for such expedient trials, which he repeated to me 40 years later:
The first priority was limiting the damage by the German commandoes (finding some means others are likely around), and the second was to obtain any useful intelligence. Only when those missions were performed was terminal action to be taken with captured commandoes, and then higher ups had to approve convening of a tribunal of available officers. Everyone knew the tribunals would have one outcome.
There was no formal court, i.e., no one from JAG would participate unless one happened to be available by happenstance, there was no formal prosecutor and certainly no defense advocate. The commanding officer of the group holding the prisoner(s) would designate certain officers (at least three and generally no more than six) who weren't percipient witnesses to sit on the tribunal and often chair it himself (his choice). The only requirements for the tribunal were that it had to have a presiding officer, the members had to be officers who weren't witnesses, and they had to keep a written record of the proceedings.
The tribunal's ranking officer was supposed to question the witnesses, and the other members of the tribunal could too but didn't have to. The nominal purpose of the questioning was to establish that the accused was not a member of the American forces and was in violation of the rules of war, notably by being an enemy combatant wearing an American uniform. The accused had an opportunity to speak for himself on the charges.
Conviction was a certainty as otherwise the tribunal would not be formed at all. Then the accused would be shot by firing squad.
Something between 10 and 30 of Skorzeny's commandoes were tried and executed by American forces in this fashion during the Battle of the Bulge.
These expedient World War Two trials of captured German soldiers found to be unlawful combatatns is appropriate precedent for the kind of expedient military tribunal which the prisoners at Gitmo could get. I expect more formalities as a practical matter.
Note that merely being an unlawful combatant merits the death penalty for the Gitmo prisoners, as was the case with Skorzeny's captured commandoes during The Bulge.
I mean, that depends on your reading of the cases. It is pretty clear in Padilla that you can't read the cases in a functionalist way. If you don't read Rasul in a functionalist way, then it is... Eisentrager. That's a pretty basic argument.
Why should we trust your read of the "actual issues"? You did say something or other about aliens having fundamental rights because of the Suspension Clause, which makes not one iota of sense.
You also did just claim that the Graham amendment "ratifies" Rasul; but the facts refute that claim. It is true that the Bush administration is pleased with the Graham amendment because it smashes Rasul apart. It is also true that there is a letter of 350 legal scholars who want to save Rasul who were urging Congress to adopt Bingaman's amendment, which the Senate rejected earlier today. I'm afraid the facts do not support your claims or your interpretations. Check out balkin.blogspot.com.
That is a lie. You outright said you weren't trying to respond to my arguments. THEN, you said you had already responded to them, with no responses to the substance of my claims in between. You evaded my arguments, as more than one person on here has pointed out. If it quacks like a duck, and looks like a duck, and call itself Medis...
As a general principle, you might want to double-check Jack John's characterizations of my prior statements.
On Padilla: as I have noted before, I don't think you can read Padilla as rejecting "functionalism" in every other Supreme Court case. The issues in both Padilla and Rasul are narrow, and they do not overlap. A rejection of a "functionalist" approach in one such case is not a rejection of a "functionalist" approach in another such case, nor vice-versa.
On the latest amendment: again, I direct your attention to the Graham-Levin compromise, as opposed to the original Graham Amendment.
2. Levin's additions to Graham are minimal at best. The review is predicated on the sentence: if death or over 10 years, then gotta review. If less than 10 years, discretion, but still the presumption that the government is right. Which means the court will in all likelihood defer so long as the detainees are held less than 10 years. That is not an ratification of Rasul. That's effectively no review -- all you have to do is render them elsewhere in 9 years, or declassify them as enemy combatants and you can detain them indefinitely.
I did. I think he's right and you're wrong. It seems I am in good company.
On Padilla: as I have noted before, I don't think you can read Padilla as rejecting "functionalism" in every other Supreme Court case.
I don't think Jack John makes that argument at all. Are you calling me stupid for being persuaded by his arguments?
You might want to watch mischaracterizing other people's statements, Medis.
Your claim that Justice Kennedy's opinion in Padilla is inconsistent with Rasul doesn't hold up. The two opinions (issed on the same day, after all) can readliy be reconciled. When the habeas petitioner is held inside the U.S. (as in Padilla), the ordinary "immediate custodian" rule applies. But, under Rasul, there is an "established exception" to that rule for those held outside the United States; such prisoners can sue a custodian higher up the ladder (such as the Secretary of Defense). Indeed, this is exactly the point that Kennedy makes in his concurring opinion: "When an exception applies, see, e.g., Rasul v. Bush, post, p. ___, courts must still take into account the considerations that in the ordinary case are served by the immediate custodian rule, and, in a similar fashion, limit the available forum to the one with the most immediate connection to the named custodian." Kennedy is not rejecting Rasul's functionalist approach; he is simply saying that it doesn't apply where the prisoner is held within the United States. His observation does nothing to case doubt on, or otherwise diminish, the holding of Rasul.
1. I don't follow your argument. Why can't two different amendments have some overlapping attributes?
2. The original Graham Amendment provided only for review of status hearings, and then only for compliance with DOD procedures. The Graham-Levin compromise allows for review of final decisions of military commissions as well, and under both kinds of review includes compliance with federal law and the U.S. Constitution. I think it is obvious how much narrower this becomes as an exception to habeas review.
Of course I am not calling you stupid, nor for that matter was I characterizing Jack John's views. Instead, I was actually describing my own argument. But as I have noted to Jack John, there is nothing quite so boring as arguing about what someone has said in the past.
Tell that to Scooter Libby and Pat Fitzgerald!
Your claim that Justice Kennedy's opinion in Padilla is inconsistent with Rasul doesn't hold up.
I don't think so. He certainly says that the functionalist approach does not apply within the United States. He then says that "courts must still take into account the considerations that in the ordinary case are served by the immediate custodian rule, and, in a similar fashion, limit the available forum to the one with the most immediate connection to the named custodian."
Let's read that mocre carefully. When there is no properly named custodian, i.e., the facility where the detainee is held is under the control of, e.g., Egypt, and that facility is in Egypt, then Rehnquist's majority opinion controls. Rehnquist's majority opinion, which is the law, rejects the functionalist approach. Where there is no forum with any immediate connection to a properly named custodian, then it is unclear whether the functionalist approach applies. The suggestion is that the answer is NO. Nothing in Kennedy's concurrence suggests that the answer is YES. That is why it is a concurrence, and why he did not join Stevens in dissent.
Under Stevens' functionalist approach, if you rendered the detainee to Egypt, and he is held in Egypt now in a prison controled by Egyptians, we can pretend that Rumsfeld is the properly named custodian, because Rumsfeld once had control over him. Do you think Kennedy's concurrence signs onto that? No way.
Excellent point. Although I suspect much of the trial will be less than dramatic.
Where is the proof that this is an EXCEPTION to habeas review. Where is the proof that habeas review is the RULE for alien detainees held outside of the United States and outside of the functional control of American officials? Is it in the Suspension Clause, as you claimed before...just like Jack John said you did?
There are two different issues in your hypothe