Thoughts on the Oral Argument in Boumediene v. Bush:
I just returned from this morning's oral argument in Boumediene v. Bush. Here are some thoughts on the argument and where the Court might go.
Overall, I thought it was a frustrating argument. The problem, I think, is that 8 of the 9 Justices have already expressed a view on whether Guantanamo Bay is part of the United States for habeas purposes (5 yes, 3 no). So there wasn't much that was fresh to debate there. Then, once you get past that threshold question, you run into the uncertainty of knowing what to do next. It's easy for the Supreme Court to tell the D.C. Circuit that there habeas rights at Gitmo. But it's really hard to get into the adequacy of of the DC Circuit's proceedings when we don't really know what those proceedings are or what rights those proceedings might protect. Indeed, these were the prudential reasons why the Court initially lacked the needed four votes to grant cert.
As a result of those difficulties, neither Waxman nor Clement seemed to get traction in their argument. There was a lot of individual venting by Justices with strong views. Justice Scalia took on Waxman, and Souter took on Clement, each Justice expressing their frustrations with the positions taken by the other side. But it wasn't clear if either of these exchanges were at all relevant to where the Court might go. (Waxman even made some subtle jokes about this, making clear that Scalia's questions expressed his concerns but not those shared by a majority of the Justices.)
Justice Kennedy was unusually quiet. Justice Kennedy didn't say a word until Waxman's argument was about half over, and even then he didn't seem to take strong views on either side. He seemed to be most interested on what sort of proceedings would go on below in the D.C. Circuit or the District Court if the Supreme Court reversed; there was an interesting dicussion more generally around that same point in the argument about why the D.C. Circuit has been so unusually slow in deciding Guantanamo-related cases. But on the whole Justice Kennedy didn't seem particularly worked up about one side or the other.
What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.
UPDATE: You can now listen to the argument yourself via C-Span; Howard's post has the link. Also, Marty Lederman offers his quick take here.
Overall, I thought it was a frustrating argument. The problem, I think, is that 8 of the 9 Justices have already expressed a view on whether Guantanamo Bay is part of the United States for habeas purposes (5 yes, 3 no). So there wasn't much that was fresh to debate there. Then, once you get past that threshold question, you run into the uncertainty of knowing what to do next. It's easy for the Supreme Court to tell the D.C. Circuit that there habeas rights at Gitmo. But it's really hard to get into the adequacy of of the DC Circuit's proceedings when we don't really know what those proceedings are or what rights those proceedings might protect. Indeed, these were the prudential reasons why the Court initially lacked the needed four votes to grant cert.
As a result of those difficulties, neither Waxman nor Clement seemed to get traction in their argument. There was a lot of individual venting by Justices with strong views. Justice Scalia took on Waxman, and Souter took on Clement, each Justice expressing their frustrations with the positions taken by the other side. But it wasn't clear if either of these exchanges were at all relevant to where the Court might go. (Waxman even made some subtle jokes about this, making clear that Scalia's questions expressed his concerns but not those shared by a majority of the Justices.)
Justice Kennedy was unusually quiet. Justice Kennedy didn't say a word until Waxman's argument was about half over, and even then he didn't seem to take strong views on either side. He seemed to be most interested on what sort of proceedings would go on below in the D.C. Circuit or the District Court if the Supreme Court reversed; there was an interesting dicussion more generally around that same point in the argument about why the D.C. Circuit has been so unusually slow in deciding Guantanamo-related cases. But on the whole Justice Kennedy didn't seem particularly worked up about one side or the other.
What is likely to happen in the case? My guess is that the Supreme Court will reverse and remand. They'll probably say that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees, and then remand back to the D.C. Circuit to shape its proceedings in light of the constitutional requirement. Based on Kennedy's questions, I expect they'll also say that they interpret the DTA to allow a wide range of Constitutional challenges by detainees when they bring suit in the D.C. Circuit following their CSRT decisions. That's my guess, at least.
UPDATE: You can now listen to the argument yourself via C-Span; Howard's post has the link. Also, Marty Lederman offers his quick take here.
The first question, stated most simply, is whether aliens who are being indefinitely detained by the military at Guantanamo have a constitutional right to challenge the legality of their detention in federal court. * * *
The Court will need to answer the second question only if, as expected, it answers the first question in the affirmative. That second question is whether Congress has provided an adequate alternative process for reviewing the legality of detentions, in lieu of the habeas procedure to which the petitioners would otherwise be entitled. In other words, does the appellate procedure established by the Detainee Treatment Act and Military Commissions Act ”providing for a limited review of Pentagon detention determinations in the Court of Appeals for the District of Columbia Circuit”give the petitioners all of the protections the Constitution requires, or does it fall materially short of the review they would receive in a habeas proceeding? * * *
The third question is the substantive merits issue that is perhaps the most important single question arising from the Bush Administration's treatment of the so-called “war on terror -- namely, has Congress authorized the Executive branch to detain persons based upon the broad definition of "enemy combatant" that the Bush Administration has employed?
It would be disappointing if they didn't rule on the adequacy of the CSRT's, but no matter what the Court rules, Bush will flout the letter and spirit, and nothing will happen until January 2009 at best.
On the other hand, the Court seems to be mostly trying to make symbolic statements, when you look at how long these detainee cases drag on. When an important political actor, like the New York Times, has a problem, the wheels of justice move at a rather different speed. Is there someone with a less cynical explanation of what the Court is doing?
How can they without a record?
The lower court will need to conduct a factual hearing, much of it in chambers for security reasons.
If Souter is this far in left field on these facts, it is scary to contemplate his thinking on the other issues before the court.
I suppose we can deduce that holding at least one provably innocent man for 6 years doesn't count as "wrong" in ejo's mind. He must be quite the ethical gymnast, as it were.
Why?
A group of lawyers are going to decide (1) whether more lawyering will be done [that is, trying the detainees' claims in federal court], or (2) that less lawyering will be done [not trying the claims].
It's a no brainer when you look at it like that.
And I'll happily admit to being wrong if it goes that way.
BTW, I have no idea how to solve this particular problem with our justice system.
This guy and this guy seem to have figured out how.
Orin Kerr, pimp-slapping fools since 1979.
Kennedy asked a question about sending the case back to the DC Circuit for review of the adequacy of the established procedures. Clement discussed an answer to that question, but also spent quite a bit of time discussing how there was no need for that, since the procedures in place were already quite accurate and sufficient.
Waxman presented a short and sweet anecdote that completely undercut Clement's assertions and the actual adequacy of the current procedures. Essentially, Waxman pointed out that (because of the presumptions re evidence in place, and lack of access to counsel) serious errors are being made in the CSRT hearings, and that the prisoners are entitled to a factual hearing where they can present evidence.
You need only listen to the last 5 minutes of the oral argument to hear Waxman's rebuttal and the anecdote (or see the transcript when it's available).
I think you're being overly cynical, things just take a long time.
I think it's relevant that the Korematsu case was not argued until the Fall Term of 1944, less than 11 months before WWII ended. (The Decision Issued December 18th 1944)
Given that this is now the third round of supreme court decisions on this topic in 7 years I think the pace isn't overly slow.
I heard it. Why do you think that story undercut Clement's claims?
And after that, they will probably grant Constitutional rights to criminals! Right here in America, no less!
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I took the argument as being directed to the adequacy of the review process, both in the CSRT, and at any Court that the US might find has the power to review some or any aspect of the detention.
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The government argued that the review process is adequate; which implies that new evidence, especially exculpatory evidence, or evidence that correct past errors in finding, will be admitted.
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Waxman's "anecdote," accompanied with the legal conclusion that the new evidence would be inadmissible, undercuts the government's argument that the review process is adequate.
Of course, Germany has an actual army with, you know, troops and tanks and planes. Al Qaeda is so pathetic they can't even hold on Afghanistan let alone threaten the US in a meaningful way.
The obscene aggrandizement of actual terrorist capabilities aside, there was no need for the SCOTUS to interject itself into FDRs conduct because it was, overall, exemplary of American (and British) ideals during a time of war. That's not to say FDR didn't have his faults (internment wasn't so hot) but he stands a mile high next to W.
Isn't the adequacy determination a matter of comparing CSRTs to Article 5 hearings under Geneva? And didn't Congress already make that determination in MCA + DTA? And wouldn't D.C. Circuit have to establish a factual record first? So isn't Waxman's anecdote totally irrelevant?
I'm not with Scalia. I'm trying to get Breyer to see my argument makes sense to him. And certainly I concur with Kennedy. Breyer and Kennedy, yes.
"Yes, serious errors were made in the CSRT proceedings in the executive branch. But why is that relevant at this stage? The issue before the Court is whether judicial review in the D.C. Circuit is adequate and effective."
Clement argued the review is adequate given the present procedures. How is judicial review adequate when new evidence can't be admitted? Waxman showed that in his particular anecdotal case, it was the new evidence that was exculpatory, directly undercutting Clement's adequacy argument.
This must be sarcasm. I am pleased.
Korematsu, the WWII case most are citing, had nothing to do with German troops and tanks and planes. It did have to do with American citizens being detained on the basis of ancestry without due process of any kind (you know, that "internment was not so hot" thing).
The other major WWII case I can think of, Ex Parte Quirin (1942), did deal with German soldiers, but they abandoned their uniforms (and personally had no troops or tanks or planes at their disposal). The Supreme Court ruled that these men were enemy combatants and were subject to trial before military commissions.
Verifying my recollection about Waxman's discussion will have to wait until the transcript, but I think perhaps your "odd" impression of Waxman's argument is because he wasn't talking about 5th Amendment due process. I thought he prefaced his anecdote by arguing that as originally understood, a habeas hearing regarding executive detention back in the old days (1789) meant that the detainee had a right to a factual presentation on the merits. His anecdote was meant to show that, contrary to what's currently allowed, the presentation of facts by the detainee could make the difference between release and continued detention.
To be clear, I think Waxman's point was rhetorically effective, and may have left a helpful impression in support of his case. But I just don't see why it was a strong legal point.
That false coflation which has no basis in law is the entire basis for the petitioner's argument.
That false coflation which has no basis in law is the entire basis for the petitioner's argument.
I think the "tanks and troops and planes" is only relevant to the extent that there was no substantial dispute over how German (Or Japanese) prisoners of war ought to have been treated.
It still bothers me that so many frame this between constitutional rights and apparently letting terrorists go free.
We are in something substantially resembling a war, and ignoring for the moment concerns about how long this "war" might last, we would be fully within our rights declaring individuals captured on the battlefield to be prisoners of war and holding them for the duration of hostilities.
We just couldn't do things like interrogate them, but do we really think someone that's been at Guantanamo for 6 years has substantive intelligence left to give us?
I explicitly claimed that FDR was not perfect -- Korematsu is, in fact, proof of that. Nevertheless, there is one thing that FDR never contemplated which was essentially indefinite detention without a meaningful trial. The Nuremberg defendants, many of which were responsible for the murder of millions, were given full trials with attorneys and evidence commensurate to the gravity of the charges and punishment against them.
Meanwhile, innocent or marginal men in Guantanamo (certainly none of them butchered millions) are denied even the most basic right to counsel, to hear and defend the charges against them and to potentially exculpatory evidence against them.
Certainly we've lost a sense of scale somewhere in the intervening 50 years.
If the accused were indeed treated like US citizens, their release would have been ordered 5+ years ago for failing to bring them before a neutral magistrate in a timely fashion. The only logical fallacy here is the false dichotomy between full constitutional rights and zero constitutional rights without accepting even the possibility of an intermediate solution appropriate to the current situation.
If only for the sake of argument, Why should someone who holds citizenship only through birth in US territory or even birth to US parents abroad who has no other connections to the US and subsequently is captured fighting on the battlefield against US forces receive more felicitous treatment than someone who is simply not a US citizen?
All you're doing is bringing into focus the practical problems of attempting to declare people who are, for all practical purposes, "soldiers" albeit for a non-state entity to be criminals.
Why shouldn't the Dems get a chance to nominate their own abstract quantities to wage grammatically inappropriate "wars" against? I mean, given how well the war on poverty, drugs and terrorism are going it seems prudent to declare war on abstract notions as often as possible!
There is no way the military is going to agree to become police and conduct evidence gathering investigations on the battlefield.
Rather than sending captures back to the States to be released by civilian courts to return to the battlefield, I would suggest that the military going to limit the taking prisoners for only intelligence gathering purposes and killing the rest without giving them a chance to surrender. The prisoners taken for intelligence purposes will be kept in allied prisons so the lawyers cannot say that they are under US control. Indeed, it appears that we are already placing prisoners in Iraqi and Afghan custody in anticipation that the Supremes act without thinking.
That's a bit much Ben. Even I concede the propriety of continued detention of men who, if released, will pose an actual danger to the US or allied countries. I just differ from some folks in that I demand that this fact be actually proven in a non-trivial manner.
Objection, false dichotomy. Suspected enemy combatants can be given a level of rights less than criminal defendants but greater than the current mockery of justice.
Took me a while to get what you're asking. The short answer: Because they're U.S. citizens. Duh.
Our civilian criminal system is based on the proposition that the crime is already committed and it is better to forego punishing ten guilty people than to punish once innocent.
However, war is an ongoing mass murder which only ends when the other side is dead, captured or surrendered. In a war, is it truly better that we release ten enemy combatants back to the battlefield to kill hundreds of civilians and troops or to keep them detained along with one innocent?
On the battlefield, we accept that we will accidentally kill an occasional civilian in the crossfire in order to kill the enemy and end the war. This brutal logic applies to captures as well.
Citizens are different because they're citizens?
That's not circular at all.
Courts have held that Even US Citizens held as POW's cannot use due process to get out of a POW camp. (In Re Territo (1946) regarding A US citizen captured in italy)
Yes.
That's not circular at all.
Your question is circular. Cheers.
Unless you were asking something else ...
That's completely non-responsive to what I'm arguing.
We have every right to hold individuals captured on the battlefield as prisoners of war. Should we choose to do so, almost all of this goes away as prisoners of war don't get due process on that particular status, but they do get due process if they are to be charged with crimes.
I understand there's at least some doubt as to whether or not AQ types can be considered combatants under the Geneva conventions, but that says nothing about whether or not we may choose to decide that they do.
What do we lose security wise by declaring them such except the potential ability to interrogate them? and By the time someones been in US custody for several years I doubt they have much left to give us.
How does the addition of the word "suspected" reduce the grunt's incentive to kill rather than take prisoners?
When "improving" the current system for determining which suspected enemy combatants really are and which aren't, take care lest you inadvertantly replace it with something far worse - a de-facto policy of "Kill 'em all and let God sort 'em out."
The point of the question was that what's to stop a "citizen combatant" from also returning to the battlefield and fighting against US forces again.
Oh, ok.
The answer is either (1) jail, or (2) nothing.
That is, citizen combatants should be tried in U.S. courts. Pardon me if I missed it, but are U.S. citizens being held in Gitmo?
It doesn't. Nor do I believe that any reasonable people are proposing limits on grunts' unfettered authority to detain people on or near the battlefield. There is, however, a major difference between imposing any restrictions on the grunts and imposing restrictions people as far upstream as Gitmo which is, for all intents and purposes, hors de combat.
The inability to make a distinction between combatants on the battlefield and combatants that are held prisoner in a secure camp 10,000 miles away must be an intentional rhetorical tool.
I understand there's at least some doubt as to whether or not AQ types can be considered combatants under the Geneva conventions, but that says nothing about whether or not we may choose to decide that they do.
What do we lose security wise by declaring them such except the potential ability to interrogate them? and By the time someones been in US custody for several years I doubt they have much left to give us.
Let me back up a second because I'm missing a few facts. You mean the prisoners at Gitmo are not POWs? What are they, then?
If it wasn't for sarcastic praise, I wouldn't get no praise at all ...
Anyway, it is hornbook law that *some* constitutional protections extend even to non-citizens. We can and should argue the scope of those protections, but the notion that non-Americans are, legally speaking, dirt, will not stand.
As some commenters observed in discussing the structural nature of the Suspension Clause, can the U.S. government enslave non-Americans outside of U.S. soil? Some of the above commenters would appear to think that the answer is "yes," because non-Americans outside the U.S. have no constitutional rights.
You misunderstand the petitioners' argument. It does not matter what privileges we grant them as POWs. As per the al Qaeda manual, they deny that they are combatants who can be held as POWs and seek to be released by the civilian courts through the habeas corpus vehicle to return to the battlefield.
"Unlawful enemy combatants." (See the MCA.) If they were POW's, we'd have to give them the appropriate Geneva protections. So Bush has been strenuously arguing that they are NOT in fact POW's.
Given the nature of the questioning, what do you think of the possibility that they will dismiss the case on the grounds that they improvidently granted cert?
They lost the appellation "suspected" when the CRST held them to be enemy combatants.
The point I was making is that grunts on the battlefield are less likely to take prisoners if the Supreme Court makes it easier for those prisoners to return to the battlefield and try to kill them again.
You're missing my point, which is that if the grunts don't trust that what's happening in that secure camp 10,000 miles away protects their safety, they might start making their own unofficial policy in the field, and neither of us are going to like what they come up with.
Show me that hornbook.
And then they might clothe Petraeus in the purple and march on Washington!
--I have more respect for the U.S. soldier than Mr. Phelan appears to.
Whether a prioner is ultimately released years down the road is not, and never has been, the soldier's worry. The mere fact that interrogation of the prisoner might save the lives of the soldier and his comrades, leaving aside little things like "duty" and "honor," should be enough to govern a soldier's "policy" in this respect.
Correct, I don't think there's any constitutional or legal constraint against Congress approving and the President executing an evil foreign policy. Are there legal precedents saying otherwise?
Oh, right. They are not POWs because they were not in uniform, etc.
With apologies, the CSRT could deem a ham sandwich to be an enemy combatant. I put about as much faith in the CSRT as I do in the government brief (after all, that's basically what they are).
Because grunts are keenly aware that it's worth killing a man that might given them useful information that will protect them tomorrow on the vague theory that he might be released in a few years? I'd accuse you of insulting our troops' intelligence if I had the impression you actually thought that argument through.
I'm not expecting full scale mutiny, just some slightly different decisions in marginal cases. But that is a cost to be considered.
No.
No it is not. Constitutional rights are not extended to foreign persons who have not made themselves part of the citizenry and most definitely not to foreign persons who have never even set foot in our country.
This is also incorrect.
Under the common law of war, POWs are simply enemy combatants who are being detained for the duration of the war to keep them from returning to the battlefield.
GC3's far more narrow definition does not define POWs for any other purpose except to determine whether they receive protections granted by the GC3.
Under your argument, enemy combatants who violate the laws of war and do not qualify for GC3 protections would receive the greater protections of civilian criminal defendants. That makes no sense at all.
The inability of the administration's defenders to quit begging this question is truly remarkable.
Showing that someone captured on a battlefield should be detained is pretty trivial--at least for the duration of the hostilities.
And roundabout back to where I started. Why these arguments that present this as either accepting the status quo or letting "terrorists" go free, (or more recently, leaving the military with no choice but to summarily execute them because those "justices" are just going to let them go free.)
The side track about citizens was only meant to illustrate the practically arbitrary nature of these differentiations between various kinds of enemy combatants and where they're held.
There are decent arguments as to why we may have the ability to declare terrorists some middle catagory rather than simply POW's or Unlawful Combatants (Quirin), thereby denying them both the rights of Pow's and the Competent Tribunals of Qurin (the German saboteurs did get lawyers and hearings)
I'm asking what we gain by doing this? If we hold AQ types as POW's we can still charge particular deserving ones of crimes, we just have to make the choice of doing so under full due process rights or continuing to hold them merely as POW's.
I understand that you disbelieve everything your own soldiers tell you and trust the enemy petitioners implicitly.
With all due respect, the Lenin used to call folks with this belief "useful idiots."
I understand their argument, but their argument is only possible in the context of "enemy combatant" rather than POW.
If we were guaranteeing rights under the geneva convention (as we're mostly doing already) I doubt the courts would be seriously considering arguments on their part to be made free.
Pure slander disseminated by the despicable Clinton war machine. It proves your bias on this issue, as Seth Waxman is a Clinton era flack. You Clintonites stick together like flies on
[redacted by Bush adminstration].As for the general issue of non-citizens, see Yick Wo:
The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality * * *
Now, is Gitmo "within the territorial jurisdiction" of the U.S.? I believe that Rasul settled this question. (See section 4 of the opinion of the Court.)
Thank you for your patience. I learned quite a bit on this thread. Regards, Bill
And, as per some reasonable procedure that comports with Western notions of justice, we can put the evidence that said detainee is, in fact, not a civilian but a member of AQ in front of an impartial panel and make a finding of fact.
Okay. I would submit that (1) habeas is a fundamental right, inseparable from the right to liberty recognized in the Declaration; that (2) a right is meaningless without a way to enforce it; and that (3) the Executive cannot and should not be trusted to unilaterally make such decisions in the case of persons like Boumediene, who was not captured on any battlefield.
That leaves as (4) my conclusion that the independent judiciary should make such determinations; it's what they're for.
Two quick points.
1. Anderson is right, no matter what happens, there will be no trials or hearings or whatever until after a new president takes over.
Then the new AG will ask for an extension until they can develop a policy. I guess 2010 until a federal judge has to face signing an order releasing someone the executive calls a terrorist and a threat to the US. After appeals, the first Gitmo prisoners may be released about 2012. Or later.
2. FDR had an American citizen hung after a rump trial before a military commision. A citizen captured in the US. Yet, some can claim with a straight face that:
Oh yeah, internment without charge of hundreds of thousands of totally innocent people. Including children. Not 350.
But the GC3 also states that any detainee has the right to have his status determined by a "competent tribunal."
Further, and although this is completely and totally non binding, we have the opinion of the Yugoslavia Tribunal
"there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied."
Moreover, those very protections given by the GC3 still allow legal POW's to be tried for crimes, they must merely be granted rights accorded under the convention in the process.
P.S. Prior to posting this, I noticed Anderson's posting on Yick Woo - which backs up exactly what I'm saying
further, these enhanced rights will only be available to those not wearing uniforms or attempting to follow the rules of war. the logic of this position escapes me but I am sure Bush is somehow responsible for it. essentially, the soldier wearing a uniform and not hiding behind civilians is a sucker, don't you think given the law they want to have?
With all due respect, the Lenin used to call folks with this belief "useful idiots."
You are simply being dishonest and disingenuous and ignoring the facts of the case before the Court. These men were arrested by Bosnian police (in violation of a court order and after the Bosnian Supreme Court determined there was insufficient evidence to proceed with the charges against them) and turned over to the U.S. military. They were not caught on the battlefield shooting at soldiers. We don't know what evidence the government has against them because it is classified. We do know that whatever it is it is insufficient to sustain criminal charges in Bosnia.
Contrary to what you claim, many of the detainees at Gitmo are in very similar circumstances. They weren't caught on the battlefield by our soldiers. Rather they were turned over by Pakistan or Afghanis, often for cash bounties. It is clear that many are completely innocent. Also, under Bush's rules, one can be declared an "illegal combatant" simply for providing material support to Al Qaeda--in the case of the Lackawana Six, attending an Al Qaeda training camp and leaving when they realized what was going on was determined to be "providing material support". Under the current rules you could be held forever just for giving money to a terrorist organization.
Where on earth did you get this. Nothing could be further from the truth. All I have ever argued for is that the detainees be treated in accordance with the procedures the uniformed military JAG corps suggested when the war in Afghanistan first started. That is, under the rules established by the GC and the UCMJ.
You are simply being dishonest and distorting my position.
It is possible that the petitioners may win the habeas corpus battle, but lose the substitution war.
Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts. All the DC Circuit can do under the DTA is either approve the prior CSRT hearings or make the CRSTs hold new hearings. The DTA does not allow the DC Circuit to substitute the civilian courts for the CSRTs for the determination of whether the prisoner is an enemy combatant.
I'm reminded of one of the shortest Monty Python sketches ever - a guy facing the camera saying "I say we should tax all foreigners living abroad."
Wasn't that the original point of the British Empire?
As Scalia pointed out, 300 years of precedent has established that enemy combatants (legal or illegal), are subject to the laws of war, not to civil law.
False. It defers the issue pending the results of the D.C. Circuit, which in an alternative universe *could* hold that the CSRT's are ridiculous Vyshinskian charades.
Well I hope Scalia realizes that what the government is trying to do here is make these "enemy combatants" not be subject to any laws, not even the laws of war.
They would not get a full civilian court trial, they would get a lawyer to represent them like the Quirin tribunal and be able to present evidence that would aid their situation. Stop bringing up BDS like it was the cure for your ignorance.
The point is that because the limited review given to the suspects was so biased and did not offer any reasonable chance for the suspect to explain himself, it looks very much like a "kangaroo court" that democracies try to avoid as much as possible. We see these mock tribunals given as simple lip service to the concept of justice that has made our country great and has not had us fall to the heathens in a few hundred years. If the administration bothered to act in good faith on this issue, they would have gotten everything they wanted, but they insisted on rewriting the rules and not letting anybody see the criteria.
Nobody would just "go free" if they were going to be charged with a crime. That's the point here. When your military lawyers protest the tribunals, why bother even having the tribunals at all? Stick the scum in a memory hole and forget about them forever? Could you accuse a military JAG of being a terrorist-lover? C'mon. And for people fighting to spread democracy, this looks pretty discouraging that we'd abandon our principles so easily to grab some simple-minded scumbags.
And for those fighting in al-Qaeda, it's rewarding to see how quickly fear makes us abandon those truths we held self-evident back in 1776.
Is this meant to say that Germany was a bigger threat to US than Al Qaeda? I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC. Oh, and those embassy bombings and the Cole . . .
Nope, no threat to us at all. Or, if they've beconme a threat, it's only because Bush upset them. Except that these attacks on Americans happened before Bush did anything . . .
Reality is hard.
If I may speak to Oren, "yes."
I don't recall the Germans, for all their tanks and all their evil acts in Europe, ever killing thousands of Americans in NYC and DC.
Right. So?
Sending this back to the DC Circuit for a DTA review implicitly accepts the CSRT's as an adequate substitute for habeas review in the civilian courts.
False. It defers the issue pending the results of the D.C. Circuit...
My friend, the DTA only permits the DC Circuit to make two determinations when reviewing a CSRT determination - whether the CSRT determination in a particular case was conducted in accordance with the “standards and procedures” established by the Pentagon and “whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States.”
The DTA assumes that the CRSTs and not the civilian courts will make the substantive decision of whether the detainee is an enemy combatant. The DC Circuit is limited to determining whether the CRST followed its own procedures and whether those procedures comport with the Constitution. While it is possible that the DC Circuit could compel DoD to adopt additional procedures if it somehow finds that the Constitution provides procedural rights to foreign prisoners, but the DTA does not permit the DC Circuit or any other civilian court to make the final substantive status decision.
Therefore, Kennedy has no reason to defer habeas corpus proceedings in the federal district courts and allow the DC Circuit to continue its DTA reviews unless he intends to allow the CRSTs under DC Circuit review to substitute for civilian court habeas corpus review.
Waxman did not view Kennedy's suggestion as merely a deferral of civilian court habeas corps review. Rather, he vigorously tried to convince Kennedy that this was a bad idea because the CRST's are "fundamentally flawed." Waxman realized as I do that the DTA assumes that the CRSTs will make the final substantive status decisions.
But I do seem to remember something about Germany allying itself with Japan and declaring war on the US immediately after Japan killed thousands of Americans at Pearl Harbor.
Five times as many Americans drown in their bathtubs and pools than are killed by AQ (3000 vs 600 a year). Far more Americans are intentionally killed by each other Americans (~10k a year) or unintentionally while driving (~40k/yr, half relating to DUI).
9-11 was a terrible and tragic event but it was also a statistical fluke. It is the perfect example of a 'black swan' that commands attention so far in excess of its actual significance that it has distorted seemingly reasonable people into illogical contortions that are in direct contradiction with statistical fact.
Bush had nothing to do with it. AQ was not a threat before Bush and will not be a threat after he leaves. Believe it or not, some things are beyond the reach of even the Commander in Chief (e.g. Osama bin Laden).
So is objective fact. Try it sometime.
From past experience, I think it would be counterproductive to carry our discussion beyond that, though I'm interested in having my mistakes pointed out by anyone else.
Even worse, the government is reducing (to nil) the scrutiny needed to apply the designation 'enemy combatant'. I have no problem with highly restrictive policies regarding enemy combatants so long as the determination of 'enemy combatant' status is made in an impartial manner and backed up by objective fact.
At the very minimum, there is no value in a CSRT when the government does not feel bound to its conclusion if they don't like it. Specifically, there are documented cases of the government calling multiple CSRTs until a detainee is found to be an EC. How anyone can defend a procedure under which the government gets to keep trying until it gets the desired result is beyond me (all other very important flaws int he CSRTs notwithstanding)
As to the oral argument, I think the key is the question of whether the the MCA and CSRT are read to permit the DC Circuit to release someone - the fundamental habeas relief. If that is part of the Supreme Court's decision then the Supreme Court will leave all the issues below. Not because the other issues of "enemy combatant" and "adequate procedures" should not be decided in this round, but because the parsimonious nature of Supreme Court decisions today (No grandeur of Judicial Power of a coequal branch; more like legal auto mechanics). I wonder how an international criminal tribunal will look back at all this maneuvering some time in the future.
Best,
Ben
Rhetorically speaking, I don't know how to respond to people that even think AQ is in the same league as Germany. Hell, they aren't even playing the same game! I've tried reasoning it through, I've tried whacking people over the head with statistics. I've even tried mixing in my absolute disgust at AQ has with my attempts to bring back perception of their actual capabilities back to earth.
None of it works.
Remember also, that in the phrase "solicitor general" or "attorney general" (or even "surgeon general" or "postmaster general" for that matter), "general" is the adjective modifying the preceding word.
Personally, I find it no less grating than referring to judges I personally despise as either "Your honor" or "the Honorable" even when I am deeply convinced they are not honorable and bring no honor to the bench. It is just a matter of respect.
Opiniojuris gathers Kennedy's statements and comes to the same tea leaf reading that I do:
First Exchange (pp. 20-21):
JUSTICE KENNEDY: Suppose there had not been a six-year wait, would it be appropriate then for us to — if you prevail — remand the case to the habeas court and instruct the habeas court to defer until the Court of Appeals for the District of Columbia has finished the DTA review proceedings?
MR. WAXMAN: I would argue that the answer is no for two reasons. The one because there is no prospect, no prospect that the DTA proceedings will be conducted with alacrity or certainty …
JUSTICE KENNEDY: Why should I assume that the district court in Washington would be any faster than the court of appeals?
Second Exchange (p. 22):
MR. WAXMAN: … the Petitioners have to have the right to adduce and present evidence to controvert the government's return which was — almost all of the government's evidence was introduced ex parte, in camera, and with a — to boot with a presumption that it is accurate and genuine.
JUSTICE KENNEDY: Why can't that take place in the CSRT review proceedings that are pending?
Third Exchange (p. 53):
JUSTICE KENNEDY: I didn't understand that point when you were having your colloquy with Justice Breyer, either. I thought you were going to answer to Justice Breyer, that the court of appeals does have the right to determine whether to the extent the Constitution and the laws of the United States are applicable, whether such standards and procedures, such as CSRT, are — - to make the determination — are consistent with the Constitution –
GENERAL CLEMENT: Yes, Justice –
JUSTICE KENNEDY: — that's provided in the MCA.
GENERAL CLEMENT: It absolutely is….
Fourth Exchange (p. 54):
JUSTICE BREYER: …. [Y]ou could have the best procedure in the world, and they're totally constitutional.... They're not going to concede it. They're assuming it. On that assumption, we still think that Congress, the President, the Supreme Court under the law, cannot hold us for six years without either trying us, releasing us, or maybe confining us under some special statute involving preventive detention and danger which has not yet been enacted….
JUSTICE KENNEDY: But the statute talks about standards. Why can't that question that Justice Breyer raised be reached by the Court of Appeals under the CSRT review hearings when it determines the constitutional adequacy of the standards, or am I missing something?
Fifth Exchange (p. 55):
JUSTICE KENNEDY: Just one more question on that point: Would the Court of Appeals in — under the MCA have the authority to question the constitutionality of the definition of noncombatant — of unlawful combatant?
GENERAL CLEMENT: Absolutely, Justice Kennedy. That would be available to them in the D.C. Circuit.
Sixth Exchange (pp. 73-74):
MR. WAXMAN: … We can raise that claim because they have to establish that the procedures and standards were consistent not only with the Constitution but also with the laws of the United States. And the problem this is this –
CHIEF JUSTICE ROBERTS: That is an argument that, I gather, both sides agree is available to you under the DTA before the D.C. Circuit.
MR. WAXMAN: That is absolutely correct….
JUSTICE KENNEDY: What does that tell you about the adequacy of the substitute?
We shall see...
For those of you unaware (see Anderson's post, supra)-
The poster 'Bart' is Bart dePalma, who consistently... um.... enhances threads with his uncommon insight (in that no one else shares it) and repetitious nature over at Balkinization.
If you see a post of his that you know is factually untrue or legally unsound, please realize that others know this as well.
It is just a straw man argument, the fact that they need to be hunted down and killed doesn't depend on their level of threat.
Well I hope Scalia realizes that what the government is trying to do here is make these "enemy combatants" not be subject to any laws, not even the laws of war.
No, the Bush Adminstration and Congress is trying to make enemy combatants subject to the jurisdiction of Military Commissions, consistent with the laws if war, established Supreme Court precedent, Congressional legislation, and common sense.
Of course AQ needs to be hunted down and killed - I never implied otherwise. I only make reference to the magnitude of the threat to distinguish from more bona-fide threats to the existence of the US (WWII) and to allow me to scale my response in a rational way - I would not, for instance, be in favor of a plan that would utterly destroy AQ at the cost of half the US GDP.
More importantly, however, the magnitude of the threat determines that amount of 'collateral damage' that I'm willing to accept while attempting to crush them. This is purely a utilitarian argument based on the relative utility of ridding the world of this evil (which is equal to the sum total of their threat) versus the disutility of harming those that are innocent (which not related to their threat).
Accepted. I just don't accept that Boumediene is an enemy combatant nor that the procedure for declaring him as such is sufficient.
The smaller the threat the less collateral damage should be tolerated.
Military Commissions to determine combatant status is the process the supreme court required, and Congress implemented via legislation.
The CSRTs are not sufficient - as I said before, they would classify a ham sandwich enemy combatant. When an 'innocent' verdict is not binding on the gov't the process can best be described as a joke.
If one CSRT finds a detainee not to be an EC, they can keep doing it until they get the answer they want?????!! come on. is that American? Doesn't any human being, even if not a citizen, deserve to have a fair hearing as to whether they are actually an enemy combatant as opposed this kind of kangaroo (i.e., it can keep trying you until you're found guilty) court?
You must not read the comments there very often. A number of conservatives post there.
Which is exactly why the issue was not briefed and the Court did not accept the case for review. Oh, wait.
I think we can agree that this is a politically-charged case (harkening back to your proposed umpire test for Roberts), that the conservative position would be to adopt the government's position that the Supreme Court has no jurisdiction to hear the case, and that Roberts will vote for that view.
Anyone disagree? (NOTE: I am not saying who is right or wrong on the legal issues, just showing how this sort of categorizing and predicting is not the impossible task that prior comments seemed to describe.)
Also, as I said before (and which you now agree), Kennedy will write the controlling opinion, and say that Congress can't take away the Supreme Court's right to review this, and essentially punt on the rest by sending it to the DC Circuit.