I’ve blogged below about one aspect of the Guantanamo detainees case; but here’s the bigger picture: Say that we’re fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You’ll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don’t have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.
Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren’t actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.
Would this tactic be allowed? Well, let’s consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn’t get their petitions considered).
Like the detainees at Guantanamo, our hypothetical detainees (1) “are not nationals of countries at war with the United States” — our war isn’t with their countries, but with insurgencies in those countries. They (2) “deny that they have engaged in or plotted acts of aggression against the United States”; it costs them nothing to deny that. They (3) haven’t “been afforded access to any tribunal, much less charged with and convicted of wrongdoing,” partly because there’s nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) “in territory over which the United States exercises exclusive jurisdiction and control” — imagine that for security reasons, we need to keep them at a base that’s at least as controlled by us as Guantanamo is.
It sounds like they’ll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.
Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they’re captured. Here we’d be giving them a cheap (for them) and safe way of doing that. If I were the other side’s general, I’d actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that — there’d just have to end up being some soldiers in every prison camp who can write the petition on their comrades’ behalf). This would be a very substantial burden, and one that to my knowledge we’ve never had to labor under.
Now there are three possible responses to this:
First, one can argue that, sure, this would be very expensive and burdensome, but that’s the price we pay for justice. But I don’t see any reason why this is a necessary price — one that the Constitution or an Act of Congress requires us to pay. In war, there is always the risk of injustice; innocents even unfortunately die, with no legal process for every bombing or attack to decrease that danger. It seems to me that people on the field of battle must run the risk of being erroneously detained as well as being erroneously killed. The constraints to that have traditionally been moral and political, not judicial; I see no reason why this should change.
Second, one can argue that there’s really no such burden, since the military can always avoid habeas review of detentions just by keeping people outside Guantanamo, in places where the U.S. government has less complete control (for instance, on a base leased from a friendly country, which at least has the power to kick us out when it wants to). But what’s the point of that? And beyond that, as I argue below, it isn’t even clear under the Court’s decision that this would indeed be enough to avoid the Court’s judgment.
Third, one can argue that the military can avoid habeas review of detentions just by providing them with some modest “access to [a] tribunal” — for instance, a brief hearing before a military tribunal, such as that contemplated by article V of the Geneva Convention. This might indeed be a much lesser burden on the military, since it may involve only a brief hearing by military officers with highly truncated rules of evidence. And the military may often engage in such hearings in any case.
This would be the best spin that could be put on the Court’s decision. But from the Court’s opinion, it isn’t clear whether such hearings would be sufficient (since they seem to be just one factor out of four). Even if they are, it isn’t clear what sort of military process is sufficient to avoid any need for civilian review (which is what the writ of habeas corpus contemplates). And if they can be highly truncated, it isn’t clear how much of a benefit they really will provide to anyone.
Finally, one can say that that is a different case, and we shouldn’t let hypotheticals involving 50,000 detainees affect the judgment in a case involving several hundred detainees. But can entitlements on habeas corpus, which are individual rights, really turn on that? “If you’re one of up to X detainees, you have an individual right to habeas corpus; but once more than X people are detained, you lose that right” — I can imagine the Congress enacting such a statute, but it would be a mighty odd rule for a court to come up with on its own.
So that’s the source of my misgivings about the Court’s Guantanamo decision. Let’s hope that my concerns eventually prove groundless, and litigation does not indeed become one of the enemy’s weapons of war.
UPDATE: Will Baude at Crescat Sententia responds. I don’t think his analogy is quite right — the right to trial for civilian crimes is very clearly established; the question here is whether we should in the first place recognize a novel right to civilian review of military detention of aliens captured overseas. Still, I thought it would be helpful to link to the argument.
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