Strengthening Constitutional Self-Government

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Guantanamo detainee decision

The D.C. Circuit Court of Appeals held that the 2006 Military Commissions Act denied Guantanamo detainees the privilege of the writ of habeas corpus. I haven’t had time to read the 59 page (25 pages, with 34 of dissent) decision yet.

Senate Democrats want to restore the privilege, among other things, but I doubt they’d have the votes to override President Bush’s (predictable? hoped-for?) veto.

Update: Here’s an interesting passage from the court’s opinion, quoting from Johnson v. Eisentrager, a 1950 case dealing with German nationals ("nonresident enemy aliens"), captured, tried, and convicted in China and held in occupied Germany after WWII:

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Discussions - 19 Comments

Well, last I looked, that writ pertains ONLY to American citizens. How stupid.

That, among other things, is just what is at issue, dain. For example, due process in the Fifth Amendment, applies to any "person."

Joe - Your passage from the opinion gets at the heart of the matter!

You’re right! Egad, and some people interpret this to mean that our Constitution protects the whole world from our own government? Pretty silly.

The first part of the quote should be revised after Reid v. Covert (1957).

And good to see that we’re back on the "Guantanamo isn’t U.S. territory" train. I suppose that means that Castro can start a judicial inquiry there, since technically Cuba retains sovereignty.

Here’s the case to which Brett refers. It deals with military trials of the dependents of servicemen stationed overseas. I’m not sure how it revises the first part of the statement, but I am sure that Brett will explain it to us. (If I’m not mistaken, members of the armed forces are subject to courts martial under the UCMJ. Citizens who aren’t in the military, but accompany it abroad, can’t be tried by that means, according to this decision.) It doesn’t immediately seem to me to help the appellants in the cases decided today.

It’s possible to hold the view, as I do, that the DC Circuit is right, and that Congress was wrong, on prudential grounds (not that many members of Congress thought about what they were doing).

I suppose this makes me an unreliable "conservative" and an unreliable "liberal." O well.

Steve,

It makes you a very admirable proponent of judicial self-restraint. Let Congress change the law (as it just did), if it doesn’t like what the courts are doing.

I wouldn’t bet the farm on George Walker Bush vetoing anything.

A veto, you see, isn’t very cooperative, it’s not bipartisan, it cuts clean across the whole idea of "new tone."

David Frum insightfully observed that this man, {really, the WHOLE Bush family} places the establishment of "new tone" at par with any other item on his domestic agenda.

Frum wrote that, what, three years ago. Just about everything that Frum had qualms about then, has come to full nightmarish fruition since.

And I’m CONVINCED that Bush KNEW EXACTLY what he was getting when he nominated Meirs to the Supreme Court. I don’t believe for one fricken second that he actually thought she would vote with Scalia. Just as the father offset Thomas with Souter, so the son sought to offset Roberts with Meirs.

For the men in the Bush family, there’s something dreadfully UNFAIR about using office to pack the courts. That doesn’t agree with their anachronistic WASP ways. So they’ve devised this little solution, they’ll make appointments PRETENDING they’re just looking at qualifications without the ideological baggage. Of course, they need to spin the base, but they’ve become accustomed to pacifying yahoos with soothing words of comfort. Both father and son trotted out that "trust me" crap. Patriotism has been inaccurately called the last refuge of scoundrels. "Trust me" is TRULY the last refuge of a Rockefeller Republican.

Joe, thank you for the helpful post.

Help me further, please. Due process in the Fifth Amendment seems to me to insist that the US treat all people well, regardless of citizenship. But why is it sensible, or Constitutional, to treat everyone as if they were citizens? How so, especially when it comes to enemy combatants? Unless we choose to presume that we have no true enemies of the state. (Maybe I am just having a slow morning - it is dim here today and I feel dim, too.) I understand that this court decision restrains this, but are we otherwise moving in a direction wherein the privileges of citizenship are available to every person in the world?

I have a dim memory of a podcast Peter Schramm did with someone, John Fonte, speaking about immigration, who said that America must decide if it is a nation or a marketplace. The legislation proposed by Chris Dodd sounds like it would make us the latter, wherein it would be very hard to even prove who is a thief.

My Reid comment is probably a blind alley. Sorry. The question of the status of Guantanamo is more interesting.

Kate - Great question, but I cannot try to offer an answer until this afternoon. I seem to agree with Joe on the constitutional part, but perhaps not on the policy matter. Brett will also have a view.

Since my name has been invoked. . .:-)

The detainees aren’t asking for the privileges of citizenship. They’re asking courts to fulfill their historic oversight role over the executive. Courts open their doors to non-citizens all the time. And the Dodd legislation would make accuracy more likely. Do you really think that the executive branch will be more accurate in its designations of individuals as enemy combatants if no one can challenge those determinations outside of the executive branch?

Brett, I thought we had a system of checks and balances, but your statement above would seem to embrace the check and deny the balance.


I think if everyone gets to weigh in on who is an enemy combatant and who isn’t, the courts will get bogged down (haven’t they been, already?) with problems of evidence. How is it proven that this guy captured in Afghanistan (as aren’t most of the Guantanamo detainees?) in 2001, in a very fluid situation, is or is not an enemy of the US? Is there going to be evidence that will hold up in court if we apply civilian court standards? Who has time to collect evidence in a war? Even some of those detainees released have proven to have been problems. Which argues, to me, that even US military justice is inclined to assign innocence over guilt.


Does the "due process of law" have to be the same process for citizens, non-citizens, and the subset of non-citizens who have been in battle against our soldiers?


President Bush is castigated for saying he wants to spread democracy everywhere around the globe, but it seems to me that this Democratic legislation, and their inclination in other areas, would extend our democracy in a way that would make nonsense of US citizenship.

I thought the Court already addressed procedural due process for combatants in Hamdi? O’Connor said a scaled down Rules of Evidence, use of Hearsay, etc. would be fine and constitutional.

Kate: in order to judge whether or not courts should be able to entertain habeas petitions of detainees at Guantanamo, we don’t need to solve the problem of whether citizens and non-citizens should be treated the same way.

But even if we did need to solve that problem, I’m not sure how it denigrates citizenship to say that the executive branch shouldn’t be able to detain someone for half a decade - or, indefinitely - without any independent oversight, regardless of their citizenship status. Why should citizenship be the marker that determines whether you can be held by the U.S. executive forever, without anyone having the legal authority to compel the executive to justify the detention in some fashion? Do you really feel better about American citizenship (as opposed to being an American citizen) if the executive branch can throw Afghans, or Australians, or Germans into permanent legal limbo, but not you?

Well stated, Brett.

Brett, I agree with your general approach. The Congress should reconsider this matter. I have seen nothing that convinces me that national security requires this limbo. It is abstract assertion. Meanwhile, the administration’s claim of executive power has damaged the reputation of our institutions: a decent respect to the opinions of mankind is not irrelevant to our security.

Brett, Thanks. Between this and what turned up on the web over the course of the afternoon, I have a bit more understanding. The issue of what citizenship is in America, as well as the the larger question of state power over the individual, whatever his status are bothersome issues for me. I had a lot of housework to do yesterday, which left me with lots of time to think.


No, I do not like the idea of the executive branch being able to detain anyone indefinitely. I do think it the role of the legislative branch to define this and it may just be my prejudice against Chris Dodd that makes me leery of his legislation.


As to your Afghans, Australians or Germans in legal limbo, in principle, I would not see that. In the practical, if that would detain and restrain the violent who might otherwise be free to do harm here or even in Afghanistan, Australia or Germany, then I am not so confident about standing on principle.


(Steve, I’ll go read Hamdi again. It has been about a year since I last looked at it, and I am no legal scholar.)


My son worked at Guantanamo with the detainees. He knew those Uighurs who we kept for so long because there was no safe place to send them. Nice guys, apparently. There were some others for whom a trip home might not be pleasant, and I am being euphemistic. There were many others who were NOT nice guys, who my son said ought probably never see freedom, both for what they had done and what they were perfectly capable and longing to do to other people if they were free. In principle, the executive branch might not have the right to keep them, indefinitely. In the practical? What do we do?

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