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June 12, 2008

SCOTUS rules 5-4 for detainee habeas rights

As detailed in this early post at SCOTUSblog, this morning brings a notable detainee ruling that will bring back talk of a Kennedy court:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.

Thanks to SCOTUSblog, all 134 pages of the Boumediene can be accessed here.  I have other planned obsessive activities today that will keep me from figuring out if anything in this long case will assist in regular criminal practice.  Readers are encourage to tell me what I might be missing.

June 12, 2008 at 10:12 AM | Permalink

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Comments

Wow, this decision really incentivizes the military to capture and not kill.

Posted by: federalist | Jun 12, 2008 10:49:51 AM

The score is now:

U.S. Constitution: 3
Bush/Cheney Cabaal: 0

That silly "goddamned peice of paper" keeps getting in their way.

Posted by: American Justice | Jun 12, 2008 11:14:55 AM

Actual fighting on a battlefield is a different ballgame than capturing and detaining. Different laws apply to these activities.

I don't know any solider that will read the opinion (and every solider I know is a true American and *will* read the opinion) and decide that they have to kill people rather than follow orders or go out of their way to kill people.

In fact, I think this opinion actually *helps* combat operations. It continues to take them out of the realm of politics. The armed forces are free to prosecute a war. But, once they capture people, partisan political decisions made by civilians will no longer determine the fate of the detainees.

Posted by: S.cotus | Jun 12, 2008 11:41:19 AM

How sad of a reaction federalist has. If I am interpreting his sarcasm correctly: "Well, if the detainees are afforded their constitutional rights, then our military is more likely to just kill them rather than capture them." Do I have that right?!? Is this really the view we should have of our military?

Posted by: a | Jun 12, 2008 1:01:40 PM

Does this put at least a bullet in AEDPA ? How can the courts and admin. ( such as the prior USAG Albert "no Habeas Corpus" Gonzo. )square allowing war prisoners to have a day in court but lock out American prisoners by way of procedure? The 1 year statatory ban you would think will have to fall as the Gitmo gang have been in for over 5 years. Under equal protection clause the wall of AEDPA should in my opinion shall fall as it should.

Posted by: Rcon1 | Jun 12, 2008 1:09:12 PM

I am an ex-military officer, and while I would follow orders, where I had discretion, the calculus has just changed.

In some respects, this decision is laughable. It incentivizes renditions, secret detentions and killing instead of capturing. The procedures by which a detainee is determined to be able to be detained are amorphous as well--that ought to be interesting to see how District Courts determine, on an ad hoc basis, how this all is supposed to work. (Query: Do the courts have to show deference to the agency (i.e., DoD) as they would in a regular admin law case?)

But what this decision really does (other than undermine respect for the rule of law, because this decision is, in every sense of the word, lawless) is subject the courts to two very bad choices. The first is that the courts could become a rubberstamp for the Executive. The courts would be incentivized to do this because courts will necessarily be reluctant to second guess battlefield decisions and most judges would not want to guess wrong and have the guy kill American soldiers or seriously harm our interests. And what of the detainees? Well, gee, once the decision is with the courts, then the Executive is not incentivized to make any decision whatsoever--as someone else will be taking the heat. And courts take a while, and, moreover, if they decide that the government can detain, then good luck having the Executive, with judgment in hand, release the guy.

The far worse possibility is that the courts decide to let someone go free and that person goes on to seriously hurt the United States. That, my friends, would be the end of judicial supremacy. Let's say one of these turkeys is behind a 9/11 type attack or exploding a dirty bomb in a major American city. The courts are going to be blamed by the political branches. And I doubt the courts could take that kind of political heat. An American president, politically speaking anyway, would be well-advised to pillory the courts and state publicly that we should not have listened to them over detainees. And when public support for the judiciary goes, the judges only have a piece of paper.

Let's all hope that push doesn't come to shove.

Posted by: federalist | Jun 12, 2008 1:45:48 PM

Dont forget the "Getmo Goatherders" for the most part are just small fry. Also, can you count how many cases were brought against ANY 9-11 suspects? The money trail is the first thing any good investigation does and this government failed to even look. (9-11 Commision) so if yo belive 19 Hijackers pulled of the biggest attack on American soil in history, these no need to look farther and disband gitmo.

Posted by: Rcon1 | Jun 12, 2008 1:58:02 PM

I can’t read it any other way. Federalist is saying that if he was still on active duty he would read the opinion and disobey orders.

Anyway, the opinion probably doesn’t change too much. The actual commissions can still proceed. There is some notable discussion about the nature of habeas.

If anything, the military will have to start taking the CSRT procedure seriously. This is not an impossible task. In essence, the more sham-like the procedure is, the more the courts will inquire into it.

The other two problem with the general argument that somehow this opinion hurts national security, is that there is no indication that the courts have ever ordered the release of someone that should have been held. But, on a more fundamental level, the executive is free to try and enact a constitutional amendment that would specifically authorize whatever it wants to do. It did not try. Instead, it viewed constitutional amendments about flag-burning and gay marriage to be much more important. Those were rejected. (For good reason: one contravenes very fundamental concepts of free expression, and the other one seems to eviscerate federalism.) An amendment about detainees would probably go over easier, because no Americans would be directly impacted by it. Alas, the administration doesn’t want to go down that road. So, I guess, the people have spoken.

But, at some later date, if people want to revisit the issue, we are free to do so.

Posted by: S.cotus | Jun 12, 2008 2:24:10 PM

Federalist's concerns are greatly overstated. Although the decision contains some important language about the scope of habeas corpus, the practical effect will be limited. Under the interpretation of the DC Circuit and the government, the courts had the power, under the detainee statute, to substantively review the legality of and evidence for the detentions. In other words, even Congress agreed that courts should have the power to review detentions in the manner that Federalist believes to be unthinkable.

The point of Roberts' dissent (signed by all of the dissenters, actually) is not that the effect of the ruling is too broad, but that is in unnecessary because of procedural safeguards already in place.

Posted by: Nordog | Jun 12, 2008 2:49:01 PM

Nordog, I agree. Which leaves Scalia's comments, which, apart from the historical analysis, seem over-the-top.

Posted by: S.cotus | Jun 12, 2008 4:31:55 PM

If the administration had allowed habeas petitions to go forward from the start, the weak cases (which the administration's own releases indicate were numerous) would have produced releases by now (presumably to their home countries), the strong cases would have the sanction of Article III courts by now, and we wouldn't have to fear for either our liberties or the court of international public opinion which has undermined our own anti-terroism efforts.

Gitmo has been pivotal in creating a new generation of anti-American terrorists, endangering U.S. citizens in future conflicts, and undermining U.S. power and moral authority internationally.

Posted by: ohwilleke | Jun 12, 2008 6:43:11 PM

Scalia, strict textualist that he is, begins his opinion by stating that this country "is at war with Islamic extremists."

Geez, I must have been asleep the day Congress declared war on anyone! If fact, if memory serves, Congress hasn't declared war since WWII.

So, right from the jump of his opinion, Scalia has no credibility.

Posted by: Anon | Jun 12, 2008 7:59:12 PM

war doesn't have to be declared to be a war

Posted by: federalist | Jun 12, 2008 8:00:24 PM

Scalia's opinion was sort of silly, b/c it seem to indicate that if the US doesn't respect Yoo's memo the military will do really bad things in violation of the law.

Posted by: S.cotus | Jun 12, 2008 9:43:00 PM

Actually, federalist, war does have to be declared to be a war. Damn pesky constitution...

Posted by: Anon | Jun 13, 2008 9:53:08 AM

So, anon, are you saying that, as a Constitutional matter, we were not at war with Japan until Congress declared war? Ok.

S.cotus, the problem, of course, is not the run-of-the mill guy--i.e., some guy that is captured gun in hand, but rather someone who engages in combatant-like operations and is captured in a robe. Will classified info need to be disclosed? Will the military be forced to release the guy vice disclose sensitive information. Do we really want defense lawyers to learn the names of the soldiers who captured the guy (which could put their families at risk)?

If the military has a choice, it should TWEP these guys rather than take them.

Posted by: federalist | Jun 13, 2008 5:44:04 PM

Federalist, All your questions are valid ones, but they don’t relate to the issues at hand in Boumediene. The issue there is very narrow: do the District Courts (or a District Court) have jurisdiction to issue a writ of habeas corpus? The substance of the question (should it issue) and the process (who has to show what and when) is a different question.

But, I can give you two answers.

1. As the process has become somewhat more formalized over the years, counsel for the detainees have routinely obtained security clearances and there has been no major problems with unauthorized disclosure of classified information.
2. Courts (at least the ones I know about) deal with classified information all the time. The world doesn’t come to an end.

Now, at some level the answer is fairly simple: If the military takes the CSRT procedure seriously (as opposed to the full-blown commissions) there probably will be no reason for any writs to issue. Habeas will act as a simple check on any sort of corruption in the process.

Your comments about “TWEPing” people show a lack of discipline and don’t seem very American. Moreover, considering that the military has released a large number of these people which it conceded were at the wrong place at the wrong time, you are essentially arguing for killing innocent people.

Posted by: S.cotus | Jun 13, 2008 11:37:31 PM

"So, anon, are you saying that, as a Constitutional matter, we were not at war with Japan until Congress declared war? Ok."

Yes, federalist. Not only is that exactly what I'm saying, it happens to be true.

Posted by: Anon | Jun 13, 2008 11:43:31 PM

ok, anon, the guys that died at Pearl Harbor, they weren't killed in a war.

S.cotus, Congress leaks info--the world doesn't come to an end, but info is classified for a reason.

As for TWEP--all I am saying is that the military doesn't have to try to take a guy prisoner if he has not surrendered. That's not murder.

Posted by: federalist | Jun 14, 2008 9:16:14 AM

Colleagues, I strongly recommend to you Oregon Federal Public Defender Steve Wax's new book, "Kafka Comes to America."--a riveting, inside account of Mr. Wax's defense of Brandon Mayfield and several GITMO detainees. Whatever your political views, the issues raised by Mr. Wax deserve your attention, analysis, and commentary. Note: I was an assistant in Mr. Wax's office for 10 years.

Posted by: Michael R. Levine | Jun 14, 2008 1:37:09 PM

Anon I wonder if the people KIA in Iraq and Afghanistan consider us at war... of course they do. I side with federalist on this one. Maybe you can ask some troops that have served over there if they think they are at war.

Posted by: USMC | Jun 14, 2008 5:50:30 PM

Federalist, Well, if you are advising people to disobey orders (as you seem to be) then go ahead. This doesn’t really answer the question of people that were not captured on ANY battlefield in the first place (i.e. detained at airports). But, you probably think they can just be shot in the head at will by some government employee (maybe even a GS-11) on a lark.

As to leaks, guess what, leaks are ever-present. Even people in the military. A lot. Most leaked are not about case-specific information, but rather relate to major policy issues or politically embarrassing things. There has been not been any indication that any specific information about individual detainees was being leaked by counsel.

However, just because something is classified doesn’t mean that it is beyond any disclosure. This area of law has not been implicated in the GTMO proceedings (yet), so it isn’t worth going into.


Posted by: S.cotus | Jun 14, 2008 6:31:51 PM

the people killed in nam, iraq, afghanistan, bosnia, etc., were not killed in wars. only congress can declare war, and congress hasn't done so sine WWII. sorry if that's insensitive or inconvenient, but don't blame me. blame policymakers in the executive branch who are willing to have americans killed in unconstitutional actions, and blame congress for lacking the courage to stop them

Posted by: Anon | Jun 15, 2008 7:08:00 PM

Folks, I am not fan of the current “conflict in Iraq” or whatever you call it, but I think that we need to stop simplifying the issue to “Only Congress can declare war.”

First of all, if Congress DID declare war, it probably would be giving a much bigger blank check to the administration to do all sorts of things. These range from the mildly annoying (such an interning and killing Americans without trial) to the morally reprehensible and disgusting (such as price controls). Both of which have been done under the guise of a declared war.

Second of all, (and by no means am I defending the war in Iraq), the president probably has some inherent power to defend the nation before Congress Acts (even assuming the WPA is constitutional). After all, as commander in chief, does anyone really doubt that he needs the authorization of Congress to order a defense of our borders?

Thirdly, we have a situation where Congress did authorize the president to prosecute some kind of military action. Sure it didn’t “declare war” but are you really arguing that the president should simply refuse to act upon such an authorization saying that more is required?


Posted by: S.cotus | Jun 15, 2008 8:47:44 PM

I'm not saying any of that S.cotus. I agree with some of what you say, though I do not think that invading a sovereign country that was not threatening us militarily can be defined as "defe[nding] our borders."

All that said, however, whatever is going on in Iraq is not a war. Sorry to inconvenience you, but until we amend the constitution, only Congress can declare war.

The purpose of all of this was simply to point out the hypocracy (sp) of A. Scalia. A man who won't lift a finger unless (he claims) the precise language of a statute permits it begins the sharpest of all his dissents with a lie - that "this country is at war with radical Islamists." (or words to that effect). He definately uses the word "war." And he's definately wrong.

Posted by: Anon | Jun 16, 2008 9:26:27 PM

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