Time for Supreme Court to consider Detainee Cases

[Timber Loftis]

Legal Bush Aide: "Let's see, sir, if they are civilians, then they have rights under their country's laws regarding everything from extradition to asylum. If they are POWs, they have rights under the Vienna Conventions. Either way, we'll have to at least give them a trial at some point. Most likely with some semblance of fairness."

Bush or Bush Advisor: "That's no good. We just wanna take 'em and torture 'em for info. And, because we like it. Erm... I mean, you get the picture. I know! Let's call them something else."

Legal Aide: "Like what. Either you're a civilian or a POW."

Bush or Advisor: "Nah, let's call 'em 'rogue terrorists' or, or, 'Spots'. Yeah, I always liked the name spot! Had a dog named Spot once -- accidentally shot him, though."

Legal Aide: "Look, sir, the law allows for two classifications in this instance: they are enemy soldiers or civilian combatants."

Bush or Advisor: "That's it! Enemy Combatants! That's what they are. And, let's not even bring them to the USA. Let's take em to Castro's land! We don't even let most Americans go there. It's perfect!"

Ummmm..... sorry, I was assigned an exercise in expositive writing. Anyway, whoever thought up "enemy combatant" deserves kudos for attempts at clever mischief and lots of clubs on the head for being an idiot and an arsehole.

But, we'll see what the Supreme Court says... erm, or doesn't say.

Today's NY Times:
_______________________________________

November 3, 2003
Justices Face Decision on Accepting 9/11 Cases
By LINDA GREENHOUSE

WASHINGTON, Nov. 2 — With cases generated by the Bush administration's response to the terrorist attacks of Sept. 11, 2001, now reaching the Supreme Court in substantial numbers, the court faces a basic decision apart from the merits of any individual case: whether to become a player in the debate over where to set the balance between individual liberty and national security.

As early as this week, there may be an indication of whether the court intends to remain on the sidelines, leaving the last word to lower courts that have so far deferred to the White House, or to weigh in with the same assertiveness it has displayed so often in recent years on some of the most bitterly disputed issues in American life.

The first cases in the queue on the court's docket are appeals filed on behalf of two groups of detainees at the United States naval base at Guantánamo Bay, Cuba. These appeals frame an issue that at some level all the cases, despite their considerable differences, have in common: the degree of deference owed by the judicial branch to the executive for actions taken in the name of national security in a crisis.

In these cases, two British citizens, two Australians and 12 Kuwaitis, all seized in Pakistan or Afghanistan during operations led by the United States against the Taliban, are challenging a ruling by the federal appeals court here in March. That court ruled that no federal court has jurisdiction to consider the legality of an open-ended detention that has now lasted more than 18 months without charges and without review by any impartial military or civilian tribunal. A wide array of groups, including former senior military officers, retired American diplomats and prisoners of war from World War II, are urging the justices to hear the appeals, which the administration opposes.

Later this year, probably before its winter recess, the court will decide whether to hear a United States citizen's challenge to his open-ended detention as an "enemy combatant." The man, Yasser Esam Hamdi, an American-born Saudi who was apparently captured on the battlefield in Afghanistan, has been held without access to a lawyer in military brigs, first in Virginia and now in South Carolina, since April 2002. The federal appeals court in Richmond, Va., ruled in January that he was not entitled to a lawyer and had no right to challenge the basis for his continued detention.

The justices have also been asked to hear a Freedom of Information Act case challenging the Bush administration's refusal to release information, including their names, about the hundreds of people, nearly all of them Muslim immigrants, who were arrested in the weeks following the terrorist attacks. Overturning a ruling by a federal district judge, the appeals court here ruled in June that the information, even concerning those found to have no connection to terrorism, was exempt from disclosure.

Unlike the small category of cases the Supreme Court is jurisdictionally obliged to consider — the campaign finance case now awaiting decision, which Congress instructed the court to hear, is one example — these appeals all fall within the completely discretionary part of the court's docket. If the court decides not to hear them, no explanation is likely to be forthcoming, only the word "denied" on the weekly list of orders that dispose of new appeals. The votes of four justices are required for the court to agree to hear a case.

The court applies several unofficial criteria for selecting roughly 75 cases to decide each term out of the 8,000 that are filed. These appeals meet none of those criteria.

The issues raised have not produced conflicting rulings in the lower courts — the main test the court uses to choose cases worthy of its attention — and the appeals were not filed by the solicitor general's office, which enjoys a very high success rate in getting its cases accepted, if not always decided favorably.

Indeed, Solicitor General Theodore B. Olson is urging the court not to hear the Guantánamo detainees' appeals, Rasul v. Bush, No. 03-334, and Al Odah v. United States, No. 03-343. His brief argues that the United States Court of Appeals for the District of Columbia Circuit properly interpreted a 53-year-old Supreme Court precedent to hold that "aliens detained by the military abroad" have only those rights that are "determined by the executive and the military, and not the courts," and that these cases consequently do not merit Supreme Court review.

The government's formal responses to the other pending appeals — Hamdi v. Rumsfeld, No. 03-6696, and Center for National Security Studies v. United States Department of Justice, No. 03-472 — are due at the court in early December.

The question, then, is whether the justices will nonetheless see these cases as simply important enough to command the Supreme Court's attention despite the absence of the traditional factors that govern discretionary review. The appeal filed by Shearman & Sterling, an international law firm with offices here, on behalf of Fawzi Khalid Abdullah Fahad al Odah and 11 other Kuwaitis held at Guantánamo invokes the court's robust sense of institutional pride and concern for the separation of powers, a particular interest of the conservative majority.

"It is not for the executive branch to define the jurisdiction of the federal courts," the brief says. The decision of what steps are required to protect the country "is not a judgment the executive alone should make," it continues, adding: "Someone impartial must have authority to examine the executive's actions. That is the traditional role of the judiciary."

The appeal filed by the Center for Constitutional Rights, a liberal public interest law firm in New York, on behalf of Shafiq Rasul, Asif Iqbal, Mamdouh Habib and David Hicks, the British and Australian citizens held at Guantánamo, makes a case for the significance of the issue, all other considerations aside.

"The United States has created a prison on Guantánamo Bay that operates entirely outside the law," the brief asserts. It adds, "The conditions that make this `war' unique are the same conditions that make it essential for the government to provide some process by which innocent people can secure their release."

Both appeals argue that the analogy to a World War II-era precedent used by both the appeals court and the Bush administration to deny judicial review to the detainees is faulty. The case, Johnson v. Eisentrager, held in 1950 that enemy aliens in United States military custody overseas had no right to invoke the jurisdiction of the federal courts by challenging their confinement through a petition for a writ of habeas corpus. The petitioners were 21 German intelligence agents working with the German military who had continued to spy for the Japanese in China after Germany's surrender, and who were convicted as war criminals by military tribunals at which they were represented by lawyers.

Lawyers for the Guantánamo detainees say the current cases are fundamentally different, for three basic reasons: the detainees, most of whom maintain that they were victims of chaotic circumstances rather than fighters, have not been convicted of, or even charged with, any offenses; they are citizens of countries with which the United States has not been at war; and they are being held in territory that is in all functional respects part of the United States.

The Eisentrager precedent "certainly does not authorize the executive branch to imprison petitioners indefinitely at its sole discretion without any legal process or justification for its actions," lawyers for the Rasul group have told the court.

It is apparent that the justices are paying close attention to the debates reflected in the pending cases and are as aware as anyone else that the court's historical reputation has often depended on its response at equivalent moments.

Chief Justice William H. Rehnquist's 1998 book, "All the Laws but One: Civil Liberties in Wartime," surveyed the landscape from a historical perspective. In a speech in April to the Association of the Bar in New York, Justice Stephen G. Breyer was a bit more topical without tipping his hand on the current disputes.

"I have not told you what you really want to know — how the civil liberties cases will be decided," Justice Breyer told the New York lawyers. "I would like to know that too."

[ 11-03-2003, 05:01 PM: Message edited by: Timber Loftis ]

[wellard]

Great post *as usual* Timber

Look, as much as they needed to fudge laws and human rights and such to get quick answers surely they have had as much time as they need to question them. Time for a trial, however showcase it might be. Justice must also be seen to be done.

[Timber Loftis]

UPDATE:

Today's NY Times:

November 11, 2003
Justices to Hear Case of Detainees at Guantánamo
By LINDA GREENHOUSE

WASHINGTON, Nov. 10 — Setting the stage for a historic clash between presidential and judicial authority in a time of military conflict, the Supreme Court agreed on Monday to decide whether prisoners at the United States naval base at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention.

The court said it would resolve only the jurisdictional question of whether the federal courts can hear such a challenge and not, at this stage, whether these detentions are in fact unconstitutional. Even so, the action was an unmistakable rebuff of the Bush administration's insistence that the detainees' status was a question "constitutionally committed to the executive branch" and not the business of the federal courts, as Solicitor General Theodore B. Olson argued in opposition to Supreme Court review. [Ed. -- you gotta love the "you don't even get to decide" argument, one wishes they had paid attention in law school to the Marbury v. Madison case -- T.L.]

In accepting the cases, the court moved from the sidelines to the center of the debate over whether the administration's response to the terrorist attacks of Sept. 11, 2001, reflects an appropriate balance between national security and individual liberty.

While the court does not indicate why it grants review in a particular case, the justices might well have been persuaded that no matter what the ultimate answer to the question of whether judicial review is even available, they are the ones who have to provide it.

"It is for the courts and not the executive to determine whether executive action is subject to judicial review," the appeal filed on behalf of 12 Kuwaitis told the court. [Booo-yah, take that -- T.L.]

The two appeals the court accepted were filed on behalf of 16 detainees, the Kuwaitis in one group and two Britons and two Australians in the other, all seized in Afghanistan and Pakistan during United States-led operations against the Taliban in late 2001 and early 2002. They have all been held for more than 18 months without formal charges or access to any forum in which they can contest the validity of their detention.

The men assert that they were not fighters either for the Taliban or for Al Qaeda; most say they were humanitarian volunteers who were captured by bounty hunters.

The two separate lawsuits, seeking a federal court hearing on the validity of the open-ended detention, were combined by the Federal District Court here. That court then ruled, in a decision affirmed in March by the United States Court of Appeals for the District of Columbia Circuit, that on the basis of a World War II-era Supreme Court precedent, the federal courts lack jurisdiction over the military detention of foreigners outside United States territory.

The applicability of that 1950 decision, Johnson v. Eisentrager, is at the heart of the dispute before the Supreme Court. The justices also combined the two cases, Rasul v. Bush, No. 03-334 (the Britons' and Australians' case), and Al Odah v. United States, No. 03-343 (the Kuwaitis' case), and will hear them in late March, with a decision expected by early summer. [There's that blindingly swift justice for you. In a normal criminal case, where they are actually *accused* of something, they can exercise a right to a *speedy* trial -- the gubbermint conveniently bought itself 2 free years of detention with this arsehole argument and the refusal to charge them. -- T.L.]

One central issue is the status of the naval base at Guantánamo Bay, which while indisputably a part of Cuban territory has been administered by the United States under a 1903 lease that grants it many of the attributes of sovereignty and uses the phrase "complete jurisdiction and control." [Oh, sure, leases can abdicate the constitution. Not. -- T.L.]

By contrast, the Eisentrager decision denied judicial review to German intelligence agents who were captured in wartime China and were being held in Germany after conviction as war criminals by military tribunals. [See -- they were classified as one of the real classifications, "war criminals." The Geneva and Vienna Conventions came after this, and the Bushies wanted to avoid obeying *that* law, so they made up an imaginary classification. Asses. Why don't we compare it to Korematsu instead, a lasting judicial embarassment, and reveal it for what it really is, the government doing what the f* it wants to whoever it wants. -- TL]

How to characterize Guantánamo Bay is of such importance because it is clear that noncitizens do have certain constitutional rights if they are within United States territory. On the other hand, the court has frequently invoked the Eisentrager precedent, even out of its wartime military context, to stand for the proposition that outside the territorial reach of the United States, aliens have no such rights. [Actually, its not nearly as important as making them classify them as civilians or war criminals, the rest will all line up much more sensible then.]

The brief filed for the Britons and Australians by the Center for Constitutional Rights, a liberal public interest law firm in New York, told the court that "we alone exercise power at Guantánamo Bay" and that the base should therefore be treated for jurisdictional purposes as part of the United States. In the administration's view, not only is that conclusion incorrect but it is not one that the court is free to make. The determination of sovereignty over a particular territory is "not a question on which a court may second-guess the political branches," Solicitor General Olson said in his brief. [Well, obviously they were wrong, round #1 goes to the prisoners it seems.]

It was evident on Monday that this, too, was a question on which the justices want to have the final word. That conclusion emerged from a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining "aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantánamo Bay Naval Base, Cuba."

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to "the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba." The court's question incorporated no assumption about whether the base was or was not "outside the sovereign territory of the United States."

Pamela S. Falk, a professor of international law at the City University of New York, recalled on Monday that when she first visited the Guantánamo base 10 years ago, she did not have to clear United States customs on her return flight to Fort Lauderdale, Fla., an indication that she was not considered to have left the United States at any time during her journey.

But when she visited again in July and returned by way of Puerto Rico, she had to clear customs there, reflecting a policy change that she said should not deprive the Supreme Court of the opportunity to decide "the fundamental question of the rights of anyone being held in U.S. custody."

If the justices decide that the federal courts do have jurisdiction, the cases will go back to district court in the first instance for a decision on the merits of the detainees' claims. Lawyers for the Kuwaiti group, from the law firm of Shearman & Sterling, describe what the detainees are asking for as modest relief: to be informed of any charges against them, to be allowed to meet with lawyers and family members and to obtain "access to an impartial tribunal to review whether any basis exists for their continued detentions." [Hmmm... seems too imminently reasonable for the Bushie warhawks if you ask me. Sounds to much like due process -- which the administration is adamantly against.]

Without those rights, their brief says, their detention violates the Constitution as well as domestic and international law.

Lawyers for the Britons and Australians make similar arguments. Both cases were originally filed as petitions for a writ of habeas corpus, the procedure deeply rooted in English law for challenging confinement. [Meaning "produce the body," that is, at least present the person and say why you are keeping them.]

Several of the detainees in these cases have been placed by the government in the first group of the 660 Guantánamo detainees to go before military commissions, when those operations begin in the coming months. But even if some do get a hearing before a commission, their Supreme Court cases would not become moot because the issue of access to a civilian federal court would remain.

[Actually, I'll lie down with the warhawks on the last issue. If due process is provided to foreign nationals, it does not necessarily need to be in a judicial branch (Article III of the constitution) court, so long as a final appeal may be heard in an Article III court. It is perfectly fine to deny foreign nationals the full panopoly of due process, so long as basic elements of due process are allowed. The case I'm thinking of, which I'm certain will get referenced on this point, involved Sehadi and other members of the PFLP, the Popular Front for the Liberation of Palestine, a "non-profit" charity group in the US which was sending money to the PLO.]

krikies, TL, you must be fierce in the courtroom. i'm glad i never became an attorney! [img]smile.gif[/img]

i'm rusty on my constitution, but doesnt the separation of powers between the 3 branches make this kind of confrontation a standard thing? what i mean is, doesnt the initial assertion that this is a historic clash overstate it a bit?

further to that, doesnt the judicial branch hold all the trump cards (constitutionally speaking)?

i hope this doesnt count as a professional consultation - i'm not sure i could afford you!

[antryg]

It's clear why former POW's worry about this "enemy combatant" classification. This action by the Bush administration puts all Americans, soldier or civillian at risk during any future conflict. Now any government or crackpot group can use the prescedence of the US action to do anything to "detainees" and still claim that they are following the Geneva Convention. If how we treated those of Japanese ancestry during WW II is to be lifted up as the shining example of American Justice then every American needs to do some serious soul searching.

[Davros]

Good posts TL and I agree with you on most every single point. The enemy combtant term is BS and a dangerous loophole that might see other countries follow the precedent. The Bush administration has managed a good 2 years of incarceration on these people and the time is LONG overdue to have them face trial. I have no problem with the military comission for our nationals and I have no problem with them being punished according to guilt. I do believe however (and am pleased to see you are of the same opinion) that they must have the right to proper appeal procedures under the civil justice system.

[wellard]

I'm so glad that some people are jumping onto this thread at last. I have sat and watch it sink to the bottom of the page with great sadness. An echo perhaps of the people left to rot in that prison? Maybe it was the length of TL post I kidded myself, but are we really that shallow?
Where are the people who have pride in what America stands for even in the face of adversity? Where is the anger? the marches?

Where is the justice? [img]graemlins/1pissed.gif[/img]

[Davros]

Or it could just be that we don't look much past what is current and at the top of the page unless we are searching for a thread we liked the day before. Besides, there is nothing wrong with splashing about in the shallows now and then . Now what was that magical term you used to describe me today?

[Melusine]

I can understand those feelings Wellard. For me personally, it's just that I missed this thread. When I was out recruiting members for Amnesty this was one of the points I often used, and I had a big discussion about it on another forum a while ago. So people do care about this, and think about it.

[Timber Loftis]

Originally posted by sultan: krikies, TL, you must be fierce in the courtroom. i'm glad i never became an attorney! [img]smile.gif[/img] i'm rusty on my constitution, but doesnt the separation of powers between the 3 branches make this kind of confrontation a standard thing? what i mean is, doesnt the initial assertion that this is a historic clash overstate it a bit? further to that, doesnt the judicial branch hold all the trump cards (constitutionally speaking)? i hope this doesnt count as a professional consultation - i'm not sure i could afford you!

What makes this clash historic, is that the court rarely gets into matters of National Security. Remember, that if ANY rule of law can resolve a situation prior to consulting the constitution, the Court will apply that law instead of the Constitution. In National Security matters, this is often resolved by deferring to the Commander in Chief.

The judicial branch is stronger now than it was 100 years ago, to be sure, and has exercised a vast power grab, mostly through the notion of Substantive due process. Beginning with Dredd Scott and still alive and kicking in cases like Roe v. Wade, this doctrine was first applied by conservative courts to create "rights" to slave ownership and the freedom (for kids) to contract (for 18 hr. work days), and was later applied by liberal courts to basically make it impossible to legislate morality in the modern era by creating a "right" against any imaginable prejudice (as most recently was demonstrated in the homosexuality case). Substantive due process takes the PROCEDURAL requirement that you cannot be deprived of life, liberty, or property without due process, and warps it into a substantive right prohibiting legislatures from passing a whole slew of laws. There's a ton I could write about this, but go read Robert Bork's book if you're interested. And then talk to me, so I can point out holes in his theory.

On the other hand, some doctrines such as the commerce clause have been applied by the courts to vastly increase legislative power. The commerce clause doctrine takes the provision in the Constitution that Congress can regulate "commerce between the states" and makes it into a mammoth provision allowing near police power at the local level by the federalies. Without commerce clause decisions that were upheld by the court's, the government would have been stopped from limiting a farmer from growing things on his own land (Wickard v. Filburn) and from requiring Hawaii to consider endangered species of fruit flies before allowing construction on the land. In fact, there is a whole "dormant commerce clause" doctrine that works the other way, actually prohibiting states from making laws that aren't directly contradicted by congress in instances where it could discriminate against interstate commerce or in instances where the federalies have inteneded to "occupy the field" of law. Only in recent years (the Lopez case) has the Court shown any willingness to tell Congress, "That's beyond your power and regulates at the local level too much."

So, the gubbermint's grown more robust all around, not just the judiciary. The judiciary may hold the trump card, but it's a very limited trump card with limited applicability (the constitution, that is). The problem isn't the Court growing more powerful vis-a-vis the Congress, but rather the fact that both have grown in power vis-a-vis you and I.