SCOTUS Finally settles the Guantanamo Bay Argument

[Al Norris]

Alien combatants abroad do not have constitutional rights. Guantanamo Bay is not part of the United States, it is land leased from Cuba.

You forgot to add that the land is not just leased. It follows American Law, not Cuban Law. Cuba can do nothing to interfere with any American interests there, while the lease is in force.

For all practical purposes, Guantanamo Bay is more akin to embassy ground than a mere lease. Now add to this that it is a military reservation and wholly comes under the UCMJ (a part of American Law). Military bases in other countries are still bound by the hosting countries law, not so Guantanamo.

There is certainly a valid legal argument that the land is part and parcel of US soil, as long as the lease is in force. This, despite the language of the US Governments disclaimer of sovereignty in the 1903 lease with Cuba.

In addition to this, in Eisentrager, the enemy aliens had already been convicted by a military court in China and were subsequently transferred to a military prison in Germany.

In the instant case, none of the enemy combatants have been convicted of anything.

Then there are the Insular Cases. The basic question there was when did US sovereignty follow the flag? The Court established a framework in these cases, for applying when and if the Constitution applied.

Eisentrager does not invalidate the Insular Cases.

This theory has been argued for the last 6 years and the Court has finally agreed that this is the basic difference between Eisentrager and the Insular Cases.

Boumediene v. Bush is simply the latest of the Insular Cases. "Simply" does not do justice to what the Court has done in striking down the Military Commissions Act.

Please note, I have not yet had time to read the entire decision and it's dissents, and digest it. But for the moment, I agree with the majority.

If you think otherwise, perhaps you should also be reading another decision that came out Thursday: Munaf v. Geren.

It is tangentially related and is a unanimous decision. CJ Roberts writes the decision in this one.

 

[Musketeer]

So can the COTUS be invoked to obtain a day in court for Chinese dissidents jailed in China? It apparently applies to all men in all places. If that is the case it would be grounds for the US declaring war on China to ensure those people get their day in court...

Sorry but I can't help but see huge problems when the COTUS is stretched to apply to non-citizens outside of the USA. Where does it stop?

 

[radshop]

Zukiphile:

...your lack of direct response to my questions suggests that the answers don't favor your position...
If the right to bring a HC petition isn't dealt with in the COTUS, why do you think a clause limiting the condition under which it can be suspended would required that it be offered to all people without limitation?

With all due respect, I didn't answer your questions because they didn't seem relevant to me. That's not personal slam - I just think they miss the point. COTUS doesn't "apply habeus corpus to people," it prohibits Congress from suspending habeus corpus. Maybe I'm just dense, because I keep making this point and no one seems to get it.
The habeus corpus clause does not talk about rights or who/where it should extend, because it is very simply stating that our government shall not suspend the privilege of the writ of habeus corpus (except in some specifically defined exceptions). If you set aside preconceptions, on the face of it it seems pretty clear to me:

ANYONE detained by our government (except in the specifically defined exclusions) has the privilege of the writ of habeus corpus (i.e. to not be held indefinitely without charges/trial). It's not a question of "who does it apply to" - it applies to our government, and it tells our government that it can't detain people (any people) without charging them and giving them a trial (except under the specific excluded conditions). That applies to the actions of our government regardless of where, regardless of who. I believe this application of the habeus corpus clause is most consistent with a direct reading of COTUS and with the tradition of habeus corpus in English Common Law, which is how the authors of COTUS understood the concept.

I repeat: with respect to habeus corpus, COTUS does not "extend rights" to anyone, it forbids our government from detaining people indefinitely without charges or trial.

You know there was such a congressonal enactment, correct?
...
What is the expertise of the Supreme Court in matters of national security?
...
If the power is enumerated as a legislative one, on what basis would a US court assert jurisdiction on a matter in which Congress has divested federal courts of jurisdiction?

I am aware there was a congressional enactment, but I honestly don't know the details of it. The point is that just as the Supreme Court overturns various laws it finds unconstitutional, that enactment you refer to should be found unconstitutional and overturned if does not meet the critieria laid out clearly in COTUS - I repeat, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." If Congress passes a law that suspends habeus corpus the first week of every month, the Supreme Court should overturn that because it doesn't meet the criteria. In the Guantanamo case, the Court apparently has determined that the criteria are not met, and therefore no suspension of habeus corpus is allowed in this instance. Agree or disagree, but it doesn't matter whether the Court has expertise in national security, it matters that the Constitution provides for this balance of powers.

Good dialog - thanks for your questions.

 

[radshop]

Musketeer:

So can the COTUS be invoked to obtain a day in court for Chinese dissidents jailed in China? It apparently applies to all men in all places. If that is the case it would be grounds for the US declaring war on China to ensure those people get their day in court...

That depends... Who is detaining the dissidents? If it the US government, then COTUS applies. If it's any other government, then COTUS does not apply. Obviously we know it's the Chinese government detaining dissidents in China - so our Constitution has no power to limit the actions of the Chinese government.

Sorry but I can't help but see huge problems when the COTUS is stretched to apply to non-citizens outside of the USA. Where does it stop?

I'll try one more time to explain it - we are not talking about all of COTUS here, we are talking about the habeus corpus clause. The habeus corpus clause applies to our government. "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

If you take out the jargon, it can be restated: "The government shall not be permitted to detain people without charges and a trial, unless when in Cases of Rebellion or Invasion the public Safety may require it."

It's not extending rights to people, it's limiting the power of our government. Our government, not other governments. It applies to our government all the time, everywhere.

Is the current situation one "when in Cases of Rebellion or Invasion the public Safety may require" suspending habeus corpus? The Court has ruled that it is not. Agree or disagree, it's as simple as that.

 

[zukiphile]

Good dialog - thanks for your questions.

Happy to offer them.

Zukiphile:

...your lack of direct response to my questions suggests that the answers don't favor your position...
If the right to bring a HC petition isn't dealt with in the COTUS, why do you think a clause limiting the condition under which it can be suspended would required that it be offered to all people without limitation?

With all due respect, I didn't answer your questions because they didn't seem relevant to me. That's not personal slam - I just think they miss the point. COTUS doesn't "apply habeus corpus to people," it prohibits Congress from suspending habeus corpus. Maybe I'm just dense, because I keep making this point and no one seems to get it.

If I limit voting to citizens over the age of 17, have I suspended the right to vote?

Even the SCOTUS recognises that there are limits to their jurisdiction to entertain these writs, so the question is why the historical limitations were wrong and the SCOTUS last week was correct.

The habeus corpus clause does not talk about rights or who/where it should extend, because it is very simply stating that our government shall not suspend the privilege of the writ of habeus corpus (except in some specifically defined exceptions). If you set aside preconceptions, on the face of it it seems pretty clear to me:

ANYONE detained by our government (except in the specifically defined exclusions) has the privilege of the writ of habeus corpus (i.e. to not be held indefinitely without charges/trial). It's not a question of "who does it apply to" - it applies to our government, and it tells our government that it can't detain people (any people) without charging them and giving them a trial (except under the specific excluded conditions). That applies to the actions of our government regardless of where, regardless of who. I believe this application of the habeus corpus clause is most consistent with a direct reading of COTUS and with the tradition of habeus corpus in English Common Law, which is how the authors of COTUS understood the concept.

Really? What precedent is there in common law for accepting a HC writ from an individual not within a court's jurisdiction?

If there is no such precedent, then Congress is not suspending any right of HC by codifying a common law limitation.

You know there was such a congressonal enactment, correct?
...
What is the expertise of the Supreme Court in matters of national security?
...
If the power is enumerated as a legislative one, on what basis would a US court assert jurisdiction on a matter in which Congress has divested federal courts of jurisdiction?

I am aware there was a congressional enactment, but I honestly don't know the details of it.

In summary, Congress acted after the prior SCOTUS decision that this very limitation would only be appropriate if passed by Congress. That is the act just struck down.

The point is that just as the Supreme Court overturns various laws it finds unconstitutional, that enactment you refer to should be found unconstitutional and overturned if does not meet the critieria laid out clearly in COTUS - I repeat, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

And what is the expertise of the SCOTUS to determine whether public safety may require it? I assure you there is no L-Skule course on identification of Rebellion, Invasion and threats to public safety.

If Congress passes a law that suspends habeus corpus the first week of every month, the Supreme Court should overturn that because it doesn't meet the criteria. In the Guantanamo case, the Court apparently has determined that the criteria are not met, ...

What criteria? The ones they cobbled together to get to this result? The problem with this decision is that it is so plainly result oriented jurisprudence.

Agree or disagree, but it doesn't matter whether the Court has expertise in national security, it matters that the Constitution provides for this balance of powers.

Which as you noted above tasks congress with defining the limits of HC. Congress did, but five justices didn't like it. There is no balance of power in the SCOTUS usurping the power of the political branches.

Fred Thompson put it well.

In reading the majority opinion I am struck by the utter waste that is involved here. No, not the waste of military resources and human life, although such a result is tragically obvious. I refer to the waste of all those years these justices spent in law school studying how adherence to legal precedent is the bedrock of the rule of law, when it turns out, all they really needed was a Pew poll, a subscription to the New York Times, and the latest edition of “How to Make War for Dummies.”

http://townhall.com/columnists/FredThompson/2008/06/13/a_supreme_error?page=1

 

[nate45]

In case anyone has forgotten I am in general opposed to the war in Iraq and many of what I see as impositions of liberty done in the name of the war on terror. However in this instance I do not believe that the court has any jurisdiction over non citizens on foreign soil. They also have no authority to tell the military how it should conduct its overseas affairs. They have no authority to tell the military how it should treat prisoners captured on the battle field. The habeas corpus provision in the COTUS does not apply to enemy aliens or I would argue non citizens not within the territory of the USA. You can all quote as many long dead philosophers you like, but that still won't make the COTUS read that it applies to non citizens on foreign soil.

 

[divemedic]

How is Gitmo foreign soil? It is United States territory, defended by the US military. AS has already been pointed out, the court is restricting the US government, regardless of where it is. Think of the precedent that could have been set- Obama as president could order all members of TFL to Gitmo as "enemy combatants" and if the court had agreed with Bush in this case, it would all be completely legal. No trial for you, welcome to America's secret prison.

 

[nate45]

Most members of TLF are United States citizens and would more than likely not be captured on the battlefield in a foreign land.

 

[MedicineBow]

Zukiphile:

And what is the expertise of the SCOTUS to determine whether public safety may require it? I assure you there is no L-Skule course on identification of Rebellion, Invasion and threats to public safety.

This makes no sense.

Of course the Supreme Court determines the meaning and application of Article I, Section 9, Clause 2. (Which clause, by the way, you are misquoting.)

That power cannot be legislated away.

 

[Al Norris]

Most members of TLF (sic) are United States citizens and would more than likely not be captured on the battlefield in a foreign land.

Under the assumptions of the Executive (before this ruling), it would not matter where you are. If you are declared an enemy combatant, then you go straight to a military garrison. Perhaps forever, as you will not be charged. You will not have a trial. You are simply detained.

But your question is more a strawman argument than anything else.

These people that were captured on a foreign battlefield are not regular soldiers of a specific country with which we are at war (The war on terrorism is more akin to the war on crime; the war on drugs; the war on poverty, than a true war against a definable foe). As such, they do not fall under the Geneva Conventions that we are signatories to.

So what do you do with them, since you are not calling them, "prisoners of war?" Do you simply execute them as spies? Well, no. That requires a specific declaration of war on a specific enemy (read: Country).

Here, the administration has coined the term, "enemy combatants," which still has no real definition. Here, the administration has detained these people (some for over 6 years), without any legal recourse as to their ultimate status.

Do we simply keep them locked up until we win this war (that presupposes that such an indefinable war can actually be won)? What is the legal basis for that? Under what legal doctrine do we keep non-prisoners detained indefinitely?

 

[divemedic]

Nate says

Most members of TLF are United States citizens and would more than likely not be captured on the battlefield in a foreign land.

Not all of the detainees were, either. From the supreme court decision:

Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States.

Not only that, but if you are not allowed your day in court, how can you prove that? Remember that the decision was not to let the detainees go, but merely allow them a hearing to determine of they are subject to being detained in the first place. If you are being held in Gitmo as a TFL member, and you claim that you are a US citizen and are not subject to being held, how can you assert that statement if you are not allowed a hearing?

 

[nate45]

Presumably all the detainees have had hearings, by the military tribunal.

 

[divemedic]

A military tribunal that takes its orders from the President. Hardly a separation of powers.

 

[radshop]

Zukiphile - a couple quick points, then I'm done with this one. It's been fun, but we're starting to go in circles. Respectfully, every question you are asking I have already answered or explained why it's not relevant.

Under any common sense understanding of habeus corpus, to what sovereign nation should a detainee submit a writ of habeus corpus? To the nation detaining him.
Is Cuba detaining the folks at Guantanamo? No, the US is.
If a Cuban court found that the detainees are unlawfully held, would the US release them? Of course not.
Any place where the US government is holding prisoners of the US military at a US government facility guarded by US troops under the command of the US President, I suggest is also under jurisdiction of the US courts.

You keep asking for precedent. Let me ask you - what is the precedent for the US to hold detainees as enemy combatants for years and openly deny them habeus corpus. (Eisentrager has already been dealt with in this thread.) Prisoners of war are different - they are not detainees classified as enemy combatants and have the rights accorded under the Geneva Convention.

Your other arguments about limits and the voting analogy don't make sense. Of course the habeus corpus clause of COTUS has limits - it's limited to people detained by the US government.

 

[zukiphile]

So what do you do with them, since you are not calling them, "prisoners of war?" Do you simply execute them as spies? Well, no. That requires a specific declaration of war on a specific enemy (read: Country).

The problem with that is that the mechanism for the US “declaring” a war has been effectively removed from international legal operation by post-war international law. They need not be shot as spies, but may be summarily executed in the field.

Zukiphile:

And what is the expertise of the SCOTUS to determine whether public safety may require it? I assure you there is no L-Skule course on identification of Rebellion, Invasion and threats to public safety.

This makes no sense.

Of course the Supreme Court determines the meaning and application of Article I, Section 9, Clause 2. (Which clause, by the way, you are misquoting.)

That power cannot be legislated away.

Since I am not quoting it, I am not misquoting it. No one disputes that the SCOTUS should determine controversies involving art I sec. 9 clause 2 according to the COTUS and related precedent. The question is whether they did that. Hope that makes sense to you.

“The very foundation of the power of the federal courts todeclare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them.” United States v. Raines, 362 U. S. 17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803); emphasis added). Our power “to say what the law is” is circumscribed by the limits of our statutorily andconstitutionally conferred jurisdiction. See Lujan v. De¬fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Zukiphile - a couple quick points, then I'm done with this one.

If you intend to depart, that’s fine. If you want to return to address any of these points, please do.

Respectfully, every question you are asking I have already answered or explained why it's not relevant.

If you had, I would not have posed them. I don't think you would argue that you've provided the requested precedent for your position of universal application of HC.

Under any common sense understanding of habeus corpus, to what sovereign nation should a detainee submit a writ of habeus corpus?

This begs the question of whether an specific individual has the right. If your premise and conclusion are precisely the same, your argument is only a tautology.

I believe you misunderstand habeas corpus and its place in the COTUS. HC is a common law right, i.e. one defined by prior case law, none of which expands the right to aliens abroad. At English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. The COTUS probibits or defines how THAT right can be suspended. In codifying the common law limits of that right, Congress does not suspend it.

You keep asking for precedent.

And you’ve yet to provide a single case. That would make your position, well,…unprecedented.

Let me ask you - what is the precedent for the US to hold detainees as enemy combatants for years and openly deny them habeus corpus. (Eisentrager has already been dealt with in this thread.) Prisoners of war are different - they are not detainees classified as enemy combatants and have the rights accorded under the Geneva Convention.

Let’s not be so quick to conclude that Eisentrager “has already been dealth with”. That an individual has GC rights does not bear on whether he has HC rights or is within the jurisdiction of a US court.

You want precedent?

Boumedeine v. Bush (2007) SCOTUS should not review the requested writ unless petitioner has exhausted his remedies.
Hamdi v. Rumsfeld (2004) due process to be afforded to US citizens, but not necessarily in the form of a HC writ. Nothing prevents exec and Congress from limiting HC as set forth in the DTA.

Verdugo-Urquidez, 494 US at 271, aliens abroad have no HC access.
“[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined,
limitless class of noncitizens who are beyond our territory.” Id., at 275 (KENNEDY, J., concurring).

Cowle, at 856, 97 Eng. Rep., at 599–600. “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Courthas no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . .”

Your other arguments about limits and the voting analogy don't make sense. Of course the habeus corpus clause of COTUS has limits - it's limited to people detained by the US government.

As ample precedent shows, that is not its only limitation.

 

[Al Norris]

The problem with that is that the mechanism for the US “declaring” a war has been effectively removed from international legal operation by post-war international law. They need not be shot as spies, but may be summarily executed in the field.

Firstly, I agree. They should have never been captured.

Secondly, the problem with the above statement is that international law has not amended the Constitution. The power of Congress to declare war still exists. In the current situation, the Congress merely wrote a blank check to the President and handed it to him saying, "git dem critters!"

There was (and still is) plenty of proof that Afghanistan harbored the terrorists that enacted 9/11. The proper thing to have done was to declare war upon Afghanistan and any al-Qaeda members they harbored. The world would have backed that action. You know it, and I know it.

But the Congress didn't do that.

 

[zukiphile]

Where is the French Foreign Legion when you need them?

The proper thing to have done was to declare war upon Afghanistan and any al-Qaeda members they harbored. The world would have backed that action. You know it, and I know it.

But the Congress didn't do that.

Congress didn't do that because it would have been contrary to international law and our UN obligations.* Those treaty obligations can have the effect of changing constitutional law, which is a fine reason to avoid silly international agreements like Kyoto and the Rome Accord (International Criminal Court).

I don't think the "world", too often an label for international left( not that you used it that way), would have been more supportive of US action if a congressional resolution had been worded differently. I think the involved nations have interests that are not influenced by whether Congress declares war.

If I am not mistaken, our last declared war was WWII. Japan invaded first, then germany declared war against us, both instances in which a US declaration of war could have been defended under current international law.

Korea, Vietnam, Lebenon, Grenada -- none involved a declaration of war. Ever wonder why? Such a declaration is contrary to US treaty obligations. I doubt either of us will ever see the US declare war.


* This assertion isn't unarguable, and I don't believe there was ever a conscious american political decision to reach that conclusion, but I believe it is the better argument of what current law is. Robert Turner speaks persuasively on this.

 

[Al Norris]

That may well be true, zukiphile. I'll admit to not knowing enough about some of our treaties, to state authoritatively, one way or another. It's merely my assertion that a treaty cannot in and of itself, confer powers not already delegated nor amend powers already enumerated.

This sub-argument, is a diversion from the main theme of the thread, however. To get back to that....

My questions, above, remain unanswered.

Do we simply keep them (the detainees) locked up until we win this war (that presupposes that such an indefinable war can actually be won)? What is the legal basis for that? Under what legal doctrine do we keep non-prisoners detained indefinitely?

 

[zukiphile]

I would base my view on Article VI , paragraph 2, the supremacy clause, which provides "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby. . . ."

My questions, above, remain unanswered.

Do we simply keep them (the detainees) locked up until we win this war (that presupposes that such an indefinable war can actually be won)?

Isn't that what we did with the 400,000 prisoners we detained here during WWII? All wars are of an undertimined length until they are over. I don't see a good alternative.

What is the legal basis for that? Under what legal doctrine do we keep non-prisoners detained indefinitely?

I wouldn't call these men "non-prisoners", since they are kept as prisoners. While an illegal combatant is subject to summary execution in the field, I see no obligation for us to do that. If we are within rights to execute without hearing, we should have adequate legal basis to detain them. Confinement with periodic review under the MTA strikes me as a reasonable level of due process.

 

[nate45]

Do we simply keep them (the detainees) locked up until we win this war (that presupposes that such an indefinable war can actually be won)? What is the legal basis for that? Under what legal doctrine do we keep non-prisoners detained indefinitely?

It is a bad situation, on the one hand I agree with you on a philosophical and humanitarian basis. It seems capricious and unfair that humans could be held indefinitely, with no representation or fair day in court.

On the other hand there is no basis in law or legal precedent for the SCOTUS to intervene in military matters on foreign soil.
There is no basis for U.S. Courts issuing writs of habeas corpus on behalf of foreign nationals, more especially foreign nationals who have been declared 'enemy aliens'.

I fully understand the desire to seek justice for those who may be unfairly incarcerated. Congress could take action at any time to defund Gitmo or pass some sort of bill regarding the rules and status of Guatanamo Bay, but in reviewing the law and past court decisions I do not see how the matter is the purview of the court.

The court has once again stepped in where it does not belong at the behest of the far left lawyers of the ACLU.