Friday, February 23, 2007

Boumediene And Habeas - It's Time For The Supreme Court To Answer Two Questions

The recent D. C. Circuit decision continued a fairly long line of habeas corpus/ suspension cases that fail to address, often explicitly, two fundamental questions regarding the privelage of habeas corpus and when it can be constitutionally suspended: 1) to what extent has the right of habeas corpus developed to include circumstances beyond those that existed in the common law in 1789; and 2) does the Constitution, through the Suspension Clause or one or more of the Fifth, Sixth, or Fourteenth Amendments, provide an affirmative right of habeas corpus beyond that which exists by statute or the common law. Boumediene v. Bush highlights the need for a Supreme Court ruling addressing these questions and will hopefully provide the vehicle.

Boumediene v. Bush is the most recent Court of Appeals case regarding Guantanamo detainee Habeas Corpus rights. In a two to one decision the Court held that the Military Commissions Act withdrew jurisdiction to hear the case and that there was no improper suspension of HC because Boumedienne would not have been entitled to Habeas Corpus under the common law as it existed in 1789.

Since there has been ample discussion of the confusing and, in my opinion, incorrect, majority opinion that ignores Supreme Court precedent and convolutes centuries old English decisions I am not going to comment on it further. However I do want to comment on what the decision does not address, and point out why these omissions make this area of the law more confusing than it need be. I would also point out that these omissions can also be found in most Supreme Court decisions on this topic.

The dissent in Boumedienne, which is also guilty on this score, highlights the problem. Judge Roberts, in her dissent starts out well by saying
As for the MCA, I concur in the court’s conclusion that, notwithstanding the requirements that Congress speak clearly when it intends its action to apply retroactively, see Landgraf v. USI Film Prods., 511 U.S. 244, 265-73 (1994), and when withdrawing habeas jurisdiction from the courts, see INS v. St. Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 102 (1869), Congress sought in the MCA to revoke all federal jurisdiction retroactively as to the habeas petitions of detainees held at Guantanamo Bay. See Op. at 9-12.

But then she begins to slip. Characterizing the detainees' complaint, she writes

The detainees do not here contend that the Constitution accords them a positive right to the writ but rather that the Suspension Clause restricts Congress’s power to eliminate a preexisting statutory right. To answer that question does not entail looking to the extent of the detainees’ ties to the United States but rather requires understanding the scope of the writ of habeas corpus at common law in 1789.

See what happened. We went from the detainees' claim that their Statutory Rights, which existed under 28 USC 2241 were violated into a discussion of whether they were entitled to Habeas Corpus under the common law as it existed prior to 1789. She does this sidestep even though she acknowledges that prior to the MCA they had statutory Habeas Corpus rights. She does so by saying

A review of the text and operation of the Suspension Clause shows that, by nature, it operates to constrain the powers of Congress. Prior to the enactment of the MCA, the Supreme Court acknowledged that the detainees held at Guantanamo had a statutory right to habeas corpus. Rasul, 542 U.S. at 483-84. The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension. The Suspension Clause limits the removal of habeas corpus, at least as the writ was understood at common law, to times of rebellion or invasion unless Congress provides an adequate alternative remedy. The writ would have reached the detainees at common law, and Congress has neither provided an adequate alternative remedy, through the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739(“DTA”),nor invoked the exception to the Clause by making the required findings to suspend the writ. The MCA is therefore void and does not deprive this court or the district courts of jurisdiction.

The question of whether a statutory Habeas Corpus right exists is wrapped up, in part, in the question of whether the evolved and expanded Habeas Corpus rights contained in the Federal statutes that have been enacted since the Judiciary Act of 1879 are now subject to the Constitutional limitations of the Suspension Clause, ie., they cannot be suspended except on occasion of invasion or rebellion. She avoids the issue by saying her 1789 analysis makes it unnecessary

Given my conclusion, see infra Part C.1, it is also unnecessary to resolve the question of whether the Suspension Clause protects the writ of habeas corpus as it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05,
and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 970 (1998). The court oddly chooses to ignore the issue by truncating its reference to St. Cyr, without comment, and omitting the qualifier “at the absolute minimum.” See Op. at 14.

And for the same reason she avoids discussing, let alone deciding, whether there is an affirmative Habeas Corpus right in the Constitution

It is unnecessary to resolve the question of whether the Constitution provides for an affirmative right to habeas corpus —
either through the Suspension Clause, the Fifth Amendment guarantee of due process, or the Sixth Amendment — or presumed the continued vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because the Supreme Court in Rasul held that the writ existed in 2004 and that there was, therefore, something to suspend, it is sufficient to assess whether the writ sought here existed 1789.

Because she didn't rule on whether Habeas Corpus has evolved beyond the Eighteenth Century or whether it is embodied as affirmative law in the Constitution, she summarizes her decision by saying

Therefore, because Congress in enacting the MCA has revoked the privilege of the writ of habeas corpus where it
would have issued under the common law in 1789, without providing an adequate alternative, the MCA is void unless Congress’s action fits within the exception in the Suspension Clause: Congress may suspend the writ “when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2. However, Congress has not invoked
this power.

Don't get me wrong. I think she reached the right result and that her reasoning, for the most part, is sound. But I think that she and most other judges continue to ignore the elephants in the bedroom. And by doing so they involve themselves in increasingly convoluted discussions of Colonial era British law. Yes, I know there are reasons why this is done and especially in lower court cases But it is time for the Supreme Court to step up to the plate. The Bush Administration has forced their hand with the MCA and the Detainee Treatment Act before it.

And my little tip to the Court is - there is an Affirmative Habeas Corpus right in the Constitution and the Suspension clause also applies to the revocation of the evolved Habeas Corpus rights now contained in Federal Statutes.

Saturday, February 17, 2007

Is Don Young a Saboteur Who Should Be Exiled or Hanged? He Seems to Think So.

We all know that Rep. Don Young put words in President Lincoln's mouth on the floor of the House during the debate on the "Surge," AKA "Escalation," Resolution. He quoted Lincoln as saying

"Congressmen who willfully take action during wartime that damage morale and undermine the military are saboteurs, and should be arrested, exiled or hanged,"

The lie in Mr. Young's statement has been exposed by many sources, including the washington Post. But even after having been exposed, Young's spokesman said

"Now that he's been informed these are not the actual words of Lincoln, he will discontinue attributing the words to Lincoln. However, he continues to totally agree with the message of the statement," Kenny said. "Americans, especially America's elected leaders, should not take actions during a time of war that damage the morale of our soldiers and military -- and that is exactly what this nonbinding resolution does."

Really. Well if that's the case, then based on what the Esteemed Gentlemen from Alaska said while our troops were fighting in Kosovo, his arrest followed by exile or hanging are long overdue. From Mr. Young's web site, this is what he had to say about Kosovo.

First, U.S. involvement in Kosovo was illegal because a President cannot take the country to war without Congressional authorization

“Today’s votes provide a constitutional backdrop for the debate over the war in Kosovo. The Administration is waging war without the authority of Congress. The Administration has taken actions to place U.S. troops into combat without Congressional authorization. Congress has the constitutional authority to declare war, not the president,” said Alaska Congressman Don Young.

Furthermore, just because troops have already been committed to the fight did not mean that a person like Mr. Young should stay quiet in order to not undermine the morale of the troops. On the contrary,

Congressman Young said “We continue to place our young persons in direct harm, I think about those in Alaska who are serving their country like those who are flying F-15's and tanker crews who are supporting our fighting team. Yet, these patriots are serving there country without knowing what the end-game mission will be in bombing Kosovo. The president has failed to address what the mission is and what the exit strategy will be to bring our men and women home.”

And lest there be any doubt that his view applied only to the Kosovo situation Mr. Young made clear that the principles upon which he stood applied to all such cases -

“I have been a proponent for Congressional authority to declare war. I believe the president must consult, and receive approval by Congress before sending our sons and daughters into dangerous countries such as Kosovo.”

So there you have it. While U.S. troops were in combat in Kosovo, Mr. Young subverted the President and damaged the morale of the troops by charging that the mission was illegal. Not only that, he undermined the military and the morale of the troops by saying that their mission was unclear and that they were locked in a never ending battle with no exit strategy.

While some years have passed since Mr. Young's treasonous conduct there can be no statute of limitations for a crime as heinous as his. It is time for the U.S. Marshals to come calling.

Friday, February 16, 2007

Is Iran Is Our Enemy?

A few days ago, in discussing the perils of our policy towards Iran, Wes Clark was asked what is arguably the most fundamental question in the current excitement about Iran: "Is Iran our enemy?" His response was -

An enemy? I wouldn't want to be branding people as enemies too soon. That was one of Bush's many mistakes. Iran is a nation we have many disagreements with...and that's why we should be discussing, not sabre rattling

This is the question we should be looking at, not whether Iran wants to get nuclear weapons or whether it is providing military and other assistance to one or more factions in the Iraq civil war. And not just any enemy. But rather an enemy with whom our differences are so grave as to justify going to war.

Before discussing the history of our relations with Iran lets look at why the issues of nuclear weapons and military support to adversaries is never by itself grounds for war. I hate to belabor what should be obvious, but feel the need to do so because this Administration uses these issues to create anger and fear as a substitute for a rationale approach to our relations with Iran.

It goes without saying that having a nuclear weapon does not an enemy make. We have no problem with our friends and allies having nuclear weapons. We have had past "enemies" such as Russia and China with nuclear weapons who are, if not friends, at least partners. Conversely, all of our wars, except the Cold War, were with countries that did not have nuclear weapons. We encouraged many countries to develop nuclear technology for peaceful purposes and all, with two or three exceptions, did not use that technology to build bombs. (I say "two or three" because India and Pakistan are open nuclear powers whereas Israel has kept its bombs under a bushel basket.) None of these countries became our enemies when they acquired nuclear weapons and the same would be true with Iran.

What about providing weapons to our adversaries? Does that make someone our enemy and provide a basis for going to war against them? There are many historical examples of why the answer is "no" and here are three.

During the Korean war the USSR provided military and other support to the North Koreans, including jet fighters and the pilots who flew them. While the Soviets were clearly our Cold War enemy we did not use this as a basis to attack them. Similarly, while the Chinese sent hundreds of thousand of troops into Korea to battle the U.N. forces we did not use that as a pretext to attack China. Over the objections of MacArthur we did everything we could to contain the conflict.

From this standpoint Viet Nam was a repeat of Korea. The Soviets supported the North Vietnamese with arms and other material. We not only did not use that support as a basis for attacking the Soviets but were concerned, on and off, about sinking Soviet supply ships entering Haiphong harbor. As in Korea we sought to not escalate the war though we would have had ample provocation.

The tables were turned in the Afghan war to expel the soviets. We supplied the Afghan troops with everything from bullets to Stinger missiles for years and the Soviets knew it. But as with us in the prior two conflicts they did not use our actions as a pretext for going to war.

So what is it with Iran? What is our beef against them and their beef against us. Here is a brief chronology of some of the most significant events of the last fifty years involving the U.S and Iran.

* We deposed Mohammed Mossadegh their elected Prime Minister in 1953 and installed the Shah;

* We armed the Shah to the teeth as a bulwark against the USSR and friend of Israel

* We sided with the Shah in suppressing the Iranian Kurds

* The people revolted under the Ayatollah

* Our hostages were illegally imprisoned in violation of international law

* Diplomatic relations between our countries ceased

* Iran were invaded by Iraq, who we supported

* Iran gave refuge to anti-Saddam Shia

* Iran helped Iraqi Shia train anti-Saddam militias

* Iran continued to be anti-Soviet but were now anti-Israel

* Iran supported palestinian and Lebanese groups and militias, particularly Hezbollah

* We shot down an Iranian passenger plane by accident killing over a hundred people

* Iran was found by a Federal Judge to have been responsible for Khobar Towers bombing

* Iran opposed the Soviets in Afghanistan

* When the Taliban came to power Iran, unlike Saudi Arabia and Pakistan, did not recognize them

* Iran provided material and logistical support to overthrow the
Taliban/Qaeda until Bush declared them the Axis of Evil

* We deposed Sadaam, their worst enemy, and put the Shia, their best Iraqi friends, in power

* Iran is probably giving arms and other support to their Iraqi allies

* Iran continues to arrest and detain al Qaeda operatives

* Iran is a signatory to the NNPT unlike India, Pakistan and Israel

* Iran may be able to build nuclear weapons years from now

* Iran has never waged war against us

* Iran is still seeking reparations from Iraq for the 1980 war

* We continue to hold assets seized after the hostage crisis.

It seems clear that we have some issues with them and they with us. If the roles were reversed and they had begun interfering in our internal affairs in 1953 and engineered a coup ousting Eisenhower I wonder how we would feel. It also seems clear that we have no irreconcilable differences with the Iranians. All we need to do is start dealing with them as adults. Yes, the hostage taking in 1979 was an outrage. But time has passed. In fact more time has passed than it took us to establish diplomatic relations with the Vietnamese after the war. We and they need to move on. And now is the time.

Saturday, February 10, 2007

A Small But Important Habeas Victory

The District Of Columbia Circuit ruled on February 9th that Habeas Corpus is still alive. In Omar v Harvey the Court upheld the right of Omar, an American citizen being held by the U.S. in Iraq to challenge his transfer to Iraqi authorities. This is an important decision for two main reasons. First it continues a line of cases striking down the Administrations expansive views of its "wartime" powers. Second, it confirms that Habeas Corpus is still alive.

Before discussing the law, here are the facts of the case. Omar is a dual American/Jordanian citizen, with an American wife, who said he traveled back to Iraq to seek construction related work and had intended on returning to the U.S. but for his arrest. The U.S. said he was captured in a raid on alleged Zarqawi associates and that he facilitated terrorist acts inside and outside Iraq. There was a status hearing before three U.S. officers and he was declared "a security internee under the law of war" and an "'enemy combatant' in the war on terrorism."

In December, 2005, his wife filed a Habeas petition as his "next friends" in the D.C. District Court. The petition asks that the government release him or that it be required to bring him before a U.S. court to show cause for his continued detention. The suit also sought an injunction to prevent him from being turned over to Iraqi authorities. Two months later Omar's attorney was advised that in August, 2005 it was decided to transfer him to the Central Criminal Court of Iraq. (The Court notes that there is no record of who made the decision or the grounds on which it was made.)

The District Court issued a Preliminary Injunction prohibiting Omar's transfer until a full adjudication of all issues. The Government appealed and the Circuit Court upheld the lower court decision.

The Government argued that the Court does not have jurisdiction to hear the case. And then, incredibly, they argue that they propose to give him everything he asks for under Habeas, ie., transfer out of U.S. custody. Of course he would then be in Iraqi custody, but they figured it was worth a shot.

The Court dealt with the government's primary jurisdiction argument easily by saying the one case relied on, Hirota v MacArthur 338 U.S. 197 (1947), was not controlling for two reasons. First, by its terms, Hirota was only applicable to its unique facts, which are totally different than here. Second, as made clear by Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), Hirota concerned an attack on the judgment of an international tribunal, which was also not the case in Omar.

The Court then moved on to the Habeas issue and with sweeping language stated

At its historical core, the Supreme Court has explained, the
writ of habeas corpus has served as a means of reviewing the
legality of Executive detention, and it is in that context that its
protections have been strongest. INS v. St. Cyr, 533 U.S.
289, 301 (2001); see also Brown v. Allen, 344 U.S. 443, 533
(1953) (Jackson, J., concurring in the judgment) (The
historic purpose of the writ has been to relieve detention by
executive authorities without judicial trial.). Acting in
tandem with its partners-in-libertythe Due Process Clauses
of the Fifth and Fourteenth Amendments the great writ is
the instrument by which due process [can] be insisted upon
by a citizen illegally imprisoned. Hamdi, 542 U.S. at 555-56.

The Government also tried to argue that this case falls under the political question doctrine, in that it

raise[s] quintessential political questions beyond the
authority or competence of the judiciary to answer.
Appellants Br. 41. The political question doctrine puts
beyond judicial cognizance political decisions that are by
their nature committed to the political branches. Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal
quotation mark omitted). For example, and relevant to this
case, the doctrine bars courts from considering claims whose
adjudication would require judicial wading into foreign policy
or military waters. Thus, in Schneider we invoked the
political question doctrine to dismiss a claim that would have required us to second-guess U.S. policy towards Chile.

And here is where the decision gets even better. First, noting that the doctrine of "political questions" is not a doctrine of "political case," the Court cited Hamdi -

The Supreme Court's recent decision in Hamdi makes
abundantly clear that Omar's challenge to his detention is
justiciable. In Hamdi, as here, the petitioner challenged his
detention by U.S. military authorities pursuant to an enemy
combatant determination. Although the government never
directly invoked the political question doctrine, it argued that
separation of powers concernsthe very concerns underlying
the political question doctrinepreclude courts from
inquiring into the factual basis of an enemy combatant
designation. A commanders wartime determination that an
individual is an enemy combatant, the government urged, is
a quintessentially military judgment representing a core
exercise of the Commander-in-Chief authority. Br. for the
Respts at 25, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.
03-6696). Unequivocally rejecting this contention, the Hamdi
plurality explained that it does not infringe on the core role
of the military for the courts to exercise their own time-
honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here. Hamdi, 542 U.S.
at 535.

The Court moved on to the Government's final claim, that theysoughted to give Omar what he wated, release from U.S. custody. It would either be a direct transfer to the Iraqis or as discussed in the dissent, a wink and a nod release with Iraqui authorities waiting at the gate to arrest him. The court responded that a transfer to someone else's custody was not a release, and with respect to possible subtrefuge stated,

If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him
either directly through a formal handoff or indirectly by
releasing him with a wink-and-a-nod to the Iraqis. The
United States may certainly share information with other
sovereigns, see id. at 6-7, but it may not do so in a way that
converts Omar's release into a transfer that violates a court

There are other important points in the decision but these are some of the main ones. There also is a dissent which I will not discuss now except to say that its points were week and handily disposed of by the majority.

In sum, this is a great case. Not only for the holding and the broad grounds relied on but also because of the Court itself. This is the D.C. Circuit, arguably the most influntial one in the Country. Rejoice! The Courts are alive and kicking.