Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, November 10, 2005

Gulag? What Gulag?

Talkleft and Majikthise call attention to an amendment to a defense appropriations bill submitted by Republican Senator Lindsay Graham that, in effect, overrides the Supreme Court's ruling in Rasul v. Bush.

In Rasul, the Court held over the strenuous protestations of the White House, that aliens detained, as enemy combatants or otherwise, were protected by the federal habeas corpus statute. Thus, they were entitled, as a matter of law, to challenge the propriety of their detentions and their conditions of confinement. The Court further held that, notwithstanding Cuba's ultimate sovereignty over the land on which these combatants were detained, detained parties had access to other related recourse under federal law, including under the federal question statute and Alien Tort Claims statute. What the Court did not rule is that these protections were constitutional in nature; the statutory basis of the jurisdiction found in that case, therefore, could be obviated by statutory enactment rather than constitutional amendment. Congress's broad discretion to broaden or restrict the jurisdiction of Article III federal courts was undisturbed by Rasul.

The relevant text of the amendment, an addition to 28 U.S.C. 2241, follows:

(e) No court, justice, or judge shall have jurisdiction to consider---

(1) an application for a writ of habeas corpus based on policies established by the Secretary of Defense under section 1071(a) of the National Defense Authorization Act for Fiscal Year 2006 filed on behalf of an alien who is detained by the Secretary of Defense as an enemey combatant; or
(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.

The amendment, at least that part concerning habeas jurisdiction, is rendered retroactive: that is, it "shall apply to any application or other action pending on or after the date of the enactment."

According to TalkLeft, the talking points Graham is circulating unabashedly sketch out the intended consequence of the amendment, which sets out to preclude detainee challenges to:

* The legality of their detentions
* The propriety of returning detainees to their home countries
* Adequacy of medical care at Guantanamo
* Quality of the food
* Speed of mail delivery
* Allotment of exercise time and other conditions of confinement

TalkLeft also notes that this goes beyond Guantanamo on its face, probably extending to any secret detention camps maintained by the CIA, and indeed doesn't appear to contain any geographical limitation whatsoever, raising at least a question as to whether it can apply to designated "enemy combatants" detained on American soil. Granted, there may be a constitutional challenge available in that circumstances, but does anyone doubt any such challenge would be strenuously opposed by the White House?

While one can understand the need for incarceration of enemy combatants, the more such a designation elides basic protections that lie at the very core of what makes this Country what it is, the more important it is that those so designated have a full and fair opportunity to litigate the designation itself, if nothing else. This amendment, however, by taking away habeas protection makes that impossible. It's possible, the writ of habeas corpus lying at commonlaw long before it was codified, that the Court would rule such an amendment unconstitutional (and take a beating as an activist court, no doubt). But who wants to take that chance?

This is a biggy. TalkLeft and Majikthise are urging readers to call their senators, and the Center for Constitutional Rights is tracking some interesting materials, letters and such from authoritative sources, concerning Graham's amendment. They characterize this as a "stealth amendment;" whether you like it or not, something this serious shouldn't be considered in the dark -- the word ought to be spread before we let our Senate flout a hundred years of international law and centuries of the Anglo-American tradition in a short-sighted attempt to protect this administration from the consequences of its own avariciousness.

Hilzoy's also on the case.

UPDATE: A slightly defanged but still bothersome variation on the Graham Amendment passed yesterday, but it's not a law yet.


Blogger Judy said...

I have no probelm with the amendment becasue it allows the military system take care of it.
If you read Section I is about "Combatant Sratus Review Tribunals, or Administrative Review Boards" being implemented to take care of these complaints.

The military system con handle this better than the civil courts becasue of the classified nature of the information in dealing with these cases. Article II courts have to publish their opinion for the nation whereas the military tribunal doesn't. When a civil court publishes an opinion on one of these cases it is severely redacted to protect intelligence. The military tribunals are set up to deal with the intelligence information and keep it secret.

Please reconsider the amendment. I do not believe that Sen. Graham would do anything that would deny anyone the right to a trial and hearing. He is trying to protect intelligence information as well as the defendant's rights.

The UCMJ protects defendants rights because it does require the same procedural due process rights as the constitution. The military justice system is not outside the constitution. Why can't we let this same court-martial system that our soldiers serve under be used to try and hear the appeals of detainees.

12:21 PM  
Blogger Moon said...

Judy, if you want to make the claim that, under the current law, the law as Graham would amend it, or any other law, the net effect is that "enemy combatants" are afforded protections equal to those afforded, say, the corporal who mistreats them, you're going to have to do more than merely reference the UCMJ generally. I'm a lawyer; give me citations.

Until then, I have the Rasul Court opinion to tell me that the supreme arbiter of constitutional protections in this fine land of ours disagreed with you, and that this statute is merely a way to enshrine safely out of the courts' reach the precise procedural improprieties invalidated in that case. It's how I read the statute, it's how I read Rasul, and none of your nebulous rejoinders regarding the fitness of military tribunals, the similarity of due process protections in that context, and the adequacy of review by non-Article III courts, is going to change my opinion, though I appreciate your trying.

And a word about confidentiality: hogwash. Do your research. Civil courts have effectively been protecting sensitive information for centuries, and could continue to do so. A soldier by contract entrusts his conduct to the military justice system; an enemy combatant does not. This country by treaty has sworn to observe basic standards in the protections afforded enemy combatants (by whatever name) detained during hostilities. I refuse to split hairs on such a matter when the alternative is to flout the very international protections that have protected American soldiers abroad from heinous abuse for decades. Have others flouted these laws? Yes. But one iota of imagination would inform you all you need to know about how much worse it would have been for American soldiers had the Geneva Conventions not been around and broadly observed.

The government should be able to demonstrate, in an Article III constitutional court, sufficient information to justify the "enemy combatant" moniker at a minimum. That's the criticial right to challenge protected by Rasul, and the legal remedy the Graham amendment would allow. Could our PR be any worse around the world? If we pass this statute, you better believe it. That also does no favors to American soldiers in harm's way.

3:26 PM  
Blogger Moon said...

i wrote: "and the legal remedy the Graham amendment would allow"

i meant, "and the legal remedy the Graham amendment seeks to eliminate," or something in that general vein.

4:03 PM  
Blogger Judy said...

Have we ever allowed foriegn detainees dutring wartime access to the federal courts to contest their detention?

1:46 PM  
Blogger Moon said...

A fair question Judy, and one to which I don't have an immediate answer. I will offer this, however, from the Rasul Syllabus (administrative summary of the Court's decision):

Petitioners here differ from the Eisentrager detainees [who were found not to have a constitutional entitlement to habeas review] in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners' constitutional entitlement to habeas review. The Court's only statement on their statutory entitlement was a passing reference to its absence. This cursory treatment is explained by the Court's then-recent decision in Ahrens v. Clark, 335 U.S. 188, in which it held that the District Court for the District of Columbia lacked jurisdiction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute's phrase "within their respective jurisdictions" required the petitioners' presence within the court's territorial jurisdiction. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494-495, that such presence is not "an invariable prerequisite" to the exercise of §2241 jurisdiction because habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts "within [its] respective jurisdiction" if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners' claims.

Perhaps I worded my initial post too broadly. The principle remains: where we have actual or effective sovereignty over the place of detention, even aliens, at least where not nationals of countries with whom we are at war (and this makes salient Congress's abdication of its patent constitutional responsibility for the making of war), are entitled to challenge their status as enemy combatants.

Also note, the above passage provides further support for the availability of constitutional habeas review notwithstanding Congress's endeavor to reserve the right to grab anybody without American citizenship off any street in the world, call her an enemy combatant, lock her in prison and throw away the key.

And make no mistake -- story after story makes clear that this is what's happening in more than a few cases.

4:29 PM  
Blogger Michael said...

I wanted to make a comment, although I'm totally not an expert in this area I do have some passing familiarity with it. I will say that I think part of the dilemma is that this just doesn't happen that often. Period. In the Hamdi case (sadly, I haven't read Rasul, but I understand that the gist of it is that the Guantanamo folks are due some process, but it's not established how much), the Court disregarded Hamdi's status as a citizen of the US and afforded him essentially the same protection as any foreign enemy combatant. The Court cited Ex Parte Quirine (317 U.S. 1 for those playing along at home) from WWII as precedent in that case, and I think there are some important lessons.

First, it's not just enemy combatants, the issue is really whether enemy combatants detained on US soil (and Guantanamo is US territory) have any constitutional rights -- really due process rights.

And in Hamdi, as in Rasul from what I understand, the Court found that some process is due, although they refused to say what that was. That case is pending in the DC Circuit, at least according to the woman from the CCR that I met a couple of weeks ago.

But, I think the broader point is that in the very rare instances in which foreign detainees have been held on US soil, we do allow access to the federal court system. It happened in WWII when some German submariners ended up on US soil -- Ex Parte Quirine -- and it's happened now with both Rasul and Hamdi. When else have we had foreign detainees (other than in immigration hearings) in custody on our soil? I think it's been exceedingly rare.

Finally, I want to point out a bit of a difficult position the Bush administration has put itself in. At least, I see it as such. If you go check out the UCMJ Section 802 2(a)(9) (I think that's the cite, but the website's not clear), there's a list of those subject to UCMJ jurisdiction. Listed at the cite above is "Prisoners of War." The Bush administration has gone out of its way to not classify the Guantanamo detainees as prisoners of war, so as not to be subject to the requirements of the Geneva Convention. If there's no jurisdiction under the UCMJ, then if these folks are due some process, I would guess (although the gov't is making the argument that it isn't the case) they should have direct access to federal courts. I'm, of course, not a specialist in this area, but my quick read of this stuff suggests that this is an argument to make.

11:51 PM  
Blogger Moon said...

Excellent observation, Michael, about the administration pushing a UCMJ approach to detainees who, when it ill suits their interests, they refuse to identify as prisoner's of war.

As for the rest, you're showing as much knowledge as I have; I had forgotten about the Quirine case, and it's interesting that it hasn't come up more in discussion of the amendment as it's plainly a strong argument against the habeas-stripping aspects of the Graham Amendment. I don't know, however, the basis of jurisdiction excercised in Quirine, as it preceded by decades the modern habeas regime. Indeed, since that case was roughly contemporary with Eisenstrager, I'd be inclined to assume that Quirine, as in that case, sounded in constitutional habeas. And I continue to suspect that constitutional habeas applies to detainees on American soil, which, as you note, the Court found Guantanamo to be as a matter of law and, now, stare decisis.

For further discussion of this topic, you might check out today's Times editorial on the topic. It provides an unusually balanced and nuanced discussion of the amendment, applauding some of the anti-torture provisions while rejecting as historically dubious its habeas-stripping component.

12:43 PM  
Blogger iocaste said...

As I read the revised amendment, claims under the Alien Tort Statute would still be permitted. Is that your reading?

1:57 PM  
Blogger Moon said...

Welcome Iocaste. Good question. I don't have time to review the ATCA right now, but upon a quick review of the revised amendment passed by the Senate yesterday, it appears that one at least might argue that you are correct.

Where the first version categorically denied jurisdiction over detainee initiated suits related to their confinement, and thus was susceptible to the interpretation that the ATCA would provide no relief, the new draft is more restrictive in its discussion of jurisdiction.

Now it appears on its face to apply only to the review of detainee status, vesting, under specified circumstances, jurisdiction for determining status in the United States Court of Appeals for the District of Columbia Circuit. Gone is any vestige of the sweeping no-harbor-whatsoever-in-federal-court language that characterized the prior draft.

That said, the Times takes a more jaundiced view of the amendment:

Under Mr. Graham's measure, Guantánamo prisoners would be able to challenge only the narrow question of whether the government followed procedures established by the defense secretary at the time the military determined their status as enemy combatants, which is subject to an annual review. The District of Columbia Circuit would retain the right to rule on that, but not on other aspects of a prisoner's case.

This might be something that would have to come out in the wash; the question itself seems one that would ripen upon passage of the amendment for the federal courts to consider. And insofar as a ruling adverse to a detainee seeking relief under the Tort Claims Act in district court would be a preliminary matter, one would expect it to percolate into the system rather quickly upon passage.

But a full answer exceeds my knowledge at the moment. In general, I have to defer to Hilzoy, who's been providing excellnt coverage over at ObWi from day 1.

2:23 PM  
Blogger Moon said...

Oops, here's that Times link.

2:24 PM  
Blogger Michael said...

I wouldn't bet on an ATCA suit working. At the risk of starting out obviously: 1) the US government is immune, so the case must be against specific individuals; 2) the Supreme Court showed in Alvarez-Machain (542 U.S. 692)that it's going to be extremely reluctant to allow a suit against US agents; 3) the narrow grounds of international law under which a 1350 (ATCA) case could be brought requires a pretty steep burden of proof. Given the lengths at which the Bush administration has gone to define what we are doing as not torture -- which I think would be the only grounds on which to bring a 1350 case (that's my half-educated guess) -- courts are going to feel a lot pressure to kick this out as not torture and therefore no claim. Either that or hide behind the political question doctrine. That's my cynical belief.

Generally speaking, I don't think we're at a point where 1350 claims against US officials will actually manage to be litigated.

10:59 PM  

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