Disbelief of Suspension

Jacob Sullum | March 29, 2006

The Supreme Court's decision in Hamdan v. Rumsfeld could hinge on whether the Detainee Treatment Act suspends the right of habeas corpus, which the Constitution authorizes Congress to do "in Cases of Rebellion or Invasion," or simply bars petitions from prisoners at Guantanamo without suspending the writ. The Bush administration presumably would argue that the continued threat of 9/11-style attacks constitutes an invasion. But as Justice David Souter pointed out during yesterday's oral arguments, it's hard to believe Congress would, or constitutionally could, take such a momentous step without saying so explicitly:

[Solicitor General Paul] Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States--"

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Then again, if Congress can authorize warrantless surveillance of Americans without realizing it, I suppose it can accidentally suspend habeas corpus.

Comments

|3.29.06 @ 1:37PM|#

Wow. Go Souter!

|3.29.06 @ 1:48PM|#

I heard that exchange on Morning Sedition this morning. It's odd to hear SCOTUS take a stand against tyranny.

"I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States--"

Well, shit, then, why not just ship every defendent up on charge sof any kind to Guantanamo Bay, call them "enemy combatants" (they're "enemies" of our rule of law, because they broke the law), and call it a day?

|3.29.06 @ 1:50PM|#

First a ruling in favor of the people regarding the 4th and now this. Gives a faint glimmer of hope - however, I predict split court in this leading to the previous court's decision standing.

|3.29.06 @ 1:50PM|#

"Suspended inadvertently" I love the idea. Those congressmen are so spaced out that they suspend important constitutional guarantees and do not notice it.

The Bush administration has no shame whatsoever. For letting Bush be their standard bearer for so long, the REpublicans deserve to lose big the next election. Too bad that it will be to the Democrats, but then, you cannot have everything.

|3.29.06 @ 2:07PM|#

"and... call.. it.. a.. day."

Great idea Evan! Now how do I cite to a message board?

|3.29.06 @ 2:13PM|#

Oops, sorry, stomped on a few rights again.

Well, excuuuuuuuse me.

Inadvertantly ??? "Sort of stumbled on" ???
This was in the Onion, right?

|3.29.06 @ 2:15PM|#

I can easily imagine Congress accidentally suspending habeas corpus:

"Mumble mumble ... what about the children ... mumble ... if it saves a single life ... mumble mumble ... our brave fighting men and women ... Oops!"

Easy as that.

|3.29.06 @ 2:17PM|#

Although it's nice to see the strong wording, this isn't too surprising. The SCOTUS is, understandably, typically very skeptical of efforts to limit the jurisdiction of the Federal courts.

R C Dean|3.29.06 @ 2:21PM|#

It does come across as pretty Keystone Kops.

Still, do we really want to extend habeas corpus rights to unarmed combatants taken during combat operations overseas?

How exactly will that work? If they have habeas rights, what other due process rights do they have? Are we about to back into giving illegal combatants more rights than soldiers complying with the Geneva Conventions?

Do they have the right to an attorney? How soon would their lawyer have to be there? Could they be interrogated without their lawyer present? Will we see Marines trying to Mirandize somebody wrapped in a Semtex belt?

Or will we just see a sudden and mysterious drop in the number of prisoners taken alive.

|3.29.06 @ 2:31PM|#

It is a stupid position to say that habeus can be suspended accidentally, but, as RC suggests, I don't think that was ever the thrust of the argument. Instead, the argument was that habeus never applied.

|3.29.06 @ 2:35PM|#

"Or will we just see a sudden and mysterious drop in the number of prisoners taken alive."

No, just less use of Guantanamo. SCOTUS never suggested that people captured and held in Iraq or Afghanistan have habeas corpus rights under American law. The critical point from the earlier decision is that Guantanamo is effectively under the jurisdiction of the US federal government and accordingly people there are subject to US Constitutional protections.

|3.29.06 @ 2:46PM|#

Are we about to back into giving illegal combatants more rights than soldiers complying with the Geneva Conventions?

Alleged illegal combatants, you mean. In many cases, this is a disputed issue of fact.

|3.29.06 @ 2:52PM|#

"Instead, the argument was that habeus never applied."

Yes, because the Constitution grants us as citizens rights. Those rights are granted at the mercy of the government. And the Constitution clearly excludes all non-citizens from having any rights whatsoever.

I mean, that's what it says, and clearly what our founders believed, so who could honestly argue otherwise???

|3.29.06 @ 2:58PM|#

No one is arguing for lawyers and Miranda readings on the battlefield. That's a _big_ red herring. On the battlefield the laws of war apply. However, once a prisoner is safely secured off the battlefield then some uniform code of conduct needs to be applied to determine status and treatment of said prisoner. In the good ol' days, that meant the Geneva Conventions. Not anymore. Neither will this Administration acknowledge the Uniform Code of Military Justice as the standard for these military tribunals, the usual means for justice in the US military.

Since this Administration has decreed that the US will not apply either standard for these prisoners, what standard is being applied? Indefinite detention without legal protections of any kind. No precedent for this sort of behavior has ever been asserted, not in a democratic country anyway. The kangaroo tribunals that do exist have shamefully low standards of evidence (allowing testimony gleaned from torture for instance) and are really a mockery to the legal traditions developed over the centuries to protect our liberty. While the danger posed by genuine terrorists at GITMO may be real, don?t pretend that no dangers exist by the expansive arguments regarding executive power posed by the Bush Administration.

So, do we jettison our legal traditions for security? As someone once said, "He who sacrifices liberty for security deserves neither".

|3.29.06 @ 3:00PM|#

RC Dean writes: "Still, do we really want to extend habeas corpus rights to unarmed combatants taken during combat operations overseas?"

What exactly is an "unarmed combatant"?

What's Pashto for "Have at you! It's only a flesh wound!"

Anyway, a good number of them were not taken during combat operations overseas. Or, perhaps there were combat operations going on, but not anywhere near where the person was taken. For instance, in Pakistan. Or perhaps they were falsely turned in by someone, for a bounty. Or maybe they were picked up because of a false accusation produced as we tortured another prisoner.

|3.29.06 @ 3:00PM|#

I hope you were employing your sarcasm filter when posting that, quasibill...

|3.29.06 @ 3:04PM|#

RC Dean writes: "Do they have the right to an attorney? How soon would their lawyer have to be there? Could they be interrogated without their lawyer present? Will we see Marines trying to Mirandize somebody wrapped in a Semtex belt?"

That's a funny argument to use when we're talking about people who've been held in small cages for far longer than Iran held our embassy staff.

This is not about battlefield decisions.

|3.29.06 @ 3:25PM|#

Recall also that at least one known one-time Guantanamo guest, Padilla, was seized out of the pitched battlefield of a jail cell in Chicago. To assert that everyone at Guantanamo was captured on a battlefield is also disingenuous.

|3.29.06 @ 3:29PM|#

Bush wouldn't be the first President to take it upon himself to suspend habeas corpus. Abraham Lincoln has him beat. Still, what really does apply to someone taken prisoner on a battlefield who is not a uniformed member of a standing army? That seems to me to be what the court needs to decide. I personally don't see how the writ of habeas corpus can apply to these people.

|3.29.06 @ 3:34PM|#

The whole battlefield idea is bogus here, I think. I keep hearing Bush talk about these people taken on the battlefield.

These aren't really wars. They are military occupations. There is no battlefield. By this administration's logic, the whole world is a battlefield, because, if some US soldiers decide to enter someone's home in central Asia, and the person tries to defend themselves, the soldiers detain them & they ship them to a US offshore prison, then that person was "captured on the battlefield". The army was there & there were shots fired, right? So, basically, anywhere we can get away with going to someone's home & taking them away by force, it qualifies as a "battlefield", and since they aren't conventional soldiers of an enemy army, we can stick them in a hole in an undisclosed location indefinitely. Seems fair to me.

|3.29.06 @ 3:35PM|#

"Recall also that at least one known one-time Guantanamo guest, Padilla, was seized out of the pitched battlefield of a jail cell in Chicago."

Actually, to be fair, Padilla was never held at Guantanamo. He's spent most of his incarceration at a Navy brig in South Carolina, IIRC.

|3.29.06 @ 3:39PM|#

How the hell does the military get away with holding or trying ANYONE when we are not at war?

JMJ

|3.29.06 @ 3:52PM|#

"How the hell does the military get away with holding or trying ANYONE when we are not at war?"

We aren't at war, but we are at "war". The significance of this distinction is held in a secret file in the White House which cannot be made public, since we are at "war".

|3.29.06 @ 3:52PM|#

"How the hell does the military get away with holding or trying ANYONE when we are not at war?"

We aren't at war, but we are at "war". The significance of this distinction is held in a secret file in the White House which cannot be made public, since we are at "war".

R C Dean|3.29.06 @ 4:25PM|#

What exactly is an "unarmed combatant"?

That's what you get when your fingers outrun your brain.

In the good ol' days, that meant the Geneva Conventions. Not anymore. Neither will this Administration acknowledge the Uniform Code of Military Justice as the standard for these military tribunals, the usual means for justice in the US military.

Broadly speaking, the Geneva Conventions do not apply to people who are not uniformed members of the armed forces of a signatory nation. They do not apply to insurgents, terrorists, etc.

The UCMJ applies to members of the US Armed Forces. Not sure it applies or should apply to insurgents, terrorists, etc. either.

However, once a prisoner is safely secured off the battlefield then some uniform code of conduct needs to be applied to determine status and treatment of said prisoner.

That's the nut, right there. What standards should apply, and, perhaps just as critically in 4th generation warfare, what counts as "off the battlefield"? Not sure, but I'm pretty sure that civilian-grade civil rights are not a good fit.

To assert that everyone at Guantanamo was captured on a battlefield is also disingenuous.

Who asserted that? I'm just wondering about the metes and bounds of a decision that illegal combatants have Consititutional rights.

This is not about battlefield decisions.

I'm sure your confidence is inspiring to men on the front lines everywhere.

Alleged illegal combatants, you mean. In many cases, this is a disputed issue of fact.

And the question is just when, where, and how we will address that disputed issue of fact. Keep in mind, of course, that in the military context the default setting is "guilty", not "innocent".

|3.29.06 @ 4:56PM|#

RC writes: "I'm sure your confidence is inspiring to men on the front lines everywhere."

The thing is, lots of the prisoners were not captured in battle by soldiers, but were captured by proxies, sometimes falsely accused in order to collect bounties.

If it really was a battleground capture, you've got a point. If the capture was made while raiding a house, based on a tip of questionable veracity, then I'd say we need a speedy, rigorous, and fair method of determining whether that individual was justly apprehended.

If there was such a speedy process for such prisoners, then there would be fewer complaints. Troops on the front line wouldn't have to get into the issues you suggest, because the arrest would be followed by a process that would short-circuit an unjust detention.

The problem is that there is no such process, and that even when someone is found to not be a terrorist they may still be held indefinitely. That's the problem people have, not whether or not the Marines have to read insurgents their Miranda rights.

It's the followup, not the arrest.

|3.29.06 @ 5:22PM|#

But, Jon H, to even tell a 3rd party overseer how each detainee was captured would be giving up all our secrets to the terrorists! Why do you want the terrorists to win?

Anton Neville|3.29.06 @ 5:24PM|#

Privatize the army, I say! Or the operating part of it, anyway. Seriously, just take the Frenchy leginnaires thing a few steps further. Only the stockholders of Defense Corp + international law to monitor possible violations. Would be a good deal lesser headache.

|3.29.06 @ 5:26PM|#

BTW, did anyone see the Gitmo defense counsel on C-SPAN this weekend? As I recall, they had made a complaint to the military court that their client had been held inhumanely in solitary confinement for years. The military response was that he was not in a solitary holding, because over that time he had been in dozens of interrogations. The judge upheld his holding status based on that reasoning.

|3.29.06 @ 5:35PM|#

["..Broadly speaking, the Geneva Conventions do not apply to people who are not uniformed members of the armed forces of a signatory nation. They do not apply to insurgents, terrorists, etc..." {--Kebko}]

|

Wrong.

The "Geneva Conventions" are 'plural'.

'Geneva IV' Convention protects "civilian persons" !!

Whereas, the most commonly referenced 'Geneva III' Convention only protects typical "prisoners of war".

Overall, if any person is taken prisoner by a hostile power in an international armed conflict -- that 'person' is legally a "POW" -- or -- 'not' a POW.
If they are a POW -- they are guaranteed basic human rights by Geneva III .......... if they are not a POW -- they are guaranteed basic human rights by Geneva IV.

If they are formally judged 'not' to be POWs -- then Geneva Convention IV {Protection of Civilian Persons in Time of War; 1949} automatically applies to all other 'nationals' of the signatory nations originally 'detained' outside the sovereign borders of the 'Detaining Power'. They are "protected persons" under Geneva IV; they can be treated as individual common-criminals, if warranted -- but they all still retain basic legal rights.

__________________

Juice Leskinen|3.29.06 @ 6:31PM|#

OF-FREAKING-COURSE!! What century are some idiots here living in, anyway? LIBERtanians my neck.

|3.30.06 @ 8:47AM|#

in the military context [presumed guilty]

Do you mean in context of the Geneva Conventions, or in the non-Geneva conventions context?

What is really going on here:

If two armies are somewhat evenly matched, then they will both have some motivation to treat the other side's POWs fairly. However, when warfare is assymmetrical, then one side will take a lot more POWs than the other. Under these circumstances, the stronger side will want to just shoot / torture / imprison / humiliate, etc. all the other side's POW's because there will be very few POWs from the strong side.

The US used to fight in wars where it was somewhat evenly matched, so it was willing to sign onto Geneva Conventions. Now the war (at least the current one) is assymmetrical, so the US is looking hard for loopholes in the Geneva Conventions so that it can switch to the let's-just-kill-the-POWs rule.

This is also why you see ppl like RCD adopt such a twisted morality in other areas. Rules like: it is okay to do lots of collateral damage as long as you were colorably aiming at something military, but a much smaller amount of civilian damage is unacceptable if you are unable to position yourself to have any chance of striking a military target (or missing the target, but *whoops* taking out a bunch of the other side's civilians. Then we get to the conclusion (which everyone pretty much shares) that 30,000 Iraqi civilian deaths is somehow less blamewothy than 1,000 Israeli civilian deaths because the US bombers had a purer state of mind when they dumped their ordnance. It is a coherent rule. It is also transparently selfserving. St. Peter may just send a lot of us to Hell for buying into this kinds of twisted morality. There will be no justice here on Earth, but then there never is.