Evildoers

Remember how we weren't supposed to worry about the rights of detainees at Gitmo because, after all, they were all Very Bad Men? Via Jim Henley, an ABC report tells us:

According to Time, activities leading toward release of the 140 prisoners have accelerated since the Supreme Court agreed to hear the case. It said U.S. officials had concluded some detainees were kidnapped for reward money offered for al Qaeda and Taliban fighters. […]

Slated for release were "the easiest 20 percent" of detainees, a military official told the magazine. It did not identify its source, who said the military was waiting for "a politically propitious time to release them."

Yes, I suppose now that the Supreme Court might take a peek, we might want to think about releasing the one-fifth of Gitmo prisoners who we can easily tell are innocent. As soon as it's politically propitious, of course. How's December of '04 for you guys?

Comments

[joe]

Do you really not get this? The offended parties aren't only bothered by the fact that the word was uttered. They're also offended by the idea of American Indians horning in on their shtick.

The 'Skins need to lose the name - it's embarrassing. Freakin' Jack Kent Cook.

[thoreau]

um, Joe, I think you're in the wrong thread.

But back to the matter at hand:

I have no doubt that some will say "See, the process works! They've established the innocence of some of the guys and they're being released." Um, first, they'll only be released at a politically convenient moment. What if you were accused of a crime, jailed, and then, after your innocence was established, told that you would only be freed at a "politically propitious time"?

Second, the simple fact that some of them have been determined to be innocent suggests that maybe due process is in order. They aren't all guilty, some sort of process is obviously needed to separate the guilty from the innocent, and the executive branch's preferred process is keeping people whom it deems innocent detained nonetheless until a "politically propitious time."

So maybe we should look somewhere other than the executive branch for due process. Hmm, let's see. Congress isn't really suited to this task. Gee, why didn't the Founders establish something to handle this? Oh, wait, they did, the judicial branch. Hmm, maybe they should be charged under normal procedures and whatnot. Amazing what those Founders came up with!

[Anonymous]

The article makes several statements. One is that 140 are slated for release because they are the easiest cases. It doesn't define easy as easy to tell they are innocent, this is conjecture. Easy may very well mean easiest to repatriate (due to everything from country of origin, level of invovlement, behavior in custody, etc).

Another statement is that some who were taken to Gitmo had been kidnapped, this does not mean that these make up any number of the 140 to be released.

A third statement is that there have been 84 people previously released. Could this number contain some or all of the kidnappees? Perhaps, there's just not enough info to tell either way.

There are many important and interesting things to learn from the goings on at Gitmo. Trying to oversell the facts to back a political view doesn't help anybody learn much of anything. That goes for Julian Sanchez or George Bush.

[joe]

Yikes!

[klr]

I'm skeptical of the story. The entire story is based on unnamed source and unquestioningly assumes the worst of motives for the administration. Reads more like DNC talking points than anything.

[klr]

I'm skeptical of the story. The entire story is based on unnamed source and unquestioningly assumes the worst of motives for the administration. Reads more like DNC talking points than anything.

[Ryn]

kir, are the Dems the sole province of convenient anonymous sources..?

[elmo]

Hmm klr, the whole situation sort of implies some really reprehensible motives. Incarceration with out due process, (habeus what?, watch yer mouth or it's another 20 years for you!), stripping of citizenship over a crime (well, for being accussed of being a terrorist), the assertion that the Constitution stops at the border WRT the Fed, etc. Gosh, I'm not sure of the motives but they sure look pretty crappy to me.

Oh, wait, false alarm; it's to protect the children!

[rst]

It's not so much of a stretch. Domestic or foreign, the Constitution doesn't mean anything to these fools anyway; there would be no Patriot act otherwise. For justice and freedom to wait for a "politically propitious" time is a violation of everything that dried-out artifact represents.

[Kevin Carson]

As thoreau says, the defenders of all things Ashcroft will be saying this is just "proof the system works."

But it can be interpreted a lot more plausibly as proof the system only works when the jackboots are subject to independent oversight. Is it a coincidence that Ashcroft & Co. are fighting so strenuously to remove such oversight?

[Stephen Fetchet]

Sheesh guys. Once again, Jesse's legal analysis is a mighty thin gruel. Evidently, being a free thinker these days means being a fact-free thinker. A couple points are worth mentioning.

I checked the Supreme Court's docket. While cert has been granted in the Odah Khaled and Rasul cases, it appears no date has been set for argument - though it will probably occur sometime after January 1, 2004, and sometime before June 1, 2004, with no date set.

Exactly why is mid-November politically propitious? Why wouldn't it have been more propitious to release the 85+/- prior to the handily affirmed) decision of the D.C. Circuit Court of Appeals? Or prior to the (easily won) D.C. District Court decision?

And quite frankly, the Supreme Court can't look at the newspapers on this point; they have only the record created by the trial court and the Court of Appeals. It's generally improper for them to look outside court documents on the matter - so they can't really "peek" into anything. Moreover, the question they granted cert on is really narrow - "is there court jurisdiction to review the President's decision to detain persons at Gitmo?" Cain't do much peekin' at that one.

As a legal matter, it's highly unlikely the pair will win. The threshold question is a rather narrow one - whether the U.S. Courts have jurisdiction over government actions abroad. In the absence of a waiver by Congress (and perhaps the exec too), the courts do not have such power.

They never have had such power, as the foreign affairs and commander in chief power are essentially plenary powers of the president, committed to him alone, with advice and consent of Congress as appropriate, of course.

If you believe the Court should have jurisdiction over an essentially military action, then you do no accept separation of powers. Fair enough. In that case, I suggest you argue in favor of ridding us of the executive branch and the legislature; the courts have proven time and again they are only too happy to rule us.

If you wish to change this situation and grant courts review power over military decisions affecting individuals located abroad, then our current form of government requires you to do so through democratic means. Congress could write a law authorizing the courts to take jurisdiction over such disputes (remember, that's one of Congress's powers, to control the jurisdiction of the federal courts) and I suppose a signature by the president would complete the waiver of immunity accruing under the plenary foreign affairs and commander in chief powers.

Then the courts could direct the president in the conduct of war, foreign policy, and holding of persons captured on the battlefield - or anything else you could talk them into.

You will also be happy to note that the persons arguing in favor of the courts exercising jurisdiction are your old friends, the boosters of the international criminal court, and other courts that exercise extraterritorial jurisdiction to hale persons into court - like dragging Pinochet into a Spanish court, or issuing a Belgian court war crimes indictment of Bush and Sharon, and so forth. Their argument is that territorial sovereignty is irrelevant, so not only do U.S. courts have jurisdiction over Gitmo, but so do Belgian courts, and British courts, and for that matter, Saudi courts. This is an atrocity, IMHO, because international law is generally based on mutual agreement between nations. The day it morphs into something like a set of universal standards enforceable by anyone... well, that's the day you'll find yourself haled into court by Italy, for insulting a good friend of Mr. Berlusconi's, Mr. Bush, such political insults being a violation of Italian law. That's an exaggeration, but you get the point. The fundamental jurisdictional feature of the common law is courts can't exercise jurisdiction over persons outside their home territory, unless those persons have expressly or implicitly consented to such an exercise of power.

I understand, Mr. Merrit, that you hate Mr. Bush with all your being, but you are throwing in your lot with a pretty unsavory group there, in pulling for the internationalists. You may dislike Bush - but the folks you are pulling for have an active rooting interest in defeating free-thinkers like yourself, in part by silencing you as a dissenter from "the law of nations."

Finally, the facts in this case really don't matter. It's a question about jurisdiction, and if the courts don't have jurisdiction over POWs kept at Gitmo, they don't have jurisdiction over innocent people wrongly held there either.

That doesn't mean the facts are uninteresting, however. The lawyers for the pair assert that neither one had anything to do with Al Qaida or fighting against the Americans. Yet the District Court noted that the father of one of the pair (Rasul) admitted in a court affidavit that his son was a member of the Taliban armed forces. So they aren't exactly as innocent as they are portrayed by their backers.

[Mahatma]

Jack:

Regarding the separation of powers and jurisdiction of the Supreme Court:

I think the case you may need to be looking at is Marbury v. Madison.

Like Mr. Step 'n Fetch it I am in shock, all I can say is wow. This is jr. high school civic lessons. You have to be pretty pissed at Bush to want to turn a prisoner of war into an improper use of executive authority or even a valid separation of powers claim.

Separate the case from the reported facts and you have something to bitch about. Because I hate eating my words, I'm going to wait until some more balanced facts are reported, these look far too partisan in tone to be completed true.

[Jack]

Wow, so much straw, Mr. Fetchet, I hardly know where to begin:

"As a legal matter, it's highly unlikely the pair will win."

While I can't claim to know the exact outcome of the Court's ruling, given that there is no circuit split and the lower court rulings were relatively uncontentious, why would the Court bother to waste its time with the case when it simply could have affirmed the circuit court's ruling without comment? The plaintiffs might not get their desired outcome, but it seems more probable that the Court will have something of substance to say on the matter.

"the foreign affairs and commander in chief power are essentially plenary powers of the president, committed to him alone, with advice and consent of Congress as appropriate, of course."

Fascinating, please point me to the portion of the Constitution that says this. All the versions of the Constitution I can find online give this description of the President's powers in that regard:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;... He shall have power, by and with the advice and consent of the Senate, to make treaties..." (Article II, Section 2)

The idea that the President gets to do whatever he wants by saying the magic word "military" does not originate in the plain words of the Constitution, it was an invention of the Supreme Court in an unfortunate series of rulings during World Wars I and II. And what the 9 folks in black robes giveth, they can also taketh away.

Next: "I suppose a signature by the president would complete the waiver of immunity accruing under the plenary foreign affairs and commander in chief powers."

Again, where does the Constitution say this? Oh, that's right, executive immunity is nowhere in the plain text of the Constitution. It's another invention of... wait for it... the Supreme Court! Wow, those guys in black muumuus sure do get around.

Finally, as to your point about internationalists pushing for this sort of authority, I would reply "So what?" That's only a point of concern if the Court relies on those arguments to find jurisdiction and that is not necessary. The Constitution itself grants the federal courts "judicial power" over "controversies to which the United States shall be a party" (Article III, Section 2). And a habeas corpus action is a federal controversy of precisely that nature and the relevant question in a habeas corpus proceeding is whether a person is being held by the federal government, not the specific location. If it was tied to geography, then the US government could simply put anyone on a prison ship and haul them out past the limits of US territorial waters and declare them exempt from Consitutional protection. I sincerely doubt the founders intended to allow such a mockery.

[Jack]

Fetchet:

1. You didn't actually refute my point in re the decision of the SCOTUS to review the circuit court ruling. I was pointing out that it would be a waste of the Court's time to take the case merely to announce that the circuit was correct in all the particulars. If the Court is going to hear the case, then it seems more probable than not, to me, that there is going to be some nuancing of the circuit court's opinion. The plaintiffs may still lose, but I doubt the Court is just going to release an opinion saying: "Yeah, what the circuit court said." (And the pedant in me feels the need to point out that International Shoe Co. v. Washington, 326 U.S. 310 (1945) is now the primary case taught for purposes of illustrating federal personal jurisdiction. Pennoyer v. Neff is a note case in most Civ. pro. books these days.)

2. Again, you don't actually refute my point. You merely state that in the past the Court has interpreted that language in a manner that was very deferential to the President. (Which I believe I conceded in my original post.) My point was this: When discussing constitutional rules that are purely the result of Supreme Court rulings, and not the plain text of the Constitution, the Court always has the power to modify (or even overturn, as in Barnette v. West Virigina Board of Education, which reversed a decision made less than two years prior) its earlier rulings. Witness the evolution of the Court's jurisprudence on Congress's ability to regulate interstate commerce, from Gibbons v. Ogden, 22 U.S. 1 (1824) (holding that the power related to actual movement of things between states), to Wickard v. Filburn, 317 U.S. 111 (1942) (inventing the aggregation principle out of whole cloth), to Lopez v. United States, 514 U.S. 549 (1995) (limiting the aggregation principle to those instances where the government can demonstrate "substantial effects" on interstate commerce). While the Court's past rulings may *suggest* an outcome in a future case, they do not actually *control* that outcome.

3. Ha, "dickus"! Clever but misspelt. A friend of mine has said that he's always hoped Scalia would write an opinion including the line, "Suck my dicta." If you get appointed to the judiciary some day, maybe you could do that. My point about the Court's power to change its mind applies here as well.

4. I'd appreciate it if you didn't denigrate our profession by referring to all lawyers as "assholes". Personal attacks on me are fine, but let's have *some* decorum. And again, the Court can change its mind. Once a case gets in front of it, the Court can do anything it wants that doesn't conflict with the plain text of the Constitution.

5. Yes, I'm well aware that the Court looked to foreign court rulings in the sodomy case. (Although I don't remember hearing the people who were so vexed about that in the Lawrence case complaining when the Court in Bowers v. Hardwick cited *ancient Roman law* to support the proposition that homosexual conduct is not worthy of privacy protection.) That doesn't mean the Court will do so in this case. I'm sure the Court can invent a rationale out of exisiting American cases, if it so chooses.

6. Yes, you win here, I did misstate jurisdictional principles. It was 2 AM when I wrote that and I only had three hours of sleep the night before. However, you again rely on prior Supreme Court decisions to justify your conclusion, which just leads me back to my point that the Court is free to discard or modify those rulings if it so chooses.

Anyhow, we will see next year who was more correct. (I suspect the Court will be closer to your position than mine, since the Court tends to be cowardly when the bloody shirt is waved in front of it, but on the other hand the time may be right for the Court to recognize that stopping Constitutional protection at the territorial limit makes for no protection at all.)

[Jack]

Mahatma,

Yes, I've read Marbury v. Madison. I even have a book of commentaries on it. The fact remains, it is a ruling of the Court, not a piece of text from the Constitution. Ergo, the Court may modify or reverse it if the opportunity to presents itself. That said, I think it is *highly unlikely* that the Court would ever do so, but it is not impossible. I find it fascinating how people have this need to turn precedent into God.

[Stephen Fetchet]

As to your comments Jack -

1. There's a reason the lower court rulings were relatively uncontentious. It's because the law in the area is pretty well settled. See, e.g. Pennoyer v. Neff.

2. Plenary power - um, yeah, you pretty much hit the nail on the head with that language. That's the stuff that the courts have interpreted time and time again to mean that what the president does with the military and foreign policy - so long as it's okayed by Congress - is the president's business. You can see Crosby v. National Foreign Trade Counsel, 530 U.S. 363 (2000) for a general discussion of the foreign affairs power. Just as the states can't tamper with it, neither can the courts. You can cite to the Alien Tort Act to show that courts can ding the executive branch for acts committed abroad - but as I said in my post above, the executive branch waived its qualified immunity in signing that Act.

3. Again, where does the Constitution say this? Oh, that's right, executive immunity is nowhere in the plain text of the Constitution. It's another invention of... wait for it... the Supreme Court!

Okay dickus, time for Con Law 101.

Yeah, we all hate the Supreme Court, buncha power grabbin' statist fiends.

It don't say nothin' in the text about them reviewin' nothin' but disputes between the states. True enough.

The thing is, if the court is to serve any role at all in preserving the separation of powers -- you know, that silly little doctrine that Hamilton thought would keep any one branch from getting too powerful and preempting the others, then the Constitution must imply the power of the Court to review at least some actions of the other branches. Either that, or the idea of separation of powers is a nullity in the constitituion. (Funny enough, the Constitution doesn't really say much about separation of powers, either.)

If we take separation of powers seriously, as the Federalist Papers counsel us to do, then the "enumerated powers" set forth in the Constitution have to be interpreted as points of demarcation between the different branches.

Therefore, when Congress is granted the power to regulate interstate commerce, that has to mean that the courts and the Executive Branch do not have the power to do so, unless Congress gives them permission to do it.

Likewise, where the president is granted the power to conduct foreign affairs, with advice & consent, then it's his power alone to exercise, subject to the advisory role and consent of the Senate. Same thing for the commander in chief power.

4. As for immunity, I'm referring to not to some loopy right to not have to produce boxes found in the White House dining room under the buffet table asserted by the Clintonistas, but the qualified immunity of one branch of government to perform certain duties without undue interference from other branches. In that sense, the courts are meant to be immune from the tampering of Congress in specific cases. I know you don't find that in the Constitution either, but that's how we asshole lawyers read the prohibition on ex post facto laws - that Congress can't write a law reversing the outcome in a specific case.

5. On rooting for internationalists. The problem with the common law system is once you do something, it establishes precedent. If you read the briefs and the lower court decisions in the two cases in question, and the preponderance of amicus briefs submitted thus far, the rationale asserted is based on internationalist logic. Once the court goes for it, we'll have a rush of criminal law habeas motions asserting a right to be freed, since Germany and Belgium don't punish "X" crime as severely as we do in the U.S. It literally would set a bad precedent.

As I said before, I know lots of folks here hate Bush's guts. But you might want to think about the people you are boosting instead.

And if you think that the idea of the Court relying on "international norms" as expressed in Belgian courts is a remote possibility, I'd suggest you read the Lawrence v. Texas and Penry v. Texas decisions of the last term of the Supreme Court, or pay attention to what Sandy O'Connor and Justice Ginsburg said this summer in speaking engagements, about how international law ought to be used as a normative influence in American courts.

6. Finally, you have very little understanding of how jurisdiction arises or can be asserted. If the executive branch started seizing people within the U.S., and then moving them off shore, it would have committed an act within the jurisdiction of the court. The court would be able to exercise jurisdiction over the government, because the acts giving rise to the controversy occurred right here, at home. The same principle allows the operation of extradition statutes, and "long arm" statutes that allow the service of process on people from out of state. The idea is, if you commit a bad act in a given place - like drunk driving in another state - you have impliedly consented to submit to the jurisdiction of the laws of that place. So when the process server from Vermont shows up to serve process on you in Texas, it's not like it's an improper assertion of jurisdiction.

In contrast, if you live in Texas, and have never been to Vermont or had any dealings there, not even minimal contacts, that same service of process from Vermont would be invalid.

That's why all the feverish paranoia about the government "disappearing" U.S. citizens to Guantanamo is overwrought, and why the government is likely going to ultimately lose in the Padilla case - at least as to the question of whether he gets some days in court regarding his legal status as citizen & criminal / or enemy combatant. The courts have at least some jurisdiction over Padilla, and at a minimum, as Viet Dinh has pointed out, he has a right to a habeas petition to contest his classification as an enemy combatant. This would be consistent with the Eisentrager case, and Ex Parte Quirin, which (oh, bad news for you) do allow the president to kinda sorta disappear people via courts martial, once they've had due process to ensure they are accurately classified as enemy combatants.

[method]

Can't help but find this whole argument fascinating, if way out of my element.

I'm curious, Stephen; I think I understand what you're saying in your fifth point, but if, as Jack says, jurisdiction can be established straight out of explicit Article III powers, then wouldn't the court issue an opinion using that as its basis, and either disregard (as superfluous) or outright reject the internationalist argument, and not set a nasty precedent? "We're doing what you asked, but not for your reasons." I'll have to look up the O'Conner and Ginsburg comments, though; that sounds highly disturbing.

As far as point six goes, what if you change Jack's hypothetical so that it involves federal agents unjustly seizing my person while I'm vacationing in Lisbon or Moscow? Federal actions on a US citizen abroad--with no geographical claim to jurisdiction, am I SOL as far as US courts are concerned? Not to say it would happen, but if it could, then that would mean that US citizens outside US soil, and thus any court's physical jurisdiction, basically have no (enforceable) rights as far as our gov't is concerned, wouldn't it?