Restoring Habeas

Why old "enemy combatmant" rules can't apply to a global battlefield.


Internee 10005 was first arrested less than a month after September 11, 2001. Lakhdar Boumediene and five other Algerians living in Bosnia were rounded up by local authorities after being told by the United States that the men were suspected of plotting to bomb the American embassy in Sarajevo. But after a three month investigation, Bosnia's Supreme Court found no evidence to support the charge and ordered the men released. At which point American peacekeeping troops promptly spirited the men off to Guantanamo Bay, Cuba, where they have been detained for six years.

Now, the men are seeking relief from the Supreme Court, which heard oral arguments last Wednesday in the case of Boumediene v. Bush. The justices are being asked to decide two core questions: Whether the detainees enjoy a constitutional right of habeas corpus, and if so, whether the Combatant Status Review Tribunals established by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 provide an adequate substitute for more traditional habeas proceedings.

The Court has already considered the first question in Rasul v. Bush, where it found that, because the United States exercised "complete jurisdiction and control" over the detention center at Guantanamo Bay, detainees were entitled to habeas relief in American courts as a matter of statute. But in a display of crisis jujitsu that has by now become familiar, the Bush administration was able to make a virtue of self-imposed necessity. Having forced an unfavorable legal decision against it, the White House pressured Congress to strip detainees of their statutory habeas rights lest the courts be flooded by petitions by purportedly dangerous terrorists. Now the justices must determine whether the "Algerian Six" have a constitutional right to habeas relief that trumps statute.

Supporters of the administration, invoking such cases as Johnson v. Eisentrager (1950), stress that courts have always denied that habeas corpus applied to "enemy aliens" captured abroad in wartime. According to attorney Brad Berenson, in a Federalist Society debate on the case, precedent therefore makes clear that detainees have no standing under "our own Constitution, which they of course aim to destroy."

But, "of course," that is precisely the question. The past rulings invoked by the government involved captives who were unambiguously agents of foreign powers at war with the United States, not citizens of allied nations snatched off the streets far from any battlefield. Traditionally, courts have used territory as a bright line to determine the status of prisoners: If you were picked up on American soil, you had habeas rights; if not, not. This made a certain amount of sense in traditional war; it makes much less in an ill-defined "War on Terror" that, to hear the administration tell it, makes the whole of the planet a battlefield. Here, hewing to a strict territorial rule has the perverse consequence that the Algerian Six would enjoy more rights, on the government's theory, if they had illegally infiltrated the United States like the Nazi saboteurs whose fate was considered in Ex parte Quirin (1941). The government's circular logic here seems better suited to a Monty Python sketch than a court of law: Throw the old lady in the pond, and if she floats, she's a witch! She might drown, you say? Why are you so worried about what happens to witches?

If, as many observers believe likely, the Court will side with the detainees on the first question, it will have to determine whether the Combatant Status Review Tribunals established by Congress provide an adequate substitute for more traditional habeas hearings (or remand the case to a lower court to consider that question). The tribunals clearly fall short in a number of ways. Detainees cannot invoke any rights under the Geneva Conventions before the tribunals. Instead of attorneys, they have "representatives" appointed by the military itself. Secret evidence and evidence obtained by coercion—the Algeria Six all say they have been subject to "enhanced interrogation techniques"—are admissible. CSRT determinations can be appealed to the Court of Appeals for the District of Columbia Circuit, but review is largely limited to whether the tribunals followed their own procedures, and the court must presume the evidence presented before the tribunal was accurate and complete.

Typically, the evidence provided to detainees for use in their own defense is anything but accurate and complete, according to Lt. Col. Stephen A. Abraham, who has himself served on the tribunals. This summer, Abrahams testified before the House Armed Service Comittee that the tribunals were little more than "an effort to lend a veneer of legitimacy to the detentions, to 'launder' decisions already made." After one tribunal found that a detainee had been incorrectly designated as an enemy combatant, Abrahams alleged, another was convened "for the purpose of overturning prior findings that were favorable to the detainees."

No American would accept the proposition that one of our citizens, having been cleared of wrongdoing by American courts, could be abducted by a foreign power and imprisoned for years, only to have his fate determined by a kangaroo court that flouted the most elementary procedural rights. The Supreme Court should not accept it from our government either. If a legitimate hearing finds that Boumediene and his fellow detainees are guilty of aiding America's enemies, so be it. But we should not be satisfied to leave them to languish until the military decides whether the witches will float.

Julian Sanchez is a reason contributing editor.

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  1. Constitutional Habeas? Who ever heard of such a thing? Surely not the Justice Department! Only commies like Arlen Specter speak of such things!

    But seriously, I have little doubt the SC will defer to statute…that is unless Scalia reclaims enough of his shattered soul to remember he’s a conservative and not merely a cheerleader for authority.

  2. Kennedy is the Key here right?

    I’m not an expert on the SC, but I would imagine this is gonna be a 5-4 ruling with Kennedy being the deciding vote?

  3. Geez, I though conservatives are supposed to value freedom…then why is it that Democrats and liberals are so much more likely to support Habeus?

  4. You know it’s becoming a deadhorse topic when only two people post.

  5. Gotta love it. There were only two posts for a while, until I made that last post.

    James, that’s the 64,000 Dollar question. I see all these people wearing flag pins screaming at people who are supporting what the flag represents. As a freedom loving individual, I don’t like the irony.

  6. I think the answer is that a lot of the Republicans in congress are not really conservative in any traditional sense, they are radically authoritarian and getting rid of Habeus is so radical that Democrats are in some way conservative by supporting it.

  7. Its because they aren’t american citizens so they are willing to look the other way. Just look at their hard line on immigration and you can see they only really value freedom for american citizens, if even that.

  8. Well yes…exceptionalism is one of the fundamental features of American politics.

  9. Hmm, I don’t subscribe to the theory that our rights, under our constitution apply to all people at all times. So, no, I’m not terribly concerned about them finding a lack of a habeas right in this case; in fact, it would be disturbing for SCotUS to find in favor of plaintiffs. [Which means they probably will.]

    That said, on an international reciprocity basis, abducting someone’s citizens and detaining them indefinitely is a REALLY bad idea. It’s bound to come home to roost and the only recourse will be to claim that might makes right.

  10. “Hmm, I don’t subscribe to the theory that our rights, under our constitution apply to all people at all times.”

    A theory to which, so far as I know, nobody anywhere has ever subscribed. Why on earth would that be relevant?

  11. OK, so I was waxing a bit Kennedy-esque. I don’t see standing to assert a habeas claim. That, like our other rights, covers members of the national community. The Algerians lack a legal leg to stand on.

    That does not excuse the extra-constitutional ambitions of this Administration. This just isn’t the appropriate path to curbing that.

  12. If by “members of the national community” you mean “citizens” or even “legal residents,” that’s just not true, as the article notes. The question is not whether non-citizens have habeas rights under some conditions (they clearly do); the question is what those conditions are. If the Algerians were being detained within the U.S., there would be no question about the matter. The controversy here is whether the administration gets to cheat on the Constitution by maintaing a Cuban pied-?-terre.

  13. good article, Julian. nice to see you back here.

    juris imprudent,

    apparently you don’t believe in “natural rights”?

    admittedly, I don’t, but most around here seem to.

  14. The problem here really is that there is not much precedent to support habeas for aliens detained abroad (no matter how they are detained). This is a much different story once they step onto American soil. Although I agree that Guantanamo detainees should have habeas rights, I think it is a legislative issue (although I have argued the other way in a paper with case cites).

  15. I would bet there are cases where an illegal alien in the US was tried in a US or state court and was given the same rights as a citizen.

    SCOTUS has already said that Gitmo does not count in the “abroad” catagory. Now the question of does it apply to other countries, I say no. Anyone who believes in sovereignty would not support that. But if a country wanted to arrest Americans for actions in their country that violated their laws, they should.

    As far as natural rights, I believe in them, but the guys with the guns and the power might not. They can usurp my natural rights using the barrel of a gun pretty much at will. Who’s going to stop them?

  16. No constitutional habeas for alien enemy combatants detained abroad is the right conclusion. As the Court noted in Rasul, “all six of the facts” in Eisentrager were relevant only to constitutional and not statutory habeas, thus distinguishing it from Rasul.

    Now that it’s constitutional habeas under the microscope, Eisentrager should be controlling.

    Roberts, Alito, Thomas, Scalia, and – on a knife-edge – Kennedy for the win.

    Finding constitutional habeas for alleged alien enemy combatants abroad will severely hamper the ability of the U.S. to wage war in future. Every POW detained in a conventional war will simply deny his association with the state as well as his status as a combatant, seek the writ, and force the United States to defend his determination as an enemy combatant in civilian courts.

    Is that what you really want? Think about the consequences and the perverse incentives the Court will create in the event.

    For those ragging on Scalia, please recall his dissent in Hamdi. He goes further than the plurality opinion in a case involving a U.S. citizen, on principle. In this case on the other hand, he will take the principled position on the opposite side of the aisle because of precedent in Eisentrager.

    And no, I’m not American. Your courts finding expansive constitutional habeas rights will be good for me, if ever our countries are at war. But strictly as a matter of law, I have to question the zeal and wisdom of those taking the side of petitioners in this instance. American fifth columnists… lol, only in America.

  17. The presumption of most of the commenters as well as Mr. Sanchez, as well as all of 40+ of the detainees that I represented at their administrative detention hearings in 2005, is that a habeas hearing is an automatic get-out-of-jail-free card. Not so. The detainee gets to present his case for release, the government the case for continued detention. A judge, or at the ARB, a panel of senior officers, weighs the arguments and makes the decision. The fact that something like 750 of nearly 1000 Guantanamo detainees have been released tells me that the government’s case isn’t always rock solid, no matter who hears the plea.

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