[Posted June 12, 2008] Today’s ruling from the US Supreme Court in the Guantanamo detainees cases will inevitably polarize lawyers and nonlawyers alike. From both groups, there will be those who applaud this restraint on one of America’s fundamental principles of freedom and limited government, and those who find it unthinkable that we should extend any rights to those who would destroy us.

One thing is clear – in at least one narrow respect, this opinion does break new ground. Justice Scalia’s dissent begins, “Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.” He implicitly invites a comparison of these detainees’ rights to habeas review with the right of captured German soldiers during Patton’s press toward Berlin in 1944-45. But in my view, the real issue is whether the government can create what has been called elsewhere a law-free zone where it can detain persons without being answerable to any legal authority at all.

The specific holding of today’s ruling is that §7 of the Military Commissions Act of 2006 is unconstitutional in that it fails to provide either habeas corpus relief or a meaningful equivalent to those detained outside the United States, but within areas of effective American control. The text of the majority opinion limits its application to those areas where US control is such that the United States is, in practical effect if not in a technical sense, the sovereign. It thus probably does not apply on the ground in Iraq or Afghanistan, even in those areas where US control is regarded as secure. But Guantanamo Bay is a different matter entirely; while the US has ceded sovereignty to Cuba on paper, there can be little doubt that the American military runs the show there.

As I noted above, this is a highly polarizing issue, and I have tried to read today’s many and long opinions dispassionately, without regard to my own views on this sensitive subject. But in a case of this importance, I’m not going to sanitize my report to eliminate those views entirely. In that vein, I’ll say that, when viewed purely analytically, this is a very difficult decision, implicating extraordinarily complex legal issues. There is merit in the concerns of both the majority and the dissent. But viewed as reflecting what I view should be American policy, I don’t regard this as a close call; I heartily agree with the majority that this system of ostensible legal review is wholly inconsistent with my view of who we are.

Americans don’t detain people without legal process, without access to a lawyer, and without even letting them know why they’re being held, or for how long. The petty dictators, the lesser nations of the world, do this; but we are supposed to be above it. It is unquestionably true that the right of habeas corpus can properly be suspended during time of insurrection or invasion, but neither of those circumstances exists here. In my mind, we cannot treat anyone in this fashion and still call ourselves the land of the free. In this sense, today’s decision helps to define what it means to be an American, demonstrated by how we treat others.

Here are some more or less random additional thoughts on the opinion:

– The fundamental question that this case answers is whether the Constitution affords protection to non-citizens who are held outside areas of US sovereignty. The majority holds that is does, as long as the US exercises de facto sovereignty, as the US unquestionably does at the Guantanamo Bay naval base.

– In reaching this conclusion, the majority recognizes that the US does not claim de jure sovereignty; its treaty with Cuba expressly disavows any such claim. But the majority finds that, in effect, US law is the only game in town. Certainly Cuban law doesn’t apply to these detainees. And if US law doesn’t cover them, either, then they are in legal Neverland. The government had argued that this partial exercise of sovereignty would serve to eliminate constitutional protection on the base, but the majority responds, “Our basic charter cannot be contracted away like this. . . . Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.”

– In a twist of irony, the Bush Administration specifically selected the base as the situs for holding the detainees because, the president’s advisers assured him, that would put them beyond the reach of the writ of habeas corpus.

– The Chief Justice’s dissent is blistering, something we’re accustomed to seeing from Justice Scalia, but not elsewhere, at least to this degree. (Fear not, Scalia fans; your hero has more than a few zingers in his own separate dissent.) He challenges several of the majority’s assumptions, and cites the court’s landmark 2004 decision in Hamdi v. Rumsfeld, 542 US 507, which held that a bare level of procedural protections would suffice for American citizens. He then contends that the majority rejects a new statute that had extended even greater protection to non-citizens, making him wonder why that class couldn’t get along with more rights than the Constitution affords to those of us who were born here.

– Some of the procedural features of the military tribunals will offend the sensibilities of civil libertarians (even closet ones). They include no right to a lawyer (you do get a “Personal Representative” to help you, but the opinion hints that that person could be a dental hygienist, for all we know); relatively free admissibility of hearsay to support the government’s case; and (get this) a presumption that the government’s evidence is valid. Despite all these factors, the key procedural omission to which the majority points to find the tribunal process constitutionally infirm is – I’ll warn you, this is going to sound awfully benign – the inability to adduce after-acquired evidence on appeal. Justice Scalia mocks this basis, calling it a theoretical objection with no basis in reality.

– The Court doesn’t grant any habeas corpus writs today. Nor does it order the lower courts to grant any. It merely reverses the lowers courts’ findings that there is no federal jurisdiction to review these petitions, based on the challenged federal statutes.

– Today’s ruling is based in part on the long-term government presence at the navy base (thus making it an area over which the US exercises de facto sovereignty, as noted above). Can the government avoid the entire habeas process by shipping the detainees to an area over which we don’t have long-term sovereignty, such as Baghdad? I think so, although the detainees would howl in protest and the courts might decide that that’s one jurisdictional evasion too many. In my view, today’s ruling is at least in part a reaction to what the court sees as overreaching by the Executive Branch, aided by a compliant legislature.

– On that point, it doesn’t take a Poli Sci major to recognize that Congress was putty in President Bush’s hands when it passed the Authorization for the Use of Military Force in the wake of the 2001 terrorist attacks, thereby giving the President sweeping military powers. It’s also fairly clear that Congress was almost as receptive to the Administration’s desire to restrain the use of habeas corpus when it gave him these two Acts in 2005 and 2006. But given the current political climate, I seriously doubt the President could go back to Capitol Hill and ask for yet more curative legislation now; I believe that he would be rebuffed by an emboldened Congress that recognizes the nation’s weariness with the extended military presence in Asia. Accordingly, this is probably the high-water mark of the Administration’s detainee procedures, subject to the next paragraph.

One last point and then I’ll be quiet already. It’s tempting to peek into the future and see what a change in the court’s makeup would do to today’s ruling, in the event a future challenge comes along. Keep in mind that changes in court personnel can and do affect precedents of even recent vintage. (For one prominent example, the court reversed its course on late-term abortions last year, abandoning Stenberg v. Carhart (2000), essentially because Justice Alito replaced Justice O’Connor, changing a 5-4 vote into, essentially, 4-5.) The next president will foreseeably get to replace at least one of the more liberal justices (Justice Stevens is 88). If that justice is replaced by a more conservative jurist, then the government may find a more receptive majority of the court, should it return to the Supreme Court and have another go at things thereafter.


[Posted June 12, 2008] The US Supreme Court issues an important decision this morning on the availability of habeas corpus to Guantanamo Bay detainees. In a 5-4 ruling, the court holds that the detainees have a right to habeas corpus review, as Congress did not effectively take away that right in the Detainee Treatment Act of 2005. The ruling is based on the premise that the Suspension Clause only operates in times of “insurrection or invasion.” The vote follows the Court’s traditional ideological split, with Justice Kennedy writing the majority, joined by Justices Stevens, Ginsberg, Souter, and Breyer. The Chief Justice and Justices Scalia, Thomas, and Alito dissent.

In a related but separate ruling, the court unanimously finds that US citizens who are detained in the war zone in Iraq have a right to habeas corpus, but that right doesn’t prohibit the military’s ability to transfer custody of US citizens to Iraqi authorities for local prosecution.

As long-time readers know, I don’t generally cover the US Supreme Court, preferring to focus on the Virginia appellate courts (including the Fourth Circuit). But as the Guantanamo decision is so important, helping as it does to define the kind of nation we will be, I plan to post additional analysis of that opinion later today. All I ask is that you give me a bit of time to do that — today’s several opinions in the case run to 134 pages, so I’ve got a lot of reading to do.

One final point — the first opinion confirms that Justice Kennedy, as the current swing vote on the Supreme Court, is at present arguably the most powerful person in the nation, as he essentially gets to shape Supreme Court doctrine by the force of his “tie-breaking” vote.