Boumediene -- habeas corpus debate continues

Here is a good discussion on the arguments in the Boumediene case. I will summarize more when I have time...but below is a brief summary of the arguments by Jonathan Cohn, a DoD attorney:

Misconceptions: 1. Detainees are innocent, 2. They have no representation -- far more process than any combatants have received in the history of warfare, 3. Detainees don't have good representation, 4. Gitmo is like "Hotel California", once you check in you can never leave.

What will happen if habeas is given? Would they have the same rights? We simply don't know. Habeas review is unprecedented. Results would be intolerable.

Current War: 10,000 detainees; WWII 2 million

Imagine imposing civil rules in wartime? Could terrorists enter the courts and review classified information? Court should not impose a regime of habeas review.

Congress tried to strike a proper balance, hopefully the court won't upset that balance.

Boumediene habeas corpus debate

The government, in response to the plaintiff's brief in Boumediene v. Bush, which claimed a "common law constitutional right" to habeas corpus, has issued a supplemental brief to contradict the argument for this particular interpretation.

From Ben at SCOTUSblog:

The Court has said that the scope of habeas rights at the current time depends in part upon their meaning in past history, especially in 1789. At that time, [U.S. Solicitor General Paul D.] Clement argued in the new brief, there was a common-law rule that a confined individual seeking release “was not permitted to controvert the facts” the government had cited for the confinement. That rule, along with geographic limits that the government argues restrict habeas rights, would have kept today’s detainees from “obtaining anything like the review” they will receive if they challenge their detention in the D.C. Circuit Court under the Detainee Treatment Act.

Ben left out the third reason Clement cited for the detainees lack of access to habeas. The brief says, "That common law rule, together with the geographic limits on the writ and the historical unavailability of habeas to 'prisoners of war,' would have precluded petitioners from obtaining anything like the review they receive under the Detainee Treatment
Act of 2005."

This historical unavailability assertion was supported by saying:

Post-1789 British cases underscore that the British courts did not view prisoners of war as a specialized class, but used the phrase generically to refer to enemy combatants. Indeed, the “prisoner of war” label was even extended to a non-combatant German national who had been resident in England for 25 years. See, e.g., The King v. Superintendent of Vine St. Police Station, 1 K.B. 268, 278 (1916) (Eng.) (If the executive “represents to this Court that it has become necessary to restrain the liberty of an alien enemy within the kingdom, and treat him as a prisoner of war, he must be regarded for the purposes of a writ of habeas corpus as a prisoner of war.”).

New brief in the Boumediene case

Interesting development in that the detainees in Bouemediene v. Bush are arguing that they have a "common law constitutional right" to habeas corpus.

Basically, they are saying the common law (which is widely understood to be the basis of our current system -- see Blackstone's Commentaries on the Laws of England -- a book said to be on the desk of every person during the Constitutional Convention) embraced the principles of their case prior to the creation of federal judiciary. Therefore, this right precedes the authority of Congress to change it.

They are in effect asking the court to equate the right of habeas to natural right as written in our Declaration - our primary organic document. The difference, of course, is that natural rights have no suspension clause, that is to say, no time at which the legislature is authorized to withdraw recognition of the right.

Although common law arguments are always interesting, they carry small weight simply because our system, though built on common law and carries with it many of the principles, is a different system. The question continues to turn on whether or not these particular detainees even have the right of habeas given their circumstances and identity, not necessarily whether or not Congress has the right to remove it.

Constitutional Rights For Everyone!

There was a fascinating argument before SCOTUS today. The case of Boumediene v. Bush, in which a detainee at Guantanamo Bay is suing for a hearing under the Constitutional right of habeas corpus, literally "you have the body", meaning that under the Constitution, an individual has a right to face his accusers in a court of law observing due process. (How's that for a run-on sentence?)

First, we need to look at who is bringing the case...an enemy combatant - a new term devised to define those fighting against our nation without the sanction of a recognized nation. Think Barbary pirates, Indian wars, and in some instances, Vietnam.

What is twisting up everyone's panties, however is that this individual is claiming that he is not a combatant, but that he got caught up in a raid and has been held without a trial for six years.

On the face of it, this is not right. I mean, how would you like to be swept away by the government and separated from your family for six years, just for being in the wrong place at the wrong time?

Wait! Remember, this is not about whether it is a nice, good or edifying thing to be incarcerated for six years. It is about whether or not a non-citizen, let alone an enemy combatant has Constitutional rights. Whenever an individual engages in a social contract with a nation, either through birth or naturalization, the rights and duties of the nation are bestowed. They are not bestowed merely by claiming them.

Unfortunately, some of the Justices didn't seem to want to dwell on the issue of whether or not a non-citizen should be granted Constitutional rights--they see it as a foregone conclusion. Many see being on US soil as being the only requirement to grant the writ (a major reason why they haven't been moved). Justice Kennedy pretty clearly takes this position and is clearing the path to his forthcoming decision by saying the there is no substantive difference between US soil and GTMO.

They are also looking at whether or not the military tribunals that were put in place are an adequate substitution for habeas. This is patently silly because if they don't have a right to habeas, there is nothing in the Constitution that says they should have some sort of substitute. Therefore, SCOTUS should keep its nose out, as this becomes a political, not a judicial issue.

Andrew McBride, in a fascinating debate on the issues in this case over at the Federalist Society says,

The idea that the judiciary would have any role in deciding whether foreign nationals were enemy combatants would have been utterly incomprehensible to our Framers. These were quintessentially “political questions” having elements of both war powers and foreign affairs beyond judicial ken or competence.

The right to invoke the constitutional writ of heabeas corpus (and the constitutional guarantees it is designed to help enforce) is limited to those who have voluntarily created some peaceable relationship with this body politic. Someone whose only connection to this country is having been captured by our military while trying to harm it or its interests has no more right to invoke the writ of habeas corpus than he does to invoke a Second Amendment right to bear arms.

Also Brad Berenson,

To extend constitutional protections to them [enemy combatants] on this basis would be to reward the very civilian disguises that make their belligerency unlawful and so uniquely dangerous to real civilians, ours and other nations'.

I have little confidence that SCOTUS will come down on the right side in this one, judging from Kennedy's questions. Probably the decision will be mixed, with some details being handed back to the circuit court.