"A.J. Rose" (Jonathan) (ajrose93) wrote,
"A.J. Rose" (Jonathan)

Update on Habeas Corpus: Today's Appellate Ruling, & Dissent

"It's a terrible ruling that contradicts centuries of Anglo-American history and allows the indefinite detention of innocent people without charge or judicial review. It also allows for detention based on evidence gained by torture." -- Jonathan Hafetz, attorney, Brennan Center for Justice

"The bottom line is that according to two of the federal judges, the president can do whatever he wants without any legal limitations as long as he does it offshore." -- Shayana Kadidal, Center for Constitutional Rights

"The decision reaffirms the validity of the framework that Congress established in the MCA [Military Commissions Act of 2006] permitting Guantanamo detainees to challenge their detention through military hearings1 coordinated by the Defense Department." -- spokesman Erik Ablin for the Bush administration's Justice Department


Which is it? You can decide for yourself, quite possibly by the end of this post. The article I'm quoting from, in TIME Magazine online:


The actual decision of the U.S. Court of Appeals for the D.C. Circuit:


The short version:

After the attacks of September 11, 2001, the Bush administration set up a number of detention camps -- the most visible of which is the one at Guantanamo Bay, Cuba -- and started detaining what it called "unlawful enemy combatants" there, subject (the administration insisted) to no law whatsoever: not the Geneva Conventions, not the U.S. Constitution or statutes, simply the whim of the monarch. Those whose fear of attack -- and trust in the current administration -- is greater than their devotion to the U.S. Constitution had no problem with that arrangement; those who make it a habit to try to nip claimed dictatorial powers in the bud, reacted rather differently.

This still being America, praise God, outside defenders filed suit under a number of provisions, particularly habeas corpus, to get federal judicial review of the legality of these detentions. The administration claimed absolute dictatorial power in such matters, and the D.C. appellate circuit agreed. To the astonishment of many -- and the bitter disappointment of the administration -- the U.S. Supreme Court DISagreed, reversing the original D.C. circuit decision, and forcing the administration to take the issue to the Republican-controlled Congress in 2006. Long story short, that Congress passed the "Military Commissions Act of 2006": a blank check giving unlimited powers to detain anyone they chose, foreigner or American, to (a) the President (b) the Secretary of Defense, and (c) anybody else they picked...specifically denying detainees any right to appeal their detention to any U.S. court (i.e., "suspending the right of habeas corpus," a right dating back in English law the better part of a thousand years).

Now we're back before the D.C. federal appellate court again with a challenge to the habeas provisions of the 2006 law, and by a 2-1 vote they decided, again, that detainees held at the Guantanamo Bay camp -- or any other outside the U.S. -- possess no rights whatsoever, including even the minimal right of a court being allowed to look into their detention. Period. They did not reach the far broader issue of the definition of "unlawful enemy combatant," and if the Supreme Court agrees with this ruling and dismisses all such cases, presumably nobody ever will reach that issue.2

From the TIME article: Under the commissions act, the government may indefinitely detain foreigners [correction: and Americans3] who have been designed as "enemy combatants" and authorizes the CIA to use aggressive but undefined interrogation tactics. But most criticized by Democrats and civil libertarians was a provision that stripped U.S. courts of the authority to hear arguments from detainees who said they were being held illegally.

It remains to be seen whether the Supreme Court will let this stand; unlike last time, Congress subsequently having passed a law supporting such detentions, that might be enough to tip the balance in the administration's favor. It also remains to be seen whether the Democratic Senators trying to enact a "Constitution Restoration Act of 2007" will succeed in reinstating habeas corpus, and other rights. In the meantime, the Gonzales Justice Department will seek to dismiss all pending detainee lawsuits, based on this ruling.

DC Circuit Federal Appellate Judges A. Raymond Randolph and David B. Sentelle ordered that the hundreds of cases pending in the lower courts be dismissed. Judge Judith W. Rogers dissented, saying the cases should proceed. It will presumably be up to the Supreme Court to decide whether the ruling stands.

Again, the full text of the ruling is here:


Don't miss Rogers's stellar dissent, with which we can only hope the U.S. Supreme Court will agree.

One last, and most significant, point, which is contained in the dissent but will likely get zero press coverage:

The administration spokesman refers to "the MCA [Military Commissions Act of 2006] permitting Guantanamo detainees to challenge their detention through military hearings coordinated by the Defense Department" -- the "CSRTs," or "combat status review tribunals." The dissenting opinion explains to us exactly what kind of hearings these are:

"[A] recent report studying CSRT records shows that when at least three detainees were found by CSRTs not to be enemy combatants, they were subjected to a second, and in one case a third, CSRT proceeding until they were finally found to be properly classified as enemy combatants."
(p. 24 of the actual Dissent, p. 49 of the linked pdf file).

Getting easier to decide which of our epigrams had it right? :/

Thank God when monarchical powers came at last to be claimed by an American president, it was a melodramatically unpopular president. Pray for the continued survival of the United States Congress, the continued wisdom of the Supreme Court...and for more judges like Judith W. Rogers.

93 93/93 -- AJ

1. There's a discussion of those hearings' unfortunately marsupial character in boldface, further down. ;)
2. Yeah, I'm bolding all the "unlawful enemy combatant" stuff. I hope it will become clear why.
3. I usually don't interrupt others' quotes that way, but this is really important. A lot of people, the TIME author included, apparently believe the Act only applies to foreigners. The language defining "unlawful enemy combatant" in the 2006 Act covers literally ANYONE designated as such by the President, Secretary of Defense, or anyone else they pick to make such decisions. Yes, I'm serious. Put that together with the boldface discussions above, and what are we looking at?

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