Audio Version of the Post:
[audio:MCA.mp3]I spent the bulk of last night taking a close look at the court case that was just released regarding the detainees at Guantanamo Bay. Below, I’ll do my best to share with you an in-depth summary of the issues which were before the court, along with the ruling and dissent.
Before I begin, I would like to define a term which is central to this case, The Writ of Habeas Corpus. The Writ (as it will be hereafter referred to, ) concerns the right of a prisoner to challenge his incarceration in the courts. This has been a central component of Anglo-American law, enacted mainly to prevent arbitrary detention.
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The question before the court, according Justice Randolph who delivered the majority opinion, was whether the federal courts had jurisdiction over petitions for the Writ by alien detainees being held as enemy combatants at Guantanamo. When the court first heard this case back in 2004, it ruled that the federal courts do not have jurisdiction over such matters. This conclusion was based on the fact that the base at Guantanamo Bay is not located on sovereign territory of the United States, rather land leased from Cuba. Therefore, US courts had no jurisdiction over this land.
However, the Supreme Court (USSC) overruled this conclusion, citing a clear subject-matter relationship between US operatives at Guantanamo and the detainees.
Following this, Congress stepped in to draft legislation to clarify the matter. What they came up with was something called the Detainee Treatment Act (DTA.) This act had two specific clauses regarding the Guantanamo detainees:
No court/justice/judge may exercise jurisdiction over:
– applications for the Writ filed by or on behalf of an alien detained by the Department of Defense (DOD) at Guantanamo Bay.
– any action against the United States relating to any aspect of the detention by the DOD of an alien at Guantanamo Bay.
Although Congress believed that this legislation would resolve any further issues confronting the courts, there was a snag as the next case regarding a detainee reached the USSC shortly after the enactment of the DTA. The USSC ruled that it was unclear whether the DTA applied to the case, as it had begun before the passage of the DTA. The issue again was returned to Congress which passed a new law.
The Military Commissions Act (MCA) clarified ambiguities in the DTA and expanded its scope greatly:
No court/justice/judge may exercise jurisdiction over:
– applications for the Writ filed by or on behalf of an alien detained by the United States determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination.
– any aspect of the detention, transfer, treatment, trial or conditions of confinement of aliens detained by the US determined by the US to have been properly detained as an Enemy Combatant or is awaiting such determination
Furthermore the MCA stated that this new law applied to all cases, including those currently pending.
Thus, based on the language of the MCA, Justice Randolph concludes that the MCA applies, and that the federal courts do not have jurisdiction over the Writs filed by the detainees at Guantanamo.
Having concluded thus, the next step in the analysis regards the constitutionality of the MCA. In the Constitution there is a provision under which the Writ may be suspended, called the Suspension Clause. It states, “the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of Rebellion or Invasion public safety may require it.†As this is found in the US Constitution, the court asks whether this applies to aliens (foreigners) located outside of US territory.
Although the defendants cite three very old (mid 18th, early 19th century) British cases regarding aliens being tried in the courts, Justice Randolph finds that none of the cases involve an alien outside of the sovereign territory of the Crown. That is, in each of the cases, the detainees had either been living in or were imprisoned within British territory. As precedent, Justice Randolph points to a Supreme Court case from 1950 in which the Court concluded that nothing in the Constitution extends the right of the Writ to alien enemies outside of US jurisdiction. Guantanamo does not fall within US jurisdiction, and thus the foreign detainees located there can claim no right to the Writ.
Following the ruling, Justice Rogers offers a dissent.
Justice Rogers’ dissent focuses on the constitutionality of the MCA. He states clearly that the MCA withdraws rights in a manner which is unconstitutional, and, thus void, does not deprive the courts of jurisdiction. He views the Constitution as a document which is focused on limiting the power of Congress, not just a list of rights conferred upon the people.
The Writ by default applies at all times, and may only be suspended in cases of Rebellion or Invasion. Since Congress has not currently invoked such a suspension, they are given the burden of providing an adequate alternative. Justice Rogers cites three previous occasions in which the USSC had found congressionally mandated alternatives to be adequate, reminding us that the Writ is fundamentally a means of reviewing the legality of Executive detention.
Although he agrees that there is no precedent regarding aliens held outside of the country’s sovereign territory, there is likewise no instance of the court refusing to hear a case of such an alien thus held. Concluding that there is no direct precedent regarding the matter, he sees the issue before the court as the result of a unique confluence of events rather than a commentary regarding the established reach of the Writ.
Thus Justice Rogers is brought back to his main issue, the constitutionality of the MCA. Since the MCA prohibits US courts from hearing petitions for the Writ on behalf of the detainees, Congress is thereby mandated to craft an alternative to the writ which is itself subject to judicial scrutiny. At this point we are introduced to that alternative process, the Combatant Status Review Tribunal (CSRT.)
These tribunals are the means through which the Military determines whether a detainee held at Guantanamo is an enemy combatant. When compared with normal court proceedings, however, these CSRTs show themselves to be quite different. Whereas in a normal case the burden of proof lies on the government, in the CSRTs the burden of proof is shifted to the detainee. Thus instead of the government proving the detainee guilty, the detainee must prove himself innocent. This is complicated by the fact that the detainee does not have the right to be informed of the charge on which he is being held, and he may not enlist an independent counsel. Furthermore, these tribunals may use evidence which is obtained under duress, or torture. Lastly, whereas if one was found innocent in a court case he would be released, the CSRT can convene multiple times until the detainee is at last classified as an Enemy Combatant. All of this, of course, occurs within the annals of the Military and is not subject to Federal judicial review.
By finding that the CSRTs do not provide an adequate alternative to the Writ, Justice Rogers concludes that the MCA is unconstitutional. In parting he states:
“While judgments of military necessity are entitled to deference by the courts and while temporary custody during wartime may be justified in order to properly process those captured, the Executive has had ample time during the last 5 years which detainees have been at Guantanamo Bay to determine who is being held and for what reason.â€
We are reminded that even during wartime, courts have the right to scrutinize the factual basis for Executive detention. Thus the original Supreme Court ruling which stated that the detainees have a right to the Writ stands, and the Executive must prove that it has not acted unlawfully. The detainees must have their day in court.
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This is a fascinating case, because there is no clear precedent to guide the court, and as evidenced by this split decision, prior cases which could be construed as guiding have been interpreted quite differently. Furthermore, what looms is a showdown between the Judiciary and Congress, and by extension the Executive. If the MCA is found by the Supreme Court to be unconstitutional, the battle to draft new legislation will be intense. Given that the MCA is currently very controversial, unpopular even among influential Republicans, the alternative will be crafted in a very different political climate.
I wanted to note that Justice Rogers is a she, not a he. Court documents do not list the justices’ first names, and the he just came out perhaps as a sublimated assumption about judges. Turns out that Justice Rogers is the honorable Judith Ann Wilson Rogers, the first black female to sit on the court. Although I don’t think this should matter regarding the substantive analysis of the issues, I wanted to set the record straight.
Very discerning discussion of this important case. Stay tuned, as this one is one the way to the Supreme Court. Gitmo and other detention centers created during the War on Terror exacerbated the historic struggle between the executive and judicial branches of government. In the Hamdan case, the Supreme Court deferred, initially and conditionally, to the executive branch, to determine how best to handle enemy combantants (or how to distinguish same from hapless shepards), while asserting the bedrock right of the judicial branch to ultimately review all cases. The MCA and CSRT won’t stand up because they purport to make the executive’s decisions unreviewable. No one under American power should ever languish in durance vile without being given the opportunity to present his or her case to our independent judiciary… ever.
A very interesting issue to say the least. The idea of suspending Habeus Corpous is not a new idea at all. The idea of a “free press” is also not that new of an idea.
During the Civil War Lincoln suspended Haebus Corpous and put a tight control on the newspapers. Opponents screamed foul and until Gettysburg were really laying into Lincoln. Of course after the clear one sided voctory of Gettysburg and the slow defeat of the South, Lincoln was called a hero. People who had just years ealier had called for his head now called him one of the greatest presidents of all time. He went from one of the most hated men in the North to the “Man that saved the Union”. Today most people think of him as one of the finest presidents ever, a stark contrast to what he was thought in 1862.
In the end: Lincoln won his war and was considered a hero. Had Lincoln lost the war he would likely have been looked at as a failure. In the end what matters is if you win or lose, not how you play the game.
BT: I think your logic is Rovian and quite scary… it doesn’t matter how you play? America is a country which is based on the principle of fair play. Though things may not always work out, as a nation of laws we hold those who contravene them accountable. Furthermore the implied comparison between W and Lincoln is simply offensive. Not only has W lost the GWOT, but he has made us less safe.