Category Archives: Constitutional Law

15 Soldiers Dead in Iraq 4/09

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Following up on my last post and Dan’s comment, I will borrow from a far better wordsmith than myself:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.

– Frank Rich, NYT, 4/25/09

Rich goes on to propose that the best way forward would be for the DOJ to appoint a panel of non-partisan outsiders, such as retired federal judges, to analyze all the information and set the wheels in motion for the correct prosecution. While I was not a fan of Obama’s initial response, I have come around to understanding that his relative lack of outrage is calculated to ensure that this investigation is handled in a non-partisan manner. The gravity of the information now available is strong enough to stand on its own, and I suspect that many Republicans will end up supporting such an investigative commission.

Torture Memos Utilized Flawed Legal Reasoning

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If you have not looked over the torture memos, please do so.

Then, take a look at this video from Philip Zelikow, a high level State Department lawyer during the Bush administration. He authored a memorandum expressing grave concerns with the legal reasoning underlying those torture memos. While a copy of Zelikow’s memorandum is not yet available, a FOIA request has been made and it is likely to surface soon:

Fundamentals

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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.

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