Professor Bainbridge...on law, politics, religion, culture & food

The contrast that you note between the closing of the majority opinion and the opening of the dissent is indeed drastic, but it does not boil down to a question of whether freedom or security is more important.  The question the Scalia and his joiner fail to consider is this:  How does denying habeas to our detainees increase our security?

The answer had better be crystal clear and undeniable, because the costs of the transition from personal liberty to rule by government fiat are easy to see.

The second half of your post is interesting. It seems the me Congress could limit what the courts can rule on. They already do things like mandatory minimum sentences. Politically it wouldn’t be a winner even if the Republicans could get such a limitation passed. I think back to FDR’s failed attempt at court packing the the negative backlash.

The first half is in stark contrast. Pithy maxims versus actual research. As for security vs. liberty, we realized in post-invasion Iraq that liberty without security is meaningless and causes greater instability.

Not being a lawyer and all, I would appreciate it if someone could explain to me why anyone, let alone five Supreme Court justices, feels that these people, who are not citizens of our country, are deserving of any of the rights enumerated in the Consstitution?

I need to read the opinions.  My understanding of why the Court decided the law suspending the writ of habeus corpus was invalid had to do with the qualifier in the Constitution that Congress can only suspend the writ and only in cases of invasion or rebellion.  The terrorist attcks of September 11, 2001 apparently don’t qualify as invasion in 2008.

How does the Supreme Court, which can find rights to privacy and abortion not explicitly enumerated in the Constitution, not find in the word “invasion” enough latitude to regard terrorists attacks and other forms of unlawful combat against Americans abroad and at home as equivalents?

ginsocal --

This case is best put in the context of the previous post-9/11 cases.  The Bush administration originally took the position that the president had the authority to detain anyone, citizen or non-citizen, indefinetely if he determined that they were “enemy combatants.” The Supreme Court has essentially said that if you hold people, they are entitled to SOME court’s review.  It doesn’t matter, as far as the constitution is concerned, whether the government is holding a citizen or a non-citizen.  (In fact, those distinctions in rights with have been eroding for the last 30 plus years.) It doesn’t matter if you were turned over to the US government on a road in Afghanistan or arrested at O’Hare in Chicago: our courts have determined that you DO have the right to review since we are not in a period of “rebellion or invasion” sufficient to suspend habeus corpus.

Keith --

Read the Ninth Amendment to answer your question about abortion and privacy.  Those are rights that the individual has to be left alone from government interference.

The constitution specifically states that habeas can’t suspended UNLESS we are in a state of rebellion or invasion. No matter how you define the word “invasion”, a case involving a bunch of Algerians legally residing in Bosnia is NOT EVEN CLOSE to an invasion of the US.

Max --

No, 9/11 was not an “invasion.” “Invasion” is an active word, as is “rebellion”.  They imply an emergency, an unfolding circumstance, an active war.  For whatever reason, Congress has not declared war on anyone.  And we don’t have an “invasion” because there is no invading force.  And how could the word “invasion” be applied to people thousands of miles from the US who, at best, were plotting to attack a US building located over there?

Answer seems simple—never take detainees again.

Me thinks this is a judicial protection decision by the 5 justices in the majority who want to keep from being sidelined by Congress and the President.  Detainee rights, and whether the liberal justices can get in another slap at Bush are secondary and incidental to their primary goal of declaring that they, and they alone, will determine the Court’s jurisdiction.

And it’s not so surprising.  How can the Supreme Court think of itself as no less than an equal branch of government if the other two branches are able to tell them to get lost?

"Yet, I am reminded of Benjamin Franklin’s aphorism that those who give up an essential liberty for temporary security deserve neither liberty or security.”

Ben Franklin never said that.

In any event, I don’t see how I’m giving up any of *my* essential liberties by declining to give enemy combatants the right to habeas corpus.  At most, to paraphrase Patton, I’m giving up the other poor dumb b$#%d’s essential liberties.  And that’s his bad luck.  When someone proposes to restrict *my* right to habeas corpus, let me know. 

As for that sanctimonious cliche about “First they came for the Communists...”—for God’s sake, man, don’t you have any more confidence in our Constitution and our people than that?  Wouldn’t you agree that the political environment in Germany in the 1930s was at least a *little* more likely to keep ratcheting back liberty?  Considering how much opposition has arisen to even the denial of habeas relief to enemy combatants—which denial is amply supported by legal precedent—I believe the odds that the next step would have been infringement of the habeas rights of American citizens are at exactly zero. 

In present-day Germany, the Nazi Party is prohibited.  By your logic, Germany is again on an inevitable course back to dictatorship and genocide.  “First they came for the Nazis, then they came for the Christian Democrats, then they came for the Social Democrats....”

B-Rob: What you seem to be arguing is that all prisoners of war held by the U.S. are entitled to petition U.S. civialian courts.  I’ll be that would have been news during WWII.  Further, if they can now petition courts, what standards will the court use to decide these cases?  Since the court has in effect stripped the military of the authority to decide who shall be held, how are these cases to be decided?  Do the full force of the Fourth and Sixth Amendments now apply?  I can see no reason why not.  Further, it now appears that U.S. soldiers can be sued by the detainees since they have been incarcerated illegally. 

Joel, to answer your question: We already know for a fact that some Gitmo detainees who were previously released returned to the field and took part in further attacks against Americans.  Since it is inconceivable that at least some of the detainees won’t be released under this ruling, we can hold the Supreme Court indrectly responsible for some deaths of U.S. servicemen that will occur in the near future.  It is also possible that released detainees will carry out attacks against American allies whose security we are bound to (as part of NATO or other mutual aid treaties), damaging American credibility with said allies and making other nations less likely to enter into security treaties with us in the future.  Thus, this decision has placed some new limitations on the executive branch’s ability to conduct foreign policy in the future.

I also want to know if anyone can argue to me that this decision hasn’t rendered the Exceptions Clause null and void.  If the legislature cannot determine by statute exceptions in this case, when can it do so?

So, correct me if I misunderstand, but the Supreme Court has just ruled that the only circumstance under which the government has the right to deny foreign citizens found under arms on foreign soil access to our courts and the same measure of legal protections as our citizens, is when this country is in a state of rebellion?

Hmmm…

Sad Day for the country, and common law precedent, great day for lawfare.

Looking at the potential unintended consequences of this, If I were Secretary Gates, in order to keep my Soldiers, Sailors, Airmen & Marines out of lawsuits way, DOD policy henceforth would be take no prisoners, any unlawful combantents encountered on enemy soil will be summarily executed.

Oh, Jeezus, calm down.  All they are saying is that you can’t just grab someone off a battlefield and imprison him forever.  Either he’s a prisoner of war and has to be returned after the war; or he’s a combatant and has to get some amount of due process.  No one is talking about our soldiers getting sued or Miranda rights on the battlefield.  This applies after the battle is over and they are securly in US custody.  You can’t just imprison them forever without trial.

As for Congress’ ability to limit the jurisdiction of the Court, it was my impression that was more of demarcation between court systems.  The idea was not to create a region of lawlessness in which Congress and the President coudl do whatever they wanted.

What Mikes said.

"Either he’s a prisoner of war and has to be returned after the war;”

The Geneva conventions allow for battlefield executions of “prisoners of war” found to be not wearing the uniform of a state military.

Therefore, this ruling will help enforce the conventions because we will now be legally allowed to execute taliban, or al queda insurgents captured on the battlefield.

Sorry Mikes, I’m pretty sure there ARE suits being filed against US military for various infractions--so we ARE talking about lawsuits.

And why doesn’t this mean that all alleged (he dropped his weapon) non-uniformed combatants are NOT entitled to Miranda protection?  Isn’t that requirement now just as procedurally important as habeas?  I mean abortion on demand is as important as privacy is MORE important than many gun ownership rights.

“Spies” should be executed in the field—those combatants not wearing uniforms. 

Perhaps the Gitmo detained Sunnis should be given to the Shia Iraqis, and the detained Shia should be given to Sunni Iraqis.  Or other rendering.

"Read the Ninth Amendment to answer your question about abortion and privacy.  Those are rights that the individual has to be left alone from government interference.”

There is no 9th Amdt right to abortion or privacy, and not even the SCOTUS in its wild flights of fancy has ever said that there is.

Steve’s right. I think it should--though it probably won’t--result in more battlefield executions after summary field hearings in accord with the Geneva Conventions governing unlawful combatants.
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The interesting thing in the above post is the idea of limiting the courts’ ability to hear cases. This is a strategy that has been proposed WRT the Defense of Marriage Act to make it binding across the country in lieu of passing the Federal Marriage Amendment. I suspect Professor Bainbridge has thoughts on this. Bill Quirk proposed this a few years ago, and it evidently has a reasonably solid basis in constitutional law.

"The constitution specifically states that habeas can’t suspended UNLESS we are in a state of rebellion or invasion. No matter how you define the word “invasion”, a case involving a bunch of Algerians legally residing in Bosnia is NOT EVEN CLOSE to an invasion of the US.”

Nobody is suspending habeas, and nobody until a few years ago ever thought that the “no suspension of habeas except in invasion” rule applied to foreign fighters. We did not suspend habeas in WWII to allow our soldiers to kill Germans and Japanese. Nobody ever thought that the SS deserved protection under the American Constitution.

"As for Congress’ ability to limit the jurisdiction of the Court, it was my impression that was more of demarcation between court systems.”

Your impression was wrong. The language in the Constitution is crystal clear.

“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;

What? First they came for the Islamic terrorists, and I did not speak up because I was not an Islamic terrorist? Get a grip, for Gods sake.

"All they are saying is that you can’t just grab someone off a battlefield and imprison him forever.”

Why not? There is not a damm thing in the US Constitution to that effect. You’re enacting your own moral preferences under the color of Constitutional law.

"Read the Ninth Amendment to answer your question about abortion and privacy.  Those are rights that the individual has to be left alone from government interference.”

The Ninth Amendment:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Of course, if the unborn are “people,” then the 9th amendment protects them as well. So, it could just as easily be employed as an anti-abortion amendment.

“Right of privacy” is conditional upon the conduct that goes on in private. For example, two adult siblings having intercourse seems like a perfectly good thing to prohibit, even if it occurs in private. “Privacy” contributes nothing to the discussion.

If we can’t hold them then we need to just shoot these guys as being out of uniform.  This was the common practice in WWII and I am not aware of anything that has changed in that regard.  I don’t care what the Supreme Court says, you are never going to convince any reasonable person that the constitution says we have to give every prisoner we take on the battlefield access to our court system. Either every court that has ever existed during war time in the US has been wrong or this one is wrong.

Our forces have taken tens of thousands of prisoners in Iraq and Afghanistan.  There is no way they will be given trials here.  The distinction between whether we hold them at Guantanimo or in Iraq is a meaningless one that appeals only to lawyers or others with like mental deficiencies.  You cannot wage war under the conditions proposed by the Supreme Court in this ruling.  Thus some way will have to be found to wink at the court so that they can save face while we find another way to house and interrogate prisoners.  In the meantime we will release a bunch of these guys so that our soldiers will have to face them yet again on the battlefield.

The court has actually given these terrorists more rights than any enemy soldier has ever been given in a war with the US.  Way to go there… idiots.

So, don’t detain them long enough to let them go to court: interrogate them, bleed them dry, and then turn them over to some third party who will make sure they never see the light of day.

We’re talking about NONCITIZENS - this is no threat to the liberty of CITIZENS.

Anyone caught on the battlefield opposing us is damned lucky to be granted quarter at all. So, just don’t take prisoners, except for interrogation.  And then be done with them.

Can we please lay off the WWII comparisons.  If you read your history, you will see that the surviving Nazi and Japanese military govt, hierarchy, as well as their peons that were arrested, were provided fair trials with appropriate defense counsel.  Read some of the Nuremburg books and you will see how important it was determined that these monsters were given fair trials instead of turned into martyrs.  The people who set up the Nuremburg trials did it right too, because there never has been any signifcant movement to make Goering or Tojo into martyrs.  Of course even though they were known as the greatest generation, they never had the wisdom of Reilly, Hannity and Malkin to show them how to make Martyrs out of a bunch of dimwit terrorists and consequently turn the entire world into our critics.

Did I mention that it was the Russians that held the German and Japanese prisoners for ten years or more after WWII was over before finally giving in to international pressure and releasing them?  Maybe if the Iraqi govt turns us down on the permanent bases deal we can pull a “Hungary” on them, crush them with tanks, and bring them back into the Eastern Bloc fold, er, I mean the Coalition.

Actually, Congress gets to make the military law, too, and can distinguish between military and civil law when making law.  In the past Congress actually has made military law to cover just this problem:

“Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.”

That from: [url="http://www.yale.edu/lawweb/avalon/lieber.htm#sec4" ]INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD

Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863.[/url]

Do excuse me if I am less than impressed with the SCOTUS being unable to recognize the differences between military and civilian law and the power of Congress to determine what those differences are, which the courts are to abide by.  If Congress, in the past, could readily distinguish between these and set up the necessary legal underpinnings for dealing with this on the military side, then where does the SCOTUS get off doing otherwise today?

But then I am no legal scholar…

One would think SIX YEARS is plenty of time for the government to come up with a way to regularize the status of the detainees in a way that respects the Constitution, treaty obligations, precedents and common decency.

Of course, one would think SIX YEARS would be plenty of time for the strongest power in the world—ever—to track down and kill or capture the leader of an organization that killed several thousand civilians, too.

Why anyone would trust the competence of an administration that can’t manage the second, vital, task to manage the first task is a case of hope triumphing over experience.

As to why the terrorist killers deserve rights, one should remember that this government has made mistakes as to who these people are before. It’s stupid and cowardly to demand security at the expense of liberty. It’s downright unAmerican, really.

Actually wcz, you have forgotten one simple fact , the majority of German and Japanese prisoners captured by the Soviets died in Siberia due to prisoner abuse , weather and slave labor and the survivors were released around the mid 1950’s not because of international pressure , but due to propaganda purposes . The Nuremberg trials in Germany as well it’s equivalent in the Pacific dealt with the war crimes done by the military and civilian leaders of Germany and Japan which are nation-states and are signatories of the Geneva convention .In contrast , the members of Al-Qaeda and the Taliban are composed of citizens of multiple nationalities which includes American citizens and the two organizations are not nation-states . So , how can you then convene a Nuremberg court when the defendants does not answer to any political authority and does not recognize the Geneva convention.

Of course, one would think SIX YEARS would be plenty of time for the strongest power in the world—ever—to track down and kill or capture the leader of an organization that killed several thousand civilians, too.

Three words: Carlos the Jackal.  And he wasn’t even hiding.

Also, explain how this decision isn’t going to make the hunt for Bin Laden that much harder.  If you have to disclose intelligence sources and methods in open court, and subpoena entire platoons of troops (or even just senior command officers) from the combat theater to give testimony evidence in habeas hearings, just what do you think will happen to military efforts to “track down and kill or capture” the world’s most famous fugitive?

If the American government wanted to catch the leader of the organization that killed 3000 American civilians without any regard to treaty obligations , they would have invaded Pakistan , Saudi Arabia ,Syria , Lebanon and Iran and be done with it . As for the rest of your assertions , the enemy does not recognized the laws of war codified in the Geneva convention and they hide behind civilians and wear civilian clothing and does not carry arms openly , how can you expect the American troops to know that the man they captured in the hills of Afghanistan after a firefight with a AK-47 rifle beside him is not a terrorist but a goat-herder . Explain to me that .

I think one thing is being ignored, and that’s the purpose of the Geneva Conventions.

These rules and regulations were designed to limit the amount of damage to non-combatants and civilians. Under the rules, combatants are required to wear uniforms or other easily recognizable “shoot me, not them” signs.

Those considered enemy non-combantants detained by the military during firefights or other attacks are by definition NOT covered by the Geneva Conventions. The allowance for summary executions in this case are supposed to be a maximally strong deterrent to insure that civilians are protected and the laws of war are followed.

What this SCOTUS decision does is weaken the punishment aspect of the rules, and will further open a big can of worms. And all that will do is force the military to open up a big ol’ can of something else on anyone that causes suspicion.

And we all lose on that. We ARE the good guys, and we’re trying to protect those that are being preyed upon by those that are using them as human shields. And quite frankly, we are being generous by not executing them on the battlefield. The military has every right to do so.

This SCOTUS decision will come back to haunt us, I’m afraid to say.

I agree there is always a minimum due process required, but square today’s decision with this one:  EX PARTE QUIRIN
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=317&page=1

The Supreme Court allowed the detainees to present their petition to the Supreme Court, where habeas rights were denied. 

The Supreme Court found the military tribunals lawful. 

The Supreme Court allowed the military tribunals executed six of eight Nazi sabatours (the two that were not cooperated fully and were only allowed to live by order of FDR). 

At least one was a U.S. Citizen.  All lived extended periods in the United States before returning to Nazi Germany for training. 

The only real difference is in 1942 the Court realized we could lose WWII and the perception now is the Bush Administration overreached on the GWOT.

The inability to distinguish between citizens and non-citizens is astounding. The Constitution is a document agreed to by the people in this nation establishing the relationship they will have with their government. To think it governs the governments relationship to people against whom it is waging war is absurd.

And, as for the fact that the claimants are aliens: “In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;”

This is even dumber than anything I’ve read Justice Kennedy write.

Unfortunately, I still haven’t read the opinion.  But now that I have time to write, l would like to hit a few key points and concerns.

First, and it looks like other commenters have recognized the difference, I can’t tell from the media coverage whether this ruling applies to everybody captured on the battlefield in Afghanistan/Pakistan and Iraq, or only people who are facing criminal charges in “military tribunals” (however those tribunals end up being organized).

If the ruling actually applies to any prisoner in US custody, then (1) I am not aware of any previous war where POWs were able to challenge there detention as POWs (not Desert Storm, not Vietnam, not Korea, not Bosnia, not WWI, not WWII, not the Mexican-American War nor the Spanish American War, not the War of 1812, nor any other war); and as such, this *would* signify a departure from the historical understanding of “habeus corpus,” and (2) as such a departure, the courts asked to review these cases won’t have much precedent to go by, which means they’re going to have a hard time applying this ruling.

Habeus corpus is, as far as I understand it, a principle from criminal law.  It doesn’t apply in other cases.  For instance, when the draft still existed nobody was able to get out of the military by filing for a writ of habeus corpus and requiring the government to justify his “detention.” If my family eventually decides to commit me to a mental institution, I won’t be able to file for habeus corpus requiring either my family or the institution to justify my “detention.” It simply doesn’t apply in those cases, and so suspending the writ for those cases wouldn’t make sense either (just as “suspending Miranda warnings” in Afghanistan wouldn’t make any sense).

The only US war that habeus corpus made a famous appearance that I’m aware of was President Lincoln’s attempt to suspend habeus in the Confederacy during the Civil War.  That was struck down because only Congress can suspend habeus, and the Court at the time felt that habeus could only be suspended across the entire country and not just in the portions where the courts are actually not functioning.  Thing is, even after this ruling, I don’t recall large numbers of Confederate soldiers filing petitions for habeus.

The Supreme Court’s *majority* *opinion* in Hamdi mentions the fact that battlefield prisoners are held for different reasons than people held in criminal cases, and agrees that the Authorization to Use Military Force includes implicit permission to take prisoners (how many wars has the US fought without taking prisoners?).  Of course, Hamdi also states what kind of review process would be enough to pass Constitutional muster in order to continue holding those same prisoners.  If this ruling applies to everybody captured on the battlefield, I would like to know what happened to stare decisis as applied to Hamdi, or if Hamdi-like reviews are enough to satisfy the Court.

On the other hand, if this ruling only applies to people facing tribunals on criminal charges, then I can at least see why habeus applies, because it is a criminal proceeding.  On the other hand, I want to know (1) by “federal court” does the Supreme Court mean “District Court” or do the military tribunals also apply? (2) if the government is unable to justify the criminal detention of a particular prisoner, does that prisoner get released or can the military continue to hold him as a war prisoner until the end of combat in Afghanistan or Iraq? (3) how does bail apply in these cases?  Those kinds of details make all the difference to me.

By the way, the comment about bail is not a red herring as people charged with crimes have a Constitutional right to a a bail hearing, although bail itself may be denied.  Likewise, people charged with crimes have a Constitutional right to a speedy trial, and assuming that same right extends to Guantanamo Bay, I would like to see the Supreme Court define exactly when the clock starts ticking.

"I think back to FDR’s failed attempt at court packing the the negative backlash.

Sean Hackbarth”

Which failed attempt was that?  The one where he threatened to pack the Court if the Justices didn’t pass on all of his unconstitutional legislation, and the Court DID pass on all of his unconstitutional legislation, so he didn’t have to pack the Court to get his way?

JB, the obviously overt part of not getting more justices on the court. But you are correct. The threat worked.

OK, finished reading the opinion.  It’s a tossup.  Roberts’s dissent makes the most sense:  had the plaintiffs challenged their detention using the law the Court struck down as unconstitutional then things would have actually proceeded faster and any Constitutional right to habeas corpus these guys have would have remained.  As it is, the Court has actually added a layer of review in the name of speeding things up.  Only judges would expect an extra layer of review would speed things up.

The part I found most interesting was the Court’s discussion that the DTA was unconstitutional partly because it limited what the District Court could consider in reviewing the military’s own review.  I find this interesting because ex parte Quirin—which is used as proof that POWs potentially have the ability to petition for habeas—included a habeas corpus review that was limited to pretty much the same things the District Court would have been limited to considering under the now-unconstitutional law.  Well, it’s also interesting that the majority opinion can find a handful of US and British cases where POWs filed for habeas but no cases where a POW actually got any kind of relief under habeas corpus.  The opinion seems to only state that “enemy combatants,” lawful and unlawful, have a right to petition for habeas; but the opinion does not say if they actually have a right to receive any habeas relief.

I’m actually thankful these five judges weren’t put in charge of important federal agencies.  They could have done a lot more damage in a different line of work.