THE GITMO ORAL ARGUMENTS AND THE TAO OF LEGAL PROCEDURE

By Jon Dodson

Last week our Supreme Court watcher previewed the current appeals stage in the case of the Guantanamo detainees ("The Gitmo Appeals, Round IV"). Here is Jon's update.

On Wednesday, the Supreme Court heard oral arguments in Boumediene v. Bush. I was disappointed to see Charles Gibson reporting that the issue was whether the Guantanamo Bay detainees have constitutional standing to bring habeas corpus proceedings. It was ridiculous to me because, as I have argued, that ship has sailed. The Court already held, on a vote of 6-3, that the Guantanamo detainees can bring habeas corpus proceedings before the Supreme Court.

But, I thought, it's only Charles Gibson. I wouldn't expect ABC or any other mainstream news outlets to give accurate, honest reports about even the least politically charged subject, let alone one so unfortunately controversial as--gasp-- our constitutional rights to a fair trial, legal representation, a neutral judiciary, and LIBERTY. (And as much as we Americans have kicked that word around, how often is liberty so fundamentally at stake as here?) But then I read the transcripts of the oral arguments. And I realized, for once, our media didn't drop the ball, but (as is increasingly common) it appears that our Supreme Court will.

Let me repeat: The Court already decided that Guantanamo detainees have the right to habeas corpus. This was supposed to be the appeal where we finally got to the meat of the issue. Where we finally considered what, specifically, habeas corpus requires in this context. What precise kind of legal representation should be afforded to those to whom the executive branch has unilaterally (as always) given the nebulous new status "enemy combatants." That was the threshold procedural question necessary to consider the substance of what our Constitution guarantees. And it was decided. Six to three. The detainees have standing. The Supreme Court has jurisdiction. The case was Rasul v. Bush, 542 U.S. 466 (2004).

So when the Court took the unprecedented move of changing its mind and granting cert, one would assume they weren't merely intending to rehash that already-resolved issue. True, the Court has changed since 2004, but not in a way that would alter the outcome on this issue. As Jeffrey Toobin reminded us in his recent book, The Nine, Justice Kennedy (who's now the swing vote on this issue) is an ardent internationalist, and is increasingly uncomfortable with America's tarnished image and its minority viewpoints on human rights issues about which there used to be international consensus. Prior to the arguments, there was no indication that he had wavered. And aside from his unusual silence, he gave no such indication at oral arguments. Now, I don't think they will reverse Rasul, but it appears from oral arguments they aren't willing to take the next step.

So why? Why didn't they delve into the important stuff--those sexy, lofty rights of the criminally accused? Why harp on the tired procedural issue? As if the right-wing justices could narrow standing and thus reverse a brand-new precedent, all the while clinging to the mantle of judicial conservatism and regretting that they were procedurally barred from doing the right thing!

Well, the writing's on the wall. There seems to be an unwritten rule that, whatever happens, the Guantanamo detainees are staying put until the real powers-that-be decide otherwise. That's why the Department of Defense waited until nine days after the Hamdi decision (which authorized the detention of enemy combatants), to widely broaden the definition of enemy combatant to include tons of people whose situations the Court hadn't considered. It's why the executive wants the appeals to be heard one detainee at a time. It's why, when the procedural bar was our constitutional separation of powers, Congress immediately capitulated.

Yes, we can all wax philosophical about what our Constitution stands for, about what due process means, about the importance of liberty, so long as nothing ever really changes. We can feed our superegos in this country with lofty ideals, while we leave the rest of the world to deal with our collective id and its consequences. We can ponder what it means to live in a free country, while we send a few unlucky persons to Cuba, where, alas, the Constitution maybe doesn't apply. Because according to "judicial conservatives" we should think twice before granting constitutional jurisdiction, because we must construe the Constitution strictly, and it wasn't the Founders' intent, they wanted only white men to have rights, and the Founders were a Christian people, and who is the Supreme Court to disobey the Lord, and what would happen if we go down that road, and scary brown people are climbing over the walls, and the terrorists are bombing our children, and the scary brown people have more rights and weapons than us, and Congress is packed with Muslims, and then how much will our rights be worth? And in that way, the supposedly apolitical and aloof judicial conservatives obfuscate their distasteful, political agendas.

What next? The Court will probably reverse and remand to the D.C. Circuit in yet another passing of the buck. Meanwhile the detainees will sit in Guantanamo. Their families will wait longer. Their kids will grow older; their wives will grow greyer. We'll write and rail about their rights in blogs and conferences and editorials and roundtables. The wingnuts will rail about a post-9/11 world, about how terrorism is just too scary for our antiquated ideals. And maybe next time the Court will do something. And the detainees are where they are. Probably they'll live to see another hearing.

THE GITMO APPEALS, ROUND IV

Jon Dodson is the new DWT resident constitutional scholar and he'll be watching the Supreme Court for us. He's a graduate of William and Mary and studied law at the University of Vermont and at McGill, where I teach, and where he studied international and maritime law. He founded a local chapter of Just Democracy, a poll-watching organization in Virginia and worked at the Virginia Board of Elections. He worked for the Vermont Appellate Defender's Office, where he crafted a groundbreaking appeal, arguing to the Vermont Supreme Court that it should ignore the United States Supreme Court's holding that canine sniffs are not "a search" under the Fourth Amendment, and should instead apply the Vermont constitutional search-and-seizure provision to protect against a broader array of police intrusions. The appeal is still pending. A proud member of the ACLU, he is currently a trial lawyer at the West Palm Beach Public Defender's Office and has contributed to DailyKos and RaisingKaine.

BOUMEDIENE V BUSH, A BATTLE FOR THE U.S. CONSTITUTION

by Jon Dodson

The Supreme Court will hear another appeal this term regarding the detainees in Guantanamo Bay. As you'll recall, in the summer of 2006, the Constitution was briefly vindicated when Justice Stevens wrote a rousing, forceful opinion in Hamdan v. Rumsfeld, condemning Bush's and the DOD's claim that the executive had the inherent authority to indefinitely detain "enemy combatants" without a hearing or access to a lawyer, and without any legislative authorization.
 
That fall, Congress immediately capitulated, passing the Military Commissions Act of 2006. Now, we have legislative authorization, but the scheme is still unconstitutional and grossly inadequate. The detainees are challenging the constitutionality of that abhorrent legislation in 2 related appeals: Boumediene v. Bush, and al Odah v. United States.

Check out Mr. Boumediene's brief to the Supreme Court.

The facts are compelling. On September 11, 2001, Mr. Boumediene and al Odah were living peacefully with their families in Bosnia. However in October, they were arrested by Bosnian police. Although the police had no evidence of wrongdoing, they were arrested at the prodding of the United States government, who threatened to otherwise suspend diplomatic relations with Bosnia-Herzogovina. Bosnia's Supreme Court subsequently held that their arrest and detention were illegal, and ordered their release. Similarly, the Human Rights Tribunal, a body established by the Dayton Accords, forbid their extradition from Bosnian territories. Nonetheless, when the two were released from prison, Bosnian police were waiting outside, and immediately seized them and delivered them to U.S. forces, who took them to Guantanamo.  

Combatant Status Review Tribunals (CSRT) were created by the DOD in the wake of the Supreme Court's 2004 ruling against the government in Hamdi v. Rumsfeld. At Mr. al Odah's CSRT hearing, the following colloquy occurred:  

Detainee: Give me his name
Tribunal President: I do not know
Detainee: How can I respond to this?
Tribunal President: Did you know of anybody that was a member of Al Qaida?
Detainee: No, no
Tribunal President: I’m sorry, what was your response?
Detainee: No
Tribunal President: No?
Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation. 
Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.
Detainee: Why? Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except to ask you to catch Bin Laden and ask him if I am part of Al Qaida. To tell me that I thought, I’ll just tell you that I did not. I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

This dialogue demonstrates what's wrong with the current procedure better than the most carefully-crafted legal argument could. However, for anyone who's interested, here's a summary of the legal arguments before the Court.
 
Preliminarily, the detainees are forced re-hash what the Court already decided, since the lower court refused to apply that holding: that there is habeas jurisdiction over aliens held in a territory under U.S. control.

I. Boumediene argues that the Military Commissions Act's repeal of habeas corpus is unconstitutional. The rule under the Suspension Clause of the Constitution is that Congress can't restrict habeas corpus except: a) in times of rebellion or invasion, it b) clearly and validly suspends habeas corpus, c) it does so temporarily, and it d) provides an adequate, effective substitute.

Here, there was no Congressional finding that there has been a "rebellion or invasion," the suspension is indefinite rather than temporary, and the procedure set up by the Military Commissions Act did not provide an adequate, effective substitute.  

The detainees note that in the two past occasions where a court has found an adequate, effective substitute, the substitute procedure was virtually identical to habeas proceedings. Thus, the detainees argue that any substitute must provide 1.) an opportunity to present evidence, 2.) neutral and plenary review, 3.) speedy resolution of claims, 4.) full representation by counsel, and 5.) a court empowered to order a release of the prisoners.
 
The CSRTs do not provide anything close to the procedural protections required.  

1.) Detainees are not allowed to present evidence on their behalf, and the record for appeals courts is limited to the reasonably available information in possession of the U.S. government. Although the CSRT is theoretically required to collect exculpatory evidence from other agencies, the agencies only allow access to "prescreened and filtered" information. Nonetheless, Mr. Boumediene's attorney did uncover some exculpatory evidence: the Bosnian prisoner-informant on whom the government principally relied in determining that Mr. Boumediene was a terrorist despises Mr. Boumediene for divorcing the informant's sister-in-law.
 
2.) There is no neutral, plenary review. There is a rebuttable presumption that the government's evidence is sound, and the DOD has ordered multiple re-trials of CSRT decision until they get the result they want.

3.) The Military Commissions Act does not expressly authorize courts to release wrongly detained prisoners. The only remedy is a remand to the executive branch for further determinations. So, basically, "heads I win, tails you lose."
4.) There is no speedy trial. The detainees have been there for 6 years! The legislation is vague enough to ensure many more rounds of litigation. Moreover, the government has asked to proceed with only a few appeals at a time, before beginning others.
 
5.) There are heavy restrictions on the detainees' rights to counsel. DOD rules limit the detainees to subject to a CSRT to a "personal representative" who is not an attorney, and with whom there is no privilege of confidentiality. Any in-person visits are very infrequent and extremely curtailed.
II. Boumediene argues that his imprisonment is unlawful for two reasons: First, the Military Commissions Act did not authorize indefinite detention based on the newly-broadened definition of "enemy combatant." Second, the detainees' imprisonment violates the Due Process Clause.

A. In Hamdi, the Court held that the government could detain "enemy combatants" who were defined as persons "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who were engaged in an armed conflict against the United States there." Nine days after the Hamdi decision, the DOD broadened the operative word to mean anyone who is "part of or supporting Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners." This new definition includes citizens of friendly nations who haven't engaged in combat against the U.S., and even includes persons whose "support" for al Qeada is unintentional.
 
The criteria for "combatancy" is defined by international laws of war. The purpose of such detention is traditionally to prevent a return to the battlefield. Thus, Boumediene argues that "enemy combatants" should be defined with reference to the Authorization to Use Military Force (AUMF) passed by Congress such that any authority to detain "enemy combatants" is incidental to this particular use of force. The AUMF was expressly conditioned on a nexus with 9-11. Indeed, Congress refused to include broader language authorizing the use of force to deter or pre-empt unrelated terrorist attacks.
 
In the first of several instances, Boumediene referenced Israeli law as an example of the proper definition of combatant. The Israeli court limited the definition to someone bearing arms on his way to or from a conflict, and NOT someone who generally supports the forces, sells food or medicine to them, or even provides strategic, logistical, or monetary support. (Boumediene prudently notes that such support could still be the basis for some punishment, just not enemy combatant status). Since the extremely broad definition of the DOD is inconsistent with international laws of war, and Boumediene would not fall within the international definition of "enemy combatant," he should be released. Boumediene concludes "[t]he government should not be permitted yet another attempt to refashion the amorphous category of people it wishes to imprison indefinitely."
 
B. Boumediene then argued that his detention violates the 5th Amendment Due Process Clause. He argued that due process attaches to aliens in U.S.-controlled territory, citing Hamdi, and that the procedures afforded him do not provide even rudimentary due process. He again referenced Israel-- "a democracy well-acquainted with terrorist threats." Israel, for example, requires judicial review within 14 days of detention, and every 3 months thereafter.
 
Boumediene concludes "[t]he U.S. Government's claim that national security or other interests make compliance with rudimentary due process requirements impossible or undesirable is untenable in light of the Israeli example." He adds that its too late to remedy the due process violations, as they've already been detained for 6 years. The only proper remedy, Boumediene argues, is to release him.  
 
So…, this brief squarely attacks the MCA on numerous fronts:
 
1.) It invites the courts to delve into the specific procedures required by both the Due Process Clause and the habeas corpus Suspension Clause. 2.) Separation of Powers are again implicated, since the DOD exceeded the judiciary's mandate when it allowed detention of enemy combatants, and since the procedures of the Military Commissions Act are weighed so heavily in favor of the state, as to eliminate the independent judiciary as a meaningful check on executive power.
 
3.) International law is clearly implicated, although many Justices refuse to consider international law in deciding the constitutional claims of the United States. The references to Israeli law are largely directed at Justice Kennedy, an internationalist, and undoubtedly the swing vote on this case.
 
I predict another legal victory for the detainees, but doubt they will get the only adequate remedy: immediate release. Our Constitution will be slightly stronger for each such victorious appeal, but the detainees will only get an endless cycle of procedure. How nice of them to be the guinea pigs for our constitutional showdowns.


UPDATE: BOSTON GLOBE LOOKS AT AMERICA'S SHAME

"Joseph" is an innocent man and he's been in Guantanamo for 6 years. The military announced he was innocent in 2002-- but he's still rotting in prison, where Bush, Cheney, Lieberman and their whole foul torture regime belongs. Recently "Joseph's" lawyers told him about a big appeals court victory they'd won.

"Joseph" listened in silence. During six years of US imprisonment he's heard this sort of thing before. All this talk from American lawyers about American courts-- in Camp Six a man can't be sure that American courts exist at all, but if they do, it is certain that nothing ever comes of them but essays. No one alleges that "Joseph" was ever a terrorist, or a soldier, or a criminal. The military told him in 2002 he was innocent. Again in 2003. Again in 2006. He filed a habeas petition in 2005. He would be gone if the military could find a country to take him.

When Senator Joseph Lieberman and the other guardians of freedom in Congress stripped his habeas rights, he filed a Detainee Treatment Act petition. That was 11 months ago.

For two years and three months he'd been asking the federal judiciary to hear a few simple facts. No judge ever has.

He's lost all hope. But that was the whole idea. That's what $30 million of our taxes went for (to Cheney's company) did in emulating the techniques used against our airmen by North Korea in another long-ago war.