Sunday, December 02, 2007



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.


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.


"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.

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At 10:21 AM, Blogger WFIGUY said...

If in fact you are so against torture, then you wouldn't suggest that President Bush, Vice President Cheney, and Senator Lieberman belong in Guantanamo either. Your obvious distaste for them permeates your arguments to the point of marginalizing the real issue. Detention of the people in your view is Unconstitutional. The caveat is that the Constitution of the United States applies only to United States Citizens. See the Dredd Scott decision.

At 12:57 PM, Anonymous Anonymous said...

Well said Joseph. I'll wait and see what the court has to say about
Mr. Boumediene's case. Of course if they rule agianst, it's because Bush "packed" the court.

At 1:21 PM, Anonymous Anonymous said...

Seriously? You're citing Dred Scott? The one that says African-Americans are property? And that's supposed to help your argument? Habeas corpus has applied to non-citizens throughout history both in this country and in England, where it started. Moreover, that was the argument the court overruled in Rasul v. Bush, 542 U.S. 466 (2004). So, that ship has sailed.

As for partisanship, of course I dislike Cheney, Bush, and Lieberman. Guilty as charged. But this post was merely a summary of the legal arguments made in the brief. If you want something even more dry and analytical (and I thought this was pretty dry), go to the Supreme Court's website and read the brief. Neither the brief, nor this post, come from partisanship, but from a professional and academic interest in constitutionalism, a deep respect for the ideals represented, and having taken an oath to uphold the Constitution. Some things are more important than partisanship, and only a partisan hack could fail to see this post as anything more than a partisan gripe.

At 6:25 AM, Anonymous Anonymous said...

It will be interesting to see if constitutional rights are given to enemy combatants who are NOT citizens and who are NOT on U.S. soil.

It the Supreme Court says so, we just might get another 8 years of Republican President to fix that problem!


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