Saturday, June 14, 2008

Habeas corpse

Montana Headlines is a reasonable sort whose opinions I respect even when I disagree with them, which is pretty often.

That's why I hate to see him get caught up in the right-wing response to the Supreme Court's Boumediene decision. I'm no lawyer and haven't read the decision in full. If you want to get up to speed, here's one of a series of posts by a good lawyer who has.

I just have a few gut reactions by a citizen who cares about freedom.

1. Without doubt, the founding fathers considered habeas corpus one of the oldest and most fundamental of all human rights -- so basic that they mentioned it in the Constitution only to outline conditions under which it might be suspended. The Supreme Court justices did not rule as they did in order to extend rights to "implacable foes." They did it to allow people who claim they aren't our foes a chance to prove they are telling the truth.

2. Justice Kennedy looked beyond existing precedents because he found, quite rightly, that no real precedent applies. Guantanamo is in Cuba but under total U.S. control. Many of the prisoners detained there were not caught on any battlefield, and none of them were in uniform. Moreover, we know for a fact that innocent people were held there. It would be nice to think that only the guilty remain, but when you consider that they are being held by the same government that managed Social Security and the Katrina disaster, conservatives should be the first to acknowledge that innocent people may still be there.

3. Rules on detaining combatants aren't meant to punish enemy soldiers because being an enemy soldier is not a crime. The rules are meant to keep soldiers out of combat until the war ends. But when the war will never end in any definable way, and when detainees claim they never fought us in the first place, the case for eternal detention with no charges and no relief falls to pieces. We already have a precedent for holding soldiers for no clear reason long after the reason for their detention has dissolved. It's what Stalin did after World War II. Stalin is not my role model.

4. Montana Headlines is just flat wrong when he see the Supreme Court ruling as an attempt by justices to control "the conduct of war." The court's role is to determine what legal protections apply to those who have been removed from the scene of the war and who claim they are being held unjustly. The court simply held that those prisoners ought to be able to go in front of a judge and make their case. I find it troubling, and hard to believe, that any American would deny them that chance.


Montana Headlines said...

Surely you do not suggest that the founders would have considered it the duty of the U.S. Marine Corps who, say, may have detained suspected belligerents in Tripoli on naval ships under the control of the U.S. back when Jefferson (as I recall) was President, to give said belligerents access to our domestic civilian courts?

In military tribunals, does a writ of habeus corpus ever come into play, and would the writers of the Constitution have considered that a foreign national under our military's control would have the right to access our civilian courts with such a writ?

What the Supreme Court has done is say that foreign combatants that the military believes are a risk to the U.S. can have access to our civil courts. If taking away from the military the decision of which captured foreign national is and is not a risk to the U.S. on the battlefield is not a usurpation of a part of the conduct of war, I don't know what is.

Reference is made to the length of the war in many critiques of Gitmo. The implication is that previous court decisions that left such things in the hands of the military would have been made differently had WWII dragged on longer than it did. Does one honestly believe that if WWII had lasted until 1948 instead of 1945 that the Supreme Court would or should have ruled differently?

When, in a war, does the military then lose the ability to make these decisions? At 5 years, 7 years, 3 years?

A lesson that may sadly be learned from this court case is that when in doubt, those in the field will be better off just making the decision to gun a suspect down and say he was trying to escape, rather than take him into custody where he will have immediate access to ACLU lawyers and civilian courts who might, in their wisdom and armed with their extensive knowledge of the military situation on the ground, turn him loose after determining that our soldiers were wrong to detain him.

You've read MH long enough to know that I have no love lost for this war, which I think was a misconceived venture from the beginning. And you've also read MH long enough to know that the Hannity/Limbaugh approach to public discourse is not one for which I have any fondness.

When I read of this decision, far from being "caught up in right-wing reaction," I did not automatically assume that it was a bad thing -- I wanted to see what the decision said, to see who had voted how, and under what reasoning.

I'm not a Constitutional lawyer, either, but I have confidence that if the Constitution contained a justification for allowing foreigners detained by our military the right to access our civilian courts, at least one of the originalists on the court would have sided with the liberal majority, as has so often been the case in the past (and as I noted in my piece.) The closest thing to a conservative in the majority on this ruling is the ever-vacillating Justice Kennedy, which should say something.

The fact that no originalist joined in the opinion is telling, and the more I read about this case, the more convinced I am that this is yet another example of judicial over-reach, inserting our civilian courts into the conduct of military operations and decisions. It is furthermore over-reach that appears to be muddle-headed, leaving more questions than answers in its wake.

Many conservatives had thought that we had begun to achieve some sort of balance to the judiciary, but this case is a stark reminder of how imbalanced the courts still are and how bad for America the election of Barack Obama would be.

David said...

"Those in the field will be better off just making the decision to gun a suspect down and say he was trying to escape."

Except that anyone who did that would be committing a war crime.

The decision clearly distinguishes between temporary delays in habeas proceedings where they are not practical, such as on naval ships at Tripoli, and years-long delays with no specific accusations of wrongdoing and no end in sight.

Even then, habeas still would not come into play for uniformed soldiers captured on a battlefield in a recognized war, no matter how long they were held. Again, they have no need of habeas proceedings because they are suspected of no crime. They are being held only to keep them from returning to combat, which they would be obligated to do if released.

But here we are talking about suspects who may not have been arrested on a battlefield; who may, in fact, have been turned in for a bounty payment; who have never worn a uniform; and who allege that they never fought against the U.S. Moreover, we know that at least some people who have made this claim were telling the truth.

I'm not sure what "conservative" even means in this context. Habeas corpus dates back to the Magna Carta; no more fundamental or traditional human right exists. If any government, anywhere, can lock up whoever it wants for as long as it wants without owing an explanation to anybody, then no rights exist at all.

Scalia's dissent apparently focuses on prior habeas cases involving uniformed prisoners on enemy-occupied territory. Hard to see how that applies here. Roberts apparently focused on the fact that certain limited procedural rights were granted under the law Congress passed. But some semblance of habeas is not the same as habeas itself, and the two should not be confused.

Again, the founders considered habeas so fundamental that they didn't even bother to spell it out in the Constitution. They never limited it to American citizens or to American soil. They just assumed that it applies unless Congress acts specifically to suspend it. Congress has not acted specifically to suspend it, so a proudly conservative Supreme Court is perfectly justified in holding the Bush administration to that time-honored standard.

For a chilling look at some of the injustices at Guantanamo, go to