February 20, 2007

D.C. Circus to Detainees: Drop Dead

Perhaps the most important ruling of the Bush era (Boumediene v. Bush) was just released today: the D.C. Circus has ruled, by a 2-1 majority, that unlawful enemy combatants detained by the military do not have the right to appeal to the civilian courts to be released:

The U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that civilian courts no longer have the authority to consider whether the military is illegally holding the prisoners - a decision that will strip court access for hundreds of detainees with cases currently pending.

"The arguments are creative but not cogent. To accept them would be to defy the will of Congress," wrote Judge A. Raymond Randolph in the 25-page opinion, which was joined by Judge David B. Sentelle. Both are Republican appointees to the federal bench.

Judge Arthur Raymond Randolph was appointed by the first President Bush in 1990; Judge David Sentelle was appointed by Ronald Reagan in 1985. The third member of the panel (who dissented with the ruling) was Judge Judith Ann Wilson Rogers, was appointed by President Clinton in 1993.

The New York Times adds a few interesting fillips:

The court’s majority, citing Supreme Court and other precedent, held that the right of habeas corpus does not extend to foreign citizens detained outside the United States -- the prisoners covered by the new law. A lower court in December followed the same logic to the same conclusion in a related case, involving Salim Ahmed Hamdan, whose earlier appeal to the Supreme Court had led to the overturning of the previous Congressional attempts to limit the prisoners’ avenues to the federal courts.

The decision today, Lakhdar Boumediene v. George W. Bush, involved a consolidation of the cases of 63 detainees, all from foreign countries, who had sought review in two separate federal district courts in Washington. One federal district judge had ruled in 2005 that she had the authority to consider the cases, while another judge ruled that he did not, and granted the administration’s motion to dismiss the cases.

In the earlier case referenced above, Hamdan v. Rumsfeld, Salim Hamdan petititoned for a writ of habeas corpus (seeking release) last December to D.C. District Court Judge James Robertson; but under the new Military Commission Act, he denied the petition.

Robertson, appointed by Clinton in 1994, had granted Hamdan's first habeas corpus petition in 2004. The decision was overturned by a three-judge panel of the D.C. Circuit (which included then-Judge John Roberts) in 2005; but the Supreme Court overturned the D.C. Circuit.

Today's ruling in Boumediene v. Bush is only a way-station en route to the Supreme Court, where it will all come down to a single justice: Anthony Kennedy, who, in the Hamdan case (Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2006), voted with the liberal justices John Paul Stevens, Ruth Bader Ginsberg, Stephen Breyer, and David Souter to strike down the earlier version of President Bush's military commissions, overturning the Roberts (not Robertson) decision of the D.C. Circuit.

(Chief Justice John Roberts recused himself from Hamdan, because he had ruled in the appellate court case before being nominated to the Court; thus, Hamdan was decided by 5-3 instead of 5-4.)

Justice Kennedy joined Justice Stevens' opinion only in part: he agreed that the Supreme Court had jurisdiction, and he agreed that the military commissions lacked constitutionality -- primarily because they were set up entirely by the executive branch of government. Kennedy left the door hanging wide for pretty much the same commissions (with some cosmetic changes) if they were enacted by Congress... which they were last October, as perhaps the last major legislation of the 109th Congress.

Thus, it's reasonable to hope that Kennedy may well uphold Boumediene, now that Congress has spoken. His main concurrance with Stevens was that, since the commissions were not formed by Congress and also differed from the military's procedure in the case of courts-martial, they were not "regularly constituted courts," as required by the Third Geneva Convention, Article 3, section (d), which prohibits --

-- the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

But even here, Kennedy dissented in part with the latter's extended exegesis on the Geneva Conventions, disagreeing with Justice Stevens whether those "indispensible" "judicial guarantees" gave a detainee the right to see all the evidence against him -- including highly classified information that would reveal intelligence methods and assets. Stevens and the other three liberal justices appear to want detainees to have all the same protections that would apply to an American gang-banger accused of carjacking or pickpocketing.

The dissent by Judge Rogers argues that the military commissions are unconstitutional because they restrict habeas corpus petitions and because they might include evidence derived from what she calls "torture." From the Times article:

In a dissenting opinion, Judge Judith W. Rogers said that the Military Commission Act had violated the constitutional provision that restricts the suspension of the writ of habeas corpus. She reasoned that the suspension clause limits Congressional powers, rather than conferring a right on the accused.

“Prior to the enactment of the Military Commissions Act, the Supreme Court acknowledged that the detainees held at Guantánamo had a statutory right to habeas corpus,” Judge Rogers wrote. “The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension.”

But the constitutional clause in question, Article I section 9, obviously can only apply to persons under the jurisdiction of the Constitution. Lakhdar Boumediene is not a citizen or resident of the United States, was captured abroad, and has never been held on U.S. soil. The only nexus to America is that he is guarded by U.S. forces.

He clearly is not subject to the protections of the United States Constitution... unless Rogers would also argue that U.S. civilian courts have jurisdiction over Iraqi prisoners held by an Iraqi Army unit that happens to include a couple of embedded U.S. Marines.

From AP:

"District courts are well able to adjust these proceedings in light of the government's significant interests in guarding national security," wrote Rogers, a Clinton appointee. "More significant still, continued detention may be justified by a CSRT on the basis of evidence resulting from torture."

Despite Rogers' dissent, this ruling is an excellent step towards restoring judicial sanity to the wartime powers of the president. Clearly, we have always in the past believed that enemy combatants can be detained indefinitely ("for the duration of hostilities"); there is no reason why the civilian courts, which have never been involved in such decisions, should suddenly have jurisdiction over POWs, whether lawful combatants -- enemy soldiers -- or unlawful combatants, non-military, ununiformed spies, saboteurs, and terrorists.

Let's hope that Justice Kennedy is now satisfied that the military tribunals are "regularly constituted," and we can get on with the job of fighting the war against global jihadism.

Hatched by Dafydd on this day, February 20, 2007, at the time of 4:24 PM

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