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Tomorrow, Wednesday, December 5, the Supreme Court will hear oral argument in Boumediene v. Bush and Al Odah v. United States, the Guantanamo detainees' habeas corpus cases.  Without question, this should prove to be one of the more momentous cases of the current Supreme Court Term, and the ultimate decision could well become a major issue in the presidential campaign.

Oral argument is scheduled to begin at 10 a.m. and run for one hour.  An audio recording of the hearing will be made available shortly after the conclusion of the proceedings (probably within an hour or so), and the transcript at some point in the afternoon.

I'm not going to attempt to analyze the nitty-gritty legal principles (I'll leave that to the professionals, and besides, this diary is plenty long enough anyway), but rather present a general road map for how we've gotten to this point.

The Path to SCOTUS

Covington & Burling LLP, which represents a group of the petitioners in Boumediene, has assembled this useful chronology of detainee cases, and Monday's New York Times included this graphic representation of the progress of the principal detainee cases in the courts.  Frankly, it's all become extremely convoluted with certain cases being held up at different stages of their proceeding while related issues in other cases are being determined at both higher and lower courts, so the design in the Times is about as "clean" as one could make it.

The "key" dates and events are these:

Spring 2002:  First group of habeas corpus actions by Guantánamo detainees are filed in federal district court for the District of the District of Columbia (DDC) on behalf of Rasul and Al Odah.

7/30/02:  DDC Judge Colleen Kollar-Kotelly dismisses Rasul and Al Odah claims.

3/11/03:  Circuit Court affirms dismissal.

6/28/04:  Supreme Court reverses, holding 6-3 in Rasul v. Bushthat Guantánamo detainees may bring habeas claims in federal court.  In response, the Bush Administration establishes Combatant Status Review Tribunals (CSRTs) as a "substitute" for the courts.

1/21/05:  DDC Judge Richard Leon dismisses Boumediene cases on ground that the detainees have no legal rights to U.S. courts in light of the existence of the CSRTs.

1/31/05:  DDC Judge Joyce Green refuses to dismiss Al Odah cases, holding that the CSRT system is inadequate to address the detainees' rights under the Due Process clause of the Constitution as well as the Geneva Conventions.

Fall 2005:  Congress passes the Detainee Treatment Act of 2005 (DTA), which purports to strip Guantánamo-based habeas corpus claims from federal court jurisdiction, reassigning them entirely to the CSRTs.

6/29/06:  Supreme Court, by a vote of 5-3 (Roberts had recused himself), reverses Circuit Court holding in Hamdan v. Rumsfeld, and affirms principle that DTA cannot be applied retroactively to habeas claims already filed.

Fall 2006:  In response to SCOTUS ruling in Hamdan, Congress passes the Military Commissions Act of 2006 (MCA), which among other things defined the CSRTs as effectively equivalent to habeas proceedings in U.S. courts and once again removed from the courts claims by detainees already determined by CSRTs to be enemy combatants or awaiting such determination (note that challenges to the legitimacy of such determinations are the core issue in another series of cases currently before DDC and the Circuit Court).

2/20/07:  Circuit Court vacates decisions in Boumediene and Al Odah cases, and orders DDC to dismiss the actions based on the (now) superseding authority of the MCA.

4/2/07:  Following a moderately expedited cert. petition process, the Supreme Court refuses to hear the appeals of Boumediene and Al Odah.  Four votes in favor of hearing the petition are required, and only Justices Souter, Ginsburg and Breyer formally dissent from the denial of cert.  Justices Stevens and Kennedy issue a separate statement that gives a small window of hope by asserting that denial now was solely "to permit a prompt resolution of the proceedings below (presumably, the tribunals themselves and the appellate review before the D.C. Circuit Court) before SCOTUS took up the constitutional issues."  Petitioners file a motion for reconsideration of the denial later that month.

6/29/07:  For the first time in recent memory, the Supreme Court reverses itself and grants the petitions for writs of certiorari, thus agreeing to hear the cases.

To put the latter portion of this chronology into a somewhat more narrative context, as Linda Greenhouse of the NYT observed:

The roots of the new case . . . lie in the court’s second-round detainee case, Hamdan v. Rumsfeld, decided in 2006. The court ruled that the military commission system the Bush administration had set up to try enemy combatants for war crimes was fatally flawed because the president had acted without Congressional authorization.

That decision came in an appeal brought by Salim Ahmed Hamdan, a former driver for Osama bin Laden. Mr. Hamdan’s route to court had been by means of a petition for habeas corpus, the traditional route for prisoners to get before a judge to challenge the validity of their confinement.

In its waning weeks under Republican control, Congress responded swiftly to the Hamdan decision by passing the Military Commissions Act of 2006. This new law not only authorized the military commissions — a commission at Guantánamo will begin taking evidence against Mr. Hamdan on Wednesday — but also provided that "no court, justice or judge shall have jurisdiction to hear or consider" further habeas corpus petitions from foreigners held as enemy combatants, at Guantánamo or anywhere else.

Now the question before the Supreme Court is whether that court-stripping action was valid in light of the Constitution’s injunction to Congress not to suspend "the privilege" of habeas corpus "unless when in cases of rebellion or invasion the public safety may require it."

No one disputes that those conditions have not been met. But resolving the challenge to the Military Commissions Act is not as simple as stating that obvious fact.

The Specific Legal Questions To Be Addressed

Questions presented in Boumediene:

  1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
  1. Whether Petitioners’ habeas corpus petitions, which establish that the United  States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

In Al Odah, the questions presented are somewhat more detailed:

  1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause [Article I, Section 9 of the Constitution, which reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."] and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
  1. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
  1. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
  1. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?

The Briefs Before the Court

The firm of Mayer Brown LLP, which helped coordinate matters among the various amici in support of petitioners, has compiled what appears to be a comprehensive brief resource center, with links to all the papers filed by the parties and amici curiae.  The parties' briefs are individually linked here:

Brief for Petitioners Al Odah, et al.;

Brief for Petitioners El-Banna et al. (this is another group of detainees whose claims have otherwise been consolidated with those of Al Odah);

Brief for the Boumediene Petitioners;

Brief for the Respondents (United States of America, Bush, Rumsfeld (now Gates), various Pentagon officials and Guantánamo commanders) (filed jointly for both cases);

• Petitioners' Reply Brief - Boumediene;

• Petitioners' Reply Brief - El-Banna;

• Petitioners' Reply Brief - Al Odah.

As best as I can tell, there were a total of twenty-five briefs submitted as amici curiae in support of the detainees, with four amici in support of the government.  As noted above, those briefs can all be found on the Mayer Brown webpage.  I will leave it to those more expert than I to explain the specific arguments put forth.  (Besides, you're probably getting exhausted from having read so far already.)  I will only briefly summarize the summaries of the briefs.

From Boumediene's opening brief:

The Suspension Clause prevents Congress from abrogating Petitioners’ access to the Great Writ. As a majority of this Court previously concluded, the common law writ known to the Framers ran to territories under the sovereign’s control, regardless of whether they were formally considered sovereign territory.
   --  --  --
Review of CSRT determinations under the DTA does not remotely compare to the protections of the common law writ. Historically, habeas review of executive detention was a speedy and effective means of obtaining plenary judicial consideration of the asserted factual and legal basis for detention, including consideration of the petitioner’s evidence in rebuttal. Unless the custodian satisfied the court that the detention had a lawful basis, the court ordered release.

The DTA process provides none of these protections. . . . Indeed, DTA review is slowed by the fact that its procedural mechanisms are only now being tentatively explored, even though Petitioners are in their sixth year of detention. The DTA is no adequate substitute for habeas corpus.

El-Banna:

[The Circuit Court] says that Congress could repeal the petitioners’ right to habeas corpus because aliens detained outside the area of technical U.S. sovereignty have no constitutional protections whatsoever. In so holding, the D.C. Circuit opinion establishes a broad and far-reaching rule that would allow the Executive Branch to disregard any constitutional restraints on its actions simply by choosing to detain foreigners outside U.S. sovereign territory even in areas where the U.S. exercises complete jurisdiction and control such as Guantanamo. The executive’s exemption from constitutional restraint and from legal review of its actions would not depend on a state of war, or the duration of the imprisonment, or the treatment of the detainees.
   --  --  --
All [petitioners] seek – and have ever sought for the almost six years that they have been detained – is a fair and impartial hearing at which they have the opportunity to confront and rebut whatever accusations there are against them and to present evidence of their own to establish their innocence. They have never had that opportunity, and the MCA would deprive them of it forever.

And Al Odah:

[H]abeas is available to the Guantánamo detainees to enforce the Suspension Clause as a structural limitation on the power of Congress. Just as a Guantánamo detainee in Hamdan enforced a structural constitutional limit on the power of the Executive to disregard a military commission system established by Congress, so a Guantánamo detainee may enforce a structural limitation on the power of Congress to negate the historic judicial remedy of habeas.

The "Long" View

One of the supposed reasons for establishing these extraordinary tribunals and legislatively stripping away one of the most fundamental legal rights dating back to the Magna Carta (if not before) was the fear that habeas claims and related issues would clog up the federal court system.  Yet the proposed solution has proven to be even worse, creating a horrifically entangled and interdependent mess of cases challenging different aspects of the DTA and MCA, and of the conditions of the detentions themselves.  Whatever the court's ultimate ruling in Boumediene and Al Odah, there remains the prospect of years and years of additional litigation (e.g., appeals of CSRT findings as to a detainee's enemy combatant status only after a determination of guilt as to the government's charges).

There is, of course, one way to cut through this Gordian Knot -- simply shut down the facility at Guantánamo once and for all.  The system we have devised is an unholy blot on the Constitution, and a recognition that the right of habeas corpus cannot be withheld for anyone in our custody or control, absent the clear exceptions detailed in the Constitution, is a necessary first step towards restoring our nation's rapidly waning reputation as a defender of human rights.

Originally posted to The Maven on Tue Dec 04, 2007 at 10:23 AM PST.

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