The fight over habeas corpus is not a normal political battle. These are no longer normal political times. We political activists must understand what we're up against so that we can figure out how to prevail.
This diary became long enough in composition that I'm dividing it into four parts, each a melange of my academic specializations in psychology, political science, law, and wild unsourced speculation. Here today is a primer on suspension of habeas corpus and the constitutional order, focusing on jurisdiction stripping. Tomorrow, I'll look at executive authority. (These were originally one diary, but evidently it's so long that the system won't accept it. Live and learn.)
My plans for Saturday and Sunday won't fit in the intro box, so they're below the fold. Please see Jay Elias's introductory diary and other "Restoring Our Constitution" diaries for much more.
Update: Title changed from "Habeas: 'they fought the law and the law lost', pt. 1" for space and branding considerations. This had been my original choice, anyway.
A bit more on my plans: Saturday, I will review the Military Commissions Act of 2006 in detail. Finally, I will look at a particular document released this past January 18 called the Manual for Military Commissions. This is the actual guideline that will be used to govern such commissions. I want you to see how benign it looks, to see why even good people may be sucked into such an anti-democratic enterprise.
Onto the meat of today's diary:
Other Restoring Our Constitution diaries will have explained what we are losing with these constitutional machinations we focus on this week and why it all matters. My main concern here is how it has happened. How were assassins able to enter the chamber where the Constitution safely rested? How did so many smart, intelligent, fundamentally decent attorneys get sucked into an effort to undermine our constitutional order -- rather than sounding the alarm? I hope to convey today what a lawyer would see when viewing this law: what are the clear signs of danger.
1. Bending our constitutional order until it breaks
One secret of happiness, longevity, and success is not pushing things too far. Most everything has its weak points, its pressure points, its fault lines. Physically, the knees and the lower back are places where even the best magic tricks of evolution left vulnerabilities. So: over the decades you beware of repetitive motion injury to your knees; you don't lift heavy weights using your back. Similarly, within a marriage or a family, you learn that there are lines you just don't cross if you want that your social relationships to survive: the play Who's Afraid of Virginia Woolf? has this as a primary theme.
This is also true of our constitutional system. We know where many of its pressure points are; for the peaceful good of our political culture, we agree not to push them too hard. The radical Bush-Cheney Administration, of course, has made a point of pressing those sore spots as hard as it can. Two such examples involve jurisdiction stripping and executive war powers.
Jurisdiction stripping. It may surprise some people that the Constitution does not require any federal courts beyond the Supreme Court itself. Article III, Section 1 states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Supreme Court has a narrow original jurisdiction to hear cases, mostly involving conflicts between states; by far most of its jurisdiction is exercised to hear appeals from lower federal courts and, where federal law is involved, from state courts. Section 2 states "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The emphasis above is mine -- and Bush-Cheney's. If a federal right exists -- the right to abort a non-viable fetus is one example -- but Congress creates an exception to the jurisdiction of the federal courts to adjudicate claims based upon it and enforce that right, then it is as if that right does not exist. Preventing the courts from hearing the cases they would need to hear to enforce rights is called "jurisdiction stripping".
Jurisdiction stripping has been used, rarely, to limit certain rights of appeal: the number of times prisoners can challenge a conviction, for example, or the ability of those accused of immigration violations to appeal decisions made by lower quasi-judicial agencies. (Neither, by the way, strips jurisdiction entirely; rather, the laws impose limitations on appellate review.) This is, of course, a dangerous approach to take. Without the provision of adequate judicial due process somewhere in the system, it opens the possibility that the government could game the system so as to allow it to violate the law without consequence.
One provision of the Military Commissions Act signed last October strips the federal courts of the ability to hear challenges by accused "enemy combatants" to their incarceration via a writ of habeas corpus. (Habeas corpus in essence asks the court to force the government to either justify why it may hold someone or else release them.) Pushing this pressure point would in the past have been taboo. You may intuitively realize that this is radical, but you may not fully see why a lawyer sees it as radical.
And I think it's worth your knowing why. Here we go.
2. Everybody needs due process sometime
The lodestar of our constitutional system is (or was, or is supposed to be) the existence of due process. If you assert that your rights or liberties are being violated, the government must at least provide you with some fundamentally fair review of your claim. (Here's the case that established that principle with respect to deprivation of government entitlements. As you would suppose, the rules are all the stronger when it comes to deprivation of liberty, and both statutes and courts have established rules about what makes legal procedures fair.) This due process may involve a hearing before someone in the Executive branch rather than a judge, as with immigration cases, but some procedure where rights are respected has had to exist. Until now.
Personally, I never consider jurisdiction stripping to be justifiable, but recent Republican Congresses have disagreed. When they've passed it in the past, it has been justified primarily as a means of reducing what would otherwise be an unbearable logistical burden on the courts, as with the immigrants and prisoner's rights bills noted above. That argument would not apply to a burden the size of a few prisoners in Guantanamo -- unless, of course, we plan to expand the number of people who fall into the enemy combatant category substantially. (Those who think that the suspension of habeas applies to American citizens fear exactly that, but that's a topic for tomorrow.) Let's assume momentarily that jurisdiction stripping was justified as a means of reducing the administrative burden on the legal system. It would still require due process to have been provided somewhere down the line.
Here is the process that the Bush-Cheney Administration was willing to provide people being processed through Guantanamo: Combatant Status Review Tribunals ("CSRTs"). (I strongly suggest clicking through the links in this diary, by the way. Even though it's mostly Wikipedia, there are some great and well-sourced articles there that a layperson can readily understand.) An analysis by a law professor at Seton Hall of these CSRTs came to several conclusions:
- The government did not produce any witnesses in any hearing.
- The military denied all detainee requests to inspect the classified evidence against them.
- The military refused all requests for defense witnesses who were not detained at Guantanamo.
- In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
- In 91 percent of the hearings, the detainees did not present any evidence.
- In three cases, the panel found that the detainee was "no longer an enemy combatant," but the military convened new tribunals that later found them to be enemy combatants.
Especially given that we know that people in Afghanistan were selling hapless victims to the American military for bounty money, this does not give a lot of confidence; the study author said: "These were not hearings. These were shams." Show trials for a solely internal audience.
Does this satisfy the due process requirement, especially for indefinite (potentially permanent) detention? If you said "no," you are (1) right, and (2) not a member of the Bush-Cheney Administration. They thought it was fine.
They claimed, in fact, that the Constitutional protection of habeas corpus did not apply to unlawful enemy combatants, regardless of whether they were American citizens, because they were not protected by the Geneva Convention and were not being held on American soil.
WAIT! Stop reading for a minute. Stop and digest that.
They said, in other words, that if some group of people, without the bare rudiments of fair legal process, decided that you were an "unlawful enemy combatant," there was nothing you or anyone else could do about it, forever. No appeal.
Our leaders said that. The leaders of the United States of America said that.
3. Three strikes, but they're not out
The Administration has been 0 for 3 in Supreme Court cases relevant to this issue. In Hamdi v. Rumsfeld, the Court held that a U.S. citizen found to be fighting against the U.S. but not for a foreign state, an "unlawful enemy combatant," could be detained but had the right to argue their case before a judge. In Rasul v. Bush, also handed down on June 29, 2004, held that U.S. Courts had jurisdiction even over cases of non-citizens held in Guantanamo Bay, even though it is on territory leased from Cuba. Finally, in Hamdan v. Rumsfeld, the Court last year held that the Bush-Cheney Administration's first grudging attempt at establishing military tribunals failed because it did not satisfy the requirement of the Uniform Code of Military Justice that it satisfy the due process requirements of the Geneva Convention.
In Hamdan, the Court determined that the jurisdiction stripping provision in the Detainee Treatment Act, which became effective between Rasul and Hamdan, did not quite apply to Hamdan. That provision read:
[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.
(Isn't that a kick in the head to read, by the way? What the hell are they afraid of?)
The Court reached this result through some fine parsing of the law, based on the notion that Hamdan was being tried before a military commission rather than a court-martial. Had they found otherwise, they would have had to contend with the basic question of whether the statute violated the Suspension Clause:
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.
But they managed to avoid it. This is shocking because the Constitution also provides that which the Supreme Court in Ex parte Milligan (1866) could not happen so long as the civilian court system continued to operate. As you may guess, there are counterarguments (weak ones, in my opinion) available via the links.
The Military Commissions Act, then, was the late Republican Congress's attempt to satisfy the "due process" requirement -- perhaps, maybe. It gestures towards cleaning up the act of the CSRTs, which I'll get into tomorrow, to do something about those horrible statistics above.
It included this language as well:
(f) Status of Commissions Under Common Article 3- A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.
(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
That section (g) is a problem, because in a habeas petition, the Geneva Conventions would be the source of the petitioner's rights. So the petititoner can file a petition, I suppose, but I guess it would be blank.
I include section (f) -- one of the nice provisions in the law -- as well to help you appreciate just how sick the bastards were who thought this up. Taken together, the sections read: "We will follow the rules of the Geneva Convention. But if we don't, you can't complain about it."
Laws mean nothing without their enforcement. And when we're dealing with laws regarding due process, enforcement means the right to appeal. There is no right to appeal here. The box around a prisoner is sealed.
Federal courts have upheld the stripping of its jurisdiction on the basis of this legislation. Judge James Robertson ruled that given the Military Commissions Act he had no jurisdiction to hear Hamdan's own own claim that the law is unconstitutional. (See how that works?) And just over a week ago, by a 2-1 vote, an appellate panel also decided that it had no jurisdiction to hear these arguments to hear these arguments. The case, Boumediene v. Bush, is expected to reach the Supreme Court. If judicial review of these cases is truly blocked, the question then will become who is subject to these commissions, a topic I'll address at length tomorrow.
So Bush and Cheney pushed and pushed and this is what we got. Think of this as a Constitutional lower back injury that prevents our judicial system from standing straight and tall.
Executive war powers: Tomorrow, we'll turn to the knee injury -- or more properly, the argument that Bush and Cheney can cut off our system of checks and balances at the knees. Another of those questions that prudent people have realized ought never have to be nailed down too firmly is exactly what the limits of the President's War Powers are. But the limits on diary size and frequency mean that that is a topic for tomorrow.