Much has been written lately regarding the writ of habeas corpus and the Military Commissions Act of 2006. Unfortunately, a fair amount of that has been wrong to varying degrees on the law although the sentiment has been correct. In this diary I will give you a summary of the law, clarify the issues, and predict whether SCOTUS will accept habeas petitions post-MCA (they will). Also, I will give you some helpful resources for the non-lawyers who write on legal topics. Read on until your eyes glaze over:
The issue arises, of course, because many if not all of the Guantanamo detainees were being held without any judicial review whatsoever (or any review by anyone that we know of), and the legal mechanism for challenging unlawful detention absent trial and appeal is the writ of habeas corpus. In a series of three cases (
Rasul,
Hamdi and
Hamdan) before the court on the writ, SCOTUS addressed and clarified the rules pertaining to status, detainment and later trial. Congress responded with the
Detainee Treatment Act of 2005 and the
Military Commissions Act of 2006 and purported to strip the court of habeas jurisdiction. With that broad history, a
Congressional Research Service paper (at p26) states the broad question nicely:
One of the most interesting and perplexing features of federal habeas involves the question of Congress' authority to restrict access to the writ. The Constitution nowhere expressly grants a right of access to the writ, although it might be seen as attribute of the suspension clause or the due process clause or both. Yet the suspension clause says no more than that "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," U.S. Const. Art.I, §9, cl.2. And the due process clause speaks with an equal want of particularity when it declares that, "no person shall be . . . deprived of life, liberty, or property, without due process of law," U.S. Const. Amend. V. Balanced against this, is the power of Congress to "ordain and establish" the lower federal courts, U.S. Const. Art. III, §1; to regulate and make exceptions to the appellate jurisdiction of the Supreme Court, U.S. Const. Art. III, §2, cl.2; to enact all laws necessary and power to carry into effect the constitutional powers of the courts as well as its own, U.S.Const. Art. I, §8, cl.18; and at least arguably the power to suspend the privilege to the writ in times of rebellion or invasion, U.S. Const. Art. I, §9, cl.2.
The first thing to understand, and this has caused many diarists to go wrong, is that potential jurisdiction regarding the writ of habeas corpus comes in two flavors: statutory (set by Congress) and constitutional (the Constitution).
As noted above, the Constitution did not create the federal trial and appeal courts or specify their jurisdiction. Congress did. And if there were any doubt in our context about that, in the 1807 case of Ex parte Bollman SCOTUS (Marshall) held that the power of the federal courts to issue the writ was limited to the authority vested in them by statute - they had no common law or inherent authority to do so. Modern writ practice (expansive, to include post-conviction and state review as opposed to the Colonial period's review only where one was being held without trial and bail) traces its roots to an 1867 act of Congress passed to provide remedies for problems occasioned by the civil war. There has been an ebb and flow to the scope and relief afforded by the writ ever since - but that ebb and flow has been largely defined by Congress.
So the point is that Congress controls statutory habeas relief. And, when it does so in the Detainee Treatment Act or the Military Commissions Act there is really little argument that it has the Constitutional authority to do so. Nor, contrary to one diary, did SCOTUS slap down Congress for trying. Rather, in Hamdan the court simply ruled that Congress did not intend for the Detainee Treatment Act to strip the courts of statutory jurisdiction over pending cases, and so it heard Hamdan, which was then pending. SCOTUS did not rule on its ability to hear cases filed at some later point.
What then of SCOTUS's constitutional or inherent jurisdiction?
Frankly this part of the discussion is difficult and complex, even for a lawyer (for a detailed discussion see the references provided below) so let me just summarize: As noted previously, the Constitution (the suspension clause) clearly implies the writ exists and will continue to exist. But such cases are not expressly provided for in the grant of original jurisdiction to SCOTUS laid out in the Constitution (one diary thought so, but that is incorrect). Nevertheless, it is clear that SCOTUS believes it has original, Constitutional, jurisdiction to entertain a petition for the writ and to issue it (in other words, you file directly in the Supreme Court). In fact, SCOTUS lays out its rule for doing so in its Rules of Court (Rule 20(4)). The Court has done its level best to avoid actually deciding this question in the past despite it having been raised, but there is enough tangential precedent and dicta for one to conclude that SCOTUS believes it has, and will exercise, original jurisdiction over habeas petitions in our context. I firmly believe it will do so here.
Could the DTA and MCA be read to constitute a Congressional suspension of the writ as the Constitution permits? In short, no I don't think so. Congress didn't say it was suspending the writ and I think SCOTUS would require a clear and unambiguous exercise of that power. That argument would be brushed aside quickly and the frankly, the administration wouldn't even make it.
In summary, there is little doubt in my mind that if SCOTUS wants to entertain a habeas petition it can, and will, do so despite the language of the DTA and the MCA. And in this regard, as to vote counting, you should note that in Hamdi Scalia was one of the more vocal justices in favor of not only permitting the writ (he joined with Stevens, now that's a pair), but he would have required a full blown Art III trial for Hamdi (Hamdi was a citizen of the US though and that makes some difference) or suspension of the writ by Congress (his dissent is worth reading and would be recommended at DKos if in anonymous diary form).
In concluding this discussion there are several things you need to keep in mind. First, make the distinction between holding an enemy combatant (regardless of classification, I use prisoner of war and combatant in this diary loosely for clarity although there are distinctions) and the level of process that is afforded a prisoner of war to challenge that determination, and the process that is due someone who is being tried for war crimes. They are wholly different animals.
As to the former (status), there is very little process that is due and they may be held until the cessation of hostilities.
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.
<snip>
At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.
Rasul v. Bush
For an analogy in this regard, just think of WWII - we held some 425,000 German POWs here in the States and they didn't get Art III-like "trials" to contest whether they were legitimate POWs. The post-WWII Geneva Convention has changed that aspect of detention little if at all. As a result, as a practical matter, I think that aspect of this case is done and SCOTUS won't change anything Bush is doing in that regard writ or no writ (it's always possible they might review a particular case though). At some point, if Congress doesn't act there may be litigation whether there has been a cessation of hostilities, but not now (and the plurality in Hamdi intimated they would be open to deciding an end point if the rules needed to be changed because the GWOT may exist "forever").
As to the latter (war crimes) there is a fair amount of process that is due and the court would likely accept a challenge to a MCA war crimes conviction because:
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a 'regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.' 6 U. S. T., at 3320 (Art. 3, 1(d)). While the term 'regularly constituted court' is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines `regularly constituted' tribunals to include 'ordinary military courts' and 'definitely exclud[e] all special tribunals.'
And Stevens also notes:
Another striking feature of the rules governing Hamdan's commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, 'would have probative value to a reasonable person.' §6(D)(1). Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses' written statements need be sworn. See §§6(D)(2)(b), (3). Moreover, the accused and his civilian counsel may be denied access to evidence in the form of 'protected information' (which includes classified information as well as 'information protected by law or rule from unauthorized disclosure' and 'information concerning other national security interests,' §§6(B)(3), 6(D)(5)(a)(v)), so long as the presiding officer concludes that the evidence is "probative" under §6(D)(1) and that its admission without the accused's knowledge would not "result in the denial of a full and fair trial." §6(D)(5)(b).43 Finally, a presiding officer's determination that evidence "would not have probative value to a reasonable person" may be overridden by a majority of the other commission members. §6(D)(1).
And at the end of the opinion, he again suggests the basic principle that Hamdan could be held as a prisoner of war, but if he is to be tried for a war crime:
It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.
Hamdan v. Bush (emphasis added).
I doubt that SCOTUS will hold the general process laid out in the MCA is flawed if raised because Congress pretty much took the UCMJ as the basis for the trial, but it might, in a particular fact-specific case where there was a conviction obtained with coerced or secret evidence egregious enough to shock or concern the court. In fact, given the language in the opinions I feel certain they would do so.
Lastly, obviously it is entirely appropriate for non-lawyers to write diaries on legal questions, and in some cases better because we lawyers can get stuck looking at legal trees and not see the policy forest. But when you analyze the law please do so bearing in mind that lawyers spend at least three years in law school and then most of our life practicing what we learn. It isn't easy or obvious and so you might easily miss things like the distinction between statutory and constitutional habeas relief, which is important. There are three decent resources (I've left out Wikipedia because it isn't doing a good job in my view on some of the more contentious issues) before you write (and I used them extensively for this diary): the Congressional Research Service provides decent summaries on timely topics including this one, and the annotated Constitutions provided here and here also are excellent resources for laymen. And by the way, I make this suggestion with humility not pretension because even I have some trepidation that a law school professor who teaches this stuff or lawyer who practices in this area will come along to point out my "definitive" summary and prediction is wrong. Heh.