Humans Have Rights, Not Just Americans
I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:
In a stunning blow to the Bush Administration in its
war-on-terrorism policies, the Supreme Court ruled Thursday that
foreign nationals held at Guantanamo Bay have a right to pursue habeas
challenges to their detention. The Court, dividing 5-4, ruled that
Congress had not validly taken away habeas rights. If Congress wishes
to suspend habeas, it must do so only as the Constitution allows "” when
the country faces rebellion or invasion.The Court stressed that it was not ruling that the detainees are
entitled to be released "” that is, entitled to have writs issued to end
their confinement. That issue, it said, is left to the District Court
judges who will be hearing the challenges. The Court also said that "we
do not address whether the President has authority to detain"
individuals during the war on terrorism, and hold them at the U.S.
Naval base in Cuba; that, too, it said, is to be considered first by
the District judges.The Court also declared that detainees do not have to go through the
special civilian court review process that Congress created in 2005,
since that is not an adequate substitute for habeas rights.
During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded. There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process. I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce. If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.
Update: Powerline writes:
Justice Scalia characterizes the decision this way:
Today, for the first time in our Nation's history, the
Court confers a constitutional right to habeas corpus on alien enemies
detained abroad by our military forces in the course of an ongoing war.It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.
I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.
Update #2, via the Onion 9/11 issue:
Bush is acting with the full support of Congress, which on Sept. 14
authorized him to use any necessary force against the undetermined
attackers. According to House Speaker Dennis Hastert (R-IL), the
congressional move enables the president to declare war, "to the extent
that war can realistically be declared on, like, maybe three or four
Egyptian guys, an Algerian, and this other guy who kind of looks
Lebanese but could be Syrian. Or whoever else it might have been.
Because it might not have been them."...U.S. Sen. John McCain (R-AZ), one of Congress' decorated war
veterans, tried to steel the nation for the possibility of a long and
confusing conflict."America faces a long road ahead," McCain said. "We do not yet know
the nature of 21st-century warfare. We do not yet know how to fight
this sort of fight. And I'll be damned if one of us has an inkling who
we will be fighting against. With any luck, they've got uniforms of
some sort."...Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.
"We were lucky enough at Pearl Harbor to be the victim of a craven
sneak attack from an aggressor with the decency to attack military
targets, use their own damn planes, and clearly mark those planes with
their national insignia so that we knew who they were," Rumsfeld said.
"Since the 21st-century breed of coward is not affording us any such
luxury, we are forced to fritter away time searching hither and yon for
him in the manner of a global easter-egg hunt."
Josh:
REIN please Coyote! Rein rein rein rein rein rein.
June 13, 2008, 8:37 amMax Lybbert:
June 13, 2008, 9:17 amNASCAR Wife:
While I do not think that combatants captured on the battlefield should have access to our courts, Bush could have avoided all these legal battles by declaring that these people were POWs. POWs can be held for the length of the conflict and do not have access to our civil courts. The resonsing behind the designation of "Enemy Combatant" was to allow wiggle room for the hostile interogation techniques used on these prisoners. The Geneva Convention on POWs outlaws coerrsive interrogation of POWs. Bush and Rumsfeld brought this legal battle on themsleves.
June 13, 2008, 9:17 amMax Lybbert:
Oops. I didn't close my blockquote tag properly.
June 13, 2008, 9:17 amJim Collins:
I don't think that it would be that easy to declare them POWs. A lot of people don't realize that the Geneva Convention really doesn't apply here. The only people that it would apply to are the citizens of Afghanistan and Iraq. This whole mess started in the 70's when it was decided that terrorists would be treated as criminals instead of enemy combatents. This descision was made so that the terrorists wouldn't be legitimized by declaring them combatents.
June 13, 2008, 9:28 amvanderleun:
Solution?
Take no prisoners.
June 13, 2008, 10:06 amJames Barlow:
The UK government have effectively just suspended habeus corpus over here. Most peculiar: in some ways an enemy combatant at Guantanamo Bay now has more rights that a British citizen.
On the bright side, at least I don't have to wear an orange jumpsuit.
June 13, 2008, 10:32 amGabriel Malor:
Warren writes: One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.
The reason many of your readers may disagree is that your conclusions are drawn from incorrect facts. First, the failure of enemies to war uniforms, bear arms openly, etc. is not unprecedented. In fact, the very occurrence of that behavior during the Napoleonic Wars, the U.S. Revolutionary War, and especially the U.S. Civil War led to the codification of prohibitions on that type of activity in the Leiber Code and the Geneva Conventions. It's not unprecedented; it's explicitly addressed in centuries-old legal instruments on the Laws of International Armed Conflict.
Second, the President has made no claim to declare "unilateral war." Operations in Iraq and Afghanistan were started and continue pursuant to grants of authority from Congress, specifically the two AUMFs and continued funding. The term "War on Terror" is a semantic expression of a broader conflict than that which is going on in Iraq and Afghanistan. No Guantanamo Bay detainees were captured pursuant to supposed military authority for a "War on Terror." Rather, they were captured pursuant to military authority granted in either the AUMF 2001 or the AUMF 2002. Those instruments and other Congressional acts (for example, the Detainee Treatment Act and the Military Commissions Act) defined "who this war is against."
As for who is considered a combatant, that question has long been settled under the Laws of International Armed Conflict and the Bush Administration has made no effort to alter that well-settled understanding. What you may be referring to is the distinction between lawful and unlawful combatancy. That is an unsettled area of international law, with no consistent understanding across countries. Moreover, the very few U.S. cases that could provide some precedent for the Bush Administration also have mixed results. In other words, this is a close question, and not one where there is an obvious, "knockout" answer.
June 13, 2008, 10:36 amGU:
"Whether it's a good policy to extend habeas to prisoners of military actions, it's not for the Supreme Court to create new policies. That's Congress's job."
Umm, the Bush Administration & a compliant Congress created a new policy, and the Court ruled that it was unconstitutional. What is wrong with that? Are you an opponent of judicial review?
There is no reason to suspend the writ of HC for POWs at Guantanomo; if they are guilty, charge them, if the government just decided to capture them for no reason, then give a reason or let them go.
June 13, 2008, 10:54 amGabriel Malor:
GU writes: There is no reason to suspend the writ of HC for POWs at Guantanomo; if they are guilty, charge them, if the government just decided to capture them for no reason, then give a reason or let them go.
More than half the problem with this whole damn war is the magnificent ignorance displayed by commentators on issues of international law. GU, these are war prisoners, not criminals. If they are protected by the Geneva Conventions, as many claim, then the U.S. is explicitly forbidden by the GenCons and other international laws from charging them and prosecuting them for their acts of combatancy. It is simply against the law to "charge them" as you claim the Bush Administration should have done. I can't say it any plainer than that and it isn't any more complicated than that. And yet, that hasn't stopped anyone from claiming that they should be "charged" and prosecuted rather than simply held as is required under international laws to which the U.S. is bound.
If they aren't protected by the Geneva Conventions, as others claim, then the U.S. may charge them for the acts which made their combatancy unlawful, but that is a permissive option. It is not a requirement of taking combatants prisoner. This is uncontroversial. In fact, Justice O'Connor wrote about it in her Hamdi opinion, which was widely trumpted as a "crushing blow" to the Bush Administration. Again, that was an example of a whole bunch of people talking about something which they completely misunderstand.
June 13, 2008, 11:02 amGreg:
Forget the legal minutia, word twisting talk. Either human beings (not Americans only!) have natural rights OR their rights are conferred on them from a governing body. For the US government to even entertain the idea that there are certain groups of humans who they can deny these rights to puts them into the latter category. I would have thought Natural Law theory would have a much stronger footing in this country.
It's important to remember, no one is arguing they be let go, simply told why they are being held and given a chance to contest. And yes, even my worst enemy deserves this because he is a human.
June 13, 2008, 11:26 amDKN:
Greg,
Nobody is denying the Gitmo prisoners have human rights, the question before SCOTUS was "what are their *legal* rights". Don't conflate the two. Maybe the legal rights should more closely track what we define as human rights, but that is a policy/moral issue which the court is not constitutionally empowered to decide.
As for being "...told why they are being held and given a chance to contest", they know quite well why they are being held, and it is my understanding there are avenues for them to contest their captivity - a number have, in fact, been released. GU or Gabriel Malor may know more about their legal options; perhaps they could comment?
June 13, 2008, 12:09 pmJim Collins:
So if Gabriel is correct, the Supreme Court just ordered the US to violate international law. Oh that's good. Nothing like setting a precedent for the future, when US military personel if captured can be tried for war crimes, real or imagined. Wait. They don't give our people a trial, they just behead them.
June 13, 2008, 12:35 pmMark:
But the fact is that there are many classifications of "human beings" in a legal sense. And, not every right is conferred even upon "Citizens"....if you want to dispute this claim, ask your 10 year old child who they are going to vote for this election. You will then have you answer to the truthfullness of my beginning statement.
The "prisoners" at Gitmo are Enemy Combatants. They have the rights of an Enemy Combatant. They are not PWs and they are not covered by the Geneva Convention. The Court has always recognized this classification, and it is VERY disturbing that they are confering such rights to Enemy Combatants.
What makes this even more disturbing is that from my perspective a lot of the motivation of these moves is based on "sticking it to the Bush Administration" without regards to very real national security issues involved.
June 13, 2008, 2:18 pmMichael Miller:
... from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.
Its the other way around. The US Supreme Court has itself usurped power over the individual. Please do not assume that a US Federal Court will necessarily protect an individual's rights. Without benefit of a lawyer, face off against a prosecutor before a Grand Jury and you will learn that lesson the hard way. The Supreme Court has just encroached upon the Executive and Legislative Branches. It has also usurped power over foreign nationals who have never set foot on US soil. They Court now claims the power to free these poor innocents because of habeas corpus violations. That is nice, warm and fuzzy. I like the sound of this too. But there is also a flip side. They have also claimed the power to execute them or seize their property or place them in prison. There is always a double edge to this sword. Liberty is not enhanced one iota by the left wing of the Court moving to expand its jurisdiction onto foreign soil. A Court is just as likely to do evil as it is likely to do good. As such, the net result of this feel good move by the left wing of the Court is that far fewer enemy combatants will be likely to survive the rigors of the battlefield. There, habeas corpus will develop rigor mortis all on its own, through the law of unintended consequences. No soldier will want to return home to face civil trials. He or she will simply do a more thorough job on the battlefield. I see nothing to celebrate in any of this. A better solution to this problem needs to be found.
Michael Miller
June 13, 2008, 2:41 pmMax Lybbert:
Responding to me, GU wrote:
(Me): "Whether it's a good policy to extend habeas to prisoners of military actions, it's not for the Supreme Court to create new policies. That's Congress's job."
(GU): Umm, the Bush Administration & a compliant Congress created a new policy, and the Court ruled that it was unconstitutional. What is wrong with that? Are you an opponent of judicial review?
I'm not an opponent of judicial review; and even when the Court makes boneheaded rulings, I think they are legally binding.
My comments were in response to the original post's statement "I don't have enough law background to know if this is truly unprecedented in this way, but what it if is?" If it is truly unprecedented, then the Court is creating a new policy. The definition of "unprecedented" includes "new." If this ruling is truly unprecedented, then the policies Congress and the President inked on paper would actually not have been "new."
(GU): There is no reason to suspend the writ of HC for POWs at Guantanomo; if they are guilty, charge them, if the government just decided to capture them for no reason, then give a reason or let them go.
There are several reasons to hold somebody against their will. For instance, my family may eventually commit me to a mental institution. In that case I wouldn't be charged with a crime, I wouldn't be in the institution for punishment, I wouldn't be considered guilty of anything, and there wouldn't necessarily be a promise that I would ever actually be released. In short, I'd be subject to indefinite detention without trial. And, even if the institution were run by the federal government, I would be unable to file a habeas corpus challenge against my detention because habeas simply doesn't apply in every definition of detention.
In the case of war prisoners (whether its POWs or "enemy combatants" or "unlawful belligerents"), the people are being held mainly to prevent them from returning to the battlefield. O'Conner in Hamdi mentioned this as a fundamental part of war, as basic as firing bullets at the enemy. The Geneva Conventions prohibits the US from punishing POWs for the crime of "being our enemy," and requires them to be released at the end of the war (although the US is definitely allowed to release prisoners before then). It is possible to charge POWs with war crimes, but only in military tribunals. I haven't yet finished reading the decision, but I find it interesting that the decision doesn't appear to be limited to people facing war crimes charges, doesn't appear to limit its application to people accused of being unlawful belligerents, and specifically states that the habeas corpus review will be handled by District Courts and not military tribunals. It does look like from now on, POWs held by the US have the ability to petition for habeas corpus review through District Courts. I'm not sure the District Courts will be happy with the increased workload.
June 13, 2008, 2:41 pmDr. T:
I disagree with the need for habeas corpus. We already gave these non-military combatants and/or terrorists more rights than required. We had the right to execute them immediately after capture if a military tribunal agreed they were attacking our troops or the local population or were actively aiding the enemy. Because the captives might have had information on other terrorists, we kept them alive for questioning. (Mistake #1) We feared attacks if these men were imprisoned locally, so the military brass decided to move them to Cuba. (Mistake #2) Once we realized that the captives had no useful information, we kept them imprisoned in Cuba. (Mistake #3) Now we have an expensive legal mess to deal with.
June 13, 2008, 3:53 pmMichael Miller:
Here are the concluding remarks from the dissents of Chief Justice Roberts and Justice Scalia
Chief Justice Roberts concluding his dissent:
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best†to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers,who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
I respectfully dissent.
-Chief Justice Roberts
Justice Scalia concluding his dissent:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional†test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent.
-Justice Scalia
-My own opinion is that the majority lost control of itself and used this case simply as an opportunity to take a cheap shot at departing President George Bush. This is not one of the great moments in American Jurisprudence. A latter Court and Congress will unfortunately have the knotty task of undoing all the damage this feckless Court has done.
I believe that Scalia is correct. We will regret this impulsive decision down the road. And much sooner than we think.
June 13, 2008, 5:23 pmJames A. Donald:
If you fight a war according to the laws of peace, you lose.
If, on the other hand, you rule your subjects according to the laws of war, you are a despot.
Because of the nature of this war, it is difficult to keep the one from infecting the other.
If people let their concern with human rights or human lives interfere with fighting wars in the most effective way possible, those who have no such concerns will win.
June 13, 2008, 8:49 pmBrad Warbiany:
Max,
"There are several reasons to hold somebody against their will. For instance, my family may eventually commit me to a mental institution. In that case I wouldn't be charged with a crime, I wouldn't be in the institution for punishment, I wouldn't be considered guilty of anything, and there wouldn't necessarily be a promise that I would ever actually be released. In short, I'd be subject to indefinite detention without trial. And, even if the institution were run by the federal government, I would be unable to file a habeas corpus challenge against my detention because habeas simply doesn't apply in every definition of detention."
Max, first let me say that your use of the term "eventually" is foreboding!
But there are a few flaws in this analogy. If you are committed to a mental institution, the institution will likely need to evaluate you and actually conclusively diagnose that you're indeed crazy. And if you're not crazy, I would expect that you have some legal recourse to seek a second opinion, or prove your sanity, and then would be released. If there are no legal methods for you to "appeal" your status, would you not consider this to be "kidnapping"? It doesn't mean that you will be let go if you are, indeed, proven to be crazy. But there should be a burden of proof and legal method under which you can contest the diagnosis. Whether the challenge would be called "habeas corpus" is immaterial, there would undoubtedly be a way for you to challenge your detainment.
These prisoners are not afforded any of that. They do not have ANY way to challenge their status.
Thus, the analogy is false.
June 13, 2008, 10:23 pmMesa Econoguy:
The quick legal take is this gives any foreign combatant access to US courts.
That’s bad.
The other take is this prevents something from happening which never happened. And it will probably allow foreign parties to influence US sovereignty.
That’s bad, too.
This is a very poorly reasoned opinion, without consequence to those reasoning it…
June 13, 2008, 11:29 pmBruce Hall:
First, you must understand that you are dealing with lawyers and that law is not about truth, justice, or right and wrong. Law is what judges declare to be valid.
Second, you must understand that this only applies to foreign combatants captured by U.S. troops, not by our allies, even if U.S. troops may be involved in the operations.
Third, the question of whose law applies in a foreign country is still open for resolution.
For now, a simple "work around" would seem to be that any U.S. military operation in the Middle East should include foreign nationals of that country. Any enemies captured in or out of uniform would been deemed captured by the foreign nationals and subject to the laws and interrogation methods of that country. U.S. forces could "observe" interrogations and glean any intelligence that might come out of such interrogations.
While this does not address suspects caught in the U.S., there are more than enough elsewhere.
June 14, 2008, 9:48 ammarkm:
Scalia was ignoring one salient fact when he wrote: "Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."
A good many of the Gitmo prisoners were not captured by our forces - they were sold to our forces by bounty hunters. There is no reliable evidence that they were ever combatants, enemy or otherwise.
June 14, 2008, 12:33 pmMax Lybbert:
/* These prisoners are not afforded ... ANY way to challenge their status.
*/
I've finally read the opinion. The five who voted for extending the right of habeas corpus to Guantanamo (and the three of those who signed a second opinion saying "sure, it's unprecedented to declare a Constitutional right covering enemy combatants during an ongoing war, but that's only because Congress changed the statutory right to habeas corpus after the time we made the unprecedented ruling that a statutory right covered these guys") made a big deal about the fact that some people have been detained for six years, and as nobody knows how long the war will go on, nobody knows how long they may continue to be detained. And they make the same point -- that these guys need some way of challenging their detention.
But then along comes Chief Justice Roberts to set the record straight. The law that the five judges declared unconstitutional (1) provides a way to challenge the detention, (2) has existed for 2 1/2 years (after the Supreme Court decided these prisoners were not getting due process), and (3) the people bringing this case made a strategic decision to NOT challenge their detention with the law Congress passed 2 1/2 years ago so it's odd that the Court is wringing its hands that these guys may have not yet "been able to challenge their detention."
Roberts even goes on to suggest that the due process the DTA existed to provide may well include habeas corpus. "May well" because every opinion about Guantanamo Bay prisoners has declared these guys have some rights, but fails to list which. Even this opinion implies that the habeas right these prisoners have may not be a full habeas right. One reason the majority opinion didn't like the DTA was that it limited what the District Court was allowed to consider when reviewing cases where the prisoner challenged his detention. One of the cases used as proof that POWs may have habeas rights was ex parte Quirin; but the opinion admits that habeas review in Quirin was limited. I find it interesting that the limits from Quirin sound almost identical to limits in the now-unconstitutional DTA.
Point being that (1) Congress provided a way for these guys had a way to challenge their detention, (2) if their cases were strong enough to survive the DTA then these detainees would be free today, and (3) assuming that the Court is right and these guys already had a habeas right (as the Court is not allowed to create new laws, only say what the law already is) then they would still have had that right after trying for release under the DTA.
Additionally the Court's opinion cites several cases where a POW petitioned for habeas but habeas was denied, but the opinion does not contain any example of a case where a POW was released due to filing the writ. The Court uses this as proof that these guys have the ability to petition for habeas, but it doesn't sound like they've got much of a chance if they go that route. Especially given Hamdi's decision that the AUMF legally authorizes the military to take prisoners.
If the Court chips away at the military's ability to take and keep prisoners, I strongly expect the military to adopt a "take no prisoners" approach when possible. I'm really not sure if the world is better or worse because of this opinion.
June 14, 2008, 3:35 pmGU:
In disagreeing with me, Gabriel Malor wrote:
"More than half the problem with this whole damn war is the magnificent ignorance displayed by commentators on issues of international law."
and
"Again, that was an example of a whole bunch of people talking about something which they completely misunderstand."
Timothy Lynch at Cato seems to agree with my view--not exactly an "ignorant" commentator. Here is a podcast where he discusses the decision:
http://www.cato.org/dailypodcast/timothylynch_scotusgivesdetaineesadayincourt_20080614.mp3
June 14, 2008, 4:20 pmstan:
A large majority in Congress, guided by previous Supreme Court decisions, enacted a procedure for enemy combatants held in Gitmo to appeal their detention through appropriate tribunals. The president signed the bill.
Those held at Gitmo chose not to avail themselves of this procedure. So the Supreme Court decided to give the detainees unprecedented rights.
Warren thinks this is great news. Perhaps he has an incomplete understanding of the facts?
The Supreme Court's decision aggregates for itself war fighting powers which properly belong to the executive and legislative branches. For more, see Beldar's posts of 6/12, 6/14, and 6/15 http://beldar.blogs.com/beldarblog/
Note that the majority opinion even admits that they are making up a right never found in the Constitution before. As the dissent notes, there is a case precisely on point which they ignore.
Beldar's post of yesterday (6/14) specifically addresses the error in Warren's understanding of the facts and law.
June 15, 2008, 10:12 amChris:
Members of the United States armed forces have no right of habeas corpus under the UCMJ. They are not subject to civil courts, they are under the jurisdiction of military tribunals (courts martial). This ruling has granted enemy combatants (unlawful combatants, at that) more rights than U.S. soldiers.
Square that circle.
June 16, 2008, 5:39 am