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July 4, 2004 - Second Thoughts

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Note this bit of research here that shows many are rethinking what happened Monday in those Supreme Court rulings.


Civil liberties expert Elaine Cassel reports that this week's three Supreme Court detainee decisions may not be a victory for civil liberties after all.  In fact, she calls the score "Bush 3, Civil liberties 0"--or "game, set, match - to George Bush."

Arthur at Light of Reason feels the same way.  As TChris reported here, law prof Jonathan Turley expresses a similar pessimistic view, writing that the decisions show how imperiled our constitutional system has become.

And from Yale law professor Jack Balkan: "In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives."



Not everyone agrees.

Eric Alterman in his MSNBC column turns things over to UC Davis professor Eric Rauchway and we get this:


I suspect Monday's package of Supreme Court decisions will become known collectively as the "habeas corpus cases," as I believe they're the most significant and sustained rulings on that writ since Milligan, possibly ever.  The bottom line is, the Supreme Court thinks habeas corpus is still pretty darned important -- which is good news for those of you who like freedom better than unfreedom -- and that it applies to pretty much every aspect of government behavior unless the Congress invokes the suspension clause of the Constitution - which it hasn't, yet.

Shorter Hamdi:
The President may or may not have the Constitutional power to bung you in jail; we're not going to address that question because Congress gave him the power to bung into jail people associated with the 9/11/01 attacks.  But even so, if he does that to you, you can sue.

Shorter Padilla:
He sued in the wrong jurisdiction so we're not touching the question of whether he should get off or not.

...Shorter Rasul:
The courts do so have jurisdiction over Guantánamo.


Of course the guy from Davis, California does give much longer explanations that you can wade through if you wish.

His summary?


The Court flinched from ruling on the Nixon-at-war version of presidential wartime powers (if the president does it, that means it's legal) that we have recently seen asserted in various administration memoranda and in briefs on these cases.  It ruled that Congress gave considerable power limited to warring on and apprehending persons associated with the 9/11/01 attacks, and this is good enough to hold people as enemy combatants.  Such detentions are challengeable in court, though by what standard of evidence it's not clear.  Guantánamo Bay too comes under federal court jurisdiction for these purposes.  In other words, the President can do a lot of stuff if Congress lets him and maybe otherwise; the Court won't say), but in all cases discussed today his actions are subject to judicial review.


And, now, his question:


If the Court believes the President's extraordinary wartime powers result from the act of Congress authorizing him to use “'all necessary and appropriate force' against 'nations, organizations, or persons' associated with the September 11, 2001 terrorist attacks," then does the Court perhaps believe that those powers do not apply in Iraq?  What does that mean for persons held at e.g. Abu Ghraib?  As Scalia points out in his dissent in Rasul: "parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws," according to the logic of the majority opinion (with which he of course disagrees).  I don't know the answer here, I'm just asking.


Yep, that is curious.

And over at SLATE.COM we get this –

Taking It to the Trenches
What the Supreme Court's terrorism decisions will mean for the war effort.
Phillip Carter - Posted Tuesday, June 29, 2004, at 1:35 PM PT

Carter’s concern is what this means on the battlefield – as he is a former Army officer who now writes on legal and military affairs out here in Los Angeles.

He notes that these decisions “did not substantially impinge” on the president's actual powers to wage war or on the military's right to take prisoners during war.


But the court did speak to the kinds of procedures necessary to lawfully hold combatants. By levying procedural due-process requirements on the government in Hamdi, the court likely created new requirements for soldiers in the field when they detain prisoners.  It also may have fundamentally changed the way our nation gathers intelligence in the war on terrorism.  And by opening the federal courts to the Guantánamo detainees, the high court may have altered the nature of U.S. detention operations—and created a new means of resistance for detainees in U.S. captivity.


And he explains that in detail.

But he okay with the new restrictions that he sees coming:


The images of shackled prisoners at Guantánamo Bay and naked prisoners at Abu Ghraib have not helped America win many friends in the world, nor have the memoranda from Bush administration lawyers arguing that such tactics are justifiable means to a worthy end.  But in limiting the president's power to detain combatants, the Supreme Court may have taken the most significant step yet toward rehabilitating the commitment of the United States to the rule of law.



Curiously the Los Angeles Times reports that one option the Bush administration is considering in response to Monday's Supreme Court ruling that grants enemy combatants access to US courts is to move hundreds of Guantánamo detainees to prisons on the mainland.  But the most curious part of the Times article is this:


As attorneys for detainees at the U.S. naval base at Guantánamo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, senior administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military's treatment of prisoners in the war on terrorism.

… "They didn't really have a specific plan for what to do, case-by-case, if we lost," a senior defense official said on condition of anonymity.  "The Justice Department didn't have a plan.  State didn't have a plan.  This wasn't a unilateral mistake on DOD's part.  It's astounding to me that these cases have been pending for so long and nobody came up with a contingency plan."


Really?  Well, there was no back-up plan for the possibility that there might be no WMD stuff in Iraq once we got there and took over.  There was no planning for what we might do if we were not greeted cheering crowds throwing flowers.  There was no plan for how the occupation might be done systematically.  These guys aren’t big on contingency planning.

There is a problem with always assuming the best case and saying anyone who doubts you is a fool and a pessimist, if not a traitor.  Optimism is useful.  Bullheaded stupidity is not.

More of the same.

And in my own inbox?

Ric Erickson in Paris, being a fellow born in Canada, who once worked as a journalist in Germany, and now publishes MetropoleParis, raised some questions regarding the whole business of legal detention.


An 'illegal detention' is one that is not legal; the opposite of a 'legal detention.'  The normal state is one where everybody is 'legally free.'  Shouldn't it be, to 'legally detain' anybody, that it be done legally?

If this is not done correctly, why should it be up to the detainee to prove the detention is illegal?  Don't the courts have an obligation to set people free who have been detained illegally?

The question is, does an enemy combatant have those rights? Being an 'enemy combatant' is not, per se, an illegal activity.

You could say all US troops in Iraq are 'enemy combatants.'  Just because US forces kidnap foreign nationals it doesn't automatically mean they are 'enemy combatants.'  Being kidnapped is not the same as a conviction.

And besides, what crime is an 'enemy combatant' committing?  Is there some US law stating that 'enemy combatants' violate some specific US law?

And Justice O'Connor apparently emphasized that there's nothing in the habeas statute that provides these rights only to US citizens.  The statute says "any person" can seek relief.

And damages?  What about damages for illegal detention?

Odd isn't it, how the administration's house of cards is falling apart.  Unilateral declarations of new laws don't work.  What will be the next to collapse?


I don’t know the answer to the last question, but as for the ones that proceed it?

Another friend put it this way.


Yes, in a normal state, every one is free. But war (when and if it indeed exists) is not a normal state, and all three branches of the government have now said that being an enemy combatant is, in fact, per se illegal.  So the question is, when is it illegal and who gets to decide?  There have been various definitions of the term, but by and large an enemy combatant has been defined as one who is engaged in an armed conflict against the US - or one who takes up arms against the US in a foreign theatre of war.  Yes, that means a jihadist sees US GIs, and those who direct them, as enemy combatants as well.  Yesterday the US Supreme Court said the president and members of the executive branch have the authority to declare individuals to be enemy combatants.

Yes, a detention must be done legally if at all - but that begs the question.  What is "legal?”  Who makes the laws?  This is part of the larger debate going on right now, and the US Supreme Court weighed in yesterday to say the courts have an important role in this, and that they are keeping an eye on Doobleyieu.

The habeas laws are not as harsh as you might imagine.  When a person being detained files in court, the judge has the authority to have him brought before him immediately to "inquire" of the detainee.  There's an emphasis on equity and fairness, rather than the strict letter of the law.  It would be inaccurate to say the detainee doesn't have to prove anything - there will be those who will argue he has to prove plenty - but the judge has a tremendous amount of discretion to order the person's immediate release if he doesn't like what he sees.  This has been the law since 1867.  On the whole, habeas law is pretty good stuff.  To be sure, France is where liberté began, but even the French didn't have a presumption of innocence until a few years ago - the Mitterrand years, maybe?  I forget the exact year.  It has served M. Chirac well, in any event.

I think constitutional law is great stuff to contemplate - who makes the laws, who is best suited to make the laws, who is going to keep an eye on whom.  And with tremendous stakes.



Note that under French law, a distinction is made between "détention" and "rétention."  The former refers only to prisons, which are administered by the judicial system and managed by the Prison Authority ("Administration Pénitentiaire").  Only a court can sentence a person to "detention".  But "rétention" is a very different matter.  And that did change in July of 2000 – see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for excruciating details.  You cannot now easily keep folks suspected of nasty stuff locked up for as long as you’d like while you get your paperwork and evidence in order – or at least that’s the general idea in France at the moment.

Well, this not France.  And Rick, the News Guy in Atlanta, doesn’t much like how we over here are handling things -


Is this to say that the President not only has the right to declare someone an "enemy combatant," but also has the sole power to define what it means to be an "enemy combatant"?  Does judicial review not trump that, too?

And if so, as long as the habeas statute remains unchanged by Congress, could not any and all those held at Gitmo, and even elsewhere, argue that their situation doesn't fit some "reasonable" definition of "enemy combatant," which could then be defined by some judge?  (I assume it wouldn't go "back to Congress to rewrite the statute on enemy combatants," since they're not the ones who initiated it, right?)

Way back before 9/11, in the specific cases of INS internment, I'd always assumed that habeas extended to all peoples, not just U.S. citizens, and was shocked when federal courts -- including the Supreme?  I forget -- upheld the government on those.

Gadzooks!  Who knew that those who have sworn to uphold the Constitution have been seeking out, and finding, so many exceptions to having to do it!  The barrage of legal excuses and exceptions to our founding document sound like those of my five year old, explaining why she doesn't have to brush her teeth!  So exactly when was it, in the last 200 some years since we ratified their founding principles, did Americans decide it is okay after all to arrest people and deny them access to a lawyer?

And when did these guys come up with this "enemy combatant" thing?  If it were up to me, any "detainee," whether a citizen or not, would either be a "prisoner of war" and fall under the Geneva Convention, or an accused criminal who has to be either charged with a crime, or else released.


Yeah, that would be nice.

As Rick notes, the Japanese were interned in camps out here on the West Coast during WWII –and I even knew a woman who was one of those there.  This was explicitly authorized by Congress in the "Emergency Detention Act.”  And a friend reminds me the Supreme Court approved something similar when, in 1944, they upheld the conviction of a Japanese man ordered (but who refused) to leave a particular area.  Pesky Asian devils?  Well, the court cited concerns for national security and fear of espionage.  The act was later repealed but the current laws still say that Congress can authorize a person's detention.  So, my friend suggests, the issue is this- is there any CURRENT act of Congress that authorizes the president to detain an enemy combatant?  Did Congress make Bush's actions legal?

Good question.  If you click on the links above you’ll see that in the Hamdi case, the Court this week said yes – that seems legal.  Hey, what did Daschle sponsor and Kerry vote for?  Would that be the Joint Resolution of Congress (September 14, 2001) authorizing the president to use force against (and to detain) any enemy combatant.  “All appropriate actions” and all that.

Kerry still says he doesn’t regret his vote.  He just thinks Bush has no clue as to what is appropriate – in this and in most matters.

But that means that Ric in Paris is off base.  This Hamdi fellow was not “kidnapped” at all.

Rick in Atlanta does raise the issue of just who gets to decide – just who is it that defines who is an enemy combatant?  It seems that congress, the president, and the courts have all come up with definitions, and they all seem to be about the same - a person engaged in or supporting armed conflict with the United States or coalition forces.  But the U.S. Supreme Court is NOT going to allow George Bush to decide who fits the category.

Who then decides?

Legal eagles tell me that, according to an affidavit filed in the federal courts, known as the Mobbs Declaration, Hamdi was a member of the Taliban who was captured after September 11 by the Northern Alliance on a battlefield in Afghanistan.  He was engaged in active battle against the Northern Alliance and surrendered his Kalashnikov at the time of capture.  And if that affidavit is true?  Bingo.  He’s an “enemy combatant” exactly the sort of person that Congress wanted locked up.

But he never got a chance to argue that the military made a mistake, that they got they wrong guy.  He was not allowed to challenge the evidence.  And now he can.

The Supreme Court said – hold on, we have a job here we have to do.  The Court monitors what the chief executive does when he acts with legislative approval.  Heck, that’s what they’re there for, after all.  (Among other things.)  Maybe Hamdi was a relief worker accidentally swept up in the net.  Now he has the right to argue his case, and have lawyer help him do it.

Good news?  Maybe.  Maybe not.

Eugene Volokh of the UCLA law school here argues this is all madness.  He’s worried that all this litigation will become a tactic of warfare – and now soldiers have an obligation to harass their captors with… writs!  He thinks we’re now giving them a cheap and safe way winning, by suing us into paralysis.  These habeas corpus suits thus become one of the enemy's weapons of war.

A reaction here -


Professor Volokh is 100% correct.  The burden of processing and adjudicating a habeas corpus petition from each prisoner is overwhelming.  The paperwork alone would bring our army to its knees.  If that wasn't enough, the prisoners could then deliberately file their habeas corpus petitions in the wrong jurisdiction!  Forcing the Supreme Court to waste weeks of its time on each individual petition!  We cannot allow our army to be defeated, our nation conquered, our loved ones killed, and our pets eaten because our soldiers are unable to leave the courtrooms when enemies attack!

… As the President argued when he began the War For Civilization, America cannot allow basic constitutional protections to its enemies - or its suspected enemies, or potential allies and relatives of its suspected enemies - lest they "use the forums of liberty to destroy liberty itself." 

Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror.  America's one hope is to make certain that Freedom never falls into the wrong hands by curbing Freedom proliferation throughout the globe.


It’s not nice to make fun of UCLA law professors!  Volokh was serious, wasn’t he?


Footnote on the Mobbs Declaration mentioned above:

Dave Ross on CBS radio this week -
Jun 29, 2004: Michael Mobbs - The man with the key to the Constitution!


In this whole discussion about enemy combatants, I've always wondered who decides?  Who decides which combatant is bad enough to get no rights?  I know the President, as Commander in Chief signs the paperwork, but who WRITES UP the charge?

And the Supreme Court decision yesterday answered that question, at least in the case of enemy combatant Yasser Hamdi.

According to the Supreme Court, the only evidence against Hamdi was a "declaration" signed by a defense department official named Michael Mobbs, Special Advisor to the Under Secretary of Defense for Policy.

Mobbs declared that because al Qaeda and the Taliban were hostile forces engaged in armed conflict with the United States, that individuals associated with those groups "were and continue to be enemy combatants."

Lock him up, case closed.

Who is Michael Mobbs?  He is an attorney, fluent in Russian, a specialist in ballistic missiles, once mentioned as the man to get the job that Paul Bremer eventually got, AND -- his boss is Under Secretary Douglas Feith, one of the famous neo-cons.  Feith is the man who decided to make Weapons of Mass Destruction the main reason for the war, who came up with the legal rationale for the torture at Abu Ghraib, and whose office documented the supposed links between Saddam Hussein and Al Qaeda.

And it was in that office that Michael Mobbs decided when Constitutional rights would and would not apply.

Whether Yasser Hamdi is guilty or not, we don't know.  But yesterday the Supreme Court ruled that in making that determination, this country deserved better than Mobbs Rule.


Ross’ radio commentary is usually "Chip Talk" – about computer things and websites.  Now he’s doing political stuff, and is preparing to run for Congress out here on the west coast.

The times are changing.


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
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See the Details page for the relevant citation.

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