US Supremes decide Boumediene: MCA cannot substitute habeas corpus, GTMO under defacto US control

http://www.scotusblog.com/wp/court-gives-detainees-habeas-rights/

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. The Court refused to interpret the Detainee Treatment Act — as the Bush Administration had suggested — to include enough legal protection to make it an adequate replacement for habeas. Congress, it concluded, unconstitutionally suspended the writ in enacting that Act.

The Court also found serious defects in the process that the Pentagon set up in 2004 to decide which prisoners are to be designated as “enemy combatants” — the status that leads to their continued confinement. This process is the system of so-called Combatant Status Review Tribunals. The procedures used by CSRTs, the Court said, “fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

Justice Anthony M. Kennedy’s opinion for the majority in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196) was an almost rhapsodic review of the history of the Great Writ. The Suspension Clause, he wrote, “protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.” Those who wrote the Constitution, he added, “deemed the writ to be an essential mechanism in the separation-of-powers scheme.”

Even though the two political branches — the President and Congress — had agreed to take away the detainees’ habeas rights, Kennedy said those branches do not have “the power to switch the Constitution on or off at will.”

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

In order to adequately understand the relevance of the Court's decision, some background might be helpful:

The Bush Administration's Camp X-Ray regime was designed from the outset to be a kind of legal limbo for detainees there, because of the peculiar status of Guantanamo Bay, which is a US naval base with exclusive jurisdiction, that is nominally still part of Cuban sovereignty. This status is precisely what made it a desirable location for the Administration's detainment and interrogation policies for terror suspects, because they have unfettered control whilst still being "formally" extraterritorial for the purpose of judicial review of its actions there. This effective legal "black hole" has been widely considered by many scholars, and even JAG lawyers, to be a disgraceful attempt to act beyond the law.

Previously, the Court in Hamdan had considered this issue in terms of the Administration's inherent authority to set up special military commissions, and examining their compatibility with the Geneva Conventions, and particularly Common Article 3, as well as the Uniform Code of Military Justice. In Hamdan, the Court determined the Administration did not have such authority without a Congressional legislative regime, and ruled that the existing regime there was in violation of the CA3, the UCMJ and other relevant international law. However, Hamdan was minimalist in that it still left it open to the Administration to seek a legislative regime to adequately authorise the Commissions, with compliant safeguards and procedures, and so the Military Commissions Act was born in response.

The MCA was an improvement on the previous arrangement, (supported by John McCain btw), but hardly by much. It denied the Appeals Court jurisdiction over habeas corpus petitions, and was applied retroactively to existing petitions under consideration, which was widely considered a violation of ex-post-facto principles. It left in place the Combatant Status Review Tribunal which was an entirely arbitrary process. It allowed the regime of indefinite detention without review to continue, and the Commissions themselves still suffered serious defects as to procedural fairness and evidentiary processes which fell well short of the standards accepted at military levels, in terms of Courts Marshal, and accepted international norms - including over matters such as access to lawyers, the discovery process, and the admissibility of evidence procured through torture. There was also very strong evidence that the administration was interfering in the process, and that senior presiding appointees were strongly prejudiced to find convictions at all costs (see below).
http://harpers.org/archive/2007/10/hbc-90001549
http://www.harpers.org/archive/2008/02/hbc-90002460

According to Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal. Colonel Davis’s criticism of the commissions has been escalating since he resigned this past October, telling the Washington Post that he had been pressured by politically appointed senior defense officials to pursue cases deemed “sexy” and of “high-interest” (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. “I concluded that full, fair and open trials were not possible under the current system,” he wrote. “I felt that the system had become deeply politicized and that I could no longer do my job effectively.”

Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions’ bias–a revelation that speaks to fundamental flaws in the Bush Administration’s conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else. When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

In light of these ongoing and serious defects in the Commissions process, the Boumediene decision marks another important step towards justice - winding back the administration's lawlessness. The Court has effectively given the Administration a rebuke in its attempt to replace habeas corpus, and deny jurisdiction over its writ, through the MCA.

In my opinion, the use by the majority of a functional approach to extraterritoriality is very welcome, and can be likened to the way a court, in any Western legal tradition, will "pierce the corporate veil" when someone tries to incorporate as a single director/shareholder simply to avoid their obligations. In law, at the first instance, they may have a company with formally separate legal personality, but the Court is open to make a determination on the substance that this is really a sham device used purely to avoid obligations and liabilities. In my opinion, allowing the indeterminacy of Guantanamo Bay's formal sovereign status to dictate total inaccessibility to the habeas corpus writ, would be to rely on a similar sham, especially given the unique situation of exclusive US jurisdiction there. For the same reasons, it demands a practical and substantive response from the judiciary, not adherence to formalistic dogma. There is no serious question in law that detainees would have such access if they were flown to a military base in Florida, and that is precisely the reason the Bush Administration has resisted calls to close GTMO and move them to US sovereign territory. It seems an obvious absurdity to allow such a polite fiction of Cuban sovereignty to dictate fundamental rights.

So, the Court here has finally remedied the issue in a common sense way, although we don't know whether this functional approach will apply in US military bases beyond GTMO, such as Bagram, or elsewhere. Though it is doubtful the precedent will be as expansive as some conservatives fear.

The dissents in the case came from Scalia J, Thomas J, Alito J and the new Chief Justice Roberts. As the former 3 justices are all reliable apologists for unchecked executive power on the Court, there are no surprises there. However, Roberts CJ has previously demonstrated that he was capable of a close reading of individual cases, and even to stand up against Executive overreach, so I had hoped that he would look at the Guantanamo Bay territorial issue, and the problems with the Combatant Status Review Tribunals, through those eyes. Instead he relied on the dogmatic adherence to GTMO's formal status, used a poor argument about exhaustion of remedies about the CSRTs, and applied a slippery slope fallacy about "unelected judges" interfering with the war on terror. So, I think that aspect of his judgement was pretty disappointing. Needless to say, it's not very heartening to see a learned Chief Justice pandering to the conservative base like that, and resorting to cheap talking points.

As for the majority, Kennedy J, the swing vote on the Court, led the opinion, with Stevens, Souter, Ginsburg and Breyer. The main feature of the decision, apart from the functional territoriality issue, was that it rebuked the running down the clock approach of the Bush lawyers, underlining the 6 year delay that is ongoing in bringing any hearing on the merits, which a dissent would not remedy, and stressing the unsatisfactory nature and reliability of the status determinations made under the CSRTs. Kennedy and the majority did not accept the Attorney General's argument that these were case-by-case defects, rather that inherent structural defects. This is very important, because we've often had a lot of huff and puff about enemy combatants being an accepted notion in military law, under the laws of war, but these arguments typically ignore the status determination requirements under Common Article 3 of the Geneva Convention, and the general international laws that apply to all natural persons.

Anyway, for those reasons the judgement is a rebuke against those who have tried to exclude the status review process itself from the debate, and focus on a false debate about uniformed soldiers, who would be POWs, versus terrorists, who don't wear uniforms, and so have no enumerated rights. All the arguments I've read along such lines, including our own Neil James, of the Australian Defence Association, appeal to the validity of the Enemy Combatant designation at first instance without ever addressing the fact that the determination itself has to be made by a properly constituted court, subject to adequate evidence disclosure and challenge, etc.

In this case, I think the justices in the majority were probably motivated by an underlying unwillingness to allow the Administration an alternative detainee approach which did not apply:

1) The Geneva Conventions, under Common Article 3 protections; or
2) Habeas corpus writ and court access to challenge
with international law principles applying in each case. *

*On that last point, as far as I know, the Court did not actually address the notion that the lex specialis (special law) of humanitarian law could displace other universal human rights law obligations that may still co-exist and supplement the application of special laws, but I am extremely doubtful of the validity of the kind of narrow view adopted by likes of John Bellinger, for the US Office of Legal Counsel, and David Addington, who maintain that lex specialis sends otherwise applicable human rights laws into the void. The immense xenophobic political pressure currently placed on the Court not to cite or argue based on "foreign law" might be the reason for this.

So, the message the Court seems to sending the Administration is that they've had six years to deal with these questions on their own terms, in proximity to the exigencies of 9/11. Before now, the Court, in deference to the Executive, might have been prepared to subjugate the immediate interests of the detainees in a fair and expedient trial, but no longer. It's clear now that the Administration could not or would not establish an adequate and robust system. With the Military Commissions Acts, and the DTA, after Hamdan, they did not create anything that could adequately substitute for habeas corpus, and they certainly did not suspend it validly under the US Constitution (which requires little short of civil war or disaster). The Administration simply relied on the validity of the status review determination, at first instance, which could not be meaningfully challenged by the detainee, and tried to assert a mushy category of "illegal enemy combatant", which was not determined properly, and enjoyed no baseline protection under floor of Common Article 3, and could somehow not enjoy any other rights or protections under civilian, or international law. In this way, they justified detention of suspects, without review, for as long as the overblown rhetoric of the war on terror implies - that is, with no foreseeable end.

There are still many unresolved questions, but this is a very good start.