Some Hints From The Supreme Court
The case of Gitmo detainees' right to habeas corpus was argued before the US Supreme Court last week, and an editorial in today's Los Angeles Times gives some hints as to how the various justices viewed the arguments.
First, however, a bit of background on this most basic of rights. Habeas corpus developed first in England nearly a thousand years ago when the aristocracy forced the king to agree to stop unlimited detentions of Englishmen without charge. The upshot was that in England, and then later the US, the government cannot simply imprison citizens without telling them the reasons they are being held and giving them an opportunity to challenge those charges. The right to habeas corpus is not universal, although clearly it should be. Many countries do not recognize it. Now, back to the case.
Last week, the Bush administration's lawyer tried to convince the Supreme Court that the 300-some remaining detainees might as well be in Egypt or Poland because Congress has excluded Guantanamo from the reach of a federal statute authorizing prisoners to seek their release by using the ancient writ of habeas corpus. Fortunately, a majority of the justices seemed skeptical of that claim. Even without a statute, prisoners held in the United States have access to habeas under the Constitution, which says that Congress may suspend the writ only in cases of rebellion or invasion. More important, as Justice Ruth Bader Ginsburg noted at last week's argument, the court ruled in the 2004 case of Rasul vs. Bush that Guantanamo was under the "exclusive jurisdiction and control" of the United States.
But Ginsburg, who was sympathetic to the detainees, raised a question that also concerned pro-administration justices and that highlights the stresses on traditional American liberties created by the unending, borderless war on terror. She asked Seth Waxman, the detainees' lawyer, if he would concede that "if they were in, say, Germany, that these detainees would have no access to habeas, no access to our courts?" Waxman, wary of a trap, replied that it would depend on whether the prisoners were being held by the United States or Germany. Justice Antonin Scalia then engaged Waxman in an argument over whether there was precedent in either English or American law for granting habeas "to an alien in a territory that was not under the sovereign control of the United States or England."
Scalia said no. But Scalia has been wrong before, and a brief filed by a group of legal historians noted that English courts in India could consider habeas applications from Indians even at a time when India wasn't sovereign British territory. The key factor was whether "the jailer ... was operating under the Crown or a Crown-charted organization."A majority of the justices seem to agree. In the Rasul case, Justice John Paul Stevens wrote for the court that "the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.' " ...
The situation in Guantamano is manifestly unconstitutional. But would the predicament of those held there be any less unjust if they were being held in a prison in Egypt or Poland? We don't think so. On Friday the high court agreed to hear the appeals of two U.S. citizens of Arab descent held by the U.S. military in Iraq. American courts should offer a similar avenue of appeal to foreigners in American custody, wherever the jail. [Emphasis added]
If the Supreme Court follows the clear meaning of the US Constitution and their own reasoning in the Rasul case, and there were hints that a majority might, then that section of the Military Commissions Act which deprives detainees at Guantanamo Bay of habeas corpus and deprives the federal courts of jurisdiction to review the detentions will be nullified. The detainees will be able to challenge their detention and to see the evidence the government is using to justify the detention. Obviously this administration, which prizes secrecy so very much, will be hard pressed to continue holding these "terrorists" without revealing "state secrets," at least to the judge hearing the writ.
In other words, the detainees have to be given one of the most ancient of civil rights.
May it be so.
First, however, a bit of background on this most basic of rights. Habeas corpus developed first in England nearly a thousand years ago when the aristocracy forced the king to agree to stop unlimited detentions of Englishmen without charge. The upshot was that in England, and then later the US, the government cannot simply imprison citizens without telling them the reasons they are being held and giving them an opportunity to challenge those charges. The right to habeas corpus is not universal, although clearly it should be. Many countries do not recognize it. Now, back to the case.
Last week, the Bush administration's lawyer tried to convince the Supreme Court that the 300-some remaining detainees might as well be in Egypt or Poland because Congress has excluded Guantanamo from the reach of a federal statute authorizing prisoners to seek their release by using the ancient writ of habeas corpus. Fortunately, a majority of the justices seemed skeptical of that claim. Even without a statute, prisoners held in the United States have access to habeas under the Constitution, which says that Congress may suspend the writ only in cases of rebellion or invasion. More important, as Justice Ruth Bader Ginsburg noted at last week's argument, the court ruled in the 2004 case of Rasul vs. Bush that Guantanamo was under the "exclusive jurisdiction and control" of the United States.
But Ginsburg, who was sympathetic to the detainees, raised a question that also concerned pro-administration justices and that highlights the stresses on traditional American liberties created by the unending, borderless war on terror. She asked Seth Waxman, the detainees' lawyer, if he would concede that "if they were in, say, Germany, that these detainees would have no access to habeas, no access to our courts?" Waxman, wary of a trap, replied that it would depend on whether the prisoners were being held by the United States or Germany. Justice Antonin Scalia then engaged Waxman in an argument over whether there was precedent in either English or American law for granting habeas "to an alien in a territory that was not under the sovereign control of the United States or England."
Scalia said no. But Scalia has been wrong before, and a brief filed by a group of legal historians noted that English courts in India could consider habeas applications from Indians even at a time when India wasn't sovereign British territory. The key factor was whether "the jailer ... was operating under the Crown or a Crown-charted organization."A majority of the justices seem to agree. In the Rasul case, Justice John Paul Stevens wrote for the court that "the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.' " ...
The situation in Guantamano is manifestly unconstitutional. But would the predicament of those held there be any less unjust if they were being held in a prison in Egypt or Poland? We don't think so. On Friday the high court agreed to hear the appeals of two U.S. citizens of Arab descent held by the U.S. military in Iraq. American courts should offer a similar avenue of appeal to foreigners in American custody, wherever the jail. [Emphasis added]
If the Supreme Court follows the clear meaning of the US Constitution and their own reasoning in the Rasul case, and there were hints that a majority might, then that section of the Military Commissions Act which deprives detainees at Guantanamo Bay of habeas corpus and deprives the federal courts of jurisdiction to review the detentions will be nullified. The detainees will be able to challenge their detention and to see the evidence the government is using to justify the detention. Obviously this administration, which prizes secrecy so very much, will be hard pressed to continue holding these "terrorists" without revealing "state secrets," at least to the judge hearing the writ.
In other words, the detainees have to be given one of the most ancient of civil rights.
May it be so.
Labels: Guantanamo Bay, habeas corpus, Supreme Court
posted by Diane at 4:16 AM
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