From Newsgroup: alt.society.civil-liberty

The Bush Administration claims to have the power to declare any person
an "enemy combatant," and subsequently to imprison him indefinitely. This unprecedented doctrine has no Constitutional basis, and carried to its
logical conclusion would allow the President to incarcerate any person at
any time. In Rasul v. Bush, the Supreme Court is going to have its first
chance to rule on the issue of whether courts have jurisdiction to rule on
the issue of whether aliens captured abroad and held at the US military base
in Guantanamo Bay can be incarcerated under such circumstances. The Center
for Constitutional Rights brought the suit on behalf of two UK citizens
(Shafiq Rasul and Asif Iqbal) and one Australian citizen (David Hicks) held
at Guantanamo. Because none of the prisoners at Guantanamo is allowed
contact with lawyers or anyone else on the outside, the Center for Constitutional Rights brought the suit without their knowledge. It did not
name any of the Afghans, Pakistanis, or Saudis at Guantanamo as plaintiffs.
If the Supreme Court rules in favor of the plaintiffs, they will not automatically win the suit. Although jurisdiction is closely intertwined
with the other procedural issues of the case, the narrow issue is whether Federal courts have jurisdiction to rule on the petition for writ of habeus corpus filed on behalf of the three prisoners named as plaintiffs. Only if
the Center for Constitutional Rights wins in the Supreme Court will the case
be remanded to the District Court, and only then will the District Court
rule on the other procedural issues and on the merits of the petition.
The Bush Administration originally coined the term "enemy combatant" to avoid referring to Al Qaeda and Taliban prisoners as "POWs." The
Administration first publicly used the term "enemy combatant" several days after it had announced that the Geneva Convention doesn't apply and that it would devise a term other than "POW." Despite the lies Bush and his
appointees have told in recent months, the term never had legal significance before.
At the oral arguments the 4th Circuit Court of Appeals (jurisdiction
over Virginia, West Virginia, Maryland, and the Carolinas) heard in Hamdi v. Rumsfeld, a separate case involving an American citizen captured in
Afghanistan and now being held at Guantanamo, the government's attorney equivocated on the issue of whether only Yasir Esam Hamdi and alleged dirty bomb plotter Jose Padilla were enemy combatants, or whether the term encompasses some or all of the noncitizens captured in Afghanistan. Although speeches, press releases, and statements made at press conferences carry no legal weight, it is very telling that Pres. Bush, National Security Advisor Condoleeza Rice, and Defense Secretary Donald Rumsfeld have each flip
flopped between several different definitions of "enemy combatant:" All the prisoners captured in Afghanistan, a subgroup of the prisoners from Afghanistan, and American civilians being held indefinitely on a military
base.
The Fifth Amendment states that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in jeopardy
of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without
just compensation." The plaintiffs have clearly not received any "process of law" whatsoever, much less the "process" that is due to a prisoner. There
has been no warrant, no grand jury indictment, no trial, no jury, no judge,
no magistrate, no limits on the conditions or length of their confinement.
If one were to accept that the hostilities in Afghanistan are warfare despite the absence of a declaration of war, one could argue that the
prisoners are POWs, but the courts are not likely to call the prisoners
POWs, as this is something that the Bush Administration has declined to do. (The fact that the Geneva Convention does not apply does not necessarily
mean that a prisoner purported to be fighting with enemy is not a POW. POWs
had already been captured and held for thousands of years before
ratification of the Geneva Convention, and the military could have announced that it would handle the POWs as if they were entitled to the protections of the treaty.)
The Supreme Court has never heard a case of this sort. Ex Parte Quirin (1942) is sometimes cited in favor of the Administration's position, but
this is a weak argument. The facts in Quirin were vastly different from
those in this case. The plaintiffs in Quirin were a team of SS sabateurs. In Quirin, attorneys for the plaintiffs not only failed to deny that the
prisoners were fighting as part of an enemy army, but their lawyers
explicitly admitted they were. (Their attorneys planned to use the Nuremberg defense at trial: Their clients were soldiers who were simply following
orders. Denying the saboteurs were from the SS would have impaired their use
of this defense.) The Center for Constitutional Rights maintains that the plaintiffs had never been members of Al Qaeda or the Taliban and that they
are innocent civilians. Unlike the present case, the conflict in Quirin was
a declared war. Operation Enduring Freedom and the assorted operations
against Al Qaeda militias are not a declared war and do not have a clearly defined enemy.
In Hamdi v. United States and a somewhat similar suit brought on Jose Padilla's behalf, the Bush Administration argued that a suit may not be
brought by lawyers without the client's knowledge unless the client is
already retaining counsel. Although not impossible, it seems unlikely the Supreme Court will accept this argument.
The Bush Administration is arguing that the Federal Government does not hold sovereignty over Guantanamo. The Federal Government has occupied the
base since the end of the Spanish American war, and neither Castro nor
Batista ever exercised control over it. The Bush Administration's lawyers
cited the Lease Agreement (1903) under which the area was nominally under
the sovereignty of a now defunct regime. According to the Solicitor General'
s brief, in he Lease Agreement allowed the Federal Government to station military personnel in the area and exercise all of the rights associated
with sovereignty, except that all commercial and industrial activities were prohibited for the duration of American occupation. Although the Lease Agreement authorized the Cuban Government to compel all American troops to leave the area, such a demand would have been ignored, and in practice the Federal Government did have the option of allowing business activities in
the area. The Lease Agreement was renewed in 1934. The Administration's argument depends on the notion that it is de jure sovereignty, rather than
de facto sovereignty, that gives Federal courts jurisdiction. It also
assumes that the Communist regime, which has never had or attempted to gain control over Guantanamo, nevertheless inherited sovereignty from a
predecessor regime.
At least some Justices are likely to accept it if they are convinced
that it is the best ground they have to rule in favor of the government. Johnson v. Eisentrager (1950) involved several Germans were captured in
China. They were allegedly German soldiers who continued fighting under Japanese command after Germany surrendered in 1945. In their original complaint, lawyers for the Germans conceded that they were military
personnel who fought for Germany until May 8, 1945 (after Germany
surrendered), but later amended the complaint to allege that they were civilians. In Eisentrager, the Supreme Court stated that "Their exact affiliation is disputed, and, for our purposes, immaterial." It then went on
to hold that citizens of any belligerent at war with the United States are "enemy aliens," regardless of whether or not they are working for the government in question and regardless of whether they are military or
civilian personnel. Although the Court reversed on the grounds that
nonresident enemy aliens have no have no right to access to American courts,
it was not at all clear that the ruling applies to prisoners who are not
POWs and are transported into the United States after capture. The Court heavily emphasized that the prisoners had never been transported into the United States and had not entered the US at any time before capture. The dissenters (Justices Black, Douglass, and Burton) faulted the court for
making its decision hinge on where the government chooses to confine the prisoner seeking a ruling. The Court inappropriately ruled on several issues not necessary to issue a judgment. Among other things, it held that resident enemy aliens have the same access to the courts as do other resident aliens insofar as it does not hamper the war effort. Notwithstanding how the
justices hoped lower courts would construe Eisentrager, all of the examples
the court gave of how lawsuits might interfere with a war involved the litigation process itself, rather than the actual relief sought. If the plaintiffs named in the Center for Constitutional Rights' case have the same access to the courts as resident enemy aliens, the courts should insist the government demonstrate that the process of litigation would somehow hamper a war effort; interpreting Eisentrager otherwise would enshrine the justices' personal desires into law by reading between the lines to deduce the politically motivated outcome from the otherwise apolitical Eisentrager
ruling.
When arguing the case to the appeals court for the DC Circuit, the
Center for Constitutional Rights argue
that it was the charges brought
against the plaintiffs in Eisentrager that made them "enemy" aliens. CCR's lawyers argued that the absence of charges means that the prisoners are not enemy aliens. In making this argument, the lawyers misrepresented the
history of the use of the term "enemy alien" in a legal context and, in the process, may have wasted an opportunity to persuade the Supreme Court to finally overturn a harmful precedent.
The case that formed the basis of the Court's "enemy alien" label is Korematsu v. United States. That was the infamous case in which the Supreme Court upheld the internment of American citizens of Japanese ancestry. With
the possible exceptions of Dred Scott v. Sanford (right to bring slaves to
free territories if not to sell them there) and Plessy v. Ferguson (separate but equal), it comes closer than any other ruling to being universally condemned by all Americans. If it overturns Korematsu, the Court would
probably attract some hostility, as it always does when it takes a firm
stand in favor of the Constitution, but would probably weather the storm without suffering any reduction in its jurisdiction or funding.
Perhaps CCR's lawyers should have instead told the district court and the appeals court that it is not clear whether the present conflict is an undeclared war and that the enemy is not clearly defined as it was in WWII.
A declaration of war defines the enemy, preventing situations in which it is unclear which aliens are enemy aliens and which are not.
The Taliban is certainly one of the enemies in the conflict, although it has not gained diplomatic recognition. This probably means that everyone in
parts of Afghanistan that were controlled by the Taliban prior to September
of 2001 are enemy aliens, but the Taliban never gained sovereignty over the Northeastern region, a Northern Alliance stronghold. Many of the Al Qaeda prisoners at Guantanamo not named in the petition are native not to Afghanistan, but to Saudi Arabia. Although bin Laden himself is a Saudi, the Federal Government is not trying to topple the House of Saud or its
military. Al Qaeda is not a military. Rather, it is a loosely affiliated federation of terrorist organizations and militias that rely heavily on unconventional tactics. Many of the militias do not have uniforms and
deviate from the rankings and unit structure usually associated with armies. Many of Al Qaeda's organizations rely on a cell structure and do not
regularly assemble for combat training. Dozens of countries around the world are home to one or more cells of such Al Qaeda groups, and many say that the United States is one of these countries. Al Qaeda may be an enemy, but it is not the same sort of enemy that the Supreme Court wrote of in Eisentrager. Members of the Taliban and Al Qaeda who came into Taliban-controlled
portions of Afghanistan from other countries were not naturalized by the Taliban, but then again the Taliban never created the sort of naturalization bureaucracy familiar throughout most of the rest of the world. The UK
clearly is not the enemy in the present conflict, yet the plaintiffs are British nationals, which would seem to foreclose the argument that they are enemy aliens. Even if the Court accepts that a war can be a war in the legal sense even without a declaration of war, the fact will remain that the prisoners are not enemies in the same sense that the Court spoke of in Eisentrager.
Although it seems unlikely the Court would overturn Eisentrager, doing
so would be the appropriate course of action if it believes that
declarations of war don't matter, that Guantanamo is not part of United
States Territory, and that everyone at Guantanamo is an enemy alien.
Reasonable people can argue that aliens captured outside the United States
can be summarily executed or held indefinitely without being brought before
a tribunal. But, as the facts in Eisentrager demonstrate, the ruling created
a situation where the Federal Government brought people who had never
enlisted in the military before a tribunal where none of the protections afforded by the Constitution did were applied. (To the extent that the prisoners did have any rights guaranteed by the Constitution at the hearing ending in their conviction, it was purely accidental.) In other words, the Truman Administration ensured its prisoners were convicted without having recourse to Constitutional rights, but avoided the opprobrium that would
have come with summary executions. The prisoners' hearings before military commissions (which should not be confused with Bush's tribunals of the same name) were a mere formality, and the outcome was even more certain than it would have been before a civilian court. The Eisenstrager ruling was meant
to countenance this.
In Eisenstrager, the Court cited cases that undercut the basis of its ruling. This is good news for civil libertarians. In the few cases where the Supreme Court overturns its previous rulings, it seems to do so only because those earlier rulings were inconsistent with precedent. The extent to which
a court suffers negative repercussions for its rulings is inversely related
to the extent to which voters believe the ruling is based on what the law
says. (When the general public trusts the Supreme Court, court curbing tends
to be too politically unpalatable to gain a majority of both houses of Congress.)
While predictions about any Justice's views on the issue are highly
speculative at this point, Justice Thomas might be the swing justice. The
usual pattern is that Justice Rehnquist is only willing to join a ruling
that something is Unconstitutional if Scalia does, and Scalia only joins
such a ruling when Thomas does. A similar pattern emerges in those three justice's opinions. (Those authored by Rehnquist articulate an extremely
narrow view of Constitutional rights, whereas Justice Thomas is careful to avoid doing this. Scalia falls somewhere in the middle.) When Justice Thomas authors a ruling, he is usually careful to avoid dicta that would be
construed in a way that would unduly affect the outcome of future cases.
This is somewhat less true of Scalia. The so-called "moderate" justices on
the Supreme Court (O'Connor, Souter, or Kennedy) might. control the outcome,
in which case one of them might author the ruling. As a general matter, O' Connor tends to be less favorable to procedural rights in criminal cases
(see Ring v. Arizona [2002], for instance) than some other Justices, so one might argue she would be less hospitable to prisoners who have not been
brought to trial, but then again this doesn't actually involve a criminal
case, and the Court has never heard a case anything like this one before.
Even before the University of Michigan Law School discrimination ruling
earlier this year (Grutter v. Bollinger), it was already clear that opinions she writes don't bear a very close relationship with what the Constitution actually says. One hopes that if she writes the opinion of the court in this case, she'll deviate from her usual practices. Breyer's views are especially unpredictable. Ruth Bader Ginsberg might be thought of as the prisoners'
best bet since she's a former ACLU lawyer, but then again she's also a
Clinton appointee, just like Breyer. Most people think John Paul Stevens has
a good track record in civil liberties cases, but then again his record isn'
t perfect. For instance, he joined the opinion of the court when it ruled
that there's no right to jury trial in cases involving one or more
misdemeanors where the maximum penalty is six months or less. The court
seems unlikely to be divided along party lines. Democrats in Congress have provided almost no opposition to the practice of holding prisoners at Guantanamo indefinitely, and on the rare occasion when they do talk about
the issue they usually give vague answers about supporting the "war on terrorism" or "war on terror." If party identification is what really determines the outcome of the case, the plaintiffs will lose. So although it
's clear how the Supreme Court should rule, it's less clear at this point
how it will rule. More likely than not, the Court will rule against the plaintiffs, but there's still plenty of hope.
The biggest barrier to a ruling in favor of the plaintiffs is probably the Center for Constitutional Rights' partial reliance on international law, including standards not grounded in the Geneva Convention. Justice Thomas didn't take too kindly to international standards in the recent case over whether it is Constitutional to execute someone who is retarded, which means that Scalia and Rehnquist are likely to be turned off by such claims as
well. The prisoners would probably stand a better chance if all of the
Center of Constitutional Rights' arguments were based on case law and the Constitution itself.
Depending on its scope and depending on what the Supreme Court says in the accompanying dicta, a ruling against the prisoners might set a precedent
that lower courts would use to uphold the practice of holding American
citizens indefinitely. (The Supreme Court itself would probably use such precedents, if it grants certiorari in such cases.) Likewise, if the Court's ruling is favorable to the prisoners, lower courts might rule in favor of future plaintiffs who labeled "enemy combatants."
As the facts in this case demonstrate, the Taliban and Al Qaeda are unconventional organizations, and it's not always clear who is part of them
and who isn't. Not everyone being held at Guantanamo was captured on the battlefield. Some prisoners have already been released because the military determined that they were Afghans who had nothing to do with Al Qaeda or the Taliban. Apart from his legally dubious basis, Bush's practice of holding prisoners on a military base indefinitely is an especially effective way for him to put the camel's nose under the tent.


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