Friday, June 13, 2008

SC expands Constitution: habeus corpus for unlawful combatants

Both Roberts and Scalia, in dissent, wrote in shockingly scathing tones (for a SC decision). Chief Justice Roberts:
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually [already] granted aliens captured by our Armed Forces overseas and found to be enemy combatants:

• The right to hear the bases of the charges against them, including a summary of any classified evidence.

• The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process.

• The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.

• The right to the aid of a personal representative in arranging and presenting their cases before a CSRT.

• Before the D. C. Circuit, the right to employ counsel, challenge the factual record, contest the lower tribunal’s legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief.

In sum, the DTA satisfies the majority’s own criteria for assessing adequacy [as explicated in Hamdan vs. Rumsfeld]. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees—whether citizens or aliens—in our national history.
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.
Justice Scalia, also in dissent:
I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.

On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania.

It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.
At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. Some have been captured or killed. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Still another murdered an Afghan judge. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq.
Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional.
The nation will live to regret what the Court has done today.

I dissent.
Democracy Project:
the majority decision writes a new expansion into the Constitution, both of habeas corpus and of the supremacy of the judicial over the congressional and executive branches. If there’s a principle involved, it is the victory of lawfare as widely believed in the legal community over the traditional and proven rules of warfare and national survival.
The dissents point out that the executive and Congress followed the Supreme Court’s prior ruling to provide a practical equivalent for the detainees at Guantanamo, and now the majority disregards its own ruling[in Hamdan vs. Rumsfeld]. Although the majority equivocates that a civilian court may give some deference to the practicalities of evidence and witness from the battlefield, the dissenters point out that places control over military exigencies and realities in the hands of militarily inexperienced and inexpert civilian judges. Justice Scalia is particularly scathing in describing the effect on our ability to wage war, especially against irregular foes. He, also, points out that the result may be to place more detainees in less hospitable holding countries than at Guantanamo, at least until a possible additional Supreme Court expansion of US habeas corpus rights worldwide.

That result would be most welcome by the international lawfare fraternity, ever anxious to increase its own power and reduce that of the US.
Slight swerve:
Wretchard once wrote that enhanced interrogation techniques actually protect the enemy. Soldiers are more likely to risk their lives, in order to capture enemy alive, if the prospect of acquiring valuable intelligence is high. Absent that prospect, a soldier may as well call in an airstrike and kill the enemy.

Conclusion: Enhanced interrogation techniques humanely protect enemy lives.

Somewhat similarly, the 220+ year tradition of trying POWs in military courts actually makes the capture of POWs more likely. No soldier wants to risk his career, his reputation, or even his freedom via testifying in a civilian courtroom, before judge and jury who possess little understanding of battlefield reality.

Old law enforcement saying: "Dead men tell no tales." This is sometimes quoted as "Dead men tell no lies." Why should soldiers endanger their lives in order to capture POWs who have been taught to lie to the kuffar in every circumstance?

In addition: no soldier wants to risk a civilian court loosing a murderous, no-holds-barred, sworn-enemy-for-a-lifetime back into the world.

Conclusion: The military court system humanely protects enemy lives.

Mark Levin at NRO's The Corner:
So complete is the Court’s disregard for the Constitution and even its own precedent now that anything is possible. And what was once considered inconceivable is now compelled by the Constitution, or so five justices have ruled. I fear for my country. I really do. And AP, among others, reports this story as a defeat for “the Bush administration.” Really? I see it as a defeat for the nation.

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