So if there's a Constitutional right to habeas corpus, it's smooth sailing for the Gitmo detainees, is it not? Well, no . . . there are still two questions to be answered. As we stated last week, this is where the disagreement between the justices lies. This week, we plan to explore each of these questions.
The first question: Does the Constitutional right to Habeas Corpus extend to Guantanamo Bay? As far as legal questions go, this is a pretty narrow issue - but it takes up the largest part of Kennedy's majority opinion.
We'll spare you the details - it's an exhaustive discussion of several hundred years of cases discussing the reach of the writ. Kennedy's opinion concludes that there is no simple, formal test to determine how far the writ goes; instead, he lists a number of factors: the status of the petioners, the practical difficulties in granting the writ, etc. - and determines after evaluating these facts that the writ extends to the Gitmo detainees.
In our view, Kennedy makes this question a lot harder than it needs to be. Everyone seems to agree that the great writ extends at least to those areas where the United States is "sovereign." Kennedy, however, concedes in his opinion that the United States is not "technically" sovereign over Guantanamo Bay - which necessitates his much more complicated analysis. But why concede this? Technically speaking, the United States has been leasing Gitmo from Cuba for over 100 years. But Cuba has absolutely no say over what happens there - the treaty gives the United States "complete jurisidiction and control" over the bay. (Thanks to Wikipedia). Indeed, for the past forty years or so, Cuba has made it very clear that they don't want us there! (they don't cash the rent checks, although you'd think they'd come in handy). As far as we know, the USA has no plans to ever end their "lease" in Gitmo.
Incidentally, no one lives in Guantanamo Bay other than the military personnel at the American base.
In short, Cuba's techinical "sovereignty" over Guantanamo Bay doesn't amount to a hill of beans. The law of the USA reigns supreme at Gitmo just as thoroughly as it does in Puerto Rico or New Jersey. Why not just call a spade a spade and say that the USA - at least for purposes of the reach of habeas corpus - is "sovereign" over Gitmo?
We don't know the answer, but we'd hazard a guess. Kennedy and the other members of the majority generally prefer to avoid resolving cases by setting or continuing formal hard-and-fast rules. This is a major, and continuing, point of contention between them and Judge Scalia, who has never seen an inflexible rule that he didn't like. Judges who adopt flexible rules are sometimes accused (often by Scalia) of being "activists" who seek to impse their personal principles in favor the unbending and neutral Rule of Law.
(Here at Hawks and Handsaws, we've never quite subscribed to this line of thinking. Our experience is that judges can just as easily apply their prejudices in applying formal rules of law. Moreover, formal rules, even if applied justly, will inevitably lead to unjust results in at least some cases. Finally, flexible rules allow for cases to be decided as narrowly as possible, which is perhaps the best check against judicial activism.)
Railing against flexible standards, nevertheless, is one of Scalia's favorite old saws. As we will see later, however, this is not the main argument he makes in his dissent. Rather, Scalia is greatly, greatly, concerned with Kennedy's broken promise to the government - his departure from a "settled promise" a case that until last week had occupied a seat with Brown v. Board of Education and Marbury v. Madison as fundamental American law. The case? You guessed it - the 1950 decision of Johnson v. Eisentrager
NEXT: Scalia's Dissent.
Monday, June 16, 2008
Friday, June 13, 2008
Habeas Corpus and the Constitution
In our view, the most important part of the Boumediene decision is right at the beginning. Before we go into that, let's review the context.
The military captured a number of persons while fighting in Afganistan in 2001-2002. The Bush administration alleged that these persons are "enemy combatants," and asserts the right to hold them for the duration of the hostilities, however long that might be. The government movesd them to Guantameno Bay, a military base in Cuba. The first people were transported over 6 years ago.
The prisoners, many of whom claim that they were not in fact enemy combatants, filed lawsuits in the courts in the United States. They sought something called the Writ of Habeas Corpus.
Habeas Corpus is a very old concept in our law - it goes back to King John and the Magna Carta (read Kennedy's opinion in Boumediene if you'd like an exhaustive history lesson). The writ allows a court to release someone if they are being held illegally in jail.
The question is: Where does the right to Habeas Corpus come from? Does it come from the Constitution? Or does it come from Congress? Article I of the Constitution mentions the writ: in a portion called the Suspension Clasue says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." So while Congress cannot suspend the right (unless there's a rebellion or invasion), nothing in the Constitution explicitly says that it must be provided in the first place.
This hasn't been an issue for most of our history, because Congress has generally passed laws guaranteeing the right of Habeas Corpus. It was these laws that the detainees relied upon in filing their first lawsuits. In its first decision dealing with their rights, the Supreme Court agreed with the detainees that these laws allowed them to use the writ of habeas corpus.
After the detainees won, however, the Bush administration went to Congress, and asked it to repeal the detainees right to habeas corpus. So Congress passed a law in 2005 called the Detainee Treatment Act. This law took away the right of habeas corpus for the detainees, and replaced it with a more limited right to appeal to one court in Washington DC.
The detainees, however, continued their lawsuits. This time, they argued that the law taking away habeas corpus violated the Constitution.
The Supreme Court agreed with them. In doing so, it first had to answer the question posed earlier. Judge Kennedy, who wrote the opinion, first detailed the history of abuses that led to the creation of habeas corpus in England, abuses which caused the framers of our constitution to include the Suspension Clause. He then wrote,
In our view, this is a Big Deal. In other cases, the court has hinted that the Constitution guarantees the Writ (see INS v. St. Cyr, for example) but its never come and said it quite this way. The Constitution guarantees the right of Habeas Corpus, even if Congress doesn't want someone to have it (unless, again, they suspend it because of a rebellion or invasion. The government did not even argue that was the case here).
What's really remarkable is that no one on the court - not even the four judges who disagree with the result - seems to disagree with Judge Kennedy on this point. This is especially remarkable because one of those judges - Scalia - has written before that the Suspension Clause does not guarantee that habeas corpus exists under the Constitution. After all the clause only says that Congress cannot suspend the "privilege" of the writ - it doesn't say that they have to provide it in the first place, or that the constitution guarantees it if Congress does not.
On the other hand, why go to the trouble of carefully limiting Congress's power to suspend the writ in emergencies, unless it was assumed that the writ would otherwise be available? It's hard to answer that question. For that reason, we think Kennedy is correct, and we're happy that the Supreme Court has recognized that the Constitution guarantees this important right.
NEXT:
So why do the other four judges disagree with the decision? They cite two reasons, discussed in two different dissenting opinions (the four judges - Chief Justice Roberts, plus Scalia, Thomas, and Alito, all signed both of them). Generally, we think one opinion makes some important points . . . and the other is a lot of hot air. Stay tuned for our discussion.
The military captured a number of persons while fighting in Afganistan in 2001-2002. The Bush administration alleged that these persons are "enemy combatants," and asserts the right to hold them for the duration of the hostilities, however long that might be. The government movesd them to Guantameno Bay, a military base in Cuba. The first people were transported over 6 years ago.
The prisoners, many of whom claim that they were not in fact enemy combatants, filed lawsuits in the courts in the United States. They sought something called the Writ of Habeas Corpus.
Habeas Corpus is a very old concept in our law - it goes back to King John and the Magna Carta (read Kennedy's opinion in Boumediene if you'd like an exhaustive history lesson). The writ allows a court to release someone if they are being held illegally in jail.
The question is: Where does the right to Habeas Corpus come from? Does it come from the Constitution? Or does it come from Congress? Article I of the Constitution mentions the writ: in a portion called the Suspension Clasue says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." So while Congress cannot suspend the right (unless there's a rebellion or invasion), nothing in the Constitution explicitly says that it must be provided in the first place.
This hasn't been an issue for most of our history, because Congress has generally passed laws guaranteeing the right of Habeas Corpus. It was these laws that the detainees relied upon in filing their first lawsuits. In its first decision dealing with their rights, the Supreme Court agreed with the detainees that these laws allowed them to use the writ of habeas corpus.
After the detainees won, however, the Bush administration went to Congress, and asked it to repeal the detainees right to habeas corpus. So Congress passed a law in 2005 called the Detainee Treatment Act. This law took away the right of habeas corpus for the detainees, and replaced it with a more limited right to appeal to one court in Washington DC.
The detainees, however, continued their lawsuits. This time, they argued that the law taking away habeas corpus violated the Constitution.
The Supreme Court agreed with them. In doing so, it first had to answer the question posed earlier. Judge Kennedy, who wrote the opinion, first detailed the history of abuses that led to the creation of habeas corpus in England, abuses which caused the framers of our constitution to include the Suspension Clause. He then wrote,
"In our own system, the Suspension Clause is designed to protect against these
cyclical abuses. The Clause 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 the surest safeguard of liberty."
In our view, this is a Big Deal. In other cases, the court has hinted that the Constitution guarantees the Writ (see INS v. St. Cyr, for example) but its never come and said it quite this way. The Constitution guarantees the right of Habeas Corpus, even if Congress doesn't want someone to have it (unless, again, they suspend it because of a rebellion or invasion. The government did not even argue that was the case here).
What's really remarkable is that no one on the court - not even the four judges who disagree with the result - seems to disagree with Judge Kennedy on this point. This is especially remarkable because one of those judges - Scalia - has written before that the Suspension Clause does not guarantee that habeas corpus exists under the Constitution. After all the clause only says that Congress cannot suspend the "privilege" of the writ - it doesn't say that they have to provide it in the first place, or that the constitution guarantees it if Congress does not.
On the other hand, why go to the trouble of carefully limiting Congress's power to suspend the writ in emergencies, unless it was assumed that the writ would otherwise be available? It's hard to answer that question. For that reason, we think Kennedy is correct, and we're happy that the Supreme Court has recognized that the Constitution guarantees this important right.
NEXT:
So why do the other four judges disagree with the decision? They cite two reasons, discussed in two different dissenting opinions (the four judges - Chief Justice Roberts, plus Scalia, Thomas, and Alito, all signed both of them). Generally, we think one opinion makes some important points . . . and the other is a lot of hot air. Stay tuned for our discussion.
June 13
Welcome!
We've been meaning to start this blog for a while - the release of Boumediene v. Bush finally spurred us to action. We'll start with some posts about this decision next week. Our view after our first read? It's a good thing.
We've been meaning to start this blog for a while - the release of Boumediene v. Bush finally spurred us to action. We'll start with some posts about this decision next week. Our view after our first read? It's a good thing.
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