Posted by MataHarley on 12 June, 2008 at 10:26 pm. 11 comments already!

I’ve been reading the 134 page SCOTUS opinion Boumediene vs Bush, and archiving previous related decisions. So I thought I’d post this to complement Curt’s post, The Nation will live to regret what the Court has done”, Here I’ve filled in some of the blanks that led to today’s close decision, and included some of the arguments from past referenced cases.

First… disclaimer. I am not attorney. But I’ve written a few briefs for pro se appearances, and read more than a few briefs in my time. I guess you could say I consider it an S&M hobby… But I’ll stay mostly generic, and use excerpts. Law, as we all know, has varying degrees of interpretations of absolutes… as our Supreme Court exhibits flawlessly. Justice may be “blind”, but it’s also in a constant state of conflict.

This legal battleground has endured incoming since Coalition of Clergy, et al. v. Bush, et al in February 2002.

That court dismissed the petitions for writ of habeas corpus on behalf of the absentee detainees for two reasons. One was that the petitioners themselves did not have standing. The other was that the court ruled it did not have jurisdiction as Cuba retained sovereignty over Gitmo. The opinion recaps history in the first pages, stating the sequence of events as below:

Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo.

The Supreme’s reasoning for reversing has everything to do with Gitmo’s base status and the lease agreement for Gitmo with Cuba, originally struck in 1903.

According to the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations, as referenced in this Jan 14, 2004 Supreme opinion in Rasul vs Bush:

5 Article 3 of the Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations provides: While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. . . .

In the same above linked 2004 opinion, the Supreme’s recognized that Gitmo was not sovereign, but was still a “creature of the Constitution” because it was accountable only to itself, and US law was the only law recognized and applied. There is no SOFA, but since Cuba granted the US complete jurisdiction and control over the area, none was needed.

As to detainees in other location facilities, their status would  depend entirely upon the circumstances as to the military’s jurisdiction and control in the host country, and any SOFAs that altered that authority. (You’ll see this with Johnson v Eisentrager further down in the post.) 

Since the agreement with Cuba is unique, with only a pale comparison to the Canal Zone (Panama), even the Supreme’s know they are working sans precedents.

A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.

In the Rasul v Bush, June 2004,  which overturned the DC Court of Appeals, the Supreme’s ruled the federal courts *do* have jurisdiction for Gitmo. The previous ruling district judge then went thru two proceedings with the petitioners. One to dismiss, the second to hold the detainees had due process rights.

At that time, Congress steps in and passes the Detainee Treatment Act of 2005. It was attached to the DOD appropriations bill as Title X, along with Gulf hurricanes and Pandemic Flu Act appropriations. DTA granted validation and review of the CSRT (Combatant Status Review Tribunals) exclusively to the U.S. Court of Appeals, DC. (CSRTs were implemented after  Hamdi v Rumsfeld in June 2004)

DTA was far from partisan.  It passed the House 398 to 19, (16 not present), and the Senate 97 to 0, (3 not present).

But in an ensuing SCOTUS opinion, Hamdan v Rumsfeld in March 2006, the justices held DTA did not apply to petitioners who were already in the appeal process.

So Congress came up with the Military Commissions Act of 2006. This law amended the habeas corpus issue, denying it to those that were determined (by CSRT, and any reviews by the DC circuit) to be enemy combatants, and extended it to anything else against the US… i.e.  as treatment, conditions or trial.

MCA did one more thing… it was enforceable upon enactment, and applied to all cases – including those that were pending appeals.

The Military Commissions Act, while not as sweeping as DTA, was stil bi-partisan in nature.  It passed the House 250 to 170, (12 not present), and passed Senate 65 to 34, (1 not present). In total, eleven DNC Senators and 32 House Representatives stood with the GOP majority to push the bill thru for enactment.

Those against it? The usual suspects we see celebrating today.

What was also troubling about the concurring opinion was the casual toss aside of Johnson v. Eisentrager, 339 U. S. 763 in June 1950 (mentioned above). The circumstances and accusations are about as close a mirror situation as they come to Gitmo today.

Respondents, who are nonresident enemy aliens, were captured in China by the United States Army and tried and convicted in China by an American military commission for violations of the laws of war committed in China prior to their capture. They were transported to the American-occupied part of Germany and imprisoned there in the custody of the Army. At no time were they within the territorial jurisdiction of any American civil court. Claiming that their trial, conviction, and imprisonment violated Articles I and III, the Fifth Amendment, and other provisions of our Constitution, laws of the United States, and provisions of the Geneva Convention, they petitioned the District Court for the District of Columbia for a writ of habeas corpus directed to the Secretary of Defense, the Secretary of the Army, and several officers of the Army having directive power over their custodian.

The history of this case was the District Court dismissed the petitions for the detainees. The Court of Appeals reversed the District Court decision, only to have the Supreme’s come back in, reversing the Appeals and hold with the DC’s original dismissal… stating:

We are unable to find that the petition alleges any fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers.

So what’s so different here?  Considering Gitmo is so completely unique, it boggles the mind that the Supreme’s discard Eisentrager so quickly.  And the concurring justices do just that.

On pgs 5-6 of the opinion, they state three reasons – including questionable status (detainees denying they are enemy combatants); authority differences between the German prison and the US absolute authority in Gitmo, and the fact that military trials hadn’t been held in Gitmo. (and who’s fault was that??)  Instead, they dismiss it with this final sentence…

The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.


With the combination of DTA/MCA, Gitmo detainee had rights to contest their “enemy combatant” status as first step and, presumably, if the DC circuit overturned their review, could then enjoy the writ of habeas corpus. It was a compromise alternative as hammered out in Congress. There is nothing in history to set a precedent for these times, and the old rules just do not fit. 

As Chief Justice Roberts states in the dissenting opinion:

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.

So what becomes of both the Detainee Treatment Act and the Military Commissions Act? Are they considered un Constitutional and are rendered null and void? Are the CSRTs no longer a valid process of determination for the detainees, or are we to march them all thru the US judicial system?

Normally it is the task of the Supreme Court to rule when a law is vague, or un Constitutional. But in this case, it seems more likely that the Supremes themselves have made mud out of what once was a clear path of due process.

Oh to have the Supreme Court of the 1950s back today…

UPDATE: In addition to also noting the wide berth the Supreme’s gave to Johnson v Eistentrager, the NRO’s editors fully grasp the “mud” the Supreme’s have created with their ruling. From their final two paragraphs of their editorial today.

…. snip… Only four years ago, in Hamdi v. Rumsfeld, the Court indicated that streamlined military proceedings, coupled with a judicial review that would be deferential to the commander-in-chief conducting a war authorized by Congress, would be sufficient to justify the detention of an American citizen held in the United States as an enemy combatant. Now, the runaway justices say that foreign al-Qaeda killers detained in Cuba can march right into the federal district courts and demand what, suddenly, are their constitutional rights.

In those courts, judges — without guidance and emboldened by the high court’s usurpation of war powers — will be encouraged to make it up as they go along: More access to classified information? Subpoenas commanding the testimony (and cross-examination) of our soldiers regarding the circumstances of capture? Miranda warnings? Prompt access to counsel, which is certain to halt any questioning — and thus any revelation of lifesaving intelligence — before it can even start? Full-blown trials in the criminal-justice system with the same presumptions of innocence, privacy, and other privileges vested in American citizens?

Indeed only time will reveal what tangled legal web the Supreme’s have woven. All at the potential price of valuable intelligence that can save lives.