I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 14, 2006

A judicial victory for the Leader

The first court decision (.pdf) to interpret and apply the legislative atrocity known as the "Military Commissions Act of 2006" was issued yesterday in the case of Hamdan v. Rumsfeld. The decision was a major victory for the Bush administration's attempt to vest the President with the power to imprison individuals -- even for life -- without according them any meaningful opportunity to contest the validity of their imprisonment.

The district court ruled that (1) the MCA successfully stripped federal courts of jurisdiction to hear habeas corpus petitions filed by "war on terrorism" detainees, and (2) under controlling Supreme Court precedent, "enemy aliens" who have no substantial connection to the U.S. (i.e., never resided inside the U.S.) have no constitutional right to seek habeas corpus review. As a result, the court dismissed the case of the Guantanamo detainee seeking habeas review here and, in essence, upheld the Bush administration's power to detain such "enemy combatants" forever while denying the detainees all access to our courts.

Several observations about this decision:

(1) The plaintiff-detainee in this case is Salim Ahmed Hamdan -- the same Hamdan whose case led to the U.S. Supreme Court's ruling earlier this year that the Bush administration's Guantanamo military commissions violated both federal law and the Geneva Conventions, the decision which led to enactment of the Military Commissions Act. The ruling yesterday was the result of Hamdan's case returning to the district court level once the Supreme Court ruled that he could not be tried in the Guantanamo military commissions established by the administration prior to enactment of the MCA.

Hamdan, who acted as a driver on occasion for Osama bin Laden, vehemently denies the administration's accusation that he was involved in a "conspiracy" to commit terrorist acts (the only charge against him). He has been in U.S. custody since late 2001, and in Guantanamo since early 2002. He has been seeking the right to prove his innocence by petitioning our federal courts for habeas corpus relief.

Once the MCA was enacted, the Bush administration moved to dismiss all habeas corpus petitions -- including Hamdan's -- on the ground that Congress has now stripped federal courts of jurisdiction to hear such claims. The ruling yesterday granted that motion and dismissed Hamdan's petition.

(2) The judge who issued this ruling is District Judge James Robertson, a Clinton appointee who ruled originally that Hamdan could not be tried before a Guantanamo military commission that had not been authorized by Congress (it was that ruling that ended up in the Supreme Court). Robertson also is the federal judge who resigned from the FISA court in protest of the Bush administration's warrantless eavesdropping program.

Clearly, Robertson's ruling is not the by-product of pro-administration sentiment. Rather, he obviously felt constrained to enforce the MCA by his (not necessarily correct) understanding of controlling Supreme Court authority on the question of whether accused enemy aliens -- who have been detained on foreign soil and who have no connection to the U.S. -- have a constitutional right to access U.S. federal courts for habeas corpus petitions. Robertson's ruling that they have no such constitutional right (and that Congress therefore has the power to deny habeas access to such aliens under the MCA) is what led him to dismiss Hadman's petition.

(3) The judge did not rule that the MCA constitutes a general "suspension" of the right of habeas corpus under the Suspension Clause of Art. I, Sec. 9. Quite the contrary, the court found that Congress did not intend to suspend habeas corpus, and, independently, that Congress could not constutionally suspend the right of habeas corpus (because there is no "rebellion or invasion" as required by the Constitution).

Rather than having "suspended" habeas corpus rights, the court ruled that Congress intended with the MCA only to block federal courts from entertaining habeas petitions from alien detainees. Thus, the question which the court was required to answer was this: Do aliens -- who have no connection to the U.S. and who are detained outside of the U.S. -- have a constitutional right to habeas corpus (which no Congressional statute could deny)?

To answer that question, the court relied upon prior Supreme Court rulings -- in particular the 1950 case of Eisentrager v. Johnson, which dismissed habeas corpus petitions brought by German nationals who were convicted of war crimes in China by a post-WWII U.S. military tribunal. Judge Robertson concluded that, under Eisentrager, aliens with no U.S. connections have no constitutional right to bring habeas corpus petitions, and Congress is therefore permitted to strip federal courts of jurisdiction to entertain such petitions.

(4) Whether this ruling is correct largely depends upon how one understands the Supreme Court's ruling in Rasul v. Bush, the 2004 case in which the Supreme Court held that Guantanamo detainees have the right of habeas corpus.

The Rasul court held that the statute which provides habeas jurisdiction to federal courts (28 U.S.C. 2241) includes not only petitions filed by U.S. citizens, but also petitions filed by aliens, and applies even to aliens detained in territories over which the U.S. maintains "complete jurisdiction and control" even if not ultimate sovereignty (i.e., Guantanamo Bay, Cuba). That is how Guantanamo detainees have been filing habeas petitions -- because Rasul ruled that the habeas jurisdiction statute applies to petitions brought by aliens.

But it was the Rasul Court's decision which Congress sought to overturn by enacting the MCA, which expressly amends the habeas statute to strip federal courts of the jurisdiction found by Rasul. The plaintiff here argued that Rasul recognized not only a statutory right for aliens to file habeas petitions, but also a constitutional right to do so. Judge Robertson disagreed.

(5) As Lyle Denniston notes, Judge Robertson's ruling heavily depends upon the fact that Hamdan has no established connections to the U.S. -- i.e., he never voluntarily entered the U.S., never resided here, etc. The decision makes clear (albeit in a non-binding way) that any alien who (unlike Hamdan) does have strong ties to the U.S. (such as legal residents here in the U.S.) would have a constitutional right to petition a court for habeas corpus relief and Congress could not deny that right.

Thus, at least according to this ruling, it is unconstitutional for Congress to deny legal residents (such as Ali Saleh Kahlah al-Marri) access to federal courts for habeas petitions. Since the MCA does purport to strip even legal residents of that right, Judge Robertson's ruling, in essence, concluded that that part of the MCA is unconstitutional.

The MCA does not purport to strip habeas rights for U.S. citizens. Thus, if Judge Robertson's decision is correct and upheld, it would mean that (a) U.S. citizens, along with alien detainees who have a substantial connection to the U.S., would have the right to file habeas petitions in federal court, but (b) alien detainees with no such connection (the overwhelming majority of detainees in U.S. custody) would have no such right.

(6) It is quite possible -- assuming the make-up of the Supreme Court remains the same -- that the Court will reverse this ruling by holding that all alien detainees have a constitutional right to habeas corpus review (Justice Stevens, in his majority Rasul opinion, clearly laid the foundation for such a ruling, if he did not in fact already make it). There are multiple other grounds on which this ruling specifically, and the constitutionality of the MCA generally, may be vulnerable on appeal.

(7) The principal fault here lies with the 109th Congress (and, of course, the administration it so faithfully served), not with Judge Robertson (unfortunately, whether there is a constitutional habeas right for aliens with no connection to the U.S. is, under controlling Supreme Court precedent, less than crystal clear).

What is so radical and indescribably regressive is the Congress' enactment of a law which expressly denies habeas rights to everyone in the world other than U.S. citizens. Not only did the Founders repeatedly emphasize that the right of habeas corpus is the most critical safeguard against tyranny from the Executive branch (and never drew any distinction between citizens and non-citizens), but the statute granting habeas jurisdiction to federal courts (sec. 2241) was the very first statute ever enacted by the U.S. (in 1789) which bestowed jurisdiction to the federal courts. That is how paramount a right the Founders believed habeas petitions to be.

The history of our country has been to progressively extend and expand habeas rights, not to restrict them. As Rasul explained (emphasis added):

Congress has granted federal district courts, “within their respective jurisdictions,” the authority to hear applications for habeas corpus by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). The statute traces its ancestry to the first grant of federal court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners “in custody, under or by colour of the authority of the United States, or committed for trial before some court of the same.” Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 82.

In 1867, Congress extended the protections of the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See Felker v. Turpin, 518 U.S. 651, 659—660 (1996). . . . As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus “beyond the limits that obtained during the 17th and 18th centuries.” Swain v. Pressley, 430 U.S. 372, 380, n. 13 (1977).

The MCA -- passed in a pre-election frenzy with virtually no thought or deliberation -- drastically reverses that 210-year trend and deliberately seeks to limit habeas rights as narrowly as possible. Put another way, it seeks to vest the maximum possible power in the President to order people imprisoned -- even for life -- with no opportunity to contest the validity of the accusations against them or the treatment to which they are subjected. That, as has been repeatedly noted, is a power which not even the British King possessed.

It is one thing to warn of these abuses in the abstract. But we will start to see more and more actual cases of human beings who -- as a result of the MCA -- face life imprisonment under the most inhumane conditions imaginable based on nothing more than George Bush's unreviewed accusation that they are Guilty of Terrorism. The attack on our national character, and the abandonment of our most defining values, continues unabated.

UPDATE: The Washington Post's article on the decision is here. Statements from lawyers for the Center for Constitutional Rights are here.

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