No More Bat Guano Star Chamber Proceedings, Dubster!

The NY Fishwrap's Op-Ed section featured a law prof from the University of Chicago with a sensible take on the recent decision by the Supremes to deny the Bushies' right to rewrite or ignore the Constitution of the United States of America. I can only imagine the linguistic carnage that would ensue should The Dubster take on constitutional law. The Idiot in Chief cannot pronounce "nuclear" and the thought of The Dubster babbling about "habeas corpus" brings on nausea. The NY Fishwrap provided a concise summary of the concept of habeas corpus and Professor Epstein follows with sensible analysis of the meaning of Boumediene v. Bush (2008). If this is (fair & balanced) judicial review, so be it.

[x NY Fishwrap]
Habeas Corpus

Habeas corpus is the legal concept that a prisoner has a right to challenge the basis of confinement -- to demand that the government produce a valid reason for detention. The concept was developed in England during the late Middle Ages, and takes its name from the first two Latin words of the writ filed for a prisoner's release (a phrase translated variously as "You have the body" and "Produce the body.")

Habeas corpus formed a part of the American legal system from colonial times, and it was the only specific right incorporated in the Constitution. Article 1, Section 9 states, "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." The suspension of habeas corpus allows an agency to hold a person without a charge. Habeas corpus has been suspended a number of times, most notably by Abraham Lincoln during the early days of the Civil War.

Habeas corpus became a subject of renewed controversy after the Sept. 11th attacks. When the Bush administration created a system of military tribunals for dealing with terrorism subjects in 2002, it asserted that "illegal non-combatants'' fell outside of the Geneva Conventions and were not entitled to habeas corpus. That view was rejected by the Supreme Court in 2006. Congress, then controlled by Republicans, responded by passing the Military Commissions Act of 2006, which stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. Instead, such challenges were to be governed by the 2005 Detainee Treatment Act, which allowed detainees to appeal decisions of the military tribunals to the District of Columbia Circuit, but only under circumscribed procedures, including a presumption that the evidence before the military tribunal was accurate and complete.

In a 5 to 4 decision issued on June 12, 2008, the Supreme Court ruled that approach to be unconstitutional, declaring that foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have the right to challenge their detention there in federal courts.

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How to Complicate Habeas Corpus
By Richard A. Epstein

Last week’s Supreme Court decision in Boumediene v. Bush settled a key constitutional issue: all prisoners detained at Guantánamo Bay are constitutionally entitled to bring habeas corpus in federal court to challenge the legality of their detention.

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president. (Disclosure: I joined in a friend-of-the-court brief filed on the plaintiff’s behalf.)

Yet Boumediene is rich in constitutional ironies. In addressing whether non-Americans detained outside the United States are entitled to habeas corpus, the court passed up an opportunity to clarify the law, and instead based its reasoning, flimsily, on a habeas corpus case that was decided just after World War II. This is too bad, because issues as important as habeas corpus should turn not on fancy intellectual footwork but on a candid appraisal of the relevant facts and legal principles.

At the core of the dispute in Boumediene is the Constitution’s suspension clause: “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.” Unfortunately, the text neglects to specify the grounds for granting habeas corpus. And historical precedent is inconclusive on the question of when it should be available to aliens held in American custody outside the United States.

In Johnson v. Eisentrager, in 1950, a case involving illegal German combatants from World War II, the court held that citizens could bring habeas corpus whether they were detained in the United States or abroad. Aliens, on the other hand, had the right only if they were detained within the United States. In writing the Eisentrager decision, Justice Robert Jackson mentioned the practical and financial difficulties of prosecuting enemy aliens overseas, but gave them little weight.

Now, in his majority opinion in Boumediene, Justice Anthony M. Kennedy has made that minor issue in Eisentrager into a key element of the case, acknowledging that the government may have to go to some trouble, and expense, to ensure that the prisoners at Guantánamo are able to challenge their detentions. Boumediene need not have rested on this sleight of hand.

Nothing in the suspension clause distinguishes citizens from aliens. Likewise, the due process clause extends its constitutional protections to all “persons,” citizens and aliens alike. If the conditions for suspending habeas corpus are identical for citizen and alien, so too should be the conditions for applying it. If citizens overseas are entitled to habeas corpus, so are aliens. Viewed this way, the court did not need to decide whether or not Guantánamo was American territory. Its ambiguous status no longer matters. Eisentrager disappears on originalist grounds.

Overruling Eisentrager on this point would not routinely entitle everyone to habeas corpus all the time. Enemy prisoners of war are never granted it, either in the United States or abroad. What matters is whether a prisoner is or is not an enemy combatant.

The defendants in Eisentrager, German war criminals, admitted being enemy combatants. The six plaintiffs in Boumediene, accused of plotting an attack on the American Embassy in Bosnia, claim they are not. They should be entitled to challenge both the government’s definition of an enemy combatant and the factual basis of their arrest. And they should be able to do so, as the court stressed, under standard habeas corpus procedures that allow them to present evidence and confront witnesses, and not under the paltry procedures outlined by the 2006 Military Commissions Act.

If found to be enemy combatants, they can be held for the duration of the war and interrogated, if desired, as any other detainees. If not, they must be tried for some particular offense or released.

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

[Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law and Director, Law and Economics Program at the University of Chicago. Epstein is a senior fellow at the Hoover Institution. Richard A. Epstein received an A.B. from Columbia College in 1964; a B.A. in 1966 from Oxford University; and an LL.B. from Yale University in 1968.]


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