The Great Writ Has No Substitute

The writ of habeas corpus was powerfully vindicated today in the case of Boumediene v. Bush. The background is a little bit complex, but it basically has to do with our prisoners in Guantánamo Bay. Who are -- let us stipulate at the outset of our analysis -- very dangerous articles of human trash who almost certainly wish us nothing but harm and have been picked for isolation in U.S. confinement for excellent reasons.

First, the military captured these guys, mostly in Afghanistan. Then, it took them to our naval base at Guantánamo Bay, Cuba, so as not to bring them on U.S. soil. Then, the Defense Department established Combatant Status Review Tribunals to conduct preliminary hearings determining whether these guys were "enemy combatants," which all the plaintiffs in the Boumediene case were found to be by the military tribunals. Hamidi v. Bush later determined that the military's detention of these guys was lawful, in part because the military had established these tribunals to determine the status of each individual detained (however, there was no majority opinion in the Hamidi case and that holding is cobbled together as a per curiam based on a variety of different concurring opinions).

So then the Supreme Court issued its ruling in Rasul v. Bush, in which the Court found that the Guantánamo detainees were subject to the statutory grant of the writ of habeas corpus. The application of the writ in this case means basically that the government needs to show some sort of court an objective reason why it's more likely than not that the detainee ought to be detained. (The phrase is usually translated in popular culture has "having a body" in a murder investigation, meaning that if there's no body in a murder case, the suspect cannot be arrested. That may be good TV, but it's not legally accurate. The "corpus" means a "body of evidence" justifying the restriction of the defendant's liberty.) The Rasul Court, and some other decisions in the same time, also held that the Guantánamo detainees held Constitutional due process rights and therefore had to be charged with something and had to be afforded the basics of procedural due process.

Rasul v. Bush and its kindred cases were unpopular with the then-Republican led Congress and very unpopular with the White House. The White House then wrote, and Congress rubber-stamped, the Detainee Treatment Act of 2005, which stripped all Federal courts of jurisdiction to consider habeas corpus applications by the detainees. Hamdan v. Rumsfeld, decided the next year, ruled that the Detainee Treatment Act did not apply retroactively. So the Administration then had Congress pass the Military Commissions Act of 2006, which re-enacted the provisions of the Detainee Treatment Act of 2005 and was explicitly retroactive.

Boumediene looks at the Military Commissions Act of 2006 in light of the Suspension Clause of Article I, section 9 of the Constitution, which reads: "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 petitioners (the detainees) contended that by stripping every concievable court in America of jurisdiction to hear a habeas petition, Congress had effectively suspended the writ, and that there was no "Rebellion or Invasion" requiring such a dramatic revision of this very basic right. The Government contended, in response, that the Detainee Treatment Act provided that the equivalent of the writ could be raised before the military tribunal and could be appealed to the D.C. Court of Appeals, and therefore there was an adequate 'substitute' for the writ that could be brought in a meaningful forum.

The Supremes held today that the detainees are entitled to file petitions for the Great Writ. The basis for that right applying to the detainees is that they are under the power and detention of the U.S. Government, even though they are not technically on U.S. soil. Based on admittedly ambiguous historical research into the pre-Revolutionary uses of the Great Writ, the Supremes determined that it was basically safer to say that the writ applies to someone than to say it does not.

It seems ridiculous to me, by the way, to adhere to the pretense that Guantánamo Bay is not "American soil." It's technically only "leased" from the Cubans, but the terms of the lease are such that both government must agree to break it or we have to abandon possession. And while we tender $4,085 every year that the lease requires, the current government has only cashed one of those checks. (But, I think we're paid in advance up through February 22, 3022 at this point.) But it should more properly be called an "enclave." We have lots of guys with guns patrolling this twenty square mile (or so) area and the Republic of Cuba has effectively zero power and authority there. The Supremes went along with that, saying that the government's argument that it is not bound by the Constitution there due to the de jure sovereignty of Cuba over Guantánamo Bay is excessively formalistic. That much I have no problem agreeing to. A soldier at Guantánamo Bay has the same rights, and the same basis for those rights, as he would in any other Federal enclave.

So from there, the Court determined that the laws as drafted by Congress are not the equivalent of the real right of petitioning for a writ of habeas corpus. That brings the Court to the "prudential analysis" issue -- whether the courts should defer to the military for policy and safety reasons. This is the reason why some people will be outraged by the ruling -- they fear that this means the court is second-guessing the military's judgment about military activities, and turning our soldiers into policemen. The Court seemed inclined to be more deferential to the government on these sorts of issues in a case of immediacy or great administrative burden to the military, but said that in this case, no such concerns were present. These prisoners have been held for more than six years now, so the need for "swift" action like that anticipated on a battlefield are simply not present.

I'm of two minds about the Boumediene ruling. On the one hand, the Constitution binds and controls everything our government does. It has to. We cannot allow for extra-Constitutional powers because we live in a society that limits our government's powers. The Suspension Clause makes very clear that the Great Writ of Habeas Corpus can only be suspended in very limited, narrowly-tailored circumstances, and this is not what Congress did. On the other hand, these are very dangerous men and they cannot be allowed to regain their freedom. As many right-wingers will correctly note, the Constitution is not a suicide pact and letting these creeps go is to loose them with the certain knowledge that they will soon (if not immediately) begin plotting revenge for their confinement upon their captors and the government and nation in whose name their captors have acted.

The solution to the dilemma, it seems to me, is to actually have evidence against them and to make the government rely on the strength of that evidence in a real court. This creates a risk that yes, they might raise reasonable doubts about whether they were engaged in acts of terrorism against the U.S. and its interests, or culpably associated with other people who did. But if we assume, as we stipulated at the start of my post today, that these are dangerous people who have been taken to Guantanamo Bay for a reason, that reason needs to come out and go through the judicial process.

We should not ever be confining people for no good reason, and I have assumed today that there is a good reason for our confining of these guys. I do not suggest that the court need necessarily be public (at least, not right away) if there are significant security concerns with the evidence; there are procedures in place to address the suppression of portions or even all of a court's record if issues of national security are implicated by the evidence. Nor do I suggest (today) that military tribunals are necessarily bad or unfair, although I do think the presumption should be that a standard District Court be the way to go. Congress could have created a special District Court to hear these kinds of cases, but opted not to.

So at the end of the day, I have to think that what's gone on here is that the government has been clumsy about its attempts to keep these guys confined. And that's what all the litigation is about. We know how to go after bad guys within our justice system, and

The Court wrote today that "Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." And I think that's ultimately correct, and while it's ambiguous in application, the effect of civil liberties in tough cases will always be ambiguous. My hatred of our countries' enemies and those who would either destroy us or impose a Muslim theocracy here is not so great as to blind me to that which makes us great in the first place.

The threats against us are, although very real, nevertheless not yet so dire and imminent that we must destroy what is best within ourselves to simply survive. Our enemies, who have little regard for freedom, are not our teachers. Again quoting the Court, "The laws and Constitution are designed to survive and remain in force, in extraordinary times." While it is not a suicide pact, the Constitution is also not a compact to be set aside for the "mere" purpose of facilitating the extermination of our enemies, particularly since it already contemplates the nation being at war and how the government should act in such a time.

I would much rather see a guilty man go free than an innocent man wrongfully imprisoned, even if that guilty man later commits more crimes. And I have little doubt that the shitheads we're holding in Guantánamo Bay are guilty of very, very bad things, and moreover I have faith that the government has the ability to prove it -- faith in the government and the evidence that the alarmists protesting this decision seem to lack. I'll let Justice Kennedy have the last word: "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."