Thursday, June 12, 2008

Some Thoughts on Boumedienne and Munaf

Davis_benjamin I'm pleased to share the following guest post from Professor Benjamin G. Davis of the University of Toledo Faculty of Law.  Ben was a co-chair with me of the American Society of International Law Interest Group for Teaching International Law.  Here is his preliminary analysis of yesterday's decisions in Boumedienne and Munaf.


I. Boumedienne

A. Boumedienne majority (Kennedy, Stevens, Ginsburg, Souter, Breyer)

The willingness of the Majority to get past the forms that so hung up the lawyers who tried to put in place these horrendous procedures points out the weakness of the formalist analyst of those lawyers. Their analysis "knows the price of everything but the value of nothing." The majority understands just what is at stake.

The folks who thought 1) lets put people in Gitmo 2) lets put together a kangaroo court system under the president's authority, 3) let's put one through under the Congressional authority because of Hamdan etc - are rebuked.

The quote I love is at page 56:

"Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason."

Rejecting the dejure sovereignty formalism and accepting a defacto sovereignty analysis for habeas corpus review is vital in a messy world in a much messier war setting. That means that the kind of hiding people in black sites and other things is more likely to be reached than if that had not occurred. The shell games of extraordinary renditions to Mauritania, Bagram, Poland, Eastern Europe, American ships etc by the US government is now open on pragmatic grounds to potential habeas corpus review. That pragmatism permits the judicial branch to do its role in our system as a coequal branch of government to check the Executive and the Legislative when they cede to panic and improvisation as they have done in the detainee situations over the past six to seven years.

This is what happens when a government throws out 60 years of experience using awful analysis by clever by half lawyers - they get slapped down each time because their analyses simply do not pass a common sense standard.

That the court goes beyond its habeas corpus decision to look on the adequacy of the kangaroo processes at Gitmo is extraordinary and demonstrates (to me at least) the Court's understanding that something very fundamental is at stake in this case about what the United States is about.

When a state holds someone incognito (and the court knows about the torture though it does not see the need to get there - there is a warning in the words of limitation on issues of confinement and treatment) like this, a reasonable court will react like this. When you disappear people, a reasonable court will react like this.

What the Yoo's, Goldsmith's, Addington's, Bradbury's, Delahunty's, Bybee's, General Miller's, National Security Principals, Mukasey's, Gang of Eight types, Gonzales', the Lindsay Grahams and the compromising McCain's and Warner's, the prognosticators in favor of a National Security Court, and all the rest of that ilk need to keep in mind is the end of Kennedy's majority opinion at pages 68-70

"In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. 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. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U.S., at 636 (Breyer, J., concurring) ("[J]udicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so").

It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion."

This as much as saying what Jackson said in 1945.

"The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict. I am not arguing against bringing those accused of war-crimes to trial. I am pointing out hazards that attend such use of the judicial process - risk on the one hand that the decision that most of the world thinks should be made may not be justified as a judicial finding, even if perfectly justified as a political policy; and the alternative risk of damage to the future credit of judicial proceedings by manipulations of trial personnel or procedure temporarily to invest with judicial character what is in fact
a political decision."

Grabbing people willy-nilly, torturing them, and creating ersatz processes to cover all that up and convict - to commit state murder or indefinite incarceration - that is the province of the Soviet law we fought a Cold War to combat. That is not the province of an Anglo-Saxon tradition which all Americans should share.

With this decision, the court avoids a Korematsu moment and seeks to have the United States reconnect with what is so basic in us.

Refluat Stercus!

On sovereignty, I think the sense that the majority is taking is a recognition that dejure sovereignty is not enough and that defacto sovereignty should be a permitted basis for the Constitution running outside the United States. The court recognizes the prudential concerns, but the essence seems to be functional - as the Court states in the majority. Put another way, if the Executive is going to be running around the world doing things then the Constitution may permit the Court as a coequal branch to allow challenges to those actions. The Court has to take into account the complexities that surround such a habeas corpus analysis, but in many ways what the court is doing is recognizing that to the extent the Executive and Legislative are going to take on an unending internationalized role, then the Court has to accept a role in being a place where policing of those actions occurs.

I would suspect the willingness of the Court to do this comes with its increasing frustration with the grabs for power of the Executive in this war. The persnickety analysis of lawyers who do not appreciate the grandeur of the law and the rule of law I suspect is part of the frustration. The willingness of the majority to step away from the incomplete 1789 habeas records, to look at what happened in other places post 1789, and to synthesize from these principles the way it is going to operate now is hugely significant.

I was very much struck by how Somersett's Case about an alien slave, and Brown even came in, also the disdain for Dred Scott and the interpretation of the Insular cases (Pedro Malavet has some interesting thoughts on those cases).

It is about pragmatism to avoid the Executive to be able to abuse its power. It is similar to the reason the Geneva Conventions are written in general terms, so that persons can not torture people by saying "that method was not on the list." The court gets the essence of the need in a democratic society for the Executive and Legislative to confront some type of check. Why? Because for seven years the Executive and Legislative have demonstrated that they are unwilling to act in a manner consistent with the good faith that is the predicate for the kind of judicial deference those in the minority would prefer.

B. Souter's concurrence points out the essence of what is going on here

"After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. See ante, at 69. "

It is simply a rejection of the kind of mechanistic deference of Scalia and Roberts to the Executive. It is obvious that the Executive can only be entitled to such deference if its actions are consistent with good faith respect for law. The ersatz processes based on ersatz legal analysis have come home to roost!

C. Roberts' dissent - joined by Scalia, Alito and Thomas

Roberts does get it to some extent when he writes.

"One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

The Executive and Legislature having made such a hash of federal policy regarding enemy combatants over the past seven years, the Judiciary is forced to step in. And this hash happened because the Executive first stepped away from 60 years of US experience and then after its panic and improvisation, got the Legislature to go along.

That's the rub the minority is feeling and it is good, because we have had enough of improvisation in this arena that has so hurt the United States standing in the world and United States security.

Two things that are a problem with Roberts' dissent.

At 10-11

"The majority insists that even if "the CSRTs satisf[ied] due process standards," full habeas review would still be necessary, because habeas is a collateral remedy available even to prisoners "detained pursuant to the most rigorous proceedings imaginable." Ante, at 55, 56. This comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoners' status, and not as themselves part of the collateral review to test the validity of that determination. See Gusik, 340 U.S., at 132. The majority can deprecate the importance of the CSRTs only by treating them as something they are not.

The use of a military tribunal such as the CSRTs to review the aliens' detention should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants could be vindicated "by an appropriately authorized and properly constituted military tribunal." 542 U.S., at 538. The DTA represents Congress' considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate opportunity to contest their detentions before just such a tribunal."

At 13,

"If nothing else, it is plain from the design of the DTA that Congress, the President, and this Nation's military leaders have made a good-faith effort to follow our precedent."

I think the majority opinion recognizes the possibility of military tribunals. The history of them was described at length in Hamdan as having been used 1) in occupied lands and 2) when the courts (i.e. South in the Civil War) were not available. The Quirin precedent I suspect is very troubling for the Court to consider that a reasonable procedure under today's standards.

What the majority is doing is basically not acknowledging that the CSRT are "military tribunals." In that sense, the majority is seeing them as emanations from the Executive that are unfit for the label of military tribunal. The majority is looking at the form and substance of the process and type of review put in place by the DTA and is simply rejecting it. This again is consistent with Jackson's comment in 1945 about the need to respect judicial forms. Roberts is a majoritarian heat of the moment deference type it seems to me. Just because a bad law is put in place by Congress does not mean that the Court is to roll over. The Court can see what the DTA was really about as I hope it also sees with the MCA and can decide these do not fit with the forms of judicial process required under our Constitution.

It is this weakness in the understanding of Roberts of what the Constitutional role of the Court is as a coequal branch of government that will be with the Court for years to come. It is ultimately a form of timidity by the dissenters in the face of Executive power that is really quite disappointing. It is an approach that is uneasy with recognizing rights of the social outcast preferring the acceptance and bonhomie of the socially acceptable prejudices of the moment.

Roberts gets it wrong again later when he writes:

"Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges."

The problem that Roberts has is the problem of the formalist. He is walking through the CSRT procedures and attempting to show that the CSRT is an "oh so adequate" set of procedures.

He also appeals to our jingoism by attempting to suggest that the process here given to a "noncitizen" will be greater than that for a "citizen." (I can't wait to see the Congressional types puffing that up in the anti-foreigner environment in which we live.)

Roberts' legal weakness is simply in his being so enamored of the formalism of the words of the DTA. It is untidy for him for the Court to have thrown such a spanner in this well oiled process of CSRT and Article III review. But, the important thing the majority understands is that this procedure was not created to make a search for the truth.  Rather, the procedure was put in place to make a search for the "truthiness" of the combatant status argument of the government in holding these people and treating them this way.

Roberts makes much of things that go on with regard to remand etc in the courts, but he fails to also note that the remanding to be done in this setting is to CSRT. Similarly with the possibility of release he is basically saying, trust in the good faith of all involved. I could trust in a court below, but I can not trust in the "truthiness" of a new CSRT court below.

The point here is that the majority shows skepticism to the pious formal words of the statute and looks at whether substantive due process is possible in the two-step system of the DTA.

I think the majority simply understands that the objective of the two-step system of the DTA is to assure people are held (truthiness) whether or not in fact they should be held (truth). And that is not good enough for the majority.

Roberts is willing to go along with the elaborate charade of the DTA rules showing a timidity in the face of a most dubious statute put in place in time of war. That may just be a sign of his immaturity, his lack of experience of war, or some flaw in his learning in that he never had to suffer on his way up. Be that as it may, he misses the essence of what was going on at Runnymede.

D. On Scalia's dissent, the essence that he does understand is:

"The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come."

I think that Scalia is absolutely right that the threat of that happening is present in the majority opinion. However, I read the majority as saying the reason for that threat is because of the profound departures that the administration has taken in the present war/armed conflict/pick your word in the manner in which the US has treated detainees.

The majority has looked at habeas and seen that it can be applied practically at Gitmo to these non-citizens being held. Scalia himself recognizes that habeas has been found to apply to US citizens abroad in a manner that is a departure from the English practice. Scalia just does not like that flexibility being applied to these non-citizens abroad.  The majority does.

Scalia waving of the flag of the 400 000 POW's held in WWII misses the point that these persons had POW status as opposed to these enemy combatants who are being denied (in error) any status under the Geneva Conventions.

Second, in Johnson v Eisentrager where these persons were held in Landsberg Prison, after a conviction by a properly constituted military commission in China, there is no hint at any step of the process of the kind of horrendous detainee treatment that permeates any question concerning detainee treatment in the War on Terror. (In fact, looking at Quirin (also), the key thing there is that there was no hint of horrendous detainee treatment that permeates the detainee treatment in the War on Terror.) If at Landsberg prison it was reported that those detainees were being subject to the kind of torture that we regularly hear about with regard to Gitmo and other places in the war on terror, I am not as sanguine as Scalia in thinking that the US court would not have entertained those cases.

Third, the fact that some detainees who have been released have joined for the first time or rejoined the enemy leaves to the side the specific issue of on what basis are we holding each of these detainees. I understand that hundreds of detainees (500 detainees) have been released. The number of 30 given by Scalia as having joined or rejoined the battle tells us nothing.

We should remember in the Civil War there were southern soldiers paroled on their promise not to take up arms again who went back and fought. When it got too bad in terms of those taking up arms again in dishonor, parole was ended (that led to Andersonville - more on that someday). But the ending of parole meant they would be held to the end of hostilities. Similarly, if we are having problems with numbers released and we consider they rejoined the battle (so should not have been released), the answer is in holding them until the end of hostilities after review in proceedings that are reasonable - not ersatz processes of dubious fairness. We did this in WWII and, where there were weaknesses, attempted to improve on those processes.

This is where the dissents miss the point, by there willingness to defer to an Executive and Legislature that was bent on lawlessness and covering lawlessness, they created the conditions for persons from a tradition that places a floor under human rights in war to react. That is what I think is the essence of what is going on here through the majority mucking up the carefully structured -- conviction machine that was to provide ersatz process.

What will be interesting now is to see in this election year whether a great deal of heat will be thrown up about being "soft on terrorism" as the right attempts to get a new law like a "national security court" passed in Congress before the election. You can see this is going to be set up. The left will probably cave because they do not want to be seen as "soft on terror."

I only hope that there are persons in the left and the right who come together to stand with the older traditions that were thrown out during the past seven years to put in place processes of review that are meaningful for enemy combatants.

At the heart, the effort to put these people in places without law is made to fail by this decision. That is the fundamental error of those slick lawyers who tried to pull that off. And it has done an enormous disservice to our fighting persons protecting us and to the traditions of warrior culture of the United States. There is a term for these types in the military - REMF (Rear Echelon Mo Fo's). They really screwed it up so that a majority of the Supreme Court feels the need to step in like this.

Shame on those boneheads.

E. Munaf - unanimous with Souter concurrence

I would also suggest that this case be read in conjunction with Munaf.  While Munaf is a unanimous opinion, the Souter concurrence points out precisely what is in the mind of many members of the Court, to wit:

"The Court accordingly reserves judgment on an "extreme case in which the Executive has determined that a detainee [in United States custody] is likely to be tortured but decides to transfer him anyway." Ante, at 24-25. I would add that nothing in today's opinion should be read as foreclosing relief for a citizen of the United States who resists transfer, say, from the American military to a foreign government for prosecution in a case of that sort, and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive
fails to acknowledge it. Although the Court rightly points out that any likelihood of extreme mistreatment at the receiving government's hands is a proper matter for the political branches to consider, see ante, at 23-24, if the political branches did favor transfer it would be in order to ask whether substantive due process bars the Government from consigning its own people to torture. And although the Court points out that habeas is aimed at securing release, not protective detention, see ante, at 16, habeas would not be the only avenue open to an objecting prisoner; "where federally protected rights [are threatened], it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief," Bell v. Hood, 327 U. S. 678, 684 (1946). "

The case at hand is with regard to American citizens and so the concurrence refers only to that case. However, what is left sub silentio is the idea of a non-citizen being transferred by the United States and whether a habeas attack would reach that. A second case is the case of Americans giving someone to a second country who then gives the person on to a third country (or whatever length of daisy chain is involved).

What is excellent in Munaf is that Roberts does reject the formalist argument about the MNF not being US custody and looks at the substance of what is going on to recognize that the court would have habeas authority here. Secondly, it is significant that Hirota is limited significantly in this setting - something that was not a foretold conclusion - and by a unanimous court.

However, what is disturbing in the unanimous opinion is the deference to the political branches on the evaluation of the "torture-likelihood" of the foreign state to which someone is transferred. Roberts and those who do not join Souter's concurrence are clearly trying to leave open space to decide that they should defer on extraordinary renditions cases to the Executive's decision. Once again, the argument will be that deference should be given by the Roberts, Alito, Scalia and Thomas types while one would hope that a majority would look more to the substance of what was going on like they did in Boumedienne. I think a look at the substance would recognize situations where the Executive of our country was in cahoots with the Executive of another country to deny torture was happening and to in fact send someone to be tortured (liked Arar being sent from Kennedy airport with a list of questions to Syria). The Court may resist going into that foreign relations space, but if the Convention Against Torture and the Geneva Conventions are going to have meaning then I hope it will not punt on the political question on this too.

I think the voluntarily going to Iraq is a big thing here - they took the chance to go to the dance. The thing that is left is the involuntary situation and that is going to be more thorny. Of course the horrendous thing is that the amicus cites US reports but the representatives of the US do not - tells us the state of life over at State I guess.

On the "transfer" idea, I hope folks saw Bellinger today in Congress defending the extraordinary renditions - distinguishing Arar to Syria as not an extraordinary rendition but as an immigration matter. Way to play to prejudices John - makes me sick. You can see a summary over at Jurist.

What I think is going on here is that non-citizens rights are being brought closer to those traditionally seen only for citizens because the kind of distinction citizen/non-citizen that was a hallmark in the pre-Universal Declaration of Human Rights world in the 1940's are less possible when state action has such dramatic effect on so many kinds of people.

The national rights and human rights are being overlaid to state the obvious in a way that people of the 1940's generation like Jackson or before would have difficulty understanding intuitively.

I think many Americans today also have difficulty conceiving of the human rights strata as they are seen as inuring to the benefit of people present in a foreign land.

Americans are not educated in the fact that those human rights inure to their benefit and to those of non-citizens in the United States. Our Constitutional focus seems to blind many of us to that strata of rule of law protection.

It is an ignorance which many of our political leaders attempt to make us think is a virtue.

F. Who wins?

I think our courts need to comprehend that people around the world will respond to fair decisions by our courts, just like they respond negatively to torture being done by our government. People respond to our conduct and if we want to win their hearts and minds we have to do those things that are conduct that they like - while at the same time protecting ourselves and our allies from those who wish us ill will.

That is the terrible task that these persons in government have in this world, but that's the job they want to take.

If we are going to be a city on the hill, we can not act like we are in some small southern town in the south back in 1951 where the effort is about "getting the (n* word)" as opposed to about being consistent with judicial forms.

That seems to be something that these good ole boys in our government have forgotten or wish not to remember just because these are foreigners.

Who wins? The United States of America wins by the Judiciary requiring true judicial forms and protecting people from the kind of arbitrary detention that the "enemy combatant" definition, the attempt to suspend the Geneva Conventions, the reinterpretation of torture, the extraordinary renditions, and all the rest of the panic and improvisation that has gone on the past six to seven years were trying to put in place.

I also insist that those proponents of the "national security court" pause before they start touting here this latest doodad in the continuation of the panic and improvisation. It is time for the tried and true in this war not more improvisation.

Thanks to Guest Blog Contributor Benjamin Davis of the University of Toledo School of Law

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