Every bad argument needs a good sound bite, and in that respect the Bush administration is on its game in the Guantanamo cases being argued tomorrow. Here's the shiniest nugget from the government's brief, too quotable to resist: "The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war."
The sentence basks in the glow of relativity: If the men being held in Guantanamo are getting more than anyone like them has ever gotten, then what do they have to complain about? And yet the academic and military experts who have weighed in on this week's cases, in a shower of friend-of-the-court briefs, fill in history that the government has erased, and reach a very different conclusion. What's unprecedented is the Bush administration's effort to run the detainees through stripped-down hearings and then hold them indefinitely, while at the same time barring them from trying to argue in a real court that they are entitled to something more.
To understand the government's claim, begin with this elaboration in the administration's brief: "there is no history of providing any habeas review to aliens captured abroad during an armed conflict." Habeas is the way you get into court to challenge your detention. In a run-of-the-mill criminal case, habeas rights come into play after a defendant has been convicted and lost his appeal. But in other contexts—deportation, detention, any other situation in which the executive branch is holding you outside of a regular criminal proceeding—habeas is generally the only way you have to get to court at all. And so, a group of constitutional law professors point out in one amicus brief, courts have allowed "detained enemy aliens" to use habeas to challenge their detention for various reasons since the War of 1812. In the 19th century, British subjects used habeas to argue that their detentions were at odds with a Pennsylvania statute. In the 1940s, German enemy aliens used the writ to argue that they shouldn't be sent off to Germany without the chance to leave on their own for another country. Crucially, other aliens throughout U.S. history were able to use habeas to challenge "the determination of their enemy alien status." That's precisely what's at stake for the Guantanamo detainees: Can they go to federal court in an effort to show that they are not enemy combatants, as the government has designated them?
And if the detainees do make it to federal court, what's the scope of review for their habeas claims? In the government's view, the answer is "extraordinarily limited" and "highly circumscribed." The courts don't get to look at guilt vs. innocence, or the strength of the evidence. But again, there's a bunch of experts, this time legal historians, who disagree that habeas review has only been about technicalities, like jurisdiction. It's true that courts reviewing habeas petitions don't normally look at the facts of the underlying case, but that's in the context of a criminal habeas proceeding, where a defendant has already gotten two chances to air his claims—a trial and an appeal. In cases of executive detention, on the other hand, the courts of the past "commonly exercised independent review over the factual assertions of prisoners." In the 17th and 18th centuries, there was a general rule against rehashing the facts, and then judges broke it when they realized that a defendant had no other meaningful chance to explain why he didn't deserve to be locked up. It makes sense that this has long been part of the writ of habeas, because it is, most essentially, what the writ is for.
The long-ago past matters to the Guantanamo detainees. Last year, Congress seriously curtailed the detainees' rights to statutory habeas—the form of the writ that Congress has explicitly written into law. And so the detainees are calling on the Supreme Court to recognize and flesh out their habeas rights as a constitutional matter, which means that the court will begin, at least, by thinking about habeas as the framers would have. At the same time, the more recent past matters, too—in particular, the 20th-century Geneva Conventions.
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