If the rule of law were a religion, habeas corpus would be the first commandment.
The right to have the state justify anyone's incarceration is so fundamental—dating back centuries to the Magna Carta—that in this country it's protected by statute, by the Constitution, and at common law. Today's oral argument in Boumediene v. Bush and Al Odah v. United Statesis about nothing less than whether the Bush administration's war on terror—endless in its geographic reach and indefinite across time—will become the instrument of the great writ's demise.
The question the court must answer is whether Congress properly stripped the remaining 300-and-some detainees at Guantanamo Bay of their right to go before a neutral judge and challenge their detention. If that feels familiar, it's because we've heard this fight before in Hamdan v. Rumsfeld (2006). And also before that in Rasul v. Bush (2004). What's changed is that Congress, by enacting the 2006 Military Commissions Act (PDF), joined President Bush in the family habeas-stripping business. Now the president and the legislature together are telling federal courts to stay out of the executive's decisions about who gets detained where and on what charges. Rasul gave detainees a statutory right to habeas corpus. The MCA erased it. Hamdan struck down the president's military tribunals. Congress reinstated them. The Bush administration keeps winning by losing. The question is whether the third time's a charm.
A lot has changed since the president first gave himself the authority to seize and hold "enemy combatants" on a lawless little hunk of Cuba. For instance, justices who used to complain, "It's been two years!" at oral argument can now say, as does Justice Stephen Breyer, "It's been six years!" And whereas the only precedents available to the justices in 2004 were World War II cases, today we have the court's 2004 ruling in Rasul, which—as several justices note today—seems to decide much of the present case in favor of the detainees.
What hasn't changed in all these six years is that not one detainee has been convicted at a trial before the military tribunals that operate at Guantanamo. The administration still asserts, as it always has, that the detainees are treated "humanely," and yet the evidence of torture and abuse at Guantanamo has become unequivocal. The administration also still claims that the detainees at Guantanamo have rights—great heaping armloads of unprecedented rights. Except, six years later, it's clear (PDF) that the legal proceedings set up at Gitmo in the wake of Rasul, the so-called Combatant Status Review Tribunals (PDF), mostly give prisoners the "right" to be tried by a judge who answers to the military; the "right" to be tried with evidence obtained by torture; the "right" to be presumed a terrorist from the outset; the "right" to be tried without a lawyer present; and the "right" to be tried with evidence that's sloppy, inaccurate, and classified.
If those are rights, ladle me up some of them wrongs.
As Seth Waxman, here representing six Algerians arrested in Bosnia in 2001 and exonerated by Bosnian judges but still languishing at Guantanamo, suggests in his powerful rebuttal this morning (PDF), these hearings are fatally flawed. One detainee went through a CSRT unable to defend himself from government allegations that he associated with a suicide bomber. Finally, he made it to a real federal court on a habeas petition. "Within 24 hours" of reading the government's claims against him, says Waxman, "his counsel had affidavits not only from the German prosecutor but from the supposedly deceased [suicide bomber] … a resident of Dresden never involved in terrorism." It's not just that the CSRTs are an inadequate substitute for a habeas hearing before a neutral judge. It's that they seemingly exist to turn flimsy secret evidence into irrevocable legal fact. They aren't an "expansion" of the basic rights due our prisoners, as Solicitor General Paul Clement said numerous times this morning. They are actually worse than no rights at all.
Oral argument happens in two time frames today. In one, Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito fiddle with the reception on the time machine, pondering cases that are hundreds of years old. In the other, five different justices seem convinced that six long years of inaction at Gitmo is quite enough.
The first half of oral argument is largely taken up with the court's conservative bloc fretting about whether the case law of centuries past supports habeas claims from foreigners held by the United States outside the country. As Justice Scalia demands (many, many times) of Waxman:"Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?" Waxman does his best to mollify Scalia. But the justice continues to demand, in essence, that Waxman produce legal support for the proposition that "prisoners on a tropical island we rent but don't own" have a common law right to habeas.
Because, like that happened all the time in 15th-century England. …
Waxman, having offered up a batch of in re cases from various British sirs and lords and the Isle of Jersey (all of which Scalia blows off like dandelion fluff), says he'll take one more shot at persuading Scalia. "Fine," laughs the justice. "Line 'em up!"
Waxman replies that even if we only have Guantanamo on loan from the Cuban government, "the United States exercises complete jurisdiction and control over this base." He's not making this up—he's quoting Justice Kennedy in Rasul. Waxman adds, "No other law applies. If our law doesn't apply, it is a law-free zone."
Waxman offers up several more slides from his trip through the history of habeas, and Scalia waves them all away. Waxman finally says, "I think at this point I have to plead exhaustion." Best cure for Scalia exhaustion? Two Excedrin and a fifth of bourbon.
To the rest of the court, ancient history is less interesting than recent history. Justice John Paul Stevens presses Clement on how the prisoners' "personal representatives" in the CSRTs are selected and whether their primary obligation is to their client or to the Army. Justice David Souter wonders whether the CSRTs have the authority to release a detainee.
Breyer pushes and pushes at Clement on whether a detainee can currently make the simple argument: "I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me." The MCA provides for federal court review on the limited question of whether the CSRTs followed their own made-up procedures, and not on the big important matters of, er, you have the wrong guy.
"I'm not sure he can make that argument," Clement answers. "Exactly!" crows Breyer. "If he cannot make that argument, how does this become an equivalent to habeas?
When Souter asks Clement if he isn't simply "rearguing Rasul" and comments that "we have passed that point," the SG responds that the existing system represents a "remarkable liberalization of the writ [of habeas corpus], not some retrenchment or suspension of the writ." Intellectual reframing provided by Dickens: You'll take this crummy soup we've offered, and you'll ask for more.
Justice Anthony Kennedy—to whom, of course, all eyes are glued—asks pointed questions about whether the type of judicial review Breyer contemplates can be afforded the detainees under the appellate review before the D.C. Circuit Court of Appeals as Congress provided for in the MCA. He also asks how the Supreme Court can solve the pragmatic problems in the MCA if "we have no jurisdiction here?" (If the court strips itself of jurisdiction to hear this habeas case, it also strips itself of the power to solve the little matter of the CSRTs being ridiculous.) Kennedy wonders if the justices' opinion should be limited to "have a nice day, everybody." Clement seems to concede that the court could give him the win while still providing for more robust review than the MCA allows.
Emily Bazelon argued forcefully yesterday that the government's claim that it is giving Guantanamo detainees more rights than anyone like them has ever received is both historically and constitutionally bizarre. It may sound good rhetorically, but it forces the administration to argue—as Clement does today—that the detainees have terrific procedures—as good as a habeas proceeding! Better, even!—and that the detainees should be grateful for them.
But I just couldn't count five votes today for the proposition that the kangaroo tribunals are better than the alternatives, or even that they are any good at all. After six years, zero trials, multiple suicide attempts, and myriad resignations, even the claim that serfs on the Isle of Jersey in 1597 would have been delighted with the CSRTs sounds a false note. The one unifying theme today may be that every justice present longs for the good old days of the 14th century. The conservatives because life was better then. And the liberals because even the Middle Ages look better than what the administration is doing now.