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The petitioners' claims on the merits include:
1. That a de facto or de jure transfer to the Iraqis is not authorized by law;
2. That such a transfer is also prohibited by an extradition treaty;
3. That because there is a likelihood of torture, such transfer would also violate another treaty;
and
4. That the U.S. military did not provide them with adequate process before deciding to detain them incident to a decision to transfer them to Iraqi authorities, and that if such process were afforded, they would demonstrate that there is no ground for trying them as criminals in the Iraqi system.
Now, these might all be fruitless claims—I have no idea. But that's what the habeas proceeding would test. If at the end of such process, the U.S. courts were to hold that any of those claims were correct—that the transfer would be unlawful, would lead to torture, etc., and if the U.S. executive branch were to respect such a holding, then the military would not transfer the petitioners to the Iraqi authorities. As Judge Tatel explained in the Omar case:
At this point in time, we have no way of knowing how the U.S. military would release Omar if the district court ultimately rules in his favor, much less whether and to what extent the military would communicate with Iraqi authorities. Nor do we have any idea what would happen to Omar once released. Perhaps he would end up in Iraqi custody, but perhaps he would not. For example,
perhaps because of developments at the habeas hearing, such as the appearance of defects in the government's case or the introduction of exculpatory evidence, the Iraqis would decide that Omar is no longer worth prosecuting. Or perhaps by the time the district court ordered Omar's release, Iraqi priorities would have changed, leaving Iraqi authorities uninterested in allocating scarce military resources ... to his
arrest. The point is that on the record before us at this stage of these proceedings, neither the government nor the dissent nor we can possibly know what would happen to Omar if the district court barred his transfer and ordered his release. Given this uncertainty, a preliminary injunction protecting Omar from the
certainty of transfer now is hardly an “empty gesture.” ... The dissent's speculation about a U.S. military “tip-off” to the Iraqis suffers from a second defect.
If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him either directly through a formal handoff or indirectly by “releasing” him with a wink-and-a-nod to the Iraqis.
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Suppose that U.S. troops are on patrol in country X. Perhaps they are engaging in joint maneuvers with that country's armed forces; perhaps they are there for some other reason. Some soldiers out on maneuvers run across a person whose face is on a "wanted" poster that they have seen. In violation of their own orders, U.S. law, and local law, they decide to arrest that person, reasoning that he is dangerous and that they are doing everyone a favor. A scandal ensues; the soldiers are disciplined.
Meanwhile, however, the government of country X asks the U.S. military, which has taken custody of the person in question, to hand him over to the government. The government understandably prefers that a wanted criminal not go free. The U.S. military is about to make the transfer when it learns that a U.S. district court has issued a preliminary injunction against turning this person over to the foreign government. This person, who happens to be an American citizen, although concededly under the criminal jurisdiction of country X where his alleged crimes occurred, has some relatives back in the U.S. who have filed a habeas petition on his behalf.
Normally, a habeas petition asks a court to order the U.S. government to release the person in custody. Fine, says the government; we will release him to the government of X. He is a wanted criminal, after all. No, says the court; you have to hold onto him. After we have a habeas hearing, then you can release him. Release him to the government of X? We'll decide later, says the court. Well, what are the other possibilities? Release him secretly so that he can continue to roam at large in country X? Ship him back to the United States and set him free there? Why would we want to do that?
Deborah, isn't this the Omar case (except that I have assumed, for the sake of argument, that U.S. custody of Omar is clearly illegal when it might well not have been)? Why would it be hypocritical or in any other way wrong for the United States government to release Omar to the custody of Iraqi law enforcement authorities? I'm sure Iraqi criminal justice is not fantastic, but it's what everyone else there has to put up with. As best I can tell, the majority of the appellate panel thinks that detaining Omar for a while longer might do him a favor because the Iraqi authorities could change their minds about arresting him and charging him with crimes, perhaps in light of evidence disclosed in the hearing. In effect, the court is anticipating that Omar's remedy for being illegally (if that is the case) detained is that he will be detained even longer. Odd.
To see why this is so odd, suppose that the preliminary injunction were out of the picture. Omar is picked up, and a habeas hearing is held instantaneously. If he wins (the court holds that the detention was illegal), then he is kept in detention (for how long?) in the hope that the Iraqis will change their minds. If he loses (the court holds that the detention was legal), then he is released immediately into the waiting arms of the Iraqi police. Do you think that a wanted criminal in Iraq should be shipped back to the United States for a trial here, even though the alleged crime was committed on Iraqi soil?
If I were a Supreme Court justice, I would ask Omar's counsel what relief he ultimately hoped to obtain (after the hearing is held). I find it hard to believe that the counsel could answer this question without sounding ridiculous. Anyone have any ideas?
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Deborah asks about the Munaf/Omar case being argued on Tuesday: "On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?"
Well, Deborah, if there's one principle the Bush administration cares even more about than dissing international law, even more than making mincemeat of treaty obligations, even more than preserving unilateral executive prerogatives, it's making sure there is no judicial oversight over the president's conduct of war. (My favorite bit from John Yoo's most recent book is when he recounts [page 142] that in the weeks after Sept. 11, the administration formed an interagency task force to study the issues related to detention and trial of al Qaeda members, and although there were many novel and contentious questions confronting the group, "[t]he one thing we all agreed on was that any detention facility should be located outside the United States"—because then the courts would (they thought) lack jurisdiction over the detention facility. In other words, "The first thing we do, let's kill all the judges.")
In this case, the cleanest way to exclude the courts is to contend that—surprise!—it's not really the U.S. in Iraq who is detaining the U.S. citizens. What? How can that be?
Continue reading at Balkinization ...
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Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday—presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts—the most striking to me has got to be how little anyone seems to care.
I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often (viz. invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): "Why doesn't anyone seem to care about this?" First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there's anything wrong with that. Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the "why" question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn't "anyone" who cares? Their own polling? The issue's relative absence on the cover of People magazine?
Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again—I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi, Rasul, and Hamdan—the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power.
While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?
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Continue reading at Balkinization ...
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Eric, comparing legal analysis to the hard sciences simply doesn't make much sense to me; if you could get all lawyers and judges to agree on an objective and methodology, then perhaps the comparison would be apt, but that's obviously not the state of affairs.
(That said, you seem to beg the question in your comparison. If geologists' methodologies did break down along political/ideological lines, then wouldn't we likely identify various schools as "conservative geology" and "liberal geology"?)
It seems to me that the better comparison is to, say, economics, and that science rather clearly has politically identified schools (Austrian economics more clearly recognized as a conservative school; Kensyian a more leftish one).
Again, you ask, why not call "conservative jurisprudence" that which tends to arrive at conservative outcomes? Perfectly fair question; indeed, that was the basic point of the 1994 Ernest Young article I cited yesterday. I'm not saying I agree or disagree with you; for the purposes of this post, I'm merely saying that that's not the end to which I employed the term "conservative jurisprudence" in my Thursday post. You raise a nice point, but, as I candidly admitted earlier in the discussion, it's just not one to which I've given too much consideration, and as such I'd feel a little out of place shooting from the hip here! Perhaps "conservative jurisprudence" should be denoted by its "conservative" results; perhaps it should be judged by its "conservative" premises. For now, I'll conservatively withhold judgment.
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Diane's point is well-taken: If the evidence is tainted, it's tainted for purposes of conviction, as well as for sentencing, and it's just as tainted if the defendant gets a long prison sentence as it is if he gets a lethal injection. If the conviction is "clean," by contrast, it's clean irrespective of the nature of the sentence he receives.
Yet I think Emily is onto something anyway when she says that she doesn't "want this country to be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony." Death, after all, is different in many ways, some legal, some prudential. I'm willing, for example, to see a conviction sustained on a weaker factual record than the record on which I'm willing to see a capital sentence carried out—notwithstanding the fact that as a purely legal matter, the evidentiary threshold is the same: proof beyond a reasonable doubt.
That's why I've been cheered at times when governors (and President Clinton once) commuted death sentences to life in prison based on residual doubts about the integrity of a trial record but did not act against the conviction itself. Something similar may be at work here. The stakes in the MCA's softening of the traditional rules of evidence are particularly high in light of the availability of capital punishment in this case. Put another way, I think many people would not argue against conviction of someone who had been waterboarded upon capture if the government can prove his culpability without the use of tainted evidence. Many more, I suspect, would argue in principle against his execution, even if the evidence is clean.
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Doug,
In a word: Welcome.
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Adam, thanks; your admirably patient response clears things up a little, but at the risk of trying your patience further, I must admit that my confusion has not dissipated. You say "conservative jurisprudence" means "only those methods of legal analysis most commonly employed by American ‘conservatives.' " You can't mean that; by this logic, "conservative geology" is the method of geology most commonly employed by geologists who happen to belong to the Republican party. Wouldn't it be better to define "conservative jurisprudence" as a method of legal analysis used to generate conservative case outcomes? Put this way, isn't there something a little embarrassing about the whole inquiry? Geologists don't evaluate each other on the basis of the political valence of their methodologies; why should jurists? I would think that "conservative jurisprudence" would be an insult hurdled by liberals at judges who care about political outcomes rather than the law. Instead, it is a badge of honor that conservatives pin on the robes of their favorite judges. How did this happen?
Here is what I think. At one time, conservatives could argue that judges who held themselves out as impartial were actually trying to move the law to the left. In the course of pointing out the errors of the judges, these conservative critics tried to explain what they thought the correct type of legal methodology would be. Defenders of the judges said that the judges were impartial, and the critics were trying to get the judges to adopt the critics' own politically biased, "conservative" legal methods. So the critics were called "conservative" jurisprudents while the defenders were called "liberal" jurisprudents. But people on both sides denied the labels: They wanted to be called "correct," not "conservative" or "liberal." It is too bad that this is no longer true. Now the chief concern seems to be whether one's erstwhile allies have gone heterodox: not whether Will's, um, legal philosophy is correct, but whether it is conservative.
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Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend.
This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.
As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.
In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them.
No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.
Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.