Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

July 11, 2007

Boumediene v. Bush; Court Turns Deaf Ear to Fundamental Principals of the Great Writ of Habeas Corpus and Gives Big Brother a Blank Check.

On April 2, 2007 the United States Supreme Court refused to hear an appeal from the United States Court of Appeals for the District of Columbia which, in February, ruled that Guantanamo Bay detainees did not have a right to habeas corpus review of their indefinite confinement or any other constitutional protections. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). The Supreme Court’s refusal to hear the Boumediene appeal effectively closes the door to any judicial relief for the approximately 385 held at the Guantanamo facility for more than five years - unless the Supreme Court at some point chooses to revisits Boumediene issues.

Writing in the JURIST (O2/07), Jonathan Hafetz (counsel with the Brennan Center for Justice at New York University School of Law) said the D.C. Court of Appeals Boumediene decision effectively “granted the legislative and executive branches [of government] a blank check to detain non-citizens outside the sovereign boundaries of the United States, bereft of substantive constitutional or common law protections. Already, the Executive has held thousands of detainees outside the U.S. borders. If upheld Boumediene’s reasoning would sanction the creation of extra-territorial prisons beyond the law, notwithstanding the mounting evidence of individuals wrongfully detained in the administration’s ‘war on terror.’ The decision would also help entrench an emerging two-tier justice system in which foreign nationals may be denied basic protections provided by the U.S. Constitution and International law.”

The question squarely before the D.C, Court of Appeals in Boumediene was: Do federal courts have jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba?

The D.C. Circuit Court of Appeals has steadfastly maintained that “enemy combatants” do not enjoy any constitutional protections in a United States court. In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev’d sub nom. Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) the appeals court specifically held that “no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. § 2241, to the Guantanamo detainees.” 321 F.3d at 1141. The appeals court reasoned that since Guantanamo Bay was not part of the sovereign territory of the United States, the federal habeas corpus statute did not provide any court with statutory authority to assume jurisdiction over the detainees held at the Guantanamo Bay prison facility.

The Supreme Court in Rasul v. Bush, supra, however, reversed the Al Odah decision holding that while the detainees themselves may be beyond the American court jurisdiction, the court had jurisdiction over the detainees’ custodians sufficient to allow the detainees access to the Great Writ of Habeas Corpus. Id., 542 U.S. at 483-84, 124 S.C.t. 2686.

The same year the U.S. Supreme Court dealt with Rasul it also addressed two other cases involving “enemy combatants.” In Hamdi v. Rumsfeld, 542 U.S. 507 (2004) the court held that due process required enemy combatants be given a meaningful opportunity to contest the charges against them. Hamdi was followed by Rumfeld v. Padilla, 542 U.S. 426 (2004) which held that habeas corpus was available to an enemy combatant held in a Navy brig in Charleston, South Carolina, and that the brig’s commander was the custodian for habeas corpus purposes under 28 US.C. § 2254.

In response to these decisions, the United States Congress enacted the Detainee Treatment Act of 2005 (DTA) which, effectively, precluded any court, judge or justice from exercising jurisdiction over an “alien detained by the Department of Defense at Guantanamo Bay, Cuba” in a habeas corpus proceeding or “any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense at Guantanamo Bay” who is “military custody” or who has properly been approved as an “enemy combatant” by the D.C. Court of Appeals.

The U.S. Supreme Court responded to Congress’ DTA with Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) which held that the act did not deprive the court of jurisdiction in enemy combatant cases; that the military commissions scheduled to hear these cases did not have express Congressional authority; that the military commissions violated the Geneva Convention; and that the procedures being utilized by the military commissions violated the Uniform Code of Military Justice.

Congress responded to Hamdan with the Military Commission Act of 2006
(MCA). This act provides as follows:

”(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

”(2) Except as provided in [section 1005(e)(2) and (e)(3) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. ***

“The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” Boumediene v. Bush, 476 F.3d at 985-86.

The two questions faced by the D.C. Court of Appeals in Boumediene concerning the Military Commission Act were: Did the MCA apply to Boumediene’s habeas petitions, which was pending when MCA was passed, and, if so, did MCA constitute a suspension of the writ of habeas corpus?

The D.C. Court of Appeals first noted that MCA eliminated “jurisdiction over non-habeas claims by aliens detained as enemy combatants. This alone is sufficient to require dismissal of pending non-habeas claims…” Id., at 986.

The court added that “… everyone who has followed the interaction between Congress and the Supreme Court knows full well that one of the primary purpose of the MCA was to overrule Hamdan. Everyone, that is, except the detainees. Their cases, they argue, are not covered. The arguments are creative but not cogent. To accept them would be to defy the will of Congress.” Id., 986-987.

It was indeed the intent to of Congress with MCA to slam the door on all enemy combatants to the writ of habeas corpus. In fact, as the D.C. Court of Appeals observed, MCA eliminates habeas corpus jurisdiction over even Geneva Convention claims. MCA explicitly states: “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding … as a source of rights in any court of the United States.” Id., at 988.

In effect, the government of the United States can torture, maim, mutilate, and ultimately execute any non-citizen designated as an “enemy combatant” held in any kind of detention facility (no matter the conditions) outside the boundaries of the country without an affording him or her even a modicum of due process protections.

The detainees had argued that the Suspension Clause of the Constitution, U.S. Const. art. I, § 9, cl.2, states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it.” The D.C. Court of Appeals casually dismissed this constitutional argument, citing the five-decade old Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed.2d 1255 (1950) which defined the “scope of common law habeas: ‘We are cited no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.’ Id., at 768, 70 S.Ct. 936 …” Id., at 990.

Interestingly, the D.C. Court of Appeals acknowledged that detainees argument that they are not “enemy aliens” because that terms refers to a citizen of a country with which the United States is at war but added that habeas corpus is still not available to them because they are not physically present “within any sovereign territory.” Id.

In effect, the court said there are no precedents holding that Constitution confers “rights on aliens without property or presence in the United States.” Id. at 991. The court cited its long line of precedents which have held that “non-resident aliens” do not enjoy “the protection of the Constitution or laws of the United States.” Id., at 992.

Circuit Judge Rogers dissented in the Boumediene case. He found the reasoning by the majority disturbing. He invoked the words of William Blackstone to underscore his feelings: “’To bereave a man of life (says he), or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government’.” Id., at 998.

The “war on terror” is now fuel for an “engine of arbitrary government” that threatens to undermine the fundamental civil liberties that made this nation great and prosperous.

Our cousins to the North, the Canadians, passed legislation similar to the Military Commission Act. Their legislation is called the Immigration and Refugee Protection Act. The IRPA allows Canadian officials to issue “security certificates” permitting the “indefinite detention” of foreign terror suspects. The Canadian Supreme Court, in Charkaoui v. Canada, recently declared that these “security certificates” are “fundamentally unfair and unconstitutional” as stated by University of Toronto Faculty of Law professor Kent Roach.

Writing in the JURIST, Roach said that “the court’s decision recognized the fundamental unfairness of not being allowed to meet a case one does not know. Although recognizing the need to keep intelligence confidential and Canada’s reliance on foreign intelligence, it stressed the importance of allowing adversarial challenge to the evidence that the government presents against suspected terrorists.”

While holding that the specialized federal court that reviews the “security certificates” should remain independent, the Canadian high court expressed reservations about it being able to decide these cases fairly outside an adversarial process. The court stated:

“There are two types of judicial systems, and they ensure that the full case is placed before a judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties – who are entitled to disclosure of the case to meet, and to full participation in open proceedings – to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged – perhaps unknowingly – to make the required decision based on only part of the relevant evidence. As Hugessen J. has noted, the adversarial system provides ‘the real warranty that the outcome of what we do is going to be fair and just’ (p. 384); without it, the judge may feel ‘a little bit like a fig leaf’ …”

Our system of justice once held the same adversarial notions sacred, but that was before the Anti-Terrorism and Effective Death Penalty Act, the Patriot Act, the Detainees Treatment Act, and the Military Commission Act. Today is the dawn of a new legal era. The government of the United States now sees torture as a means to an end and sacred individual rights as expendable for the sake of the “greater good.” These are dangerous times. Attorneys in the Boumediene case made this clear in one of their briefs to the D.C. Court of Appeals:

“The Government asks this Court to turn the clock back to the early 1600s when the Executive could detain people without cause and without question. The Government's solution to our national shame is not to fix it, but to hide it, even at the expense of our common law traditions, our Constitution, and the freedom of innocent men who were living peacefully in Europe on September 11th.

“Ironically, the Government casts itself as the victim. The Government complains that it has been ‘forced to reconfigure its operations,’ as though it were Petitioners' choice that the Government keeps them incarcerated on a distant island base never intended to function as a prison. The Government laments that litigation has ‘consumed enormous resources,’ as though Petitioners' right not to be deprived of their liberty indefinitely without a lawful basis were a trifling inconvenience. And the Government rebukes counsel for ‘hundreds of visits,’ as though it were counsel's doing that the Government has chosen to imprison over 600 men, without charging them with any crime, and has tortured many of them in violation of basic principles of humane treatment.

“Notably, while the Government closely restricts visits by small numbers of lawyers, it regularly accommodates and entertains contingents of reporters at Guantanamo. The Government also asserts that ‘habeas counsel have violated protective orders.’ This serious accusation is made without any record substantiation or support. The Government has never alleged any protective order violation by Petitioners' counsel.

“The Government's disappointment that its own misguided and unlawful actions have been exposed does not deserve this Court's sympathy. Nor does it warrant abandoning the fundamental principle of our Anglo-American legal system-that a civilian detained by the Executive may ask that a neutral judge examine the asserted legal and factual basis for his detention and, if it proves insufficient, order his release. The writ of habeas corpus exists precisely to ensure that the Executive does not capriciously cause people to disappear without explanation…Petitioners ask only that a judge examine their confinement in a habeas proceeding. Neither Congress nor our Constitution permits the Government to deny them that opportunity. This Court should hold that the federal courts' jurisdiction over Petitioners' habeas cases continues unaltered.”

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