For as long as it wants

“There are people being held at Guantanamo who shouldn’t be there. The United States cannot simply hold the detainees for as long as it wants.”

—Kenneth Roth, executive director of Human Rights Watch

Actually, it can. On February 20th, a three-judge panel of the Court of Appeals for the D.C. Circuit voted 2-1 against a group of noncitizen detainees at Guantanamo in Lakhdar Moumediene v. George Bush.

The central legal question was squarely addressed in the opening sentence of the majority opinion: "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 Moumediene case is the first to make its way to the appellate courts since Congress adopted the Military Commissions Act (MCA) of 2006. The case involved, among other issues, an interpretation of the following provision of the Act:

"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." MCA Section 7 (1).

The clear intent of this provision was to deny federal courts the authority to hear habeas corpus petitions from Guantanamo detainees by overruling the Supreme Court decision in Hamdan v. Rumsfeld (2006).

The two judges in the majority—appointed by Reagan and Bush the Elder—found the arguments of the detainees to be "creative but not cogent." The court was untroubled that the Guantanamo detainees had filed for habeas writs before the MCA became law. They declared that Congress had the legal authority to give the MCA a retroactive effect. They quickly dismissed the constitutional arguments, including those based on the Suspension Clause of Article I:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Article I, Section 9, Clause 2.

The majority's convoluted rationale is based in part on a series of dusty common-law decisions, British and American, that focus on the question of "territorial jurisdiction." They conclude that, under American law, the "Constitution does not confer rights on aliens without property or presence within the United States." [Property?]

By its terms, though, the Suspension Clause isn't limited in scope to either citizens or persons within the territorial limits of the United States. Guantanamo, of course, has been effectively under U.S. jurisdiction since 1903. But the court rejected this argument, noting:

"Congress and the President have specifically disclaimed the sort of territorial jurisdiction [over Guantanamo] they asserted in Puerto Rico, the Philippines, and Guam."

Even if this is true—and the dissent argues otherwise—their analysis is inadequate. Since when, in dealing with basic constitutional principles like habeas corpus, are the courts bound by "disclaimers" from the other branches of government?

In sum, the majority opinion tends to confirm what most people think about judicial decisionmaking: judges decide what they want to do in advance, then construct a rationale of law and fact to support it.

In her dissent, Judge Judith W. Rogers—a Clinton appointee —noted that the Supreme Court had already determined, in the Rasul case, that "[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus.” Rogers adds:

"The Framers understood that the privilege of the writ was of such great significance that its suspension should be strictly limited to circumstances where the peace and security of the Nation were jeopardized. Only after considering alternative proposals authorizing suspension 'on the most urgent occasions' or forbidding suspension outright did the Framers agree to a narrow exception upon a finding of rebellion or invasion... Indeed, it would be curious if the Framers were implicitly sanctioning Executive-ordered detention abroad without judicial review by limiting suspension — and by the court’s reasoning therefore limiting habeas corpus — to domestic events."

Judge Rogers goes on to quote Alexander Hamilton, invoking British legal scholar William Blackstone, in The Federalist No. 84:

"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."

English common-law courts, Rogers adds, also "recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India" (citations deleted). If India was within the reach of the writ for English courts, why isn't Guantanamo within the reach of the writ for U.S. courts?

So the Moumediene case will soon move on to the Supreme Court and an uncertain fate. My confident prediction is that the Supremes will uphold the lower court decisions. In other words, they'll withhold the writ of habeas corpus from the internees and find the MCA to be constitutional. With the departure of Sandra Day O'Conner and Bush's two appointments, the Court's decisive shift to the right makes this result almost inevitable.

A more promising approach is rapidly evolving in the Senate, where the Judiciary Committee has promised that it will introduce legislation to restore habeas rights to Guantanamo detainees.

As the Cleveland Plain Dealer editorialized:

The Great Writ guards against that most basic abuse of power, when the government can send hooded figures in the dead of night to roust innocent men and women from their beds. Its protections should apply in times of war, and to enemies as well as friends.

NOTES

*So what does it mean to be "properly detained as an enemy combatant or... awaiting such determination?" The phrase "properly detained" suggests some kind of due process, but the second half of the formulation takes it all away. No doubt all 400 detainees could be "awaiting" a determination for the rest of their lives. The cynicism of those who wrote this legislation seems boundless.

PHOTO: Circuit Judge A. Raymond Randolph, author of the majority opinion in the Moumediene case.