Scalia: A legend in his own mind

In his dissenting opinion in Boumediene v. Bush, which conferred the right of judicial review on detainees at Guantanamo and elsewhere, Antonin Scalia flatly declared:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

In support of this contention, he claims:

In the short term... the [majority's] decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield.

He goes on to cite several incidents from the GWOT "battlefield" — a very flexible concept for Scalia — as alleged in such sources as the minority report of a Senate committee and several articles from WaPo. Most of the alleged incidents occurred in 2004.

Mark Denbeaux, a professor at Seton Hall University School of Law (SHUSL), with the assistance of several law students, deconstructed Scalia's claims in a detailed 22-page report that found:

"Justice Scalia’s reliance on the these sources would have been more justifiable had the urban legend he perpetuated not been (one would have thought) permanently interred by later developments, including a 2007 Department of Defense Press Release and hearings before the House Foreign Relations Committee less than two weeks before Justice Scalia’s dissent was released.

[...]

"Justice Scalia’s claim of 30 recidivist detainees is belied by all reliable data. Such a statement simply repeats, without appropriate judicial analysis or skepticism towards the statements of parties before the Court, inaccurate data disseminated by the Department of Defense. Despite being repeatedly debunked, this statement has been reflexively accepted as true by Members of Congress and much of the American public. Justice Scalia is only the most recent disseminator of an urban legend that refuses to die."

The SHULS study found that only one released Gitmo detainee (designated "ISN 220") later took up arms against U.S. forces or their allies, and he was not released as a result of any legal process. In fact, the report found that "the decision to release ISN 220 was made by political officers in the Department of Defense and was contrary to the recommendations of the military officers."

Scalia's false claims go to the heart of the rationale for holding detainees without judicial review: if any doubt exists, keep them locked up indefinitely for fear that they might attack the U.S. or its allies [1]. This falsehood will be repeated many times by October 8th, when the first Gitmo trial begins.

Scalia's dissent is yet another variant of the Willie Horton Syndrome (see below and here) in U.S. politics. No politician or member of SCOTUS wants to be blamed for the release of a prisoner who later attacks U.S. troops or civilians. While this impulse may be understandable, an opaque system that includes torture and indefinite detentions is not the solution. A transparent judicial process is better able to balance legitimate security considerations with the due-process rights of those who have been unfairly accused and imprisoned.

NOTES

[1] Unless there's enough international pressure to force their release, of course.

[H/T to Scott Lemieux at Lawyers, Guns and Money
and M. Duss at Think Progress]

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.