This week saw the oral arguments in two cases (Rasul v. Bush and Al Odah v. United States) involving non-citizen detainees in the Guantanamo Bay prison. Listening to the arguments, I have to say that John Gibbons, the attorney for the detainees, did a poor job in the arguments. He was unfocused, hesitant, and entirely reactive in his answers — never making any real positive points. At various points, Justices Stevens and Breyer threw him a rope, which Gibbons seemed not to notice.
Because the case is focused exclusively on whether jurisdiction in a U.S. civil court is possible, few of my general concerns in an earlier post are relevant this time. And the jurisdiction question looks like a complex one. Regardless of the verbal machinations during argument, it’s unreasonable to claim that the U.S. does not exert sole jurisdictional power at the Guantanamo base. The 1903 treaty states: “the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas…”
Nevertheless, the government’s point concerning the limits of habeas corpus in military situations is a subtle one. Clearly, everyone recognizes that enemy captives on the battlefield aren’t given habeas. Similarly, prisoners of war aren’t eligible for civilian legal remedies, and instead are treated under the Geneva Convention rules. In the current case, the Bush Administration is not calling the detainees POW’s, and they’ve been removed from the battlefield to a non-combat area and detained in a military prison. Thus, the plaintiffs argue, they are being held in Federal custody and are eligible for habeas corpus access to the Federal courts.
The government argues that Johnson v. Eisentrager is the controlling precedent, which disallowed habeas for enemy aliens imprisoned in American-occupied Germany. Federal habeas corpus statutes are also fairly specific about the need for specific territorial jurisdiction, and also say that “As a general rule, Federal courts will not entertain habeas petitions from a person in military custody unless all available military remedies have been exhausted.” Arguably — and sadly — the recent moves by Rumsfeld and the Pentagon to slowly determine status for the detainees probably means that “all available military remedies” have not been exhausted, since the statute doesn’t give the military a time limit for its processes.
Basically, I think the non-citizen detainees are screwed. It’s not a question of whether the Court could find an argument for extending habeas in this case — thus opening the door to lawsuits to determine the detainees’ individual cases. The Court could do so, since Eisentrager itself rests on partially overturned precedents. At the very least, the Court could construe the Constitution as requiring that the detainees must be processed by military justice, but that due process and representation are required, and that the detainees have a right to a speedy determination of their status.
But the Court won’t, I predict. It’s going to be too easy for the standard 5-4 majority to allow Eisentrager to control the case, and allow Scalia’s textualist approach to find no specific support for habeas in “grey areas” like this.
On the other hand, I think the Padilla case next week will go very differently. Eisentrager will be irrelevant. It’s much clearer when someone is a U.S. citizen, especially when arrested by civilian authorities on U.S. soil. Bush has labeled Padilla an “enemy combatant,” as if this label has the power to strip a citizen’s constitutional rights. Even during the Civil War, the Court has ruled (in Ex parte Milligan, for example) that American citizens arrested for aiding the enemy had a right to trial in civilian courts. It’s possible that the Rehnquist majority will decide against Padilla and other citizen detainees, but they’re going to have to work harder to patch together a justifying rationale.
And all of this is really less relevant than the question of how Congress and the Court haven’t pointed out that the President has unilaterally claimed the power to suspend constitutional privileges. Only Lincoln in previous times has suspended habeas, in the depths of extremity, but even he did so carefully and very temporarily. Bush shows no signs of caring whether he exceeds his constitutional powers. Congress and the Court, sadly, show little sign of holding him accountable for this breach.
And so, it will fall to the voters to do so in November.
Leaving aside every other issue, in November we need to elect a president who will uphold the Constitution, not ignore it.