Sheridan: Con-Law

BOUMEDIENE V. BUSH (DWORKIN)

Prof. Ronald Dworkin has this article, below, in the N.Y. Review of Books.  He regards the decision as one of the most important decided by the Court in ages.  Boumediene gives 'enemy combatants' the right of access to U.S. courts to challenge the legality of their detention, such as indefinitely for years at a time or the end of the war on terror, whichever happens to end first.

How access the courts?

File a writ of habeas corpus, or better yet, since the prisoner is being held in isolation in a place like Guantanamo, which is in Cuba, have a friend do the filing instead.

You say:  My friend/relative (name) is being held by the United States for no legal reason.  I think he's being held at the American prison/base in Guantanamo, Cuba, or (elsewhere in the world, whereabouts unknown). Please order him to be brought before this tribunal so that the authorities holding him can explain why.  Either that or order his immediate release.  Thank you very much.

That's a writ of habeas corpus.

Prof. Dworkin's article is below.

NO ARBITRARY DETENTION IN A DEMOCRACY BY A DEMOCRACY

The name of the case is Boumediene v. Bush, President of the United States.  Decided the other day, the case is where a prisoner held at Guantanamo by the government was not brought to court or charged with a crime for six years.  The government set up this prison in Cuba to avoid the federal courts in the U.S.  We own a chunk of Cuba since the Spanish-American War of 1898 when we stripped Spain of its colonies, kept them for ourselves, and became a colonial power ourself.  Mark Twain objected to our becoming an imperial power (which is what you are when you have colonies abroad) on the theory that it was un-American, which it is.

In our democracy, after all, we profess to believe that the only legitimate form of government is of the people, by the people, and for the people.  Oh yes, and that all of the people are legally and morally equal to one another, meaning that some people under one government are not treated as second-class citizens.  See Jefferson's Declaration of Independence followed by war and the Constitution and Lincoln's Gettysburg Address followed by war and the Civil War Amendments, 13, 14, and 15.

The rule against arbitrary detention by a monarch was enforced at swordpoint by the barons at Runnymede against King John in 1215. 

The document that first set forth the rule in Anglo-American jurisprudence appears in Magna Carta.  It says, basically, that no person may be held, or property seized, without due process of law ("the law of the land").

This fundamental principle appears at the top of this blog.

It appears in the U.S. constitution in a number of places and manners.  We have a due process clause in the 5th Amendment that restricts the federal government.

We have another due process clause in the 14th Amendment that restricts the 50 states, the numerous territories such as Puerto Rico, American Samoa, and the federal District of Columbia.  See Bolling v. Sharp, the companion case in D.C. to Brown v. Board (1954).

However we've been detaining people arbitrarily for a very long time.  We rounded up American citizens because of their race and ancestry because we were afraid of what we imagined, in our worst-case nightmares, they might do.  Fear does that to you.  Excessive fear is called paranoia.  A lot of law is based on paranoia. Paranoia based law is unjust as a matter of law, reason and morality.  You read it here.  Salem, 1692, was paranoia based law, prosecution, and hanging.

9-11 produced its share of paranoia based law and official reaction.  People were being hauled off planes.  Guantanamo and Abu Ghraib have been filled to the brim with people that our government says is very bad guys.

Oh, really?

Wonderful.  Then why don't you let us know who they are and what they did?

And why don't you bring them into a public courtroom and show your cards, sometimes called "evidence."

And, you know, let the other player in this little drama, the so-called bad-guy, play his hand of cards, such as the one that says:

"You've made a mistake.  Got the wrong guy.  It's someone else with the same name that you want, not me."

Or,

"You may have found me on a battlefield, but this happens to be where I tend my goats and sheep.  That's my house over there.  This stick is what I use climbing rocky paths.  My long gun here, is what I use to protect my flock and myself from wolves and bandits."

After all, it benefits us not one whit to imprison the innocent and let the guilty continue to make war on our troops, does it.

No, it doesn't.

We're supposed to be the good guys, remember?  We play by the rules.  I's he bad guys we're fighting who don't play, or fight, by the rules.  That's why we're fighting them.  But if we don't want to play by the rules, then we're no better than they are, are we.

No, we aren't.

For a review of the importance of our playing by the rules, see the article below:

PADILLA CONVICTED, CONSTITUTION ACQUITTED

Jose was convicted after the courts forced the Bush Administration to bow to the Constitution, which is hard to do when you're throwing it out the window using levers of lies and fear.

The Padilla story is below:

COL. STEPHEN E. ABRAHAM

There's nothing like a competent investigation conducted with integrity.

It's probably the last thing you're ever going to see when the government is doing the investigation.

Why?

Because governments have agendas.  They need to see things the way their leader wants things seen.  So that's what loyal underlings see, and report.  Anyone else need not apply.  But what happens when a more loyal underling says, "Something is wrong," and then reports what's wrong?  Does this underling become disloyal, or more loyal?

The result of falsely seeing and reporting is a mental error that Richard Feynman called "Cargo-Cult Science" in the last chapter of "Surely You're Joking."  The reference is to the aborigines met by U.S. troops in the Pacific during the island-hopping campaign in the war.  They liked the goodies left behind when the troops moved on, and so re-enacted the bringing in of the air cargo transport planes they'd seen bring them in originally.   

As reported by Feynman, the natives would don coconut head-phones and wave palm-frond paddles at the sky, hoping to see the transports appear as if by magic.  They went through all the correct motions only they missed something, and no planes arrived, alas. The aborigines investigation into what made the planes appear lacked something Feynman defined as "integrity," meaning that you must lean over backwards to see how you may be wrong and let others know how you may be wrong so they can check your work.  If your work is correct, you have nothing to worry about, but if it is bogus, you do.

The Guantanamo hearings are bogus, but don't take my word for it.

Today we enjoy cargo-cult law, medicine, government, military, and anything else that depends for its progress on false conclusions drawn from faulty data, especially when government influenced.

Once invested in falsity, it is difficult indeed to divest.  So many illusions are shattered in the process.

In the instance below, reported on page one of the NYT above the fold, Col. Stephen E. Abraham, a California attorney in Newport Beach, a conservative bastion, was assigned to help prepare the Combatant Status Review Panels which would determine whether a detainee at Guantanamo could be held indefinitely, perhaps for life, in isolation from friends, family, counselors, and the like, without a hearing, certainly without a due process hearing that any American would recognized as such if applied to an American.  Col. Abraham actually sat as a hearing officer on a three-judge panel which unanimously determined that the evidence was worthless and declared the prisoner not an enemy combatant.  The Pentagon conducted another hearing before a different panel and guess what.  The result was a unanimous decision that the prisoner was an enemy combatant.

Among the problems with the evidence was the fact that:

1. In one case, a prisoner was said to have been "a jihadist" in Afghanistan, but no time frame as to when that happened was given.  A jihadist s a Muslim who takes up arms to protect his faith or his country in the name of his faith.  "I was a Jihadist," said the prisoner, "against the Soviets."  We were supporting him and his jihadists, then.  We gave them Surface-to-Air Missiles (SAMs) to shoot down Soviet jets and helicopters.  People like him drove out the Soviets.  So calling him a jihadist could mean that we should give him a medal as a freedom fighter, not a terrorist against us.  The problem was that whoever called him a jihadist failed to distinguish whether he was a terrorist against the Soviets or against us.  No matter, we'll hold him forever in Guantanamo just in case.  We'd rather err on the safe side, to us, arguably, than risk letting a real terrorist go.  It were better that a hundred innocent people should be condemned as witches than to let one real witch go, seems to be the theory, which is exactly opposite the one we supposedly learned from Salem, 1692.
2. In another, a prisoner was told at his hearing that another prisoner had named him as having attended a terrorist training camp.  The prisoner asked that the informant be brought to the hearing to be questioned.  "We don't know his name," the judge said.  Many detainees, according to Col. Abraham, implicated others and the military had no way to test whether they had provided false information to win favor with their interrogators, according to the article.  Hmmm...as in "I'll tell you anything you want in order to get you to stop the waterboarding."?
3. In a third, a detainee was said to have been associated with an Islamic missionary group and to have traveled with a man who had become a suicide bomber.  "It would appear," Judge Joyce Hens Green wrote in 2005, "that the government is indefinitely holding the detainee -- possibly for life -- solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted or undertook himself."

This is the first report from an insider as to what is going on in Guantanamo and the minimal due process hearings ordered by the Supreme Court in the Padilla case, minimal being better than none.  Naturally the insider is being denounced as a traitor, much as was the enlisted non-com who blew the whistle on the mistreatment of prisoners at Abu Ghraib by lagging the photos to his commanding officer.

The article, by William Glaberson, is below:

HAMDAN V. RUMSFELD

On the Continuation, below, is the decision, issued today, in Hamdan v. Rumsfeld.

Because the opinion is 177 pages long and I haven't finished reading it, here's a link to Scotus Blog, where some kind scholar has.

Meanwhile, I'll do my best below, noting in advance that hours worth of emboldening has been lost due to a glitch in the program.  According to the computer gods, it's even better without.  Yeah, right.

Mr. Hamdan is a prisoner of the United States, held in secret military captivity, off-shore in Guantanamo.  This was supposed to keep him from the protection of U.S. law, it is believed.  U.S. law has a way of catching up with us all over the world.  Otherwise we might be a lawless people.  Law is not self-executing, you have to push it.  Mr. Hamdan, an enemy combatant, pushed it, and U.S. law responded.  In a contest between Pres. Bush and Mr. Hamdan, enemy combatant, Mr. Hamdan won, in a manner of speaking.  No more kangaroo courts for him.  But he remains in prison in Guantanamo, since our invasion of Afghanistan in 2001, his fifth year without being told what he is charged with or being given an opportunity to say, "You've got the wrong guy." 

We teach that procedural due process requires (1) notice of the charges with sufficient specificity that you know what you have to defend against or plead guilty to, and (2) an opportunity to be heard, which means to call and question witnesses with the help of a qualified attorney, and to testify yourself if you wish, and present evidence, and to have the assistance of the process of the court to obtain that evidence in a timely manner, (3) before a neutral tribunal.

As we read the Hamdan case, let's see what the Court has to say, if anything, about these essential rights to a fair proceeding.  It may be that Hamdan relates to a different point (I'm writing before having read the next paragraph), in which case, it will have been the already decided Hamdi case (Hamdi v. Rumsfeld, 542 U. S. 507) that has addressed that two years ago.  It's just hard to imagine these rights not being implicated in what follows.  Let's see.

In accordance with usual practice, I will highlight, emphasize, and re-paragraph at will, and add remarks labeled [Comment:...]

Note that only eight justices took part in deciding this case.  Chief Justice John Roberts abstained.  Why?  If recollection serves, Roberts was serving on a federal appellate panel when he was being interviewed as nominee to be the Chief Justice after the death of Chief Justice William H. Rehnquist.  I'll have to check further, but I believe that Roberts may have written the decision below that was reversed in part.

Note:  You can read this case for hours, as I have done, without coming to what it is about.  Here's a nugget from way down deep:

...the Government has failed even to offer a "merely colorable" case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission.

CONUNDRUM

What to do with someone who is sworn to kill large numbers of Americans but who cannot be charged with a crime?

For a discussion, see the article below from the Boston Globe, but you'll have to come up with your own answers: