Sheridan: Con-Law

BOUMEDIENE: GUEST COMMENT

Was Boumediene a victory for a great principle?  Or a decision on prudential grounds?

Richard Epstein, a law professor who joined in an amicus brief, says the latter.

It seems to me, nevertheless, that this is a victory for the Great Writ.  It is recognized as being available anywhere in the world that the United States detains anyone, citizen or alien, except for legitimate POWs, as opposed to illegitimate labeling, such as 'enemy combatants.'  The latter term was a label of convenience to distinguish an enemy from being a POW but not to allow him to be regarded as a criminal who would be entitled to all of the rights that pertain to the criminal justice model of prosecution, fact finding, punishment, appeal, that apply in civilian life.

The Epstein article appears below.

BOUMEDIENE V. BUSH

We know that habeas corpus has traditionally been the remedy to challenge the legality of detention by the soveriegn domestically.

That's what the barons at Runnymede forced King John, at swordpoint, to agree to allow (no imprisonment except by the law of the land, which we translate into "due process of law."  The resulting document, entered under duress one might say, is called Magna Carta, or "Great Charter."

Why such a great document?

Because it gave the barons, who were the king's natural supporters in their system of subinfeudation of land tenures, that is, each tenant of land, starting with the feudal serf, owed duties to the landlord above him, such as 40 days of military service, a share of the crops, the animals, the cheese, etc.  And this landlord above the serf owed his duties in turn to the lord above him.  As a result you had lords who owned village after village and the loyalty (and attendant performance of duty) of thousands of inhabitants of the land.

These barons were warlords.  They fought with each other over land and resources, but also with their overlord, the king, who was simply the richest baron of them all.  The king tried to keep them in line while trying to protect the kingdom from invasion from abroad.  And he needed troops to invade France to protect his inherited provinces there.

When the king imprisoned a baron, say for conspiring to overthrow the king, treason, to whom did the imprisoned baron complain about being thrown into the king's dungeon.

The king, one supposes, meaning to no one likely to help, in reality.

But, if the king were forced to produce the body of the baron, alive, to one of the king's judges, then the detention could be complained of to be unjust, i.e. illegal as being against the law of the land and established usages and procedures.  The king had agreed, in setting up the courts, to be bound by the law of the land, but this was  not fully accepted by the king, it seems.  So the barons forced him, at Runnymede, to agree to submit to the rulings of his own court.  This was the breakthrough at Runnymede.  The barons had forced the king to obey the law as enforced by his own judges.  Let's hope that the king's judges were up to standing up against the king who appointed them.

Were they appointed for life?

Could they be removed for ruling against the king?

Could they be punished for ruling against the king?

Could they be threatened successfully lest the rule against the king?

Could their salaries be with-held or reduced for displeasing the king?

All these protections were added in time.  Some appear in our Constitution.

The court order to the sheriff read:  "You, Mr. Sheriff of Nottinghamshire, have the body of Lord So-and-so.  Produce Lord Clarendon (alive) before the assize (court, traveling on horseback with judges, clerks, law students, barristers, summoners (process servers), bailiffs, constables, and the like) at Nottingham on the morning of Tuesday next to answer for why you are holding him so; otherwise release him forthwith."

The reeve of the shire, i.e. the shire reeve, from which we get our word 'sheriff,' then produces Lord Clarendon in court before the judge where a hearing is held on why the latter is being held in the dungeon.

"Because the king sent me a note saying to arrest him," the sheriff might reply.

That's not good enough, the judge would reply.  You'll have to let him go if that's all you rely on.  The king must have good grounds and evidence to support the claim, otherwise you must let the prisoner go.

And so forth.

The principle was established and enforced that in England the king was not above the law when it came to detaining subjects accused of crime or otherwise being  held in any form of detention.

This was the law against prisoners rotting away in jail without ever coming before a magisttrate to determine whether the detainee was in fact the Lord Clarendon suspected of conspiring against the king, as opposed to his cousin or little brother of the same or similar name.

The U.S. Constitution doesn't exactly say that "We adopt habeas corpus."  What it says, oddly enough, is just that it may not be suspended except in cases of invasion or rebellion.  Lincoln suspended it during the Civil War.  Secession was as good as invasion, I suppose, at least for Lincoln, although perhaps not for Chief Justice Taney.

So now we know that habeas corpus lies domestically.  A prisoner held within the country can complain to the nation's courts that his detention is illegal.

But what about prisoners of war, do they have the right of habeas corpus?  During WWII, we held German and Italian prisoner of war, captured on battlefields in Europe, captive for the duration in stockades inside the continental U.S., i.e. on American soil.

Did they have access to the federal courts to complain about the fact or conditions of their detention?  No, they did not.  They were governed by the Geneva Conventions of the 1920s following WWI to which the U.S. was signatory.  They only had to give name, rank, and serial number, which we were obliged to disclose to the International Red Cross.  So we were responsible for their well-being during captivity.  No torture was allowed.

Following the invasions of Afghanistan and Iraq, however, we established torture camps, allegedly to prevent another 9-11 attack on U.S. soil and interests anywhere in the world.  We also established a central concentration and torture camp in Guantanamo, a base we have in Cuba stemming from our 1898 war with Spain, which had colonized Cuba.  We stole Cuba, fair and square, and later gave it back to itself, keeping Guantanamo on a long lease.

We began stocking Guantanamo with people we captured in Afghanistan and Iraq.  They were bad guys, some of them.  But not all of them.  Some were just there, in Afghanistan or Iraq when arrested by American soldiers ("coalition forces") or our foreign colleagues-in-arms in Operation Iraqi Freedom (OIF).

Did these detainees, some of whom were driven to attempted suicide by our mistreatment, have the right to complain about the fact and conditions of their detention to a U.S. federal court?  A court whose writ ran to the top military commanders?  Did the U.S. Army have to obey a civilian in a robe, sitting in a courtroom in America, somewhere far from the battlefield?

Were these detainees "prisoners of war" (POWs)?  Not exactly, said President Bush.  They're 'enemy combatants,' whatever that is.  Somewhere between a POW and a criminal, I suppose.

Well, do they have access to our courts to protest their indefinite detention without charges and without being brought before a court?

That's what Boumediene is about, decided this past week, the decision of the Court, below.

Boumediene held that prisoners of the U.S. held anywhere in the world, be they citizens or foreigners, had the right of access to the U.S. courts.

And how do they get before this court?

They file a piece of paper, or their friend does for them, stating that Mr. So-and-so is being held by the power of the United States.  He has not been charged.  He is being held on some pretext, such that he is an enemy combatant.  Please order him to be brought before a U.S. court to determine whether his detention is legal or not.

The court issues an order (court orders are sometimes called writs and sometimes jus court orders; when it comes to producing (live) bodies, we call it a writ.  The order says: To the commander of the facility at Guantanamo (or whereever):  YOU HAVE THE BODY OF MR. SO-AND-SO.  Produce him before this court next Tuesday at 9:00 a.m.  Or let him go.  Be prepared to explain your justification for holding him so.

The commandant produces Mr. So-and-so.  The commandant explains he is holding the prisoner because the president of the U.S., George W. Bush, claims he's an enemy combatant, whatever that is.

We expect the court to say, "This is not a good enough reason.  Let him go."

Boumediene, below, is a breakthrough.  It extends the power of the writ, and the courts, beyond our borders to around the world.

This is sweet for the good guys who are being held as prisoners along with the bad guys.

It is sweeter still for the rule of law.

Boumediene protects America from being ruled by pirates and dictators, not that we have any of those, except perhaps in the Bush-Cheney White House, populated by sterling characters such as Scooter Libby.

GUANTANAMO, AGAIN, ACCESS TO REAL COURTS

Prisoners held indefinitely in Guantanamo, the U.S. example of Stalag 17, without the fun and games and no chance of escape from the island, want access to the U.S. Courts, not some kangaroo court such as the military commissions that the administration set up to satisfy the Supreme Court's barebones definition of due process of law in the first round of cases in 2004.  The military commissions have ordered attorneys appearing before it not to mention the names of witnesses to their clients.  How can an attorney effectively represent a client if prohibited for discussing who the witness is?  Why have an attorney?  Why the right to confront witnesses if the attorney hasn't the proper basis for asking intelligent questions, learned from the client, of course, which is where most defenses come from in most cases.  Why bother to have a trial in the first place if it is going to be a charade?  Why not call it what it is, a charade, a kangaroo court where the result is foreordained, given the restraints on the so-called defense?

That's probably what we'll get if the prisoners are not given access to the real courts, which, in this instance, would be the United States District, Appellate, and Supreme Courts.

Doesn't the Constitution guaranty anyone held under U.S. authority the right to make a plea to our courts?

It does and it is called the right of habeas corpus.  But this right can be suspended in case of "rebellion or invasion when the public safety may require it."

Are we in a state of rebellion or invasion?  No.

Is there some other reason for barring prisoners of the U.S. from the U.S. courts?

Yes, or maybe.

The Bush administration's answer is that the military commissions are court enough.

 

The prisoners and their lawyers know better.  Kangaroo courts are no courts, they answer, or would if they were less polite.

That's what the new case (Boumediene) accepted by the Supreme Court is about, whether a kangaroo court is as good as a real court to satisfy constitutional due process requirements.

My guess is that this is not how the Roberts court will frame the issue.

How will the case come out? 

Bush appointed Roberts-the-former-Rehnquist-clerk and Alito-the-former-federal-prosecutor, both conservative Republicans of the Right-most sort, to replace Rehnquist and O'Connor.  Scalia and Thomas are to the right of them.  Anthony M. Kennedy is in the middle, as usual.  Breyer, Ginsberg, Stevens and Souter are the conservative liberals, holding up the other end of the see-saw.

My guess is that Kennedy controls and he knows right from wrong when it comes to liberty.  I think the administration, lame duck as it is, gets another sock in the eye.  I'm 99% wrong on my Supreme Court predictions, I'll give fair warning.  Got Lawrence v. Texas right, however.  Anyone could see Bowers v. Hardwick, the case it overturned as wrong when decided and wrong now, going down the tubes.

Linda Greenhouse, the NYT Supreme Court reporter has the story below.  She's one of the great writers on the Court and the law.  Why great?  Because she cuts through the mass of verbiage which is the Supreme Court and its law to present the picture in simple terms that even you and I can understand, which is the mark of a great teacher, in my book.

U.S. A-G GONZALES: JUST BECAUSE THE CONSTITUTION GUARANTEES HABEAS CORPUS DOESN'T MEAN WE HAVE HABEAS CORPUS!

Ever since King John was told what's what at sword-point at Runnymede in England a few years ago, the year 1215 to be exact, no king has had the legal right to have his men pick up someone and throw him in jail without being answerable for it.  How?  The person's friend asks a judge to tell the jailer, "Hey!  You have the body of So-and-so.  You are ordered to produce the body in court tomorrow, where we shall have a hearing into whether the detention is legal, otherwise, I'm ordering the person released.  Got that?  Seeya tomorrow, Sheriff.  The sheriff then notifies the king's men who notify the king's lawyer (called the attorney-general) who shows up and argues why the king was justified in jailing the man.

This is called a habeas corpus proceeding.  "Habeas corpus" means "You have the body."  You can use it to challenge the holding of a person held in a jail, a mental institution, or whatever.  Once the court issues the writ (a court order is called a writ) commanding the captor to produce the captive in court, we have a hearing.  If the judge refuses to sign and issue the writ, you appeal the denial.  Then the next court up the line gets to review whether the lower court was right in refusing.

In a few years we'll have had the Great Writ, as it's called, in force for 800 years.  It is so taken for granted in the English speaking world that we'd hardly know how to act without it.  The only time it may be suspended is by Congress during rebellion or insurrection.

But now the U.S. Attorney-General, Alberto Gonzales, our chief law enforcement officer and presidential yes-man, legal department, is making believe that the right to habeas corpus doesn't exist because his boss, George W. Bush, wants to round up people and throw away the key without explaining to any court why.

One of my valued correspondents sent me one of the following article on this state of affairs, for which I am grateful.  The other came up later.   Department of fair use for educational purposes.  See what you think.

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For a discussion among leading Conlaw scholars on the current habeas controversy, see Yale Law Professor Jack Balkin's blog, here, featuring comments by Conlaw Prof. Sandy Levinson, U. Texas Law, along with Marty Lederman and others.  Conlaw can be head-splittingly complex, not necessarily when attempting a general understanding of existing doctrine, but in discussing whether existing doctrine fits new situations, and even more difficult when trying to squeeze new-seeming situations into pre-existing doctrine that didn't consider that.

It goes like this.  The police department calls as an expert in a gang case the lead investigator to say that Gang A exists and that X is a member of it, in his opinion, which if accepted by the jury, results in (a) a finding in favor of the truth of a special allegation to an ordinary charged crime, worth extra years in prison, and (b) conviction for a new crime, active membership in a criminal street gang with knowledge of its nature and quality (it commits crimes) and with specific intent to unite with the gang in the commission of those crimes, by virtue of active membership, established by the cop, regardless of your intent, you being the accused who has friends in a gang.  Anything constitutionally wrong with having the cop sink your client?

I think there is, or must be, but so far, the Supreme Court of California, says this is fine as far as they can see.

My job is to string doctrine together to form new doctrine justifying the holding that this is wrong.  This is hard, very hard.

So, finding existing doctrine is one problem, weaving it into new doctrine, which is accepted by the folks in the factory who make, or recognize, it, is more difficult.