« Chinese bishops and church-state separation | Main | Mandatory Data Portability and Interoperability: The Next Frontier? »

March 05, 2007


Feed You can follow this conversation by subscribing to the comment feed for this post.

Frederick Hamilton

With the Democrats in control of both houses of congress, the restoration of habeus corpus for non-citizen enemy combatants may survive the political process. Whether it survives the requirement of presidential signing is another matter.

I lean toward not cloaking terrorists in constitutional protections as if they either deserved them or even more important, bring the legalization of the war on terror to a federal court near you. One way for the despicable to win is to give them legal cover. Don't buy it.


If I count the votes correctly, it is at least 5-4 the MCA will be found unconstitutional. Congress could save the President (and war supporters) further embarrassment if they restored federal jurisdiction, but the constitution vests habeus in the court in the absence of a specific declaration of invasion or rebellion.

It will be interesting to read the dissent's tortured analysis of original intent on this one.


Fred, you continue to miss the point day after day, month after month. You write: "I lean toward not cloaking terrorists in constitutional protections"

The point of habeas is to ensure that those detained are in fact terrorists.

Frederick Hamilton

Not all constitutional scholars share your view on "specific declaration of invasion or rebellion". It will be interesting. Congress has written the legislation with the constitution in mind. The constitution does give congress the power of what issues the Supreme Court has jurisdiction over and they exempted the Supreme Court from the issue of illegal combatants in a time of war and the Supreme Court has ruled that non-citizen combatants in war have no legal standing with respect to the constitution, so I would dare to say that the issue isn't as cut and dried as you suggest.

Frederick Hamilton

Or to truncate it. We are not talking about U.S. Citizens here.


Dicta in Hamdan revealed that the court may be at least receptive to the view that the right to Habeus Corpus cannot constitutionally be suspended. What was revoked by the MCA was explicit federal jursidiction.

A review of early applications of the Great Writ in times of war strongly suggest that persons held by the United States have a right to contest their detention.

I recognize there are other colorable interpretaions and the recent circuit court decision recognizing a lack of jurisdiction, including the dissent, cover this territory pretty well.

Allowing indefinite detention without due process of the law makes a mockery of American claims to be a nation ruled by law not men.

The Founding Fathers would be horrified.


Cannot be suspended without the requisite finding by Congress I meant to say.

Political Umpire

"I lean toward not cloaking terrorists in constitutional protections as if they either deserved them or even more important"

Innocent until proven guilty, anyone??

The US doesn't need to stoop this low. Just because someone is picked up in a raid on a village in Afghanistan doesn't mean they must be a terrorist, any more than a Vietnamese random might have been a VC.


It is difficult to see why the fact that the detainees were (thought to be) engaged in a war more profound and determined than those the US has traditionally dealt with should give them more rights than those traditional enemies.

It is also, I think, a bit fanciful to suggest that providing habeas rights to (suspected) Taliban/Al Qaeda terrorists in US custody will determine whether or not their leaders at home give US citizens a fair hearing. Those against whom the war on terror is waged do not, I suspect, have so much respect for the principle of comity.

But these considerations just go to the wisdom of a suspension of the writ.

Isn't the real issue whether or not it's open to the Congress to enlist the judiciary in a fudging of due process rights in the absence of a specific declaration of Invasion or Rebellion? Shouldn't the argument be made to the judiciary to reject the false-hearing system established by the FCA?

Political Umpire

Seems to me that the likes of Mr Hamilton are trying to have it both ways. On the one hand, the argument is that the US is trying to liberate Afghanistan and Iraq; on the other it seems to be taking the most illiberal steps regarding its own prisoners.

The argument that it is now facing somehow a uniquely bad enemy doesn't really hold. No-one suggested Timothy McVeigh or the Unabomber shouldn't have been given due process, yet they caused a lot of what we would now call terror.

Moreover, it isn't just habeas corpus that is under threat, if reports of "extraordinary rendition" are correct. It seems that the US is using Lear Jets to get around the Constitutional prohibition on torture. Not something in which a civilised nation ought to engage.


"It is difficult to see why the fact that the detainees were (thought to be) engaged in a war more profound and determined than those the US has traditionally dealt with should give them more rights than those traditional enemies."

The problem is that of uncertainty. In fighting a conventional war, there is a high probability that a prisoner will be wearing the uniform of the enemy country. There is a low probability that an innocent will be caught in the other country's military uniform. Very little room for error.

Since there is no such identifying characteristic among terrorists, like uniforms, there is a far greater probability that innocents will be caught when rounding up potential terror suspects. There is a great amount of uncertainty that any one suspect is a terrorist. Large chances for potential error.

Habeas corpus is a layer of protection for innocents being falsely imprisoned as terrorists. If there is evidence suggesting the suspect is a terrorist, then he or she will remain in custody.

Habeas corpus does not protect terrorists, it protects innocents.


john, et al. --

You oversimplify the problem when you argue that habeas is necessary to identify the terrorists.

Habeas is not the only way to separate terrorists from non-terrorists. The CSRT might also provide a way to make that deterimination.

Not to speak for Frederick, but it seems he most strongly objects to the idea that the procedural formalities of habeas are required even if the CSRT (or some other procedure) accurately identifies those who are improperly held. If we solve the substantive problem, why insist on the procedures?


BAC, the Combatant Status Review Tribunals are a joke. There is a paper that describes the (numerous) problems with them:

While I will not reproduce all the salient points, there was one that stood out and is quoted below.

"In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no-longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened which then found the detainee to be an enemy combatant."

The efficacy of CSRTs to protect innocents is very much in doubt. Habeas is needed.


My guess is that even if you did not consider the CSRT to be "a joke" you would still insist on habeas. Is that right golddog?

If that is right, why would you still insist on habeas?



First, let me apologize for my previous post. It was rude and condescending. I respect your thoughts, but do not share your high regard for the CSRTs. Perhaps CSRTs are not "a joke," but rather an ineffective method of ensuring that innocent men and women are not wrongly detained.

Would I still insist on the protections of habeas corpus if CSRTs were effective at protecting the innocent? I do not know. I suspect that whatever my personal opinion, the Constitution would still require it.

Frederick Hamilton

The crux of the argument is do alien enemy captured during battle have U.S. Constitutional protections? A strong case has been made that they do not. That strong case is that congress took jurisdiction away from federal courts legislatively with the MCA. Secondly, the U.S. Supreme Court has ruled on alien enemy combatants and habeus with Eisentrager during World War II.

The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, and then tried and convicted of war crimes by an American military commission in Nanking.

Per the Supreme Court: "We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

On this set of facts, the [Eisentrager] Court concluded, "no right to the writ of habeas corpus appears."

The only question in applying Eisentrager in my mind is what does "outside the United States" mean? A lawyer will argue since the U.S. has complete control over Guantanamo Bay in Cuba, the prisoners are essentially within the U.S. Lawyers can argue anything, but does anyone really believe Guantanamo Bay is inside the United States? How about Subic Bay in the Phillipines? How about Ramstein Air Force Base in Germany? Are those places "inside the U.S.?

Given Congress's actions and Eisentrager, the jury is still out on habeus protections for alien enemy combatants during this congressionally approved war on terror. The AUMF was passed by both houses of Congress on Sept 14, 2001 and signed into law by the president on Sept 18, 2001. And per the Congressional Research Service, "Once a bill is enacted into law, however, every
President, in accordance with Article II, section 3 of the U.S. Constitution, is obligated
to “take care that the laws be faithfully executed....” Thus, unless its current language,
is changed through enactment of a new statute that amends it, or its effect is modified by
opinions of the Federal Courts, the “Authorization for Use of Military Force” statute,
P.L. 107-40, retains the legal force it has had since its enactment on September 18, 2001."

Suffice it to say, Democrats want that new statute or to amend present law. Will they do it? Will it survive a certain veto? Can Congress manage the wars? Does Congress have any other power with regard to war and the commander in chief other than the power of the purse?

These next two years will be interesting. Also, just what if we win in Iraq? What if the Iraq Government does succeed in stabilizing the nation along the lines of some form of freedom and democracy?

But I digress. Habeus for alien enemy terrorist combatants is not here yet and may never be. Should it be? Decent and well meaning people can disagree. I don't feel terrorists determined to kill you and I deserve U.S. Constitutional protections. I know nobody on this post likes it, but remember Danny Pearl. How much habeus did he get?



Not sure plucking people off the streets of foreign countries is in "battle" now is it?


I'd like to address Mr. Hamilton's reminder that terrorists do not honor standards of fair play and justice. He therefore comes to the conclusion that this justifies our own abandonment of standards of fair play and justice. I find this kind of reasoning barbaric.

I have no problem with detention of enemy combatants during time of war. However, this is not a time of war -- and I leap to remind Mr. Hamilton NOT to repeat his earlier false claims that we are in fact at war, because, as I have pointed out, our Attorney General has testified that we are not at war. These detentions are not, in fact, detentions -- they are punishments. Incarceration constitutes detention only when it is clearly intended to be temporary in nature, and will be terminated as soon as some defined criterion has been satisfied. But there is no defined criterion which will lead to the release of the prisoners in question. Since there's no war, there's no "end of war" to bring about their release, as would be the case with enemy combatants in a real war. These people are being punished, not detained, and they are being punished without a trial.

Now, I realize that Mr. Hamilton cannot be asked to bring to bear any pittance of human decency to this problem, so I will put the issue to him in terms that he can appreciate: self-interest. The Golden Rule applies here. Right now, he and many Americans believe that we can do unto others whatever we damn well please, but in fact the times are changing and American power is dwindling. The American GDP is now less than 25% of world GDP, and falling fast in relative terms. The time will soon come when American citizens are detained by foreign powers. At this moment, American officials are under indictment in both Germany and Italy. I'm sure that Mr. Hamilton will be true to his principles and will make no objection should those officials be kidnapped off American streets by German or Italian agents, whisked away to Europe, held without recourse to counsel, given no trial, and held indefinitely. What's sauce for the goose is sauce for the gander.

Political Umpire

Indeed. The US should set out its standards and stick by them, not lower itself to the level of the thugs who murdered Daniel Pearl. America's position as the world's policeman has been severely dented by the failed invasion of Iraq, the Abu Graib disgrace, the extraordinary rendition process and of course the detention of many without trial. These are not measures likely to gain international sympathy for America.

I realise that among the detainees might be some terrorists, maybe a majority of them are. But no-one suggests that the murderers on the streets of New York - who are far more likely to kill citizens of NY than terrorists, I should emphasise - should be denied due process. It is the worst offenders, or those suspected of the worst crimes, who need due process the most.

Frederick Hamilton

If that person plucked off a "street" as you put it was Khalid Sheikh Mohammed then keep on plucking.

Political Umpire, you may be looking for sympathy for America, I look to and hope our country looks to the war on terror as a war and sympathy is an emotion that will get you and I killed. Do you have any sympathy for the people jumping off the WTC? So the worst of humanity deserves the most sympathy and due process rights. I get it. Just bad thinking on my part.

Sorry Eras you know that you and I disagree strongly on the whether we are at war. Semantics doesn't mean a thing to terrorits so when we kill them, just call it an accident of being in the wrong place and when they kill us vice versa. And by the way, Congress is going through some amazing gyrations to end the supposed "war". Your is a voice in the tortured mind of a legal nit picker regarding the War Powers Act, War, the AUMF, Commander in Chief, "real" declaration of war, et al. I live in the real world of an Iraq War, a War on Terror and two votes by congress to go to war (excuse me, to use military force).

And yes, Eras, I find it very hard indeed to have any human deceny for people who kill innocent women and children, who bomb markets, who cut off heads, who kill an unarmed innocent journalist by cutting his head off. Decency? Please, you dishonor decency.

As to the Germans and the Italians there is much being written about those episodes and how both the Italian and German governments were totally involved in the arrests made in their countries and cooperating fully with the CIA and using their own agents in the process. Don't worry, our CIA agents are quite safe from the Germans and Italians.

Why are you guys silent on whether Guantanamo Bay Naval Base is in the United States or not? Why silent on the six points of Eisentrager? This is a law blog. Do enemy alien fighters (oh by the way LAK, they fight best on the streets with bombs for little kids) have habeus per the six points of Eisentrager?


I agree with Political Ump that the United States should set a standard for the rule of law here.

Why are we struggling with Constitutional minimums when allowing habeas will demonstrate to the world that America's legal system is as robust and powerful as her military?

Political Umpire

The point I made was that people are usually considered innocent until proven guilty. That is so whatever crime they are accused of, be it vandalism, drunken driving serial killing or terrorism.

In fact far more Americans die in road accidents each year than terrorism. Mr Hamilton is much more at risk from driving than he is from Al-Quaeda. Should America deport all suspected drink-drivers to Guantanamo Bay and forget about them? Should it do so with "ordinary" murderers in Compton or Queens, who, again, kill far more Americans every year than terrorists do.

The argument that G. Bay is not part of the US is an absolute farce - it most certainly is under the control of the US, no-one else, so making it as some sort of legal black hole doesn't wash in terms of international law or US domestic law. If Mr Hamilton was picked up for drink/driving and flung there, he'd be on the phone to a lawyer post-haste, and wouldn't be satisfied by a 'drink-driving tribunal' hearing set up on an ad-hoc basis (there being, due to the respective death rates that i mentioned, much more justification for the US to crack down on drunk drivers than 'terrorists').

Al-Q hit America with a sucker punch from hell in 2001. America was quite rightly infuriated. It was the C21's Pearl Harbour. But looking back, does anyone really think that the detention of tens of thousands of Japanese-Americans was the right response to PH? Or that abandoning due process for GB detainees is the right response to 9/11?

Frederick Hamilton

We are doing what we do so as to maintain the rule of law and the constitution, i.e presently to keep alien enemy combatants treated within American law and not to go places where they have no rights, such as federal courts is our present rule of law. Now if Congress with the consent of the president want to confer habeus rights on alien, enemy combatants held outside the United States, they can do that with appropriate legislation.

At what point in war do enemy combatants deserve Constitutional protections? Do they deserve Miranda rights? Can you shoot to kill a fleeing terrorist you just witnessed bombing a school? If the only way to neutrelize a terrorist leader is to kill him with a drone guided missle, is that OK?

You make it sound so simple to "just give them habeus". With that comes lawyers, courts, judges, rules of evidence, et al. In fact, per Eisentrager, for alien enemy combatants to have habeus would be a gift from the American people. I appreciate the argument that it is a standard we should have for all of our enemies. Give our enemies federal court protections. Turn the war on terror into a criminal proceeding. Could be done and some want to do that. It is a discussion that should be held now during this presidential/House/Senate campaign and let the people decide how they wish terrorist enemy alien combatants treated. The "invasion" during World War II was Pearl Harbor, on 9/11 it was the WTC, Pennsylvania, and the Pentagon.

Being tough and hard nosed regarding terrorists doesn't mean being wrong or inhumane. The scale of inhumanity is hugely weighted toward the indiscriminate barbarism of the terrorists.

Street side plucking in London recently saved thousands of lives. If only we could have plucked from the streets of London, Madrid, Bali, Boston and Washington before the carnage. And of course, as we arrest them read them their Miranda rights. We are in a war. War is hell on earth. We didn't start the war. We God willing will have the strenght to see it through. Or lets just let Amindinejad and Iran win. Poof goes Israel. Humane fight those terrorist pizza bombers, bus bombers, school bombers. Humane folks the Islamic terrorist Jihandists. Lets give em habeus ans show we are good people. Balderdash.

Political Umpire

No-one is suggesting that "terrorists" not be punished, the point is in identifying who is a terrorist and who is not. Just the same as the point about serial killers is that we have to give someone due process before concluding that he or she is, in fact, guilty, rather than just saying we need to get rid of these serial killers/drunk drivers, that they show no compassion to their victims, that there is so much drink/driving going on in the US etc, and round up anyone in the carpark of a bar or restaurant.

Might I also ask what you mean by "Street side plucking in London recently saved thousands of lives" - No-one in London has been sent to Guantanamo Bay (though some UK citizens picked up in Afghanistan and Pakistan have been) or otherwise been denied habeus corpus in the UK courts.
So please explain.

Frederick Hamilton

In an above post, LAK, sarcastically derided "plucking" terrorists from streets and not on a battlefield. That is my reference to street side plucking. The recent UK arrests of Islamic terrorist Jihadists planning an eminent attack on US aircarriers was foiled by the "street side plucking" and not on a field of battle. Although indeed the streets or London, Madrid, New York, Washington DC, Bali, are battlefields on the war on terror.

I wish in America we had an unfettered internal security apparatus such as MI5. The Brits were deep into the terrorists cells without the perps being afforded court protections, or Fourth Amendment protections, etc. But that is another issue indeed.

Identifying alien enemy terrorists does not have to be done by a federal judge. In fact the MCA that Prof Stone wants amended with respect to habeus per statute puts the Eisentrager on the pages of current American law. Did they do a disservice to enemy alien terrorist comabatants. I think not. Most of you think they did. So be it.

That's what elections are all about. Let's debate it at all levels of the presidential and congressional election level. Let's see what the people want to do. I would think you all will approve of that. I'll live with the will of the people.

Comparing the perps of the USS Cole, Kohbar Towers, Beirut, African Embassy's, WTC, Pentagon, London, Madrid to drunk drivers is a disservice to those who died at the hands of the terrorists. Same with the bombers in Israel. Any human being can make the mistake of getting drunk and killing someone. The Islamic terrorist Jihadists intentionally want to kill you, I, my children, Israeli Jew pigs, etc. But your right. If only we eliminated cars fewer people would die. And that drunk is just the same as bin Laden. Glad your views don't dominate in Congress or our lifestyle would really change.

The comments to this entry are closed.