Restoring Habeas Corpus Rights Eliminated by the Military Commissions Act

The Constitution Project released the following statement today. Richard Epstein and I helped draft the statement:

We, the undersigned members of the Constitution Project’s Liberty and Security Committee and the Project’s Coalition to Defend Checks and Balances, are deeply troubled by the recent legislation eliminating habeas corpus for certain non-citizens detained by the United States.    We recommend that Congress vote to restore federal court jurisdiction to hear these habeas corpus petitions.
Habeas corpus has for centuries served as the preeminent safeguard of individual liberty and the separation of powers by providing meaningful judicial review of executive action.    In 2004, the United States Supreme Court upheld the right of Guantanamo detainees to file habeas corpus petitions to challenge the lawfulness of their indefinite detentions.

Nevertheless, in October 2006, Congress enacted the Military Commissions Act (“MCA”) eliminating habeas corpus for certain aliens held by the United States as “enemy combatants.”   While we recognize the need to detain foreign terrorists to protect national security, we do not believe repealing federal court jurisdiction over habeas corpus serves that goal.  On the contrary, habeas corpus is crucial to ensure that the government’s detention power is exercised wisely, lawfully, and consistently with American values.

The protections of habeas corpus have always been most critical in cases of executive detention without charge.  In these circumstances, habeas corpus proceedings afford prisoners a meaningful opportunity to be heard before a neutral decisionmaker.

The unconventional nature of the current “war on terrorism” makes habeas corpus more, not less, important.  Unlike in traditional conflicts, there is no clearly defined enemy, no identifiable battlefield, and no foreseeable end.  The administration claims the power to imprison individuals without charge indefinitely, potentially forever.  For that reason, it is essential that there be a meaningful process to prevent the United States from detaining people without legal authority or mistakenly depriving innocent people of their liberty.   Habeas corpus provides that process.

Habeas corpus is particularly important because of the way in which many detainees at Guantanamo came into U.S. custody.  Most detainees were captured far from an active battlefield; many were sold for bounty by Afghani warlords to the Northern Alliance before being handed over to American forces.  And, unlike in previous conflicts, the U.S. military did not provide a prompt hearing to determine a detainee’s status, as the Geneva Conventions and U.S. army regulations require.  As the Supreme Court has made clear, in the absence of such process habeas corpus is necessary to ensure that legal and factual errors are corrected and detention decisions are viewed as legitimate.

We recognize that the Military Commissions Act and the Detainee Treatment Act of 2005 provide detainees at Guantanamo with hearings before a Combatant Status Review Tribunal (“CSRT”), and that the CSRT decisions may be reviewed by the United States Court of Appeals for the D.C. Circuit.  But we believe that this review scheme cannot replace habeas corpus for two principal reasons.

First, the CSRT process lacks the basic hallmarks of due process.  Among other problems, it relies on secret evidence, denies detainees the chance to present evidence in their favor, and prohibits the assistance of counsel.  In addition, the process permits the tribunal to rely on evidence obtained by coercion.   Second, the D.C. Circuit’s review is limited to what will inevitably be an inherently flawed record created by the CSRT.  Unlike a U.S. district court judge hearing a habeas corpus petition, the D.C. Circuit cannot consider evidence or make its own findings of fact, and, therefore, it cannot rectify the CSRT’s inherent procedural flaws. 

The result does not provide these prisoners the process which they are due.  The government has detained prisoners for more than five years without a meaningful opportunity to be heard, and has failed to create an adequate substitute for habeas corpus.

Restoring habeas corpus is also important to protecting Americans overseas.  The United States cannot expect other nations to afford our citizens the basic guarantees provided by habeas corpus unless we provide those guarantees to others.

If the United States is going to establish a system of indefinite detention without charge, it must at least ensure there is a meaningful process to determine it is holding the right people.  When no such process has been provided, as in the case of Guantanamo detainees, habeas corpus supplies the critical fail-safe procedure to ensure that the executive has complied with the Constitution and laws of the United States.  We also believe that in our constitutional system of checks and balances, it is unwise for the legislative branch to limit an established and traditional avenue of judicial review.
America's detention policy has undermined its reputation in the international community and weakened support for the fight against terrorism, particularly in the Arab world.  Restoring habeas corpus would help repair the damage and demonstrate America's commitment to a tough, but rights-respecting counter-terrorism policy.  Therefore, we urge Congress to restore the habeas corpus rights that were eliminated by the Military Commissions Act.

Members of the Constitution Project’s
Liberty and Security Committee &
Coalition to Defend Checks and Balances
Endorsing the Statement on Restoring Habeas Corpus Rights Eliminated by the Military Commissions Act*

Floyd Abrams, Partner, Cahill Gordon & Reindel LLP

Azizah al-Hibri, Professor, The T.C. Williams School of Law, University of Richmond; President, Karamah:  Muslim Women Lawyers for Human Rights

Bob Barr, Former Member of Congress (R-GA); CEO, Liberty Strategies, LLC; the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union; Chairman of Patriots to Restore Checks and Balances; Practicing Attorney; Consultant on Privacy Matters for the ACLU

David Birenbaum, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP; Senior Scholar, Woodrow Wilson International Center for Scholars; US Ambassador to the UN for UN Management and Reform, 1994-96

Christopher Bryant, Professor of Law, University of Cincinnati; Assistant to the Senate Legal Counsel, 1997-99

David Cole, Professor, Georgetown University Law Center

Phillip J. Cooper, Professor, Mark O. Hatfield School of Government, Portland State University

John J. Curtin, Jr., Bingham McCutchen LLP; former President, American Bar Association

John W. Dean, Counsel to President Richard Nixon

Mickey Edwards, Lecturer at the Woodrow Wilson School of Public and International Affairs, Princeton University; former Member of Congress (R-OK) and Chairman of the House Republican Policy Committee

Richard Epstein, James Parker Hall Distinguished Service Professor of Law, The University of Chicago; Peter and Kirsten Bedford Senior Fellow, The Hoover Institution

Bruce Fein, Constitutional Lawyer and International Consultant at Bruce Fein & Associates and
The Lichfield Group; Associate Deputy Attorney General, Reagan Administration

Eugene R. Fidell, President, National Institute of Military Justice; Partner, Feldesman Tucker Leifer Fidell LLP

Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress

Melvin A. Goodman, Senior Fellow, Director of the National Security Project, Center for International Policy

Morton H. Halperin, Director of U.S. Advocacy, Open Society Policy Center; Senior Vice President, Center for American Progress; Director of the Policy Planning Staff, Department of State, Clinton Administration

Philip Heymann, James Barr Ames Professor of Law, Harvard Law School; Deputy Attorney General, Clinton Administration

Robert E. Hunter, U.S. Ambassador to NATO, 1993-98

David Kay, Former Head of the Iraq Survey Group and Special Adviser on the Search for Iraqi Weapons of Mass Destruction to the Director of Central Intelligence

David Keene, Chairman, American Conservative Union

Christopher S. Kelley, Visiting Assistant Professor of Political Science, Miami University (OH)

Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law, Yale Law School; Assistant Secretary of State for Democracy, Human Rights and Labor, 1998-2001

David Lawrence, Jr., President, Early Childhood Initiative Foundation; former Publisher, Miami Herald and Detroit Free Press

Thomas Mann, Senior Fellow and W. Averell Harriman Chair, Governance Studies Program, the Brookings Institution

Joseph Margulies, Deputy Director, MacArthur Justice Center; Associate Clinical Professor, Northwestern University School of Law

Alberto Mora, Former General Counsel, Department of the Navy

Norman Ornstein, Resident Scholar, the American Enterprise Institute

Thomas R. Pickering, Undersecretary of State for Political Affairs 1997-2000; United States Ambassador and Representative to the United Nations, 1989-1992

Jack Rakove, W. R. Coe Professor of History and American Studies and Professor of Political Science, Stanford University

Peter Raven-Hansen, Professor, Glen Earl Weston Research Professor, George Washington Law School

L. Michael Seidman, Professor, Georgetown University Law Center

William S. Sessions, Former Director, Federal Bureau of Investigation; former Chief Judge, United States District Court for the Western District of Texas

Jerome J. Shestack, Partner, Wolf, Block, Schorr and Solis-Cohen LLP; former President, American Bar Association

John Shore, Founder and President, noborg LLC; former Senior Advisor for Science and Technology to Senator Patrick Leahy

Neal Sonnett, Chair, American Bar Association Task Force on Treatment of
Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against Terrorism

Suzanne E. Spaulding, Principal, Bingham Consulting Group; former Chief Counsel for Senate and House Intelligence Committees; former Executive Director of National Terrorism Commission; former Assistant General Counsel of CIA

Geoffrey Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, the University of Chicago

Jane Stromseth, Professor, Georgetown University Law Center

William H. Taft, IV, Of Counsel, Fried, Frank, Harris, Shriver & Jacobson; former Legal Advisor, Department of State, George W. Bush Administration; Deputy Secretary of Defense, Reagan Administration

John Terzano, Vice President, Veterans for America

James A. Thurber, Director and Distinguished Professor, Center for Congressional and Presidential Studies, American University

Charles Tiefer, General Counsel (Acting), 1993-94, Solicitor and Deputy General Counsel, 1984-95, U.S. House of Representatives

Patricia Wald, Former Chief Judge, U.S. Court of Appeals for D.C. Circuit

Don Wallace, Jr., Professor, Georgetown University Law Center; Chairman, International Law Institute, Washington, DC

John W. Whitehead, President, the Rutherford Institute

Lawrence B. Wilkerson, Col, USA (Ret), Visiting Pamela C. Harriman Professor of Government at the College of William and Mary; Professorial Lecturer in the University Honors Program at the George Washington University; former Chief of Staff to Secretary of State Colin Powell

Roger Wilkins, Clarence J. Robinson Professor of History and American Culture, George Mason University; Director of U. S. Community Relations Service, Johnson Administration

*Affiliations Listed for Identification Purposes Only

Comments

[Frederick Hamilton]

Eras, I was correct that the rules for the military tribunals set up under the MCA were the work of military and civilian legal experts. The Manual for Military Commissions is available online. To give some info as I discussed however are the following from the Manual for Military Commissions (M.M.C.) and is published in implementation of the Military Commissions Act of 2006 (M.C.A.),

To wit:
Implementing rules must be consistent with the M.C.A. and provide for the accused’s rights to:(1) be present at trial, examine and respond to evidence admitted against him, cross-examine witnesses who testify against him, obtain and present evidence, and not be required to testify against himself at a military commission proceeding (10 U.S.C. §§ 948r(a), 949a(b)(1)(A) & (B), and 949j(a)); and (2) assistance by counsel or self-representation (10 U.S.C. § 949a(b)(1)(C)

Also,
(D)).(g) Statements obtained by torture are not admissible (10 U.S.C. § 948r(b)), but statements “in which the degree of coercion is disputed” may be admitted if reliable, probative, and the admission would best serve the interests of justice (10 U.S.C. I-1
§ 948r(c)). In addition, for such statements obtained after December 30, 2005, the methods used to obtain those statements must comply with the Detainee Treatment Act of 2005, enacted on that date (10 U.S.C. § 948r(d)(3)).

[Frederick Hamilton]

So Eras, the post above and the info on MCA is all available to anyone wanting to look at it. The body of work on the MCA, the rules to implement MCA was not the work of ignorant rubes. Hell some of it may have come from Univ of Chicago law grads themselves, who knows. But to attack on the basis of no rights, lack of counsel, is just plain wrong.

[Erasmussimo]

Mr. Hamilton, you are quoting from the Preamble to the Manual for Military Commissions, page 3. That information does not provide the definitive statements on procedures; such definitive statements are in the body of the manual. I have not had time to go over the entire manual, but I have found plenty of loopholes. For example, the requirement that the accused may cross-examine witnesses who testify against him looks great in the Preamble, but in the body of the manual it states that hearsay evidence is admissible. In other words, the prosecution doesn't need to present any witnesses; it just gets their statements on paper and submits those statements and there's no testifying witness to cross-examine.

This is just one example of how the MCA is rigged with sneaky loopholes to deny basic rights to the accused while maintaining the outer appearance of fairness. I shall continue my examination of the body of the manual and report later with some further observations.

[Frederick Hamilton]

Eras,
You don't have to search the entire rules. I get the picture. Legal nitpicking the MCA rules and regs won't solve anything in my mind.

They do get counsel. They are being afforded an opportunity to prove their innocence. I believe fairly and you believe to a "stacked deck" and the military tribunals will be unfair and are a sham and nobody will get a fair shake or justice. And that the stacked deck is intentional so as to fry the alien enemy combatants. Fair enough.

However you claim unfairness, I see a process where the outcomes are in question and will not be "show trials" to gain conviction and execution. We will find out as the military tribunals take place.

The MCA law won't be changed regarding habeas and the Supremes I don't believe will rule it unconstitutional. We should know soon as the tribunals are about to begin. Peace.

[Erasmussimo]

Mr. Hamilton, I now abandon hope of carrying on reasonable discussion with you. You grab at preambles and dismiss discussions of substance as "legal nitpicking". I should think that anybody who dismisses careful legal analysis as mere "nitpicking" would have no interest in a blog devoted to legal issues. In any case, I shall be ignoring all your future posts.

[Political Umpire]

America shunned the United Nations when it went to war against Iraq four years ago; today it doesn't look too flash given how that adventure has turned out. At the same time it shunned its own constitution and legal tradition - and continues to try to do so - by offering something less than justice to those whom it has captured on its foreign adventures. This isn't the sort of thing civilised nations do. Mr Hamilton thinks it all justified by the threat posed by the detainees. Yet as I've pointed out time and again, terrorism didn't kill anyone in America last year; serial killers and others did, but Mr Hamilton is comfortable with alleged terrorists having fewer rights than alleged every-other-type-of-criminal. It doesn't make a lot of sense to me.

[Frederick Hamilton]

Terrorism didn't kill anyone "in America" last year. What a statement. Does that mean you agree with the Bush Administration's success with their war on terror (with Eras ignoring posts I can get back to calling the war a war. Man that is an improvement)? I am sure it must. Sadly, outside of our successfully protected America (so far) the terrorists on still killing and mutilating innocent men, women and children. You bet your sweet pitootie I am comfortable with captured alien enemy combatants having fewer constitutional rights than US citizens. Not only am I comfortable with it, the vast majority of the American people are very comfortable with it. With the election cycle well underway the topic of how to deal with the war on terror should be part of the debate. Maybe your views will carry the day.

Our foreign adventures are a joke to many of you but serious observers realize our foreign adventures were the result of terrorist foreign adventures against us. We could ignore the terrorists, talk to them, appease them, make light of them and compare them to serial killers or we could take the war to them.

It must be difficult for some of you to live in an America that wants to take the fight to the terrorists and do whatever it takes to protect America from them.

I don't just grab preambles. Those preambles were all annotated with the sections of the MCA that gave them truth. Sorry you can't bullshit your way out of the fact the alien enemy combatants have lawyers. They have rights per the MCA. And they have a process to allow their guilt or innocence to be determined.

Stone is right. If you don't like the law, change it. Americans are quite capable of determining how they want us to handle the Muslim Islamic Jihanist terrorists. I'll go with whatever our democracy (yes John democracy) decides per our Constitution as adjudicated by the Supreme Court. Call your representative, join Moveon.org and give it your best shot. Until then, let the tribunals begin.

[Political Umpire]

Exactly what were the "terrorist foreign adventures against us" that involved Iraq?

Prior to the fall of Saddam, there was no ‘axis of evil’: North Korea was an atheist, communist regime, Saddam a secular dictator, and Iran a religious dictatorship. The three had nothing in common. After the fall of Saddam, Iran has busied itself encouraging the rise of religious clerics in Iraq, and will be hoping they form part of any Iraqi government in the future. Conclusion number one: the invasion has created, not disturbed, an axis of evil.

The case for war in Iraq was that Saddam had WMD. The case was shown to be wrong. It is likely that a majority of Parliament and the public will not accept any case presented by the intelligence services concerning Iran’s WMD and their threat to the West. Tony Blair should have read the fable about the boy who cried wolf. Conclusion number two: the invasion has undermined the credibility of the intelligence services and the major political parties, not enhanced it.

America no doubt hoped for a swift and emphatic display of its military power. It got this – for three weeks. Thereafter it has been bogged down by an insurgency and a multi-faceted religious conflict that it cannot control. It has therefore advertised its weakness to any future enemy. An invasion of Iran would therefore not be opposed by columns of the Iranian army, but by a well-integrated insurgency in any major town which the Americans tried to control. Conclusion number three: the invasion has America to be unbeatable in a conventional war (which was known anyway), but has also shown the aspects in which it is vulnerable.

America would have hoped to send a message to any other enemies in the region. Instead, it has decreased any chance of public or political support for any future military action. Conclusion number four: America has become less influential, not more, in the Middle East.

The long-term hope of the invasion was that a stable, democratic Western ally would be created in place of a stable if brutal dictatorship. To-date, an unstable and in parts ungovernable country has been created, even if there has been some enthusiasm amongst Iraqis for the votes that have been held. Conclusion number five: Iraq has been made worse, not better, for the majority of its citizens. There’s always a faint hope that the situation will improve, but it seems that it will take a matter of years not months.

[Political Umpire]

Apologies for the UK terminology in the above post, I was reproducing a previous blog of mine on point. I have also blogged before about the WMD threat, saying thus:

Shortly before the expiration of the UN deadline for Iraq’s withdrawal from Kuwait, America’s Secretary of State, James Baker, met Tariq Aziz, the Iraqi foreign Minister, in an attempt to stave off the conflict. I am sure neither harboured the slightest doubt that there would be a war, but they met nonetheless.

One thorny issue was that Iraq possessed WMD. They had used them against Iran and against the Kurds. So Baker cut to the chase, and said that if any were used against coalition troops, America would ‘retaliate’, and moreover had ‘the means to retaliate’. It isn’t clear what sort of retaliation might have taken place. Would America really have obliterated Baghdad? Or would they simply have used small, tactical nuclear weapons against military targets and possibly the Hussein regime? Either way, Aziz delivered the message and Saddam Hussein took the hint. Iraq did not use WMD even as its forces were crushed in short order.

The lesson is that Saddam was indeed deterred by the threat of Western nuclear power, just as the Soviets had been during the Cold War. He knew that use of WMD against the West would write his own death warrant. He was deterred from using WMD even though he could not have been sure that America would not renege on its promise to the Arab coalition forces not to depose him, nor could he have been sure that enough of his forces would remain to protect him from internal opposition (America’s miscalculation on that one was a very serious error, the significance of which has not received enough subsequent attention.)

In other words, if Saddam was ever going to use WMD, 1991 was the time to do it. He did not so, which reinforced (i) that he was not akin to the Al-Qaeda religious fanatics, or any other suicide attackers; and (ii) his primary concern was to stay in power himself, ahead of any imperialistic dreams of enlarging Iraq. It will remain a mystery precisely when and how he disposed of his WMD, though we know now he did. I suspect he did so because he was trying to have the sanctions removed, though if so it was perverse that he did not simply open up the country to inspections accordingly. Or perhaps the Western air strikes in 1998 were very successful in destroying the rest of the WMD in Iraq, and Saddam didn’t want them to know how successful they'd been least they followed it up with another crack at him. The fact that he had so many doubles and never slept in his palaces indicates a fear of American air strikes.

We can therefore conclude that Saddam could not have been a direct WMD threat in 2003, whatever was in his arsenal. It was hinted that he might help terrorist groups acquire such weapons, but again it has to be recalled that Saddam was not a religious fanatic, and therefore would lack common ground with terrorists. He would have known that doing deals with terrorist groups was making pacts with the devil.

All a great shame that Bush and Blair didn’t remember any of the above. Or perhaps they did, but invaded (i) because they wanted a show of strength, (ii) because they wanted the oil, and (iii) because Bush the First remnants such as Cheney had an obsession with Saddam as the bugbear, despite all logic suggesting Saddam was not a threat but an ally, in that he ensured that religious fundamentalists wouldn’t get a toe-hold in Iraq.

Having decided to invade anyway, we know what happened next. Part of the conditions that gave rise post-invasion to the insurgency seems to have been the looting and lawlessness which the Americans largely stood by and watched. As to that, I read this on Wikipedia on the US invasion of Panama in 1989 (http://en.wikipedia.org/wiki/Invasion_of_Panama#Invasion):

“One notorious after-effect of the invasion was nearly two weeks of widespread looting and lawlessness, a contingency which the United States military apparently had not anticipated. This looting inflicted catastrophic losses on many Panamanian businesses, some of which took several years to recover. ”

Seems they never learn.