You can't, the Greek philosopher Heraclitus argued, step in the same river twice. Daily Kos is a great example of such a river. The turnover in this site in immense; it is not the same site year to year, month to month, day to day, sometimes even hour to hour. So with apologies to whomever finds this to be old news, I want to recapture some site history for those who were not around in the late winter of 2007. Some of the "old news" is news again.
The Restoring Our Constitution project, celebrating the 218th anniversary of the Constitution, was initiated by longtime Koster (aka Kossack) Jay Elias, who wrote the introductory diary linked to a couple of dozen words back. Around 20 Kosters -- some part of the initial plot, some simply moved to join in once it got rolling -- participated by writing one or more diaries addressing this theme. It was some of the most fun we've ever had on the right side of the front page; it's a template for instensive topical focus on an issue that we'd do well to reuse. I encourage people interested in both site history and in the substative issue to review the series. Today, though, I want to pick up on one diary I wrote for it last March.
This is part 1 of a two-part diary, but I'm not sure when that second part will be published. I'll note it here when it is.
The Boumediene opinion that was published ten days ago, as you might imagine, has been a step back onto the road of Restoring Our Constitution. Much has been written about what Boumediene has to say about habeas corpus, and the geographical reach of Constitutional rights, and whether aspects of the ersatz system set up within the Executive Branch to respect those rights passes Constitutional muster. I don't plan to add anything to those arguments, unless I do so incidentally.
My interest today is what the Supreme Court has done with respect to the notion of "jurisdiction stripping." I think I did a fair job of explaining this in my previous diary on the topic, written under my former handle, so until you see the line just below this sentence a second time, you're dealing with a very long (though slightly re-edited) cut-and-paste.
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Jurisdiction stripping. It may surprise some people that the Constitution does not require any federal courts beyond the Supreme Court itself. Article III, Section 1 states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Supreme Court has a narrow original jurisdiction to hear cases, mostly involving conflicts between states; by far most of its jurisdiction is exercised to hear appeals from lower federal courts and, where federal law is involved, from state courts. Section 2 states "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The emphasis above is mine -- and Bush-Cheney's. If a federal right exists -- the right to abort a non-viable fetus is one example -- but if Congress creates an exception to the jurisdiction of the federal courts to adjudicate claims based upon it and enforce that right, then it is as if that right does not exist. Preventing the courts from hearing the cases they would need to hear to enforce rights is called "jurisdiction stripping". (Note for those comfortable with law outlines: this one from Eugene Volokh's academic site is especially impressive.)
Jurisdiction stripping has been used, rarely, to limit certain rights of appeal: the number of times prisoners can challenge a conviction, for example, or the ability of those accused of immigration violations to appeal decisions made by lower quasi-judicial agencies. (Neither, by the way, strips jurisdiction entirely; rather, the laws impose limitations on appellate review.) This is, of course, a dangerous approach to take. Without the provision of adequate judicial due process somewhere in the system, it opens the possibility that the government could game the system so as to allow it to violate the law without consequence.
One provision of the Military Commissions Act (signed into law in October 2006) strips the federal courts of the ability to hear challenges by accused "enemy combatants" to their incarceration via a writ of habeas corpus. (Habeas corpus in essence asks the court to force the government to either justify why it may hold someone or else release them.) Pushing this pressure point would in the past have been taboo. You may intuitively realize that this is radical, but you may not fully see why a lawyer sees it as radical.
And I think it's worth your knowing why. Here we go.
2. Everybody needs due process sometime
The lodestar of our constitutional system is (or was, or is supposed to be) the existence of due process. If you assert that your rights or liberties are being violated, the government must at least provide you with some fundamentally fair review of your claim. (Here's the case that established that principle with respect to deprivation of government entitlements. As you would suppose, the rules are all the stronger when it comes to deprivation of liberty, and both statutes and courts have established rules about what makes legal procedures fair.) This due process may involve a hearing before someone in the Executive branch rather than a judge, as with immigration cases, but some procedure where rights are respected has had to exist. Until now.
Personally, I never consider jurisdiction stripping to be justifiable, but recent Republican Congresses have disagreed. When they've passed it in the past, it has been justified primarily as a means of reducing what would otherwise be an unbearable logistical burden on the courts, as with the immigrants and prisoner's rights bills noted above. That argument would not apply to a burden the size of a few prisoners in Guantanamo -- unless, of course, we plan to expand the number of people who fall into the enemy combatant category substantially. (Those who think that the suspension of habeas applies to American citizens fear exactly that, but that's a topic for tomorrow.) Let's assume momentarily that jurisdiction stripping was justified as a means of reducing the administrative burden on the legal system. It would still require due process to have been provided somewhere down the line.
Here is the process that the Bush-Cheney Administration was willing to provide people being processed through Guantanamo: Combatant Status Review Tribunals ("CSRTs"). (I strongly suggest clicking through the links in this diary, by the way. Even though it's mostly Wikipedia, there are some great and well-sourced articles there that a layperson can readily understand.) An analysis by a law professor at Seton Hall of these CSRTs came to several conclusions:
The government did not produce any witnesses in any hearing.
The military denied all detainee requests to inspect the classified evidence against them.
The military refused all requests for defense witnesses who were not detained at Guantanamo.
In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
In 91 percent of the hearings, the detainees did not present any evidence.
In three cases, the panel found that the detainee was "no longer an enemy combatant," but the military convened new tribunals that later found them to be enemy combatants.
Especially given that we know that people in Afghanistan were selling hapless victims to the American military for bounty money, this does not give a lot of confidence; the study author said: "These were not hearings. These were shams." Show trials for a solely internal audience.
Does this satisfy the due process requirement, especially for indefinite (potentially permanent) detention? If you said "no," you are (1) right, and (2) not a member of the Bush-Cheney Administration. They thought it was fine.
They claimed, in fact, that the Constitutional protection of habeas corpus did not apply to unlawful enemy combatants, regardless of whether they were American citizens, because they were not protected by the Geneva Convention and were not being held on American soil.
WAIT! Stop reading for a minute. Stop and digest that.
They said, in other words, that if some group of people, without the bare rudiments of fair legal process, decided that you were an "unlawful enemy combatant," there was nothing you or anyone else could do about it, forever. No appeal.
Our leaders said that. The leaders of the United States of America said that.
3. Three strikes and they still weren't out
Prior to Boumediene, he Administration had been 0 for 3 in Supreme Court cases relevant to this issue. In Hamdi v. Rumsfeld, the Court held that a U.S. citizen found to be fighting against the U.S. but not for a foreign state, an "unlawful enemy combatant," could be detained but had the right to argue their case before a judge. In Rasul v. Bush, also handed down on June 29, 2004, held that U.S. Courts had jurisdiction even over cases of non-citizens held in Guantanamo Bay, even though it is on territory leased from Cuba. Finally, in Hamdan v. Rumsfeld, the Court last year held that the Bush-Cheney Administration's first grudging attempt at establishing military tribunals failed because it did not satisfy the requirement of the Uniform Code of Military Justice that it satisfy the due process requirements of the Geneva Convention.
In Hamdan, the Court determined that the jurisdiction stripping provision in the Detainee Treatment Act, which became effective between Rasul and Hamdan, did not quite apply to Hamdan. That provision read:
[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.
(Isn't that a kick in the head to read, by the way? What the hell are they afraid of?)
The Court reached this result through some fine parsing of the law, based on the notion that Hamdan was being tried before a military commission rather than a court-martial. Had they found otherwise, they would have had to contend with the basic question of whether the statute violated the Suspension Clause:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
But they managed to avoid it. This is shocking because the Constitution also provides that which the Supreme Court in Ex parte Milligan (1866) could not happen so long as the civilian court system continued to operate. As you may guess, there are counterarguments (weak ones, in my opinion) available via the links.
The Military Commissions Act, then, was the late Republican Congress's attempt to satisfy the "due process" requirement -- perhaps, maybe. It gestures towards cleaning up the act of the CSRTs, which I'll get into tomorrow, to do something about those horrible statistics above.
It included this language as well:
(f) Status of Commissions Under Common Article 3- A military commission established under this chapter is a regularly constituted court, affording all the necessary `judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions.
(g) Geneva Conventions Not Establishing Source of Rights- No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.
That section (g) is a problem, because in a habeas petition, the Geneva Conventions would be the source of the petitioner's rights. So the petititoner can file a petition, I suppose, but I guess it would be blank.
I include section (f) -- one of the nice provisions in the law -- as well to help you appreciate just how sick the bastards were who thought this up. Taken together, the sections read: "We will follow the rules of the Geneva Convention. But if we don't, you can't complain about it."
Laws mean nothing without their enforcement. And when we're dealing with laws regarding due process, enforcement means the right to appeal. There is no right to appeal here. The box around a prisoner is sealed.
Federal courts have upheld the stripping of its jurisdiction on the basis of this legislation. Judge James Robertson ruled that given the Military Commissions Act he had no jurisdiction to hear Hamdan's own own claim that the law is unconstitutional. (See how that works?) And just over a week ago, by a 2-1 vote, an appellate panel also decided that it had no jurisdiction to hear these arguments to hear these arguments. The case, Boumediene v. Bush, is expected to reach the Supreme Court.
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As noted in that last paragraph above, both courts that heard these cases decided that the jurisdiction stripping language of the Military Commissions Act prevented them from deciding whether an action -- which the Supreme Court has now verified was in fact unconstitutional -- was unconstitutional. I hope that the full horror of that sinks in. Here, the government was doing something unconstitutional and it tried to gag the federal courts so that they could not find that out and uphold the protections of the Constitution.
Yes, as noted above, this interpretation of the prerogatives of Congress, most closely associated with Professor Henry Hart, had its Constitutional basis. And yet, the Supreme Court swept it away in this case like so many cobwebs.
The reason they should have done so is that, given an unprincipled Congress, jurisdiction-stripping prevents the government from working properly. It is an affront to the Constitutional principle of separation of powers, which has been limping badly since the 2000 election.
The Boumediene opinion itself, though, is oddly silent on the question of exactly why the Supreme Court itself could evade the jurisdiction-stripping ban and reach the question of the constitutionality of the relevant provisions of the Military Commissions Act at all. Part 2 of this diary is intended to address just what the Court was doing in its decision, and what it portends for the notion of jurisdiction-stripping.
Appendix
I began with an appeal to your interest in site history, and the series we collective wrote in February and March 2007, not so long ago. To facilitate that interest, here is a list of the diaries in the series. There is some great stuff in here, particularly the historical diaries, but what strick me looking over the list was a diary subtitle chosen by The Maven: "Supreme Court to Detainees: We're In No Rush." I have to go re-read that one. It has been partly made obsolete this past week -- and partially, given how the Bush Administration says it will approach the question of what comes next, not.
Diaries in the Restoring Our Constitution project:
(Note: this list may omit some diaries that would fairly fit within the project but did not include the phrase "Restoring Our Constitution" in their titles.)
Restoring Our Constitution: An Introduction, by Jay Elias, 02/25/2007 15:01:53 PDT.
Restoring Our Constitution: Common law, Magna Carta, and the Great Writ: a historical essay, by Noor B, 02/23/2007 10:24:38 PDT. (This preceded the Introduction; consider it a prequel.)
Restoring Our Constitution: Take Action Now by Elise, 02/25/2007 16:52:56 PDT.
Restoring Our Constitution: Land of the Free... except for that little "habeas corpus" detail, by OrangeClouds115, 02/27/2007 17:40:54 PDT.
Restoring Our Constitution: Tyranny vs. Democracy, by buhdydharma, 02/28/2007 12:12:30 PDT.
Restoring our Constitution: Lex Gabinia and the Fall of the Republic, by Jay Elias, 02/28/2007 17:37:26 PDT.
Restoring Our Constitution: Habeas - Corpse? Part 1 -- Jurisdiction Stripping, by Major Danby, 03/01/2007 15:23:22 PDT.
Restoring Our Constitution: The Stuart Crisis of Court vs. Country a historical reflection, by Noor B, 03/01/2007 17:38:25 PDT.
Restoring Our Constitution: The MCA is an Unconstitutional Bill of Attainder, by Categorically Imperative], 03/01/2007 19:07:27 PDT.
Restoring Our Constitution: a dKosopedia Index, by m00nchild 03/02/2007 01:16:12 PDT.
Restoring Our Constitution: How Bush Can Drag You Before Military Tribunals, by Patriot Daily News Clearinghouse 03/02/2007 09:56:32 PDT.
Restoring Our Constitution: Habeas and the MCA--Supreme Court Takes a Look, by The Maven 03/02/2007 10:43:35 PDT.
Restoring Our Constitution: Progressives should fight digression, by Serendipity, 03/02/2007 12:58:11 PDT.
Restoring Our Constitution: Habeas - Corpse? Part 2 -- Executive War Powers, by Major Danby 03/02/2007 14:46:34 PDT.
Restoring our Constitution: Freedom- Consciousness and Consent, by Turkana, 03/02/2007 15:33:26 PDT.
Restoring our Constitution: The Precedents in the Articles of Confederation for the Bill of Rights, by rktect, 03/02/2007 21:13:21 PDT.
Restoring Our Constitution: Anna, Anna, Br*tney and M*th*rF*ck*n Snakes On The Constitution!!!, by buhdydharma, 03/02/2007 21:37:06 PDT.
Restoring Our Constitution: REGULATORS!!!!, by Irishkorean, 03/03/2007 00:49:27 PDT.
Restoring our Constitution: WWLD? (What Would Lincoln Do?), by Nonpartisan, 03/03/2007 13:26:14 PDT.
Restoring Our Constitution: Habeas - Corpse? Part 3 -- Changing the Law, by Major Danby, 03/03/2007 14:32:29 PDT.
Restoring Our Constitution: Habeas - Corpse? Part 4 -- It Could Happen To You, by Major Danby, 03/04/2007 08:57:38 PDT.
Restoring Our Constitution: Let's Do This, by righteousbabe, 03/04/2007 12:14:16 PDT.
Restoring our Constitution: Hope is a State of Mind, by Jay Elias, 03/04/2007 16:15:59 PDT (front paged).
ACTION: Help deliver "Restoring Our Constitution" series to Congress, by Noor B, 03/04/2007 18:39:53 PDT.
Restoring Our Constitution: Woodrow Wilson and Alice Paul, by Unitary Moonbat, 03/04/2007 21:08:49 PDT.
Restoring Our Constitution--Supreme Court to Detainees: We're In No Rush, by The Maven, 03/05/2007 11:03:23 PDT.
Restoring Our Constitution: Backtracking on Incorporation, by wiscmass, 03/05/2007 15:47:27 PDT.
Restoring our Constitution: The undue influence of the Federalist Society, by rktect, 03/06/2007 11:37:55 PDT.
If you have some time to spend, today or any time, do consider checking some of these out!