HABEASS

HABEASS

© 12/5/07 All rights reserved.

In or about 2005, after the US Supreme Court (the “Court”) threw out two procedures used by President George W. Bush to detain alleged enemy combatants at the federal detention center at Guantanamo on the island of Cuba, the US Congress quickly passed a series of laws intended to address certain flaws found by the Court in those detentions effected merely on the basis of the President’s authority. The Court had said that, without congressional approval, such powers over detainees could not be allowed. The implication was, however, that if the Congress did “bless” such arrangements, the Court would allow them.

Among the many anti-terror provisions promoted by the Bush Administration and recently adopted as law, the Congress prohibited the courts from hearing any detainee claims seeking writs of habeas corpus (Latin literally translated as “produce the body”). Such writs have been part of the Anglo-American legal system since the signing of the Magna Carta in 1215 CE by King John of England, and they were formally adopted by the Parliament at least 400 years ago. The writ is usually directed to the local sheriff to produce in court a prisoner who is claiming some sort of legal deprivation. In England the sheriff enforced the King's laws, so such a writ addressed to a sheriff was deemed also addressed to the King. It established the primacy of the courts over the government.

It has been argued that the habeas corpus process is unduly cumbersome and may well result in terrorists being released to harm Americans. Other provisions of law so adopted prohibit such detainees from having pesky lawyers or being allowed to know the witnesses and evidence being used against them. It also allows the government to imprison the alleged “terrorists” (solely identified or determined by the government) without charge or trial unless and until the government feels like providing such. It is argued that the fact that these persons are held outside of the actual boundaries of the United States enables these summary procedures to be used against them.

Under the US Constitution as originally drafted and adopted, the Congress is allowed to manipulate the appeals jurisdiction of the US Supreme Court (but not the original jurisdiction, which is specifically established under the Constitution). Thus, it has been argued that the Congress can totally prohibit certain kinds of cases from ever being heard by the Court (such as habeas corpus cases or Guantanamo “terrorist” cases). Since all that was written and adopted, however, the Constitution has been further amended by the adoption of the 5^th Amendment to require that all persons receive due process under the law. Thus, I would argue that the Congress may well restrict and manipulate the appellate jurisdiction of the Court, SO LONG AS it does not compromise that “due process” provision.

Finally, this week, the Court heard arguments on behalf of certain detainees who are claiming habeas corpus rights and also to be allowed other basic procedural rights like access to a lawyer, specificity of charges and accusations, right to confront witnesses and evidence, and so forth. Such rights are guaranteed under the Bill of Rights to persons inside the US, but they are supposedly eliminated for alleged “enemy combatants” and alleged “terrorists” being held at Guantanamo.  That's not what the Bill of Rights says, though.

On December 5, I was listening to some of the oral argument in a Supreme Court case being broadcast on C-SPAN. I heard the government’s lawyer claim that the new statutory procedures are probably “better” than the habeas corpus procedures as they were understood to exist in 1787 when the Constitution was adopted in Philadelphia. (The Bill of Rights was adopted about 18 months later.)  The lawyer admitted that habeas corpus rights as interpreted today are probably more expansive than the rights granted under the new federal laws for detainees. In any event, in response to multiple questions from the Justices, he further admitted that the government was seeking to ban any use of habeas corpus by detainees, but he said that the new laws would give them “adequate” alternative rights that would ensure no innocent persons would be unfairly held or punished.

Several of the Justices pointed out that the current case had been pending for over six years, and the government lawyer admitted that as well. However, he said, that was due to the uncertainty of the law creating "unexpected delays" in the progress of the cases. He further admitted that the DC Circuit Court of Appeals had held that the new laws did not allow any habeas corpus proceedings, so there was no way such appeals should proceed to the Supreme Court. Several Justices inquired how a detainee could get alternative relief and a full and fair review of his case if ultimate jurisdiction was so limited. The government lawyer suggested that the Court could uphold the new laws on “alternate grounds” and spell out for the lower courts how to proceed promptly EVEN IF there was no way to get further review directly.

One of the detainees’ lawyer pointed out in rebuttal that the evidence used against his client was not shown to the accused nor to the lawyer; that even the trial judge’s written opinion had been “redacted” (partially deleted with black lines) which the accused and the lawyer had not been allowed to fully read; that the government and military got to create and validate the “evidence” used against the accused which the DC Circuit Court had said was sufficient for the conviction; that the DC Circuit Court had prohibited the accused from introducing sworn affidavits of foreign nationals not subject to subpoena, which affidavits specifically refuted the “evidence” compiled by the government, on the specious grounds that no further evidence should be considered by the courts; that the trial judge had described the government’s case as “Kafka-esque” in its bias against and unfairness toward the accused.  No big deal.

The DC Circuit Court of Appeals overruled the trial judge’s decision in favor of the accused, reinstated the detention without charge, without lawyer, without evidence and without due process, and the accused appealed to the Supreme Court.

The US Supreme Court is composed of nine justices who serve for life. Five (simple majority) can decide any case. Five are alleged "conservatives" appointed by Presidents Reagan, Bush I and Bush II. The Congress is subject to the provisions of the Constitution just like the President, but the Court has signaled that the problems it found with the earlier presidential procedures can be remedied by the blessings of Congress. Section 9 of Article I of the Constitution spells out specifically that the privilege of habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” There has yet to be any specific finding by the Congress nor any court of a state of “rebellion” or “invasion.”

In short, there is a major constitutional crisis pending in these matters. It all depends upon the decision of the Supreme Court in these matters. If the Court decides that these accused persons are entitled to some or all of the relief sought, certain people will feel very threatened and certain politicians will try to inflame those fears and exploit them. There could be a substantial revolt against such a decision by the Court since fears and tensions are now almost at fever pitch. That would not bode well for respect for the Court, which has no army to enforce its decisions.

ON THE OTHER HAND, if the Court rules against the accused, then it will validate the short-cut procedures that have been used in this set of cases, and the damage to the Constitution and Bill of Rights is obvious to me. Many of the ordinary people who are citizens of the United States are fierce in their devotion to "The Flag," and they are very critical of those who demur from pledging allegiance thereto. They seem much less devoted to the Constitution and Bill of Rights and to its core principles, which is where their sole allegiance should be, according to Article VI therein. They are virtually intolerant of a lot of “legal double-talk and folderol.” And, they are very intolerant of non-Christian presumed “terrorists” who should be locked up and held until they might “prove” their innocence.

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