GITMO Detainee's Habeas Corpus

Looks like the SCOTUS will be looking at this again. You'd think this was a simple thing from the commentators in the MSM. From what I've seen in the blawgs, it appears quite complex.

In a victory for the White House, a US appeals court yesterday threw out the legal claims brought on behalf of the hundreds of prisoners held at Guantanamo Bay and ruled that they do not have a right to plead their innocence in a US court.

In a 2-to-1 decision, the judges said the Constitution does not extend the right of habeas corpus to noncitizens who are held outside the sovereign territory of this country. "Cuba -- not the United States -- has sovereignty over Guantanamo Bay," wrote Judge Raymond Randolph.

The ruling sets the stage for a historic showdown in the Supreme Court over whether the White House and Congress can deny habeas corpus, the right to go before a judge and ask to be released, to some people who are held for years without charges.

Yesterday's decision by the US Court of Appeals in the District of Columbia Circuit vindicates, at least for now, a tactical move made by White House lawyers shortly after the United States invaded Afghanistan in 2002. They wanted the military to have the power to indefinitely hold and intensively interrogate foreign fighters and suspected terrorists without interference from the federal courts. They chose the US Naval Base at Guantanamo Bay, Cuba, because it was near but still outside the actual territory of the United States.

The howling of groups like Human Rights Watch over this is interesting. The loudest voices state that this means the end of Habeas Corpus for everyone. Even though the court clearly stated their view of who was protected and who was not.

Over at Balkinization they are having issue with the point that the detainees are being held at Guantanamo bay and make it out that since the US controls it, then Habeas Corpus applies.

The court appears to concede that if an alien detainee captured overseas is thereafter detained in sovereign territory, the detainee is protected by a constitutional right of habeas. (See its discussion of the Rex v. Schiever case from 1759, pages 14-15, in which the court entertained the habeas petition of an alien detainee brought to Liverpool.). What this means is this:

Recall that the GTMO detains were all captured halfway around the globe, and then brought to the Western Hemisphere. Thus, the only reason they are not entitled to habeas rights is that their U.S. captors chose to turn left and take them to the U.S.-run facility in GTMO, rather than turning right to go to a U.S. facility in say, South Carolina. Indeed, according to John Yoo's new book (and other sources), they were taken to GTMO precisely for the purpose of keeping them out of the reach of U.S. courts. Whatever the constitutional rule ought to be for aliens detained near a battlefield half a world away, it seems perverse, to say the least, that so many important constitutional protections should turn on which direction we choose to direct our ships (or planes) carrying detainees a few miles off the Florida coast.

An interesting view, but questionable. If the protections apply to non-citizens in any venue that is controlled by the US, the logic carries that battlefield detainees would have habeas rights when they are held in a FOB in Iraq. In which case, the military would have to get them a lawyer and then send them to the US for a hearing. How ludicrous is that?

There are further arguments about the relevance of the finding with the perspective of the common law in 1789. Some quite interesting discussion around that.

The last statement in the blog entry points out the irritation of most who read any of these legal discussions.

Neither opinion discusses the most vexing substantive question that would have to be reached if the habeas claims were entertained -- namely, determining the category of persons who may lawfully be detained by the military as "enemy combatants" pursuant to the September 2001 AUMF and the laws of war incorporated therein. See note 14 of the Rogers dissent.

No big surprise that the courts don't tell you affirmatively who can be detained. No doubt they would state that that is the job of congress, and yet they will tell congress when they are wrong without any detail as to what is considered correct.

Makes you wonder if lawyers were this baffling when the constitution was written or have they evolved into this irritant since then.