Military Commissions Act Disaster

By Stephen F. Rohde
     
      The writ of habeas corpus, traced to the Magna Carta of 1215, protects people from arbitrary arrest, disappearance and indefinite detention without charge. The U.S. Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson, 394 U.S. 286 (1969).
      Last week, the Great Writ itself suffered a miscarriage of justice. In Boumediene v. Bush (No. 05-5062) and Al Odah v. United States of America (No.05-5064), consolidated cases brought on behalf of 53 Guantanamo detainees, the U.S. Court of Appeals for the District of Columbia, in a 2-1 vote, upheld the provisions of the Military Commissions Act which stripped habeas corpus protection from noncitizens held in U.S. custody in Guantanamo and elsewhere around the world.
      On the eve of the November elections last year, Congress passed and President Bush signed the Military Commissions Act after an amendment by Sens. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., that would have preserved habeas corpus was narrowly rejected by a vote of 51-48. Calling the law "patently unconstitutional on its face," Specter voted for it anyway.
      In Boumediene, the majority, composed of circuit Judges A. Raymond Randolph and David B. Sentelle (with a powerful dissent by Judge Judith M. Rogers), held that Congress deliberately eliminated any habeas corpus relief for alien enemy combatants when it wrote the Military Commissions Act, not only for petitions filed after the new law became effective, but also retroactively to petitions filed and pending before the law was enacted, including those filed by the 53 detainees before the court. This raised the fundamental question of if in doing so, the act violated the Suspension Clause of the U.S. Constitution, which permits a suspension of habeas corpus only when "in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. Art. I, Section 9, cl. 2.
      To answer that question, the court had to examine the writ "as it existed in 1789" when the first judiciary act created the federal courts and granted jurisdiction over habeas corpus. The majority engaged in a lengthy study of English law and concluded that habeas corpus would not have been available in 1789 to aliens "held at an overseas military base leased from a foreign government" and "without presence or property within the United States." Finding that the act had intentionally and constitutionally eliminated federal jurisdiction, the majority concluded that its only recourse was to dismiss all of the petitions of all of the detainees.
      In dissent, Rogers came out swinging. She accused the majority of "misreading the historical record" and ignoring the key Supreme Court decision in Rasul v. Bush, 542 U.S. 466 (2004). She pointed out that prior to the Military Commissions Act, under Rasul, the detainees at Guantanamo had a statutory right to habeas corpus. While agreeing that the Military Commissions Act purports to withdraw that right, it "does so in a manner that offends the constitutional constraint on suspension" which is limited to times of "rebellion or invasion" unless Congress provides an adequate alternative remedy.
     
      Turning to her own examination of the scope of habeas corpus in 1789, Rogers remarked that the majority's analysis "demonstrates how quickly a few missteps can obscure history." In place of the majority's rigid concept that habeas corpus did not extend to aliens "without presence or property within the United States," Rogers invoked the Supreme Court's analysis in Rasul that "the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the extent and nature of the jurisdiction or dominion exercised in fact by the Crown."
      The dissent also found further support in the statement in Rasul that "[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus." To that end, Rogers recounted early English cases that speak of extending the writ to places "under the subjection of the Crown of England."
      Having concluded that "as it existed in 1789," the writ of habeas corpus would reach aliens being detained in Guantanamo "under the subjection" of the U.S. government, Rogers' final task was to determine whether, absent the writ, Congress has provided an adequate alternative procedure for challenging detention. She concluded that "the government is mistaken in contending that the combatant status review tribunals ('CSRTs') established by the [Detainee Treatment Act of 2005] suitably test the legitimacy of Executive detention." Indeed, Rogers wrote that '[f]ar from merely adjusting the mechanism for vindicating the habeas right, the Detainee Treatment Act imposes a series of hurdles while saddling each Guantanamo detainee with an assortment of handicaps that make the obstacles insurmountable."
      Among the obstacles Rogers cited are CSRT rules under which the detainee has the burden to prove why he should not be detained; the detainee need not be informed of the basis for his detention; the detainee need not be allowed to introduce rebuttal evidence and must proceed without the benefit of his own counsel. Moreover, the proceedings occur before a board of military judges subject to command influence. Worse yet, Rogers pointed out that continued detention may be justified by the CSRT "on the basis of evidence resulting from torture," because the Detainee Treatment Act's antitorture provision applies only to future CSRTs. And even as to those, the secretary of defense is only required to develop procedures to assess whether evidence obtained by torture is probative, not to require its exclusion.
      In addition, even where a combatant status review tribunal determines that a detainee is actually innocent of any offense or wrongdoing, that detainee may continue to be held virtually incommunicado, indefinitely, without charge, without access to counsel, and without any meaningful opportunity to challenge the legality of his detention. The government has even held, and continues to hold, detainees who have been determined through the CSRT process to be "no longer enemy combatants" or "non-enemy combatants" without affording them the right to an adequate and meaningful judicial process. (See the Center for Constitutional Rights report, "Faces of Guantánamo." ccr-ny.org/v2/reports/docs/FACES_OF_GUANTANAMO.pdf)
     
      Rogers concluded that "[i]nsofar as each of these practices impedes the process of determining the true facts underlying the lawfulness of the challenged detention, they are inimical to the nature of habeas corpus."
      On balance, based on its reasoning, historical research and fidelity to Rasul and other Supreme Court rulings, the dissent in Boumediene is far more persuasive and convincing than the majority. Lawyers for the detainees have vowed to appeal to the Supreme Court. Last year, in Hamdan v. Rumsfeld, 126 S.Ct. 1187 (2006), a solid majority of the current court ruled in favor of detainee rights and against the government. Whether that same majority will agree with Rogers remains to be seen.
      This time, however, the Supreme Court may be spared having to weigh in on these issues. A spokeswoman for Sen. Leahy, now chairman of the Senate Judiciary Committee, said he was accelerating efforts to pass a revision to the Military Commissions Act that would restore detainees' legal rights, noting that some 12 million lawful permanent residents in the U.S. could also be stripped of rights. "The Military Commissions Act is a dangerous and misguided law that undercuts our freedoms and assaults our Constitution by removing vital checks and balances designed to prevent government overreaching and lawlessness," Leahy said in a statement.
      Anyone committed to protecting our constitutional democracy at home and repairing our reputation abroad as a nation devoted to the rule of law, should do all they can to support the restoration of the Great Writ, for citizens and non-citizens alike.
     
      Stephen F. Rohde is a constitutional lawyer with the firm of Rohde & Victoroff in Los Angeles and the author of "American Words of Freedom" and Freedom of Assembly."