Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Kennedy's Turn Signals
December 06, 2007 3:16 PM
Throughout yesterday’s argument in the Guantanamo detainee cases, all eyes were focused, of course, on Justice Kennedy. With the Court presumably divided 4-4 along ideological lines, Kennedy once again is at the wheel, deciding where he’s going to take the car.
He’s taken a left in the past, joining with liberals to rule against the Bush Administration in earlier legal challenges in the war on terror. And last spring, after the Court first decided it was premature to take up the detainees’ case, Kennedy later took the highly unusual step of switching his vote to jump into it (as did Stevens). So most people, including me, thought he was a sure bet to again abandon fellow conservatives in this highly significant case.
But after hearing yesterday’s arguments—and Kennedy’s questions--I’m much less confident of his leftward course. And when you factor in the emerging dynamics of the new Roberts Court, it seems even less certain.
First the argument. The few questions Kennedy asked seemed to suggest he was surprisingly sympathetic to the government. At a minimum, he appeared open to Solicitor General Paul Clement’s contention that Congress had created an adequate enough substitute for habeas review that the Court was best to stay out of it at this point.
At issue in this important case is whether the detainees can more fully challenge their detentions in federal courts or whether military tribunals, which now determine whether detainees can be held indefinitely and are subject to limited review by an appeals court, are adequate.
Those tribunals take place in Guantanamo, in a small hearing room before three military officers. The only lawyer in the room typically is on the panel—the detainee does not have legal counsel, but a “representative” provided by the government. The detainee doesn’t have access to all the evidence against him, and is limited in the evidence he can present to support his case for freedom.
Since the Bush Administration created the system in 2004, the government has held 573 Combatant Status Review Tribunals, or CSRTs, at GTMO, as the base is known by its military acronym. Military panels have determined that 38 of those detainees were not enemy combatants. Another 213 detainees originally classified as enemy combatants were approved for transfer or release, after a separate administrative review board determined they were not a threat to the United States.
We interviewed the military officials and lawyers who oversee the system last week when we were at Guantanamo. They say they’re proud of it--that it’s thorough and fair. And Brigadier Gen. Cameron Crawford, the deputy commander at Guantanamo, pointed out even under the current system, some 30 of the detainees they’ve released have rejoined the fight.
“The detainees that we continue to detain are being detained for a good reason,” said Capt. Ted Fessel, the officer in charge of the proceedings. “There is no appetite or desire on the part of the United States to keep the detainees here any longer than they have to be. So the ones that we continue to detain are here for a very good reason, based on the evidence, based on the documents, based on they information that we are afforded.”
But lawyers for the detainees argue that many who remain confined at GTMO are innocent, and they want to challenge their continued detention in federal courts—not in military tribunals or before review boards.
The detainees already have won some court review--a federal law, the Detainee Treatment Act, gives detainees the right to appeal the military’s decisions to the U.S. Court of Appeals for the D.C. Circuit. But lawyers for the detainees say that’s not good enough.
Seth Waxman, the former solicitor general in the Clinton Administration who argued on behalf of 37 detainees, said the system was “structurally flawed” and produced hearings that were “Kafkaesque.” Driving home his point, he said all six of his clients were innocent—yet there they sat, in Guantanamo, labeled “enemy combatants” who could be held indefinitely.
Waxman met with skepticism early on and struggled to get ground, but he redeemed himself with a bang-up anecdote in his rebuttal about a detainee who had been wrongly held and unable to prove it until a lawyer got a hold of his case. The story seemed tailor-made for Kennedy.
But that may not be enough to bring him all the way on board.
Of course, some of the justices yesterday were pretty predictable. Scalia was, well, Scaliaesque, filling the room with incredulousness that Waxman could argue the detainees have such rights in the first place. Breyer spun elaborate hypotheticals. Souter was visibly quaking in rage at the thought of the detainees being held nearly six years without court review.
But Kennedy was a surprise. He didn’t ask that many questions, and those he did pose to both sides indicated he was inclined to preserve the present system—and reluctant to have the Court intervene at this point to impose its own safeguards.
(Complicating things further in this complex case is that the D.C. Circuit has yet to decide how it would handle those appeals--which could put the Supreme Court in the awkward position of evaluating whether the process works, without first hearing from the appeals court.)
A few examples:
JUSTICE KENNEDY: I thought you were going to answer...that the Court of Appeals does have the right to determine whether to the extent the Constitution and the laws of the Untied States are applicable, whether such standards and procedures, such as CSRT, are—to make the determination—are consistent with the Constitution.
GENERAL CLEMENT: Yes, Justice.
Another:
MR. WAXMAN: The petitioners have the right to adduce and present evidence (to counter the government’s case).
JUSTICE KENNEDY: Why can’t that take place in the CSRT review proceedings that are pending?
And another:
JUSTICE KENNEDY: Would the Court of Appeals in—under the MCA—have the authority to question the constitutionality of the definition of noncombatant, of unlawful combatant?
GENERAL CLEMENT: Absolutely, Justice Kennedy.
Now these questions don’t sound necessarily like a justice who is going to embrace a decision that the detainees have no right to judicial review. But they suggest Kennedy is comfortable enough with the current process, with some type of review in the D.C. Circuit, that he may not seek to upset it.
And this is where the changing dynamics of the new Roberts Court might actually make a difference this term. Anthony Kennedy, the guy who’s never really had natural ally on the Court, may have one now.
First off, let’s not forget that Kennedy is a conservative. He's much more conservative than O’Connor was on a number of issues, such as abortion and race. He may not be Scalia or Thomas, but he sure isn’t Ginsburg or Souter, either. He typically leans Right.
But he's never really had a place to sit down and get comfortable. Scalia has always been too much for Kennedy and tended to start alienating him, oh, a minute or so into any oral argument. Thomas was too extreme and, to Kennedy’s mind, not as much of a scholar as he is. And Rehnquist didn’t try.
But now, there’s Sam Alito, the intellectual and experienced former federal appeals court judge who also has deep practical experience, having worked in the trenches as a federal prosecutor and U.S. attorney. It’s Alito (not Roberts) who will make the kind of arguments and pose the type of questions that are likely to appeal to Kennedy, the constitutional law scholar, and his sometimes pragmatic views on the law.
At his confirmation hearings, Alito was painted as more conservative than Roberts—-the justice who would “turn back the clock.” Remember when Bush nominated him on Halloween? A “scary choice,” the groups said.
But Alito isn't more conservative than Roberts—on some issues, he’s less so (and certainly less so than Scalia). And he has a knack for homing in on slightly different—and highly persuasive—points.
Look at Alito’s dissent last year in Hamdan, when the Court struck down President Bush’s system of military commissions. Had Stevens written a narrow, limited opinion saying the system was deficient, Alito perhaps could have been persuaded to join.
Instead, Stevens swung for the fences with a decision that even Kennedy refused to join completely. And Alito was in dissent with Scalia and Thomas, concluding the system was adequate.
But Alito joined Thomas’ dissent in Hamdan only in part. He wrote a separate dissent to explain that he thought the military commissions were lawful because they were “regularly constituted” courts, as required by the Geneva Convention.
It was an interesting point, and one Stevens could have better explored with Alito if he were seeking more consensus.
Of course, in response to Hamdan, Congress quickly passed the Military Commissions Act (MCA), which authorized the procedures and specifically stripped the courts of jurisdiction to hear habeas claims brought by detainees at Guantanamo. So now, Congress and the President are standing together.
Based on the past cases, it’s clear the court’s four solid judicial conservatives will side with Congress and the Administration. But will Kennedy stay with the liberals, now that Congress has clearly spoken to the issue—now that there’s no “conflict” between the President and the Congress (which troubled Kennedy in Hamdan)?
That’s where Alito's take could be pivotal. At argument, he focused on potential problems with expansive habeas review--problems that also would trouble Anthony Kennedy. He quietly posed questions that showed how difficult a ruling which gave detainees expanded habeas review would be. His questions were among the most interesting of the argument.
JUSTICE ALITO: If the Court holds that the DTA (Detainee Treatment Act) is not an adequate substitute for habeas, what will happen? Will these Petitioners then have access to all of the procedures that normally apply in a habeas proceeding….the same right to discovery, subpoena witnesses, access to classified information, presence in court?
GENERAL CLEMENT: The government will certainly take the position that they are not entitled to those things. Presumably, the Petitioners will be arguing they are entitled to those things. The answers to those questions will be unclear because the review provided by the DTA and the habeas statute, if it is applied in this context, either way, whatever the vehicle for that judicial review, it will be unprecedented. And there will be difficult questions that will need to be worked out.
And here is Alito earlier in the argument, again posing practical problems that suggest a more limited role for the Court.
JUSTICE ALITO: So the answer to Justice Ginsburg's question, it wouldn't matter where these detainees were held so long as they are under U.S. control. If they were held on a U.S. military base pursuant to a standard treaty with another country, if they were in Afghanistan or in Iraq, the result would be the same?
MR. WAXMAN: No, I think, Justice Alito, I want to be as clear about this as I can be. This is a particularly easy straightforward case, but in another place, jurisdiction would depend on the facts and circumstances, including the nature of an agreement with the resident sovereign over who exercises control.
Alito continued:
JUSTICE ALITO: What if, in a future war, many of the soldiers and the opposing Army don't wear uniforms? What if it's a war like Vietnam and thousands of prisoners are taken into custody and they are brought to prisoner-of-war camps in the United States as occurred during World War II? Every one of them under your theory could file a habeas petition. Is that right?
MR. WAXMAN: Well, if they were in the United States, I think it's clear that they could file a habeas petition. And, you know, the question about how Guantanamo relates to that is for this Court.
Scalia later took strong issue with that—noting that the 400,000 German soldiers here during World War II never filed any habeas petitions.
And after a few moments, Roberts jumped in, going back to Alito’s questions about when courts would have jurisdiction to hear habeas claims of prisoners captured during wartime. Waxman earlier had argued that courts had jurisdiction over the detainees, because they were held on a military base at Guantanamo, which is under US Control.
CHIEF JUSTICE ROBERTS: So to determine whether there's jurisdiction, in every case we have to go through a multi- factor analysis to determine if the United States exercises not sovereignty, which you've rejected as the touchstone, but sufficient control over a particular military base? Over the Philippines during World War II, in Vietnam, and it is going to decide in some cases whether the control is sufficient and others whether it isn't?
MR. WAXMAN: Well, I don't --
CHIEF JUSTICE ROBERTS: And that is a judgment we the Court would make, not the political branches who have to deal with the competing sovereignties in those situations?
Now Kennedy, as we all know, is pretty comfortable having the Court exercise its authority. But this is a case where Congress and the Executive have spoken—and the appeals court hasn’t yet ruled on the adequacy of the system the political branches have already set up just to manage these vexing cases.
And, as Alito indicated, the practical problems and difficult questions a broad ruling for the detainees would raise are so enormous that Kennedy may--just may--decide this is a case where judicial power is left unexercised. Or at least delayed.
December 6, 2007 | Permalink | User Comments (17)
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It is hard to take this article seriously.
POWs do not have the right of habeas. They didn't in WWII and they don't now. Can you imagine what would have happened if the millions of Nazi soldiers captured by the Allies could all have trials?
POWs have no right to a trial or habeas. The Geneva Convention allows them to be held until the end of the war, with no legal recourse. The British even held some Nazi POWs long after the war ended, until they were no longer dangerous.
POWs and soldiers are partially defined by the fact that they wear military uniforms. A POW cannot legally be harmed after capture. But if a combatant doesn't wear a uniform, then he is often classified as a spy and can be tried and executed.
In the old days, the Geneva Convention neatly classified combatants as either uniformed soliders (who could be held as long as the war lasts) or as spies, guerrillas, etc. But the Geneva Convention hasn't kept up with the modern day realities. None of the Al Qaeda "soldiers" wear uniforms. Long ago doctors could classify animals, plants and bacteria as living and other as things as non-living, But the discovery of prions and viruses complicates things. Viruses are somewhere in the middle between being a life form and not being alive. Medicine has had to adapt to this new classification.
Congress has wisely adapted to the new situation that none of the "soldiers" from Al Qaeda wear uniforms. This bizarre legal loop hole that they exploit doesn't change the fact that habeas corpus does not generally apply to "soldiers" It didn't during the Revolutionary War, it didn't apply during WWII and it doesn't apply now. The Founding Fathers obviously never intended habeas corpus to apply to POWs, since they generally didn't extend it themselves to the British POWs.
This ABC article sounds quite scholarly, but in reality is highly deceptive when it comes to history or the law.
Posted by: Michael Karp | Dec 7, 2007 6:05:13 PM
I really enjoyed this article, though I think Mr. Waxman's central contention, that any time the US exercises control over someone, that could create a right to bring a habeas petition, is quite far-fetched. Just how Al Qaeda fighters fit within the confines of the Geneva Convention is also not clear. If the Court strikes down the current CSTR system, won't the military just move the detainees from GTMO to some other base or hand them over to another nation to avoid giving them habeas rights?
Posted by: garrett | Dec 7, 2007 7:52:27 PM
I think the notion that POWs of any kind have the right to Habeas is absurd. Such a right will make it almost impossible to wage war. However, this war cannot really be compared to WWI, WWII, Vietnam, etc. The best historical analogy is the Indian wars fought for 265 years between the indigenous tribes and American colonists and later the US government. Our current war with the true believers of Islam could easily last as long. And it differs from the Indian wars in the sense that the GWOT is a global war, and is likely to involve the ultimate weapons of mass destruction in the near future. But what do you do with POWs in a war that will last beyond the lifetimes of anyone alive today, especially in an age of expanded inidiviual rights? Right now we are just muddling through, and not really answering the core questions.
Posted by: Andrew P | Dec 7, 2007 8:59:34 PM
Dreaming... dreaming... dreaming......
Explain the constitutional basis for foreign 'freedom fighters.'
Posted by: Jim O'Brien | Dec 7, 2007 10:17:15 PM
Whatever the Court rules will be without meaning. As soon as bush is gone, Gitmo will be closed.
Posted by: Bob North Smithfield | Dec 7, 2007 10:22:46 PM
Would someone please explain to this public schooled simpleton just what I'm missing? Let's start with an easy one. I thought the purpose of the constitution as ratified was to define the structure, scope and authority of the three branches of the U.S Federal Government.
If, as all three branches seem to agree, the constitution does not apply to 'Gitmo' or foreigners outside U.S territory, then under what supposed "legal" authority is the U.S authorized to do ANYTHING, and by who?
I always believed the constitution was written to control the actions of the U.S. Government, not just the government of the U.S. As I am clearly not privy to the 'secret handshake' I've been mystified for years as to how the Constitutional authority, prerogatives and privileges of all three branches survive off sovereign U.S soil, in dealings with foreigners and even on 'Gitmo.' And yet the Constitution doesn't apply.
Apparently only the Bill of Rights is actually IN "The Constitution." The Executive, Legislative, and Judicial branches obviously derive THEIR authority from some HIGHER Law than "The Highest Law in the Land."
Can you see why I'm confused? Since all three branches of government and apparently the entire legal community seem to find the idea reasonable, I MUST be missing SOMETHING! Can you help me out?
Posted by: Lew Daniel | Dec 7, 2007 10:44:41 PM
I sat through this hearing, and your account of it is the clearest and most carefully elucidated one I have encountered. It was clear from the argument, and from the post-mortems I heard in the press room, that Kennedy didn't perform as expected. I think you have the best explanation yet as to why.
Posted by: Andrew Hamilton | Dec 7, 2007 11:35:51 PM
That SCOTUS is hearing this is absurd on its face. The Constitution explicitly gives to Congress the responsiblity to define the jurisdiction of the Federal Courts. Congress explicitly has removed habeus from SCOTUS' jursdiction. So now SCOTUS is hearing a case outside its jurisdiction. Absurd doesn't even begin to describe it. Were Roberts or Alito as conservative as some constantly whine, this case never would have been taken - it clearly is outside the jurisdiction of SCOTUS. And for those who don't understand the need for strict constructionists on the Bench, why will this judicial overreach stop with a non-jurisdictional habeus plea? Why won't the Court start poking its nose in wherever, whenever and however it wants?
Congress aand the Executive owe it to the People, their branches of government and the Constitution to remind SCOTUS of its total lack of jurisdiction in this case - and let them know any decision by SCOTUS will be ignored as completely illegitimate and extra-Constitutional.
Posted by: Dave Cavena | Dec 8, 2007 1:37:45 AM
First, exactly where in the constitution does it state that civil rights are only for citizens? The constitution is a document describing and limiting the powers of the branches of the Federal Government versus each other and the States; civil rights don't get mentioned until the Amendments, notably the first ten, and I can't find the part that says "the government can do whatever it wants offshore".
Second, if all prisoners in GTMO had been captured on the battlefield, then this argument would, indeed, be moot. But since many (most?) were turned over by our "allies" (warlords and brigands) for reward money, and since there is no opposing Government or Army to speak for them, as in the case of POWs, where does that leave us?
I'm not religious, but I can still ask "WWJD?"
Posted by: yoygottabekidding | Dec 8, 2007 4:02:42 AM
There are two questions that I think will guide the Court's (Kennedy's) decision. The first is Justice Alito's concern. Suppose that the Court were to find a habeus right, would due process requirements of a fair trial essentially mandate a process akin to normal federal criminal procedure?
The federal courts probably are not compatible with a process where the defendant does not have without access to evidence, or testimony of covert government officials, or confrontation of witnesses, or reasonable discovery, or jury decisions, and where the standard of evidence is necessarily below "beyond a reasonable doubt". But the need to keep intelligence sources and methods secret, and the exigencies and uncertainties of the battlefield, will never make it worthwhile to prosecute an individual if it would require such a release.
An an example, should the government claim that they have a picture showing a figure that, within reasonable certainty, appears to be the defendant engaged in enemy activity, the defendant will probably claim that 1:He is entitled to see the picture and have it analyzed and 2:That it is not clearly him in the picture because many men people of that region have similar patterns of clothing, skin tone, facial hair, and so on, and that 3:Even if it were him, the activity is not conclusively "enemy" in nature.
But pictures like this will never meet a "beyond reasonable doubt" standard yet they must be sufficient to make the military decision to capture and detain because unlike in the domestic and civilian scenario, better information can almost never be had and paralysis would be the result.
Furthermore, even looking at the picture (as our enemies well know) can give away crucially important information about the capabilities of our intelligence systems, or in the case of a person, what safe house an agent in using as a watchtower or which local individual might be cooperating with our forces.
So if habeus and criminal process were required, prosecutions would simply not occur. If habeus and limited process with minimal rights and lower burdens of proof, then those would not be significantly different from the military commissions themselves and there would be no argument for "insufficiency"
The second big question is that if habeus and criminal process were required, then what incentive does that give our armed forces and intelligence services when dealing with enemy combatants. Unfortunately, it almost certainly means that the preference will become either for enemy combatants to be killed instead of captured, or simply held in secret, or for such individuals to be rendered to other governments not bound by our constitutional restrictions.
I think Justice Alito likely has these and similar considerations in mind and may be able to make a persuasive case to Justice Kennedy about the present system.
Posted by: whatwouldbenext | Dec 8, 2007 6:33:35 AM
This is another example of where the courts have no business. Giving "rights" to terrorists captured on the battlefield is ridiculous! The detainees at Gitmo were captured in combat, not at Disneyland. It is insane to hear the defense attorney arguing that these terrorists have habeas rights. The Supreme Court should throw out the entire thing...
Posted by: Dennis | Dec 8, 2007 5:58:07 PM
Jan --
I loved "Supreme Conflict" because I thought it was a high watermark in Supreme Court journalism. And everybody knows that you're "right of center" (and of course, your colleague Linda Greenhouse is no doubt "left of center"). But I don't get why we can't get some objective reporting from Supreme Court reporters. As a liberal, I don't care for Greenhouse's liberal agenda, and I certainly don't care for your rightward spin on the GTMO argument. If I were the reporter, trying to divorce my personal views from the argument itself, I would say that it is virtually *impossible* to tell which way this will go, irrespective of the fact that we know it's going to likely be 4-4-1. So while I accept the presmise of your post, that Justice Kennedy holds the key 5th vote, I don't think that there's any way to glean from the argument which way he is leaning based upon cryptic questions. I think the justices were just as hard on Mr. Clement as they were on Mr. Waxman. I think to call this argument anything but a draw (and that's arguable because Mr. Clement did concede a lot toward the end of his presentation) is disingenuous at best.
I hasten to add that while I don't share your (alleged) jurisprudential views, I do, for the majority part, adore your reporting and your writing, and that I just think this post is a bit too slanted. But that's to be expected - this is but a blog.
Posted by: Slanted Coverage | Dec 9, 2007 9:57:38 PM
I am writing a bruief iun a pro se case that will be heard by the supreme court. Can someone help me with the definition of a "Factual basis" of an alleged conspiracy. I cant find that phrase in the lagl dictionaries yet it is very common in the judicial decsions quoted in the case. It seems obvious but
I want to be sure.
Posted by: Neil Farbstein | Dec 10, 2007 10:10:47 AM
Waxman shot himself in the foot, his contention that any of the 400,000 prisoners of war that were here in WWII were entitled to habeas is going to be deeply troubling to even the most liberal justices. Stevens being a WWII vet will be able to directly apply his recollection to what that would mean in a larger war. And then to apply the same standard to prisoners anywhere in the world under US military control would make the entire system unworkable.
Posted by: Kazinski | Dec 10, 2007 5:44:50 PM
I'm a legal conservative, but here's hoping that Justice Kennedy sides with the liberal justices in this case.
Posted by: Marc | Jan 14, 2008 10:47:51 PM
I must be the one missing something here......A declared state of war DOES NOT EXIST with Al-Qada. This fact has been upheld by many courts vis-a-vis "act of war" provisions in many contracts. The "War" is figurative. It is silly to suggest that WWII, where the president asked for and received a declaration of war, is the same as Bush's nebulous and ever expanding GWOT. WWII POWs did not have habeous rights. Gitmo is a completely different animal.
Posted by: Hugo | Jan 17, 2008 10:20:03 PM
Those so vehemently opposed to habeas corpus review likely have no understanding whatsoever of either the constitutional purpose of the Great Writ or those to whom its application is so necessary. As this decision explains, the Constitution prohibits any restriction of the writ absent times of invasion or insurrection. We are in neither irrespective of how broadly the GWOT is defined by the Bush administration. Further, it is indisputable now that some Gwantanomo detainess are not and never were terrorists or "enemy combatants." Indeed, the US ultimately admitted that German citizen Murat Kurnaz was never a terrorist or combatant but was held for over FIVE YEARS because he was wrongly abducted and turned over to the Executive Branch and US military in Pakistan in exchange for bounties they were paying at the time. That's FIVE YEARS of life lost with no evidence at all to support one day of detention!
Those of you who suggest that the Executive Branch should be able to detain and hold people indefinately without review have a poor understanding of liberty and do not rightly deserve those liberties you unknowingly enjoy thanks to the Constitution you do not appreciate.
Posted by: Jay | Jun 12, 2008 3:45:53 PM
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