A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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November 18, 2005Welcome to the Event Horizon[Update 11/18/05 5:59 PM EST: The links should actually work now.] Imagine that you have been charged with murder. It doesn’t matter, for the purpose of this example, whether you’re really guilty or not. You face a trial before a neutral tribunal to determine whether the accusation against you is true or false. You have a right to appeal the verdict of that neutral tribunal, if the verdict is adverse to you. Now imagine that the tribunal doesn’t tell you its verdict, and the government says the tribunal doesn’t have to tell you its verdict. How do you know whether or not to appeal? Well, one way might be to deduce that you have been convicted, based on the fact that you’re still in jail. Unfortunately, that’s not true if, instead of being charged with murder, you’re an alien (think passport, not antennae) accused of being an enemy combatant. In Camp Echo, Guantanamo Bay, Cuba, there sits today at least one man, called Adel, who has been found by the Combatant Status Review Tribunal to be a noncombatant—in other words, a civilian. He was captured in Afghanistan not by American forces, not by Northern Alliance allies, but by a bounty hunter, whom the United States paid $5000.00. Following the Supreme Court decision in Rasul v. Bush, which held the American military enclave in Guantanamo Bay to be sufficiently American to allow aliens there to access American federal courts, he filed a petition for habeas corpus. The Administration has vociferously protested the extension of federal judicial jurisdiction to Guantanamo Bay. Nevertheless, it has declared in the United States District Court for the District of Columbia that it is not obliged to tell a detainee held there whether the Combatant Status Review Tribunal has found him to be an enemy combatant or not—until a federal court orders the Administration to justify its custody of a detainee as a result of the detainee’s petition for habeas corpus. Adel, the Chinese Muslim who sits in Camp Echo, was therefore not told that the Combatant Status Review Tribunal had determined him to be a noncombatant—a civilian—as early as 2003 until August 2005, during the hearing on his petition for habeas corpus that the Administration still believes he is not entitled to have. And Congress has come to the Administration’s aid: it passed the Graham-Levin Amendment to the Fiscal 2006 National Defense Authorization Act. Subsection (d)(1) of the amendment deprives all federal courts of jurisdiction to hear a petition for habeas corpus from any alien detainee detained at Guantanamo Bay. Ironically, though, subsection (d)(2) grants detainees determined by the Combatant Status Review Tribunal to be enemy combatants a right of appeal—provided they appeal only to the United States Court of Appeals for the District of Columbia Circuit. In fact, that appeal allows the detainee not only to allege that the determination reached by the Combatant Status Review Tribunal was inconsistent with the procedures for such tribunals as promulgated by the Secretary of Defense, but that the tribunals violate the United States Constitution or American law (and, one presumes by implication, such portions of international law as are constitutionally binding on the United States). The obvious missing link here is, if the Administration continues to detain those who have been found to be noncombatants, how do combatants know to appeal their determinations as enemy combatants to the D.C. Circuit, if the Administration contends it does not need to tell a detainee the result of his Combatant Status Review Tribunal until he petitions for habeas corpus and he no longer can petition for habeas corpus? More importantly, how do detainees found to be noncombatants challenge their ongoing detention without habeas corpus review? But perhaps the most tragic effect of the Graham-Levin Amendment is that it partially defeats Senator John McCain’s attempt to prohibit torture and mistreatment of detainees. The McCain Amendment, attached to the same bill as the Graham-Levin Amendment, proscribes the cruel, inhuman, or degrading treatment of any person in United States custody anywhere in the world, unless the president personally waives the application of the amendment and reports to Congress why he has done so. Without habeas corpus, how is a detainee to raise the issue of his cruel, inhuman, or degrading treatment in an American court? Perhaps a detainee determined to be an enemy combatant by the Combatant Status Review Tribunal will raise the issue when he appeals his designation—if he’s ever told his designation. Perhaps a detainee tried for crimes committed will raise the issue when he appeals his conviction, as permitted by subsection (d)(3) of the Graham-Levin Amendment. But a detainee whose status has not yet been determined, or who has not been tried for a crime, has no recourse left. The Graham-Levin Amendment creates a black hole into which detainees—those determined to be noncombatants, or those whose status remains undetermined—at Guantanamo Bay simply disappear, and it’s unlikely that the black hole was the intended result. But that’s what we can expect from a legislative process that allows substantive legislation to be attached to a defense appropriations or authorization bill, rather than being vetted in the committee process. The Graham-Levin Amendment needs to go, and Congress needs to stop attaching policy to the budget. Posted by The Jaded JD at November 18, 2005 01:24 PMComments
Certainly this is an unfortunate Catch-22 for Adel. Keep in mind, though, that the military is in fact moving significant numbers of people out of Guatanamo. They've released 256 thus far, including 4 earlier this month, leaving about 500 there at the present time, according to the U.S. State Department. But I am not in favor of granting any right of habeas corpus to foreign nationals picked up on the battle field by the U.S. armed forces during an armed conflict (as a policy matter, I don't like the use of bounty hunters, but I don't think it changes the legal situation). And certainly no such rights should be granted until after hostilities have ended. But I will agree that this type of policy decision should be vetted through the usual committee process and not attached to the budget. This, of course, is far from the only example of such sin, though. Posted by: PatHMV at November 18, 2005 02:41 PMBut I am not in favor of granting any right of habeas corpus to foreign nationals picked up on the battle field by the U.S. armed forces during an armed conflict (as a policy matter, I don't like the use of bounty hunters, but I don't think it changes the legal situation). And certainly no such rights should be granted until after hostilities have ended. What if the foreign national is a 100% noncombatant? What if he just happened to have some personal dispute with a bounty hunter on our payroll? What if it is simply a case of a bounty hunter hoping to collect a fee for turning over any warm body? By that logic, in WW II we should have been able to send agents to the streets of Hamburg, kidnap as many random people as they could and detain them in POW camps for the duration of the war. They can argue all they want that they weren't soldiers, but they should not have access to courts to prove that. That is your argument, no? Posted by: Scott Smith at November 18, 2005 03:30 PMYep. What I think is becoming very clear is that we need to develop some seriously consistent standards for dealing with "POWs" who aren't POWs by any stretch under the Geneva Conventions. It's one thing to say they're "fair game" under the rules of war. Yep, they are--those who are actually combatants. But for our own sakes, we should figure out how to deal with them fairly, if only to give the innocent swept up in the nets a chance to get back out of the nets and back about their lives. Posted by: Tully at November 18, 2005 03:52 PMI agree that we need better procedures, but I don't think access to the civilian courts is a good solution. The problem is that it is impossible to give access to the "good" people (the unfortunate non-combatants in the wrong place at the wrong time) without also giving the same access to the "bad" people (the actual combatants, terrorists, or POWs). Think of all the things associated with access to th courts. Rules of evidence. Prohibition against hearsay testimony. Right to confront accusers and call witnesses. Should every person picked up on the battlefield have a right to cross-examine the soldier who apprehended him in order to try to establish that he really was just going to the grocery at the time, not getting ready to plant an IED next to the guard checkpoint? And if they can't do that, or something equally burdensome on the armed forces, what good is access to the civilian court? Our fundamental humanity, of course, requires that we do our best to separate the wheat from the chaff in the detention facilities. The Defense Department needs to move even faster to evaluate all the detainees and release those who can be released as fast as possible. It's an old legal adage that bad facts make bad law. So far, the courts have done (in my view) the right thing, and upheld the existing legal doctrines on this subject. But if the courts become convinced that the military is not moving fast enough, and that the problem is a large one, they may wind up making bad law to fix it. Posted by: PatHMV at November 18, 2005 04:03 PMSo why not just let him go? Someone must have done something very naughty to him. very good article. can you fix the links in it please? Posted by: Ike at November 18, 2005 04:29 PMBob, it's because these initial determinations are not always right. No one wants to be the guy who let a future terrorist go. Posted by: PatHMV at November 18, 2005 04:48 PMPat, The problem with your comments is that in the habeas review proceeding, as it stands now, all the Government need do is state that the CSRT has found him to be an enemy combatant. The detainee doesn't get to question the evidence or cross-examine the capturing soldier--unless the DOD procedure for the CSRT allows him to do. The Hamdi questions about due process and the like relate to citizen combatants, not alien combatants--and the statute doesn't even apply to citizens, only aliens. Moreover, the Graham-Levin Amendment provides appellate review for all the things you're afraid of: as I posted, section (d)(2) doesn't just grant appellate review for the purposes of making sure that the CSRT complied with DOD procedure, but with constitutional due process. If they provide such review in appellate form, there's little to be gained in denying it in habeas form; the review is still going to happen. The effect of permitting such review in appeals, but not in habeas, is that only those who are found to be noncombatants are penalized. Combatants get the review--they get to appeal their combatant designation. Noncombatants don't get to appeal. Moreoever, noncombatants don't even get to know the Government agrees that they're noncombatants--because the Government says it only has to tell a detainee after the detainee gets a habeas hearing, which will no longer be available. As far as the initial decisions not being right, Adel's initial hearing was some time in 2003. There is a three-step review process. The third, final step was completed in March 2005. So the initial decision was that Adel is a noncombatant. The second, intermediate decision was that Adel is a noncombatant. The third, final was that Adel is a noncombatant. How many reviews does Adel need before we presume that the CSRT process has acheived an accurate result? Ike, I was unaware that the links do not work. I seem to have this problem a lot on MovableType. I'll check them out and correct if needed. Posted by: The Jaded JD at November 18, 2005 05:54 PMAll detainees deserve some form of due process, and some declaration of actual status beyond "indefinite limbo." We don't need or want to give every detainee the full rights and privleges as citizen, and we DO need to err on the side of caution in not letting people go if we can make a reasonably-based presumption that the detainee could be a future threat. But I think we can and should do substantially better than we've done so far. Posted by: bk at November 19, 2005 11:05 AMThe more I hear conservatives defend this policy the more confused I get. Aren't they the ones who suggest we should "fear our government"? Posted by: c3 at November 19, 2005 01:40 PMThis entire thing doesn't make any sense. If he has been determined to not be a threat then who is deciding to keep him detained? I don't think the people in charge of Camp Echo want an extra body to watch or feed. I don't believe that the president has time to concern himself with each detainees case and make an overriding decision to keep him prisoner. I don't understand. Could this be a bureaucratic error? Could this have anything to do with rendition to countries that torture? They are releasing some non combatants, why is he special? I'm also curious, when detainees are declared non combatants how are they released, I mean they can't just walk home from Cuba. Are they returned to their government? Are the dropped off where they were originally picked up? Are they given a one way plane ticket to wherever they want to go? What is the process? Posted by: Bernie at November 19, 2005 10:16 PM |
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