Unintended Consequences

I don’t have nearly the time and space here to do justice to today’s opinions on enemy combatants, starting with the decision in Boumediene v. Bush, extending habeas corpus to foreign nationals detained at Guantanamo (which I partially summarized over at RedState as it broke, before I had to stop to deal with a decision of the Court in which I was directly involved). I’d highly recommend the scathing dissents of Chief Justice Roberts, who explains why the Court should not have decided that the Congressionally enacted procedures provided to detainees were inadequate without either (1) seeing how those procedures worked in practice or (2) explaining in any detail how the procedures required by the Court would be different, and Justice Scalia, who explains why the Court got the basic question of the historical scope of habeas wrong and illustrates the lethal consequences of today’s decision.
But I’d like to highlight two points from today’s opinions that illustrate some unintended consequences, and why in the end they may not accomplish the results claimed for them. Specifically, today’s decisions will hasten the process of handing off detainees to foreign governments while protracting rather than accelerating the legal process for determining the status of detainees.
The first comes from the Court’s less-publicized unanimous decision today in Munaf v. Geren, which held that while habeas extends to U.S. citizens detained by the Multinational Force-Iraq, the writ cannot be used to prevent the U.S. from transferring U.S. citizen detainees to the Iraqi government if it has warrants for their arrest for, essentially, being enemy combatants:

Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.

(Presumably, the same rule would apply to non-citizens). This, despite the fact that the Iraqi justice system is obviously not precisely equivalent to our own in terms of procedural protections. The Court also rejected the idea that a U.S. court could prevent transfer of the prisoners based on their claim that they might be tortured by the Iraqis, although the Court did note that there was not a record of a likelihood of torture, and three Justices would have left the door open for courts to review “whether substantive due process bars the Government from consigning its own people to torture.”
What does this mean? Well, it means that detainees at Guantanamo could be transferred out of the reach of the new habeas process if the governments of Afghanistan, Iraq or other allies (some of whom have been known to swiftly behead such people upon their transfer) request that we do so. In other words, if the new procedures prove onerous in practice or run the risk of revealing classified information to our enemies, the unintended consequence of the decision to strike down procedures enacted by the U.S. Congress may be instead to substitute procedures provided by the Afghan or Iraqi governments. (Can you say, “rendition,” boys and girls? I knew you could!) Even five Justices of the U.S. Supreme Court cannot repeal the law of unintended consequences.
The second point, on the question of swift justice, is explained by the Chief Justice in Boumediene:

The Court is … concerned that requiring petitioners to pursue “DTA review before proceeding with their habeas corpus actions” could involve additional delay. …The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante, at 69 (“[O]ur opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined”). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained.
On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process…. Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit – exactly where judicial review starts under Congress’s system. The effect of the Court’s decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of “habeas” review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court’s newly installed habeas review could hope to do so.

Of course, the question as to whether additional delay is a bad thing depends on whose intentions are at stake. For a detainee who is actually improperly held in custoday, delay is a bad thing, because it means more time in Gitmo. But for those who are genuinely enemy combatants, more delay is wonderful – more ability to tie up U.S. personnel and resources in courtroom battles, more publicity for their “cause,” more grinding down of U.S. morale as expensive court proceedings drag on and provide political fodder for critics of the mission and the military. Like the exclusionary rule in criminal procedure (which excludes illegally seized evidence of guilt but gives no remedy to the innocent), the Court has managed to create a perverse system that burdens anyone who might actually be deserving of a remedy, while rewarding those who seek to game the system to the disadvantage of the nation. Gee, thanks.

24 thoughts on “Unintended Consequences”

  1. Antonin Scalia is a national treasure.
    The problem is that people look at Souter and Kennedy and say “it doesn’t matter who wins, because look what Republican presidents gave us.” And that weakens the judiciary as a campaign issue. But the Democratic nominees are universally liberal, and universally willing to legislate from the bench. President McCain may give us good judges or bad ones (from a respect-for-the-text-of-the-constitution point-of-view.) You know that there’s no chance of getting a strict constructionist from President Obama…

  2. Lyford,
    You’re dead on. Scalia cuts through the usual opinion BS and comes right out and declares Americans will die because of this ruling. I’m reluctantly supporting the slightly liberal McCain because among other things there is a chance he may pick decent judicial nominees. There is no chance that Obama would pick anyone not completely dedicated to the ACLU and Marxism.

  3. The crazy thing is, whether McCain is too liberal doesn’t really matter. Nixon was left of Reagan, and Nixon gave us Justice Rehnquist. Reagan ws the most conservative president in my lifetime and he gave us Kennedy and O’Connor to go along with Scalia.

  4. Terrorists shouldn’t get the legal protections a US citizen does.
    But accused terrorists should.
    I say we provide a fair trial of the accused in a court of law. If found guilty, we can then exempt them from the rights we provide US citizens.

  5. Robert,
    Just because you believe that Gitmo prisoners -should- be given equivalent rights doesn’t mean that that they are -Constitutionally entitled- to such rights. And the question before the court was not whether “potential terrorists” should receive a “fair trial”, but rather whether aliens being held outside U.S. sovereign terrority are protected by the Constitution. The difference is legally significant, even if you don’t believe it -should- be.
    The Court’s answer to this question should have been “no”, and Scalia sums up why the Court’s answer of “yes” was problematic:
    There is simply no support for the Court’s assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, see Verdugo-Urquidez, 494 U. S., at 271, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.

  6. MVH,
    Good points.
    But i’ve been listening to Right-wing Bozos (TM) pontificate for the past 2 days about how we are letting the “terrorists win” if we charge the accused with crimes and give them the ability to defend themselves against such charges.
    Here’s the real question: How and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them?
    That was what the Supreme Court ruling provided: their guilt needs to be proven in a fair proceeding.
    People who disagree aren’t “strict constructionists”. They are bullies who feel they need to prove their authority over others.

  7. How and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them?

    I don’t think anybody’s arguing that we should not give careful examination to each case to make sure we are detaining the right people. The issue is whether that proceeding needs to operate under the same sorts of rules as a domestic criminal trial. I’m all for having fair-minded military tribunals examine the basis for each classification. But where the rubber hits the road is in treating this as an ordinary adversary proceeding, where the detainee gets to examine the (often classified) evidence and confront the (often deceased, covert or needed at the front) witnesses. The DTA was designed to try to alleviate some of those problems to balance detainee rights against the urgent needs of national security, and the problem is that the Court took it in its own hands to throw out the work of Congress and re-balance those competing interests, having neither the institutional competence, nor the popular legitimacy to do so, nor any basis in the caselaw, nor even any experience with letting the process go forward.
    The decision was a defeat for the nation, a defeat for democracy and a defeat for the rule of law.

  8. I think there are a lot of people on both sides who just look at the outcome of a court’s decision and decide whether it’s “good” or “bad” based purely on politics.
    To be fair, not everyone is a lawyer (and most people are thankful for that!), and even for lawyers, not many have the time or the inclination to sift through a 100-plus page opinion. The media doesn’t help, since reporters tend to focus on the political angle.
    As for the “fair trial” issue, my question would be: do you believe that the prisoners would not receive a fair trial under the military procedures? My feeling is that they would receive a fair proceeding without the habeas rights, but I’ll admit, I don’t know the nuts and bolts of the military trials at Gitmo.
    I think the delay issue is what exasperates everyone. Five years is a long time to be in prison without an adjudication, even in wartime. But I’m not sure that the habeas petitions would get them through any faster, and I could be convinced that it would take even longer.

  9. By the way, I was focusing on the fair trial aspect of the whole issue, but Crank’s points about the classified information/national security reasons for military tribunals are valid and serious.
    There may be some bozos out there, Robert, but I don’t think it’s right-wing hyberbole to call this S.C. decision a grave error.

  10. largebill,
    Sounds like you agree with Scalia. His argument is the results of providing these rights to the accused will harm the citizens of the US. His basis for his judicial ruling is effective policy, not Constitutional competence.
    That pretty much defines “judicial activism”.
    Again: Cries of “activist judges” seems to be more about whether the “crier” agrees with the courts ruling or not. Not about whether the judges are “activists”.
    For more see Bush v Gore Election 2000.

  11. Actually, Robert, if you read Scalia’s full opinion, he demolishes the legal argument provided by Kennedy and provides plenty of constitutional arguments as to why the decision was wrong. Of course that would require actually reading the full opinion and not relying on blogs to summarize how you feel.

  12. Frankly, Scalia admitted in his opinion that he was departing from his usual practice by discussing the practical consequences first before the legal analysis, and I have to believe he did that so the media reports wouldn’t miss his discussion of the consequences. He knows as well as anyone how these decisions are covered.
    The real activists here were the ones who overturned the actions of the president *and* Congress *and* overruled longstanding precedents *and* disregarded express limitations on their jurisdiction *and* found the procedures at issue inadequate before they’d even been tested in the DC Circuit.

  13. I see you all have your panties in a bunch because you’re afraid of the big bad ACCUSED terrorists.
    Allow me to quote our ‘national treasure’: “Get over it!”

  14. I see you all have your panties in a bunch because you’re afraid of the big bad ACCUSED terrorists.
    Allow me to quote our ‘national treasure’: “Get over it!”

    Wow, that was a really intelligent well thought out rebuttal that explained why you feel that this was a constitutionally correct decision. Now I’m totally changing my view of the case.

  15. Robert, the message you are sending me is that you don’t really care about the Gitmo prisoners at all. Your only concern is whether these prisoners have “rights”. You don’t seem to be interested in discussing whether having these “rights” actually provides them a faster or fairer trial.
    You also seem to have only a passive interest in the Constitution. I won’t fault you for not being a lawyer, but you seem to be picking and choosing which Constitutional principles you want to to care about. You only seem to be concerned about whether the Constitution grants individuals “rights”. And as long as the Supreme Court expands “rights”, you don’t worry how far they will go to do so. Forget about the separation of powers that keeps one branch of government, such as the judiciary, from becoming more powerful that the others. It not only the executive branch that can exceed its constitutional powers, Robert.
    If you think your arguments make you a liberal, they don’t. They just make you look lazy.
    It’s no wonder you are arguing with people you consider to be bozos. You can argue with them if it makes you feel better, but you can be assured that the conservatives who post here are generally very well-read and make sophisticated arguments. And not all of them are wrong.
    And this is coming from someone who is not a registered Republican and someone who disagrees with Scalia more than half of the time.

  16. MVH,
    I really do care about how the prisoners at Gitmo are treated, and whether they get a faster and fairer trial.
    One way to assure this is to charge them and try them fairly in a court of law. I believe giving them the ability to defend themselves (just as you or I can) will allow them to do so.
    Feel free to take the counter position, I look forward to your cogent argument.
    BTW, arguing that i pick and choose the constitutional principles to care about is odd. Because I’m saying the same about those who cry “judicial activism” when a decision they disagree with is made by the SC.
    Perhaps the McCain supporters can explain how strict constructionists would decide the case of McCain running for president of the US, even though he wasn’t born in this country.
    Note: I’m not arguing he shouldn’t be allowed to be President. I’m asking how a “strict constructionist” comes to the same conclusion. I assume it will start with “The founding fathers meant…”

  17. BTW,
    Those who I accuse of being “bozos” have the right to refute such charges.
    Pity they want to deny that same right to those they accuse of being terrorists.

  18. Then, we’re back to my original question, why do you really believe that habeas procedures are going to be any faster and “fairer” than the military trials? My cogent arguments are conveniently located in the excerpt by Justice Roberts quoted in Crank’s post. And given my experience as a lawyer, I have every reason to believe that this kind of undefined “habeas” review will cause all manner of delay. I mean, there aren’t even any *procedures* layed out for this yet. I’m sure you are familiar with lawyers fighting over the law, but procedural fighting can be even worse. Really, if you are looking for faster trials, this isn’t the way to go. Even if they had habeas rights from the very beginning, there is every reason to believe the prisoners would still be sitting in their cells.
    Really, I don’t understand why liberals are happy with this decision from a fast trial standpoint. If I were a liberal and wanted these trials to go faster, I would push for the government to provide more resources and personnel for the military trial. That at least makes sense.
    And keep in mind, even if I could be convinced that the habeas procedures would be faster and fairer, it doesn’t mean that the SC should have found that they were constitutionally entitled to them.
    This decision was a travesty on so many levels it boggles the mind.

  19. MVH,
    I’m not a lawyer, so maybe that’s why I’m missing your point. Won’t the restoration of habeus corpus allow the accused to be charged with a crime or released? Won’t they have the ability to see the evidence on the crimes they’ve been charged with? Won’t that give them the ability to have legal representation to help refute these charges? Will it allow them to dispute any evidence elicited by government torture (we know Khalid Sheik Mohammed, for instance, was tortured).
    Is that really your stance beneath in Crank’s post we are replying to? Example” “grinding down of U.S. morale as expensive court proceedings drag on..”
    That horse has left the barn. Nobody who has paid a modicum of attention could possibly think morale hasn’t already been ground down by the actions of the government. The mission has already been proven to be a charade, started by those who have monetary ties to the war profiteers.
    The pentagon sees these trials as comparable to Nuremberg, but that’s laughable if you’ve paid any attention to the proceedings. Navy Capt. Prescott Prince, when asked about these comparisons responded:
    “There is no comparison, because none of the top Nazi defendants faced torture, or waterboarding, or other forms of ‘enhanced interrogation’ – or had to be concerned that information elicited under torture might be used against them in a court of law.”
    He noted that in trials for Japanese war criminals following World War II, the U.S. had tried and convicted at least one Japanese officer for having water boarded a prisoner. The U.S. has admitted that Mohammed was waterboarded in captivity, and many observers, including members of Congress from both parties, have condemned the practice as torture, and illegal.
    Anyway, I appreciate you taking the time to clarify these points for me.
    One more item regarding my picking and choosing of constitutional principles; I hope you feel the same about our gracious host here. He spent an earlier post on how only the “liberal left” would be against providing telecom immunity in the case of the telecom companies (at the behest of the President) eavesdropping on American citizens. A blatant case of disregard for the Constitution (and it’s principles).
    This disdain for the constitution by GWB is THE REASON that he should be impeached.
    Also, since the Democrats in Congress will be caving on the telecom immunity piece this week, I suppose Crank will join us in the real world in understanding that the Dems are NOT “liberal left”.
    Finally, I can completely relate to why you aren’t a registered Republican. Neither am I. Who would possibly want a person who thinks “government is the problem” running the government?
    We desperately need a real political party in the US who puts the rights of citizens first, and it is neither the GOP or Dems, who both work for the corporations and think the people are second-class citizens.

  20. A minor quibble because its not really Crank’s major point but the comment toward the end about the Exclusionary Rule for 4th Amendment violations was incorrect. The rule does nothing to hurt the “innocents” improperly charged with crimes; it simply serves to punish law enforcement for violating the prohibition against unreasonable searches. Cops dont go to jail or get fined the evidence simply gets excluded. Moreover there are tort remedies (in theory) for the innocent victims of warrantless, unreasonable searches. The exclusionary rule is not intended to be such a remedy anyway.

  21. Robert,
    As I said, I don’t know the nuts and bolts of the Gitmo military tribunals, but there are some general summaries in these two sources:
    They are probably accurate enough for the purposes of this discussion. The prisoners are allowed to present evidence, they are represented by counsel with security clearance, evidence derived from torture is inadmissible (evidence derived from “waterboarding” is -admissible- but that doesn’t necessarily mean it will be believed), and the prisoners have an avenue for appeal.
    Are their rights as extensive as a full US criminal trial? No. Do I think they are nevertheless fair given the countervailing concerns for national security and the fact that we are in the middle of war (like it or not)? Yes. It’s certainly not a kangeroo court.
    “Is that really your stance beneath in Crank’s post we are replying to? Example” “grinding down of U.S. morale as expensive court proceedings drag on..”
    I don’t think the morale argument is that strong, but it’s a rather minor point in Crank’s post.
    As for the eavesdropping issue, I haven’t had a chance to look into that one.

  22. Interesting discussion here, folks. One important thing that I think is being left out here, however, is the way in which the administration’s creation of 1) the “unlawful enemy combatants” category, 2) the combatant status review tribunals (CSRTs), and 3) the passing of the compromised Detainee Treatment Act provided the context for this decision. Those three elements combined created so many legal gray areas that it made this kind of decision possible. The administration has basically taken up an adversarial position toward SCOTUS and the court has responded in kind. In many ways (and probably less intentionally) the administration has also created an adversarial relationship with those involved in the military justice system, many of whom are not fond of the Bush administration’s alteration of the standard legal practices/procedures that cover and process POWs and/or enemy combatants.

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