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October 2, 2006
UPDATE - Americans as Unlawful Enemy Combatants
Does Quirin extend to an American acting solely in America who associates with a band of nongovernment actors (solely Americans let's say) -- creating a private criminal enterprise, as it were -- and then commits acts of aggression against people and property in the United States motivated by some extremist Islamic dogma? Because, unlike the Quirin situation -- where associating with an enemy government is clear evidence of status -- now it is proof of motive that makes them terrorists.
In reading both the majority and especially Justice Scalia's dissent in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), I stand by my earlier view -- given, as several commenters have said, habeas has not been suspended -- that in the circumstances I describe, Americans cannot be treated as Unlawful Enemy Combatants consistent with the Constitution. As Justice Scalia said:
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.
So I still believe that a law allowing the president to indefinitely detain Americans seized on U.S. soil for acts in support of other non-governmental actors undertaken on U.S. soil is unconstitutional.
Further, as to the habeas question -- which, in my haste, I wrongly said to a commenter had been stripped from Americans. Yes, Americans held in indefinite detention somewhere in the world awaiting a designation by a military tribunal continue to have the right to file a habeas petition.
I guess I'm just a bit more than skeptical that, in those circumstances, the right to file a habeas petition is not worth much more than the paper the T/T Act is written on. Speaking practically, exactly how and when will the detained American be in a postition to actually file the petition? I'm guessing, but I believe -- in the absence of the immediate appointment of counsel -- no habeas petition will be forthcoming for quite awhile . . . a very long while.
UPDATE: The following from commenter CT seemed worth reprinting:
Shertaugh: One additional wrinkle that you might want to consider here is that the CSRTs are not the same as the law-of-war tribunals at Gitmo. The CSRTs review the initial decision to preventively detain a person to prevent his return to the "battlefield" -- thus distinguishing the CSRT from the Hamdan-style tribunals, which seek to punish a combatant for violating the law of war rather than engaging in preventive detention.This distinction becomes important for habeas challenges, because Hamdan only applies to law-of-war tribunals. Habeas challenges to the preventive detention of enemy combatants are governed by Hamdi, in which the plurality indicated that the detainee is entitled only to notice and a "fair opportunity" to rebut the government's factual assertions before a "neutral decisionmaker." Under the plurality's definition, a neutral decisionmaker could include a special military tribunal along the lines of the CSRT. Thus, the detainee's habeas claims may well be limited to arguing that the CSRT is not a "neutral decisionmaker" that gives a "fair opportunity" for the detainee to dispute the government's factual assertions -- and this would be a pretty easy argument for the governnment to win under the loose guidelines the Hamdi plurality laid down (hearsay is a-okay, detainee bears the burden of proof, etc.).
As a side note, the military's power to preventively detain U.S. citizens affects more than just those detained under military authority. It also harms the integrity of the criminal justice system -- particularly during the plea bargaining process in civilian prosecutions of terrorists. If you're interested, . . . [see] Terrorizing Justice: An Argument that Plea Bargains Struck Under the Threat of "Enemy Combatant" Detention Violate the Right to Due Process, 47 B.C. L. Rev. 581 (2006), and it's available on SSRN.
Posted by shertaugh at October 2, 2006 8:26 AM
Comments
Especially if the prisoner is held in secret, perhaps in a secret location. Our very own 'disappeared.'
Posted by: Mark at October 2, 2006 9:29 AM
Doesn't the atc expressly say that only "alien" UECs are subject to Tribunals? See Sections 948a abd 948c.
[Shertaugh: Yes, but . . . . As pointed out by another commenter to an earlier post, the designation of UEC for an American is made by something called a "Combatant Status Review Panel". Once designated, as you say, American UECs are not subject to tribunal trials. It's unclear to me -- and I welcome input on this -- what happens to them then.]
Posted by: Tim at October 2, 2006 9:38 AM
Good post. My quibble would be with the sentence "So I still believe that a law allowing the president to indefinitely detain Americans seized on U.S. soil for acts in support of other non-governmental actors undertaken on U.S. soil is unconstitutional."
I'm not sure "is" is the correct verb here. After all, Scalia lost. The quotation was from a dissent. Accordingly, it is not the law. O'Connor's plurality opinion states the law; Scalia's opinion does not. The government is surely entitled to act on the basis of the winning opinion, rather than the losing opinion, don't you think?
I do admit, though, that I sometimes use similar phrasing. For example, I will sometimes say that the McCain-Feingold law *is* unconstitutional. Of course, it has been upheld to be constitutional, ragardless of how much of an abomination I think it is. Now matter how much I agree with Justice Thomas that McCain-Feingold was "most significant abridgment of the freedoms of speech and association since the Civil War," his position lost and Justice Stevens' position won, so I shold probably be more careful about saying that McCain-Feingold "should be" unconstitutional, rather than "is" unconstitutional. And that's probably the case with this post too.
[Shertaugh: A.S., I appreciate your comments and critique. Let me say, I chose to use "is" purposefully. O'Connor did write the law in Hamdi. But Hamdi -- on its facts -- did not involve an American seized in America for acts done in America. So for that reason, I align myself with Scalia's dissent on a point not yet resolved.]
Posted by: A.S. at October 2, 2006 10:51 AM
Shertaugh: One additional wrinkle that you might want to consider here is that the CSRTs are not the same as the law-of-war tribunals at Gitmo. The CSRTs review the initial decision to preventively detain a person to prevent his return to the "battlefield" -- thus distinguishing the CSRT from the Hamdan-style tribunals, which seek to punish a combatant for violating the law of war rather than engaging in preventive detention.
This distinction becomes important for habeas challenges, because Hamdan only applies to law-of-war tribunals. Habeas challenges to the preventive detention of enemy combatants are governed by Hamdi, in which the plurality indicated that the detainee is entitled only to notice and a "fair opportunity" to rebut the government's factual assertions before a "neutral decisionmaker." Under the plurality's definition, a neutral decisionmaker could include a special military tribunal along the lines of the CSRT. Thus, the detainee's habeas claims may well be limited to arguing that the CSRT is not a "neutral decisionmaker" that gives a "fair opportunity" for the detainee to dispute the government's factual assertions -- and this would be a pretty easy argument for the governnment to win under the loose guidelines the Hamdi plurality laid down (hearsay is a-okay, detainee bears the burden of proof, etc.).
As a side note, the military's power to preventively detain U.S. citizens affects more than just those detained under military authority. It also harms the integrity of the criminal justice system -- particularly during the plea bargaining process in civilian prosecutions of terrorists. If you're interested, I wrote a piece that develops this argument further. The piece is Terrorizing Justice: An Argument that Plea Bargains Struck Under the Threat of "Enemy Combatant" Detention Violate the Right to Due Process, 47 B.C. L. Rev. 581 (2006), and it's available on SSRN.
Posted by: CT at October 2, 2006 2:28 PM