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Habeas Dangerous By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, July 20, 2004


Late last month, the Supreme Court of the United States decided its first three War-on-Terrorism cases.  It’s bad enough that two of the three decisions considerably weaken the President’s power as constitutional Commander-in-Chief to fight that war, exemplify judicial activism at its worst, and again expose the Court as an Orwellian “more equal than others” branch of government.  Worse, is that the decision in the third case – Rasul v. Bush – augurs ill not only for the War-on-Terrorism, but for all future United States military actions.  To understand the importance of Rasul and the danger it poses to America’s national security, it is necessary to examine first the other two cases.

Rumsfeld v. Padilla.  An American citizen, Jose Padilla (the so-called “dirty bomber”) was arrested in Chicago, brought to New York, later designated an “enemy combatant,” and given into military custody in South Carolina.  Assigned counsel sought habeas corpus in the United States District Court for the Southern District of New York (in Manhattan), challenging Padilla’s detention. 

In a narrow technical decision, the Supreme Court held that Padilla’s lawyer had sued in the wrong jurisdiction.  Since the “immediate custodian” who had control of enemy combatant Padilla was the warden of the naval brig in South Carolina, that jurisdiction, not New York, was where the alleged dirty bomber’s case belonged.  Accordingly, the Supreme Court told Padilla that if he wanted to challenge the detention, he would have to re-file his case in the South Carolina federal court.  Thus, Padilla decided nothing substantive—the case only further defined the statutory meaning of “immediate custodian.”  (Justices Stevens, Souter, Ginsburg and Breyer were prepared, knowingly, to misinterpret the habeas corpus statute and reach the merits because Padilla’s claims, apparently unlike the plain meaning of a venerable federal statute, were “important”).

Hamdi v. Rumsfeld.  When the clerk of the Supreme Court published this decision, he should have provided a scorecard: There was a plurality opinion written by Justice O’Connor, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer.  Justice Thomas, though writing in dissent supporting the government on another issue, provided the crucial fifth unequivocal vote for the proposition that the President could legally designate Hamdi and others similarly situated (American citizens, and non-citizens alike) as “enemy combatants” who can be held without criminal charges being laid, and without being tried, until an armed conflict is ended, whenever that is. This plurality-plus-Thomas opinion relied on the World War II Supreme Court precedent of Ex parte Quirin, in which a unanimous Court held that the President could hold the Nazi saboteurs (at least one of whom was an American citizen) for the duration of the war.  (Indeed, after trial before a Military Tribunal, some of the Quirin spies were put to death). 

However, the fractured Hamdi opinions reveal what must have been serious horse-trading within the Court itself, because while that part of the Hamdi decision just described was certainly a victory for the President’s power as Commander-in-Chief to fight the War-on-Terrorism, that win did not come without a substantial and dangerous cost.

For the second part of the opinion—obviously a compromise—another voting lineup formed: the original plurality (O’Connor, Rehnquist, Kennedy and Breyer), now plus Souter and Ginsburg (six votes), and without Thomas.  Although Souter and Ginsburg would have preferred Padilla to go free unless the government charged him with a criminal act, they went along with the O’Connor-Rehnquist-Kennedy-Breyer ruling: “We hold that . . . due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. . . . . Plainly, the ‘process’ Hamdi has received is not that to which he is entitled under the Due Process Clause.”

Apparently recognizing that they had just opened Pandora’s due process box, the judge-legislators deigned to provide a tiny bit of guidance for the government that now faces the task of affording enemy combatants their day in “court.”  Well, yes, maybe “an appropriately authorized and properly constituted military tribunal” would suffice.  That is, of course, if the Court approved of how “appropriate” the authorization and how “properly constituted” the tribunal. Testimony?: “Hearsay may need to be accepted as the most reliable available evidence from the government in such a proceeding.”  But then again, maybe not.  About the clearest requirement imposed by the Court was Hamdi’s and every enemy combatant’s right to counsel.  Imagine this:  We may soon be treated to the obscene spectacle of Hanoi-lover Ramsey Clark, Islamists-lover Stanley Cohen, terrorists-lover Lynne Steward, and their ilk, “defending” enemy combatants who hold American citizenship.

While one can’t seriously quarrel with the Supreme Court’s conclusion that American citizens captured in the United States have certain constitutional due process rights—even “enemy combatants,” who can be held until cessation of hostilities—the Hamdi decision places the government at the top of a slippery slope.  Do we want the spectacle of attorneys like Ramsey Clark, Hamas’ counsel Stanely Cohen, indicted pro-terrorist Lynne Stewart and their terrorist sympathizing “progressive” colleagues at the Center for Constituional Rights and the National Lawyers Guild exploiting the many uncertainties in the Supreme Court Hamdi decision? How “meaningful” is the opportunity to contest?  Is the enemy combatant limited to contesting the “factual basis” for his designation and detention, or can he make legal arguments?  What does “neutral” mean?  Must the “decision maker” be a judge?  Is the adjudicatory process criminal or civil?  Do enemy combatants have the right to an appeal, and if so where and to whom?  Do rules of evidence apply, and if so which?  Can the enemy combatant obtain discovery of the government’s case?  Must he be given exculpatory evidence?  What about other constitutional rights, like protection against self incrimination and double jeopardy?  Are enemy combatants entitled to compulsory process and to be confronted by witnesses?  How about being read their Miranda rights in some Afghanistan cave?  After all, due process is due process!

In the face of the O’Connor-Rehnquist-Kennedy-Breyer-Souter-Ginsburg opinion, and the strange-bedfellow dissent of Scalia and Stevens (who rejected entirely the “enemy combatant” concept and argued instead that, absent Congressional suspension of habeas corpus, captured Americans should be charged as criminals), only Justice Clarence Thomas understood the real issue in Hamdi, and enunciated a consistently principled position:  The power to designate captured Americans as enemy combatants lay with the President, and the courts had no role except to ascertain whether he had made a good faith determination. 

While the “designate-them-enemy-combatants-and-hold-them-until-the-end” portion of Hamdi is a plus for the President and those who want a no-holds-barred fight against terrorism, the due process part of the decision is a large minus.  Luckily, not too many American citizens can be expected to be like Yaser Hamdi, and thus entitled to some domestic due process protections.  So there won’t be much work for the Clarks, Cohens and Stewarts in those kinds of cases – and not too much risk for our country.  Unfortunately, the same cannot be said about the Guantanamo case.

Rasul v.  Bush.  On July 13, 2004, the wire services reported that “The Pentagon yesterday began informing detainees at the U.S. naval base in Guantanamo Bay, Cuba, that they could challenge their captivity before newly created military tribunals.”  This notice was sent by the government as a consequence of the third Supreme Court War-on-Terrorism case—engineered by the America-hating Center for Constitutional Rights,  preeminent defender of the ruthless radicals who would destroy this country.

Unlike Yaser Hamdi, Shafik Rasul (and other petitioners) were captured fighting, or otherwise acting against the United States, outside our borders.  They were incarcerated at the United States Guantanamo naval base, and eventually sought habeas corpus relief to challenge their detention.

Writing for a five-justice majority, Stevens, joined by O’Connor, Souter, Ginsburg and Breyer (Kennedy concurred in the result, and Scalia dissented joined by  Rehnquist and Thomas), noted that: “The [trial] court held, in reliance on our opinion in Johnson v. Eisentrager . . .   (1950), that ‘aliens detained outside the sovereign territory of the United States [may not] invoke a petition for a write of habeas corpus’.”  In other words, the federal district court from which enemy combatant Shafik Rasul sought habeas corpus followed Supreme Court precedent, as it was bound to do.

Rasul appealed to the United States Court of Appeals for the District of Columbia Circuit.  According to Stevens, “[t]he Court of Appeals affirmed.  Reading Eisentrager to hold that ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign’ . . . it held that the District Court lacked jurisdiction over petitioners’ habeas actions . . . .”  In other words, the Court of Appeals was also bound by the Supreme Court’s Eisentrager precedent.

But while the federal district courts and the federal courts of appeals are bound by Supreme Court precedent, the High Court itself is not—despite the venerable principle of stare decisis. 

Stevens’ ruling for the Court’s majority was that: “The Court today holds that the habeas corpus statute, 28 U.S.C. Section 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.” 

In dissent, Scalia, for himself, Rehnquist and Thomas, wrote that: “This is not only a novel holding; it contravenes a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager . . . (1950).  The Court’s contention that Eisentrager was somehow negated by [the Braden case of 1973]—a decision that dealt with a different issue and did not so much as mention Eisentrager—is implausible in the extreme.  This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.”

Thus did the Supreme Court liberals, aided and abetted by the turncoat O’Connor and the inconsistent Kennedy, open the doors of every federal district court in the United States to the Guantanamo detainees, many of them killers captured on the battlefield and elsewhere around the world, their murderous hands at least figuratively, and sometimes literally, soaked with the blood of Americans, our allies, and innocent civilians.

The speciousness and indefensibleness of Rasul, the nature and scope of that decision, and the danger it poses to America in general and our War-on-Terrorism in particular, was eloquently exposed by Scalia’s lengthy and comprehensive dissent.  Scalia proved that Eisentrager was de facto overruled by the Stevens majority based on illogic and bad history—and with no explanation of why that case was wrongly decided a half-century ago. Today, Scalia wrote, the Court “springs a trap on the Executive . . . .”  The dissenting justice also observed: that “. . . the Court boldly extends the habeas statute to the four corners of the earth,”  that “[t]he consequence of this holding . . .  is breathtaking.  It permits an alien captured in a foreign theater of active combat to bring a Section 2241 [habeas corpus] action against the Secretary of Defense” and that “[f]rom this point forward, federal courts will entertain petitions from these [Guantanamo] prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the Executive’s conduct of a foreign war.” 

Then, albeit to no avail, Scalia confronted the Stevens majority with language from the now de facto overruled Eisentrager case:

To grant the writ to these prisoners [held in Germany] might mean that our army must transport them across the seas for hearing.  This would require allocation for shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence.  The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace.  Such trials would hamper the war effort and bring aid and comfort to the enemy.  They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.  It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.  Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.

As if these potential consequences of the Stevens majority ruling are not bad enough, consider this irony: Scalia correctly observed that “today’s clumsy countertextual reinterpretation [of the habeas corpus statute] . . . confers upon wartime prisoners greater habeas rights than domestic detainees.  [Why?] The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla [above] . . . whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. * * * For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort.”

In typical liberal fashion, once the Stevens majority wreaked havoc on the President, the military and the country, those justices—with typical detachment—walked away from the potential consequences. “Whether and what further proceedings may become necessary after [the Government] make[s] their response to the merits of [the Guantanamo] detainees’ claims are matter we need not address now,” Stevens dismissively noted.

But unlike the cloistered liberals of the Supreme Court—irony: four of the six justices in the Stevens majority were appointed by Republican presidents—the rest of America must face the music right now.  Armed with the Supreme Court’s Hamdi (due process) and Rasul  (habeas corpus) decisions, and aided and comforted by radical lawyers like Clark, Cohen, Stewart, and their America-hating colleagues, the flotsam and jetsam of Guantanamo Bay, and perhaps other enemy combatants held from Afghanistan to who-knows-where-else, can now forum shop among our 94 federal judicial districts in search of judges sympathetic to tales of mistaken identity and religious persecution—anything to justify the habeas corpus petitioners’ release. 

To paraphrase Godfather Don Corleone: Radical lawyers with word processors can do more harm than 100 terrorists with machine guns. 

The author, a member of the New York Bar, is Professor Emeritus at Brooklyn Law School.  He specializes in federal appeals.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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