BREAKING NEWS UPDATE: The Ninth Circuit just ruled “that prisoners held at Guantanamo Bay Naval Base (search) in Cuba should have access to lawyers and the American court system.” The opinion does not appear to be (yet) available online, but the The New York Times reports that the panel held that noncitizen enemy combatants have a Constitutional right to an attorney.
This would be an extremely significant ruling, and will almost certainly go to the Supreme Court. It also fits into the category of a von good thing (# 18 on the list). Also worth noting is that Senior Northern District of Illinois Judge Milton I. Shadur sat on the Ninth Circuit panel and voted in the 2-1 majority. Judge Shadur is a well-respected trial judge, and is not known for his judicial activism.*
Addendum: Via Glenn Renyolds, a link to the opinion. I haven’t read it yet, but Professor Bainbridge thinks the opinion, well, not good. He may be right on the legal merits — I called it a good thing solely on policy grounds. But Prof. Bainbridge’s reference to Justice Jackson’s remark that the Constitution is not a suicide pact is silly hyperbole — particularly coming from someone who hasn’t even read the Ninth Circuit’s opinion yet. C’mon kids: try to refrain from speaking before thinking.
Second Addendum: I’ve now skimmed the opinion, and I’m ready to (tentatively) say that I approve of it. A brief analysis is in the comments, in response to a point made by Clay Ranck. Understand, however, that (a) this is out of my area of practice and (b) I’m reserving the right to change my mind as I let the opinion sink further in.
In other news: Charles Johnson has one of his quote-and-disapprove posts up. He doesn’t explain why he disapproves, except to suggest that the Ninth Circuit is always, categorically wrong. Way to go, Charles! That took some deep thinking.
Professor Bainbridge has kindly responded to my note (above), and acknowledges that his original take on the opinion may have been too hasty. Professor, if you’re still reading, I’d be very interested in your (now) more considered opinion.
von
ORIGINAL POST: From The New York Times: Court Says ‘Dirty Bomb’ Suspect Can’t Be Held by Military
WASHINGTON, Dec. 18 — A federal appeals court panel ruled today that President Bush does not have the power to detain a United States citizen who was seized on American soil as an enemy combatant and to deny him a lawyer.
The text of the decision is here.
Being, as I am, deep in la merde, I’ll offer only this: The Second Circuit’s decision depends entirely on its determination that Congress did not authorize (in fact, Congress disapproves of) detaining a U.S. citizen seized on U.S. soil as an enemy combatant.** It did not hold that Congress cannot give the President the power he attempted to exericise here. Glenn Reynolds has a further analysis, with which I mostly agree.
FIRST UPDATE TO ORIGINAL POST: Well, I’ve now searched the blogoverse, and no one seems to be taking the other side [regarding the Padilla case]. NRO’s The Corner contains a poorly-thought-out first impression of the opinion by Kathryn Lopez, but that’s about it.***
SECOND UPDATE TO ORIGINAL POST: Kevin Drum also has a brief discussion of the decision, and comes out pretty much the same way.
*District Court (trial) Judges can be designated to sit on Appellate Panels in certain circumstances, just as Appellate Judges can sometimes be designated to handle trials.
**This is a gross oversimplification and, as such, misses some nuances.
***Contra to Katheryn, the opinion doesn’t order Padillo “released in 30 days.” It orders him released from military custody in 30 days — and, likely, into a civilian jail cell. Katheryn corrects herself here.
Title from a Violent Femmes song.
Some links about some local enemies.
More local enemies. Nothing was found.
The original “Second Update” contained a fairly humorous typographical error, which (sadly for the readership) has been corrected.
Back to La merde.
let me guess – “pooply” for “poorly”?
I revamped the order of the post, mostly because I like writing “Breaking News Update.”
let me guess – “pooply” for “poorly”?
Nope — I probably would have left that in (and claimed it was intentional).
Did you say the Ninth Circuit Court? Isn’t that the most frequently-overturned court in the entire country? I’d wait until their decision gets addressed by a higher court before I’d place too much weight on it.
Just sayin’.
Did you say the Ninth Circuit Court? Isn’t that the most frequently-overturned court in the entire country? I’d wait until their decision gets addressed by a higher court before I’d place too much weight on it.
Yup, that’s true. And I’m still weighing the legal merits. (For more on this, follow the link to Professor Bainbridge’s site in the Addendum.)
Ninth Circuit: Guantanamo Prisoners to Get Counsel and Trials – Revised and Reposted
Justice Jackson famously remarked that the Constitution is not a suicide pact. Apparently 9th Circuit Judge Stephen Reinhardt disagrees,* as he has decided that US courts have jurisdiction to hear the claims by enemy combatants being held offshore at the
Good: after nearly two years of allowing the State Department to run an illegal jail with prisoners in illegal detention, it’s about time that a court notified the government that it’s breaking the law!
Excellent news.
It seems to me that the 9th Circuit has essentially redefined the nature of Guantanamo’s sovereignty from how it is understood by the parties to the lease…Graber’s defense offers an indication of this, and is well balanced in that it suggests that the best course for the court to take would be to defer to the SCOTUS, which has already agreed to hear a trial on this issue…
You s’pose Rummy will throw the judges into the shredders? Seems like a lot of folks believe that.
Wow. Who knew that State was running Guantanamo? Who knew?
Slarti, thanks for the correction. I don’t know quite what I was thinking at the time I typed it – possibly just happy that a monstrous injustice – and worse than that, a very public criminal activity, is (hopefully) soon to be corrected. It can’t be erased: Guantanamo Bay will forever remain as a black mark in US history, but the least a criminal can do is acknowledge that they have been breaking the law, and stop doing it.
This is just too soon after a final that touched on some of these issues, and if I read the decisions I will obsess about how I screwed up.
In the mean time, please don’t ever spell K-Lo’s name the way I spell my name again.
In the mean time, please don’t ever spell K-Lo’s name the way I spell my name again.
Huh?
It seems to me that the 9th Circuit has essentially redefined the nature of Guantanamo’s sovereignty from how it is understood by the parties to the lease
At best, Clay Ranck, this argument depends on the studious elevation of form over substance. That doesn’t make it wrong as a legal matter, by the by — lots of legal decisions could be said to elevate form over substance. But the century-old lease between Cuba and the US is not a flag I’d want to waive if I were trying to defend the Government’s decision here.
In point of fact, however, the Government has no other flag to waive, hence my disapproval (discussed below) of the decision to detain persons indefinitely — without lawyer, trial, or any form of review — on Guantanamo.
By way of background: Mr. Ranck is referencing the Government’s claim that Guantanamo is not sovereign US territory, but rather it is the sovereign territory of Cuba and is only leased by the US. By this logic, a US Court does not have jurisdiction to hear any plea by a Guantanamo detainee because US Courts only have jurisdiction over sovereign U.S. territory.*
Having finally had a chance to skim the decision, I must say that I think it’s legally sound. (Gross oversimplification follows.) Essentially, the Court held that the US exercises complete control over Guantanamo, has done so for 100 years, and intends to continue to do so for the indefinite future, all without regard to the dictates of the lease with Cuba. Under these facts, the Court held that the U.S. is the sole power in Guantanamo, and, because it is the sole power in Guantanamo (Cuba has no rights there), Guantanamo is under the jurisdiction of the US Courts. Actual control by the government, not the ignored dictates of an ancient lease, is the standard for jurisdiction by the Courts.
That sounds about right to these ears.
von
*The arguments are complex and not necessarily intuitive. Nonetheless, I’d recommend that everyone to read the opinion, if only to understand how technical this debate was.
I’ve fiddled a bit with the look of the post to cut it down to a manageable size.
von, Katherine’s talking about the way you spelled her name “Katheryn” at the end of the post.
Out of curiosity, since your President is both Head of State AND C-in-C of the military, does that not automatically mean that the State is running Guantanamo? Or does Bush have a different metaphorical hat on? Serious question.
von, Katherine’s talking about the way you spelled her name “Katheryn” at the end of the post.
Oh, sorry, Katherine means the typo in the third footnote. I’m correcting it now. (There’s a lesson there about footnotes, I think.)
Out of curiosity, since your President is both Head of State AND C-in-C of the military, does that not automatically mean that the State is running Guantanamo? Or does Bush have a different metaphorical hat on? Serious question.
I’m not sure if I understand your question, but here’s a go: The US system contains multiple, independent sovereigns and then divides those soveriegns into different, co-equal branches. In the Federal sovereigh (what I take you to call “the State”), Executive Branch (headed by the President) is in charge of the Military. As such, the President is Commander in Chief of the Military, and exercises direct control over military installations such as the one at Guantanamo. (Whether the Executive or Legislative branch actually signed the lease for Guantanamo, I have no idea.)
Hope this starts to answer your question — if I missed something, please let me know and I’ll try again.
von
From what I’ve read, the courts may have some authority over the Jose Padilla case, but none whatever over any captured illegal combatants interned at Guantanamo. I’d expect this to get kicked up a notch; only then would I grant it any sort of attention at all. The fact that the Ninth IS frequently overturned on decision isn’t irrelevant at all, IMO. It’s an indication that their judicial disposition isn’t shared by the Supreme Court, or, by extension, the Constitution of the United States.
If it’s not completely clear that I have no idea what I’m talking about, it ought to be.
The fact that the Ninth IS frequently overturned on decision isn’t irrelevant at all, IMO.
I agree, Slartibartfast, but don’t dismiss the fact that Judge Shadur voted with the 2-1 majority. Shadur is not a Ninth Circuit Justice — he’s a Nothern District of Illinois trial judge (sits in Chicago),* is extremely well respected on procedural/jurisdictional matters such as these, and is not a liberal. (Speaking from personal experience, he’s also quite crotchety.)
von
*As noted in my original post, Shadur was sitting by assignment on the Ninth Circuit.
Slarti – I read that the 9th circuit is reversed at about the same rate as other courts but that it hears more cases. I haven’t seen the numbers and I can’t guarentee (nor remember) where I read it. I’m just allowing for the possiblity that the particular meme propagated throughout the blogsoshere might mean less than supposed.
Here’s an article that rejects the statement I vaguely remembered concerning the 9th circuit court. It does discribe the problems its has trying to manage its huge caseload. Here.
I think the person (I read it somewhere) that said that the 9th circuit court is reversed at the same rate as other courts must have been refering to the total number of cases it hears, not just the ones that are reviewed by the Supremes. Here’s more on that court’s problems.
Didn’t the 4th Circuit rule on Gitmo and hadn’t SOTUS scheduled Gitmo to be on the docket for next year. (If I am wrong on either, please disregard).
BTW, why was the 9th circuit involved to begin with (the 9th doesn’t traditionally handle the military and Gitmo isn’t on the west coast)?
I want one. I’m just not so sure about Wilbur and how he’d take to a kitten.