Law

(or, "Why the McCain Amendment is No Substitute")

(Eleventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

I don’t have a specific passage to quote from Graham’s speech here. Rather, I am responding to his general claim, that it is all right to take away habeas corpus from the Guantanamo detainees because of the McCain amendment.

Something that first year law students have drummed into them, but which in my experience is not at all intuitive to non-lawyers: that something is illegal doesn’t automatically mean a court can do anything about it.  There are all sorts of hoops you must jump through before a judge or jury determines what happened, and whether or not any laws have been broken, and what the remedy should be. All these terms which lawyers throw around casually, and which cause our families roll their eyes and wonder what the hell we’re talking about: Personal jurisdiction. Subject matter jurisdiction. A cause of action. Standing to sue. Ripeness. Mootness. Justiciability. A waiver of sovereign immunity, if you are suing the government. etc. etc.

Let’s not get into what those terms mean. I barely can keep track, because I stupidly didn’t take Federal Courts. Let me just reiterate: just because something is illegal doesn’t mean a court can do anything about it.

The McCain amendment is about whether torture is illegal. The Graham amendment, though the word "torture" appears nowhere in it, is highly relevant to whether a court can do anything about it.  Go back to what that Pentagon official said:

A senior Pentagon lawyer who asked not to be named said that the Graham amendment will have another consequence. The same Pentagon bill also contains a clause, sponsored by Graham and the Arizona Republican John McCain, to outlaw torture at US detention camps – a move up to now fiercely resisted by the White House. ‘If detainees can’t talk to lawyers or file cases, how will anyone ever find out if they have been abused,’ the lawyer said.

Most of the evidence of abuse at Guantanamo has emerged from lawyers’ discussions with their clients.

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(or, "What Habeas Corpus Is and Isn’t")

by Katherine

(Tenth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.

This post and the one following it delve more than the others into the legal questions involved. Before beginning, I should say that I am very, very far from an expert on either habeas corpus in general or the Guantanamo litigation in particular. I have talked to some people who know much more about these issues than me–they should get much of the credit for what I get right; I should get all of the blame for what I screw up.)

"For those who want to turn an enemy combatant into a criminal defendant in U.S. court and give that person the same rights as a U.S. citizen to go into Federal court, count me out….they are not entitled to this status. They are not criminal defendants."–Senator Lindsey Graham.

Graham is correct to state that the Guantanamo detainees are not criminal defendants and do not have the rights of criminal defendants in U.S. courts. But here is what is essential to understand: no one is arguing that they are.

The Supreme Court held in HamdI v. Rumsfeld that the President had the authority to hold a U.S. citizen as an enemy combatant rather than charging him with a crime. All of the judges who disagreed with that interpretation did so only because Hamdan was a U.S. citizen. So are they going to suddenly turn around and hold that non-U.S. citizens on Guantanamo must be brought up on criminal charges or released? No. There is no possibility of that. The detainees’ lawyers are not seeking it. They know damn well that if they do, they will lose.

I don’t think Graham is genuinely confused about this point. As a JAG lawyer he must know that habeas is not synonymous with civilian criminal trials. I don’t know that he was actively trying to mislead people about it; it may only be that he thought it made good rhetoric. But whatever his intent, I think he has misled several other senators into thinking that the question is whether the Guantanamo detainees will be tried by a military trial of some sort (a court martial, a military commission, or what have you) or as civilians under U.S. criminal law.

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by hilzoy

(Eighth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

“A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison.”

A lot of the cases we have dicussed earlier involve detainees who have been found to be innocent. This one (pdf) is different: it involves a detainee (known as O.K.) who has been charged with murder for allegedly throwing the grenade Graham mentioned. You might not think that it’s a mitigating factor that he was with his family in a compound when it came under attack, and that he seems to have thrown the grenade in an attempt to defend himself. (He was the only survivor of the attack on the compound.) What, you might ask, was he doing at what seems to have been an al Qaeda compound to begin with? The answer is that he was fifteen years old at the time, and that’s where his family was living.

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by hilzoy

(Seventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill S. 1042.  Senator Graham’s full floor speech is here.)

Having checked out the medical malpractice motions that Lindsey Graham referred to, and discovered that they were a lot more serious than he let on, I decided to investigate another of the motions he cites as examples of frivolous claims by detainees. I purposely picked the one that seemed the most frivolous to me, namely this:

“Here is another great one. There was an emergency motion seeking a court order requiring Gitmo to set aside its normal security policies and show detainees DVDs that are purported to be family videos.“

What, I wondered, could possibly explain a motion like this? How could a prisoner’s access to DVDs possibly be important? After a certain amount of wrestling with my brand new PACER account, I found the motion in question (pdf). And this is the story:

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by Katherine

(sixth in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman’s S. AMDT 2517 to bill # S. 1042.  Senator Graham’s full floor speech is here.)

"What we have done at Guantanamo is we have set up a procedure that will allow every suspected enemy combatant to be brought to Guantanamo Bay and given due process in terms of whether they should be classified as an enemy combatant….

What is going on at Guantanamo Bay is called the Combat Status Review Tribunal, which is the Geneva Conventions protections on steroids. It is a process of determining who an enemy combatant is that not only applies with the Geneva Conventions and then some, it also is being modeled based on the O’Connor opinion in Hamdi, a Supreme Court case, where she suggested that Army regulation 190-8, sections 1 through 6, of 1997, would be the proper guide in detaining people as enemy prisoners, enemy combatants. That regulation is “Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees.” We have taken her guidance. We have the Army regulation 190-8, and we have created an enemy combat status review that goes well beyond the Geneva Conventions requirements to detain someone as an enemy combatant."–Senator Lindsey Graham

How do these CSRTs, which Senator Graham describes as "the Geneva Convention Protections on Steroids" and which the administration argues are enough to justify detention until the end of a war that may never end, actually work in practice?

Let’s look at some examples.

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by Katherine

(fifth in a series arguing against the Graham Amendment/for the Bingaman Amendment. When you call your senators, tell them that you’re asking to vote for the Bingaman Amendment, S. AMDT 2517to bill # S. 1042.)

“not as criminal defendants but as enemy combatants, people detained on the battlefield”

“Guantanamo Bay is a place we have designated to take people off the battlefield and hold them”

“an enemy combatant–someone caught on the battlefield, engaged in hostilities against this country”

“These are people caught on the battlefield as the Nazis were caught on the battlefield.”

–Senator Lindsey Graham.

Were they all really caught on the battlefield? That depends on what the definition of “battlefield” is.

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by hilzoy, with Katherine

(hi everybody. This is the first in a series of posts that reply directly to the arguments, assertions, and claims that Senator Lindsey Graham has made in support of his amendment suspending habeas corpus for noncitizens at Guantanamo, which I’ll be working on with hilzoy. –K)

(I deserve no credit on this one. Also, about Graham’s speech: I’ve transformed it into a Word doc; it’s here, for your amusement and delectation. — h.)

"How we treat detainees in our charge once they are captured is about us, but their legal status is about them. Once they choose to become part of a terrorist organization in an irregular force that blows up people at a wedding, then their legal status is about them and their conduct."—Sen. Lindsey Graham

There are two problems with this statement. One is the crazily-wrong assumption that people’s legal status has no effect at all on whether they’re abused. More on that later.

But let’s say it’s not about us at all, and only about them. What do we actually know about them?

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by hilzoy

I have not written anything about the nomination of John Roberts to the Supreme Court, mostly because I didn’t have anything interesting to say about it. When the nomination was first announced, I was pleasantly surprised. As I read further, I was a bit dismayed by some of the things he said, and especially what seemed to me to be a somewhat dismissive attitude towards the interests of women and minorities. But, fundamentally, I thought that while under any other President I can think of, I would have to think hard about his nomination and might well oppose it, under this President I had to hope he was confirmed, since virtually anyone else Bush is likely to nominate would be worse. The fact that seems genuinely to care about the law weighs a lot with me, and I felt no confidence whatsoever that if he were defeated, Bush would nominate someone else who shared that concern.

Or, in short: he was better than I had feared, and about as good as I could have hoped for, but that isn’t saying all that much.

But this is better than I had expected:

“Judge John G. Roberts Jr. testified today, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue. (…)

Mr. Specter, who supports the right to abortion, had been expected to question the nominee aggressively on the issue, and he did. And while Judge Roberts did not wholeheartedly embrace the 1973 Roe v. Wade decision or the 1992 Planned Parenthood v. Casey decision, he did signal that he would at least have to think long and hard before moving to upset them. He cited the principle of “stare decisis,” a Latin term meaning to stand by the thing decided, in stating that the Roe ruling was “settled as a precedent of the court.”

“So as of ’92, you have a reaffirmation of the central holding in Roe,” Judge Roberts recalled as Mr. Specter began the questioning. “That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.”

The nominee gave cautious answers, citing the difficulty of giving specific answers to hypothetical questions. But as a general principle, he said, he believes in “the importance of settled expectations,” that ordinary citizens as well as lawyers should be able to rely on the predictability and stability of settled law.

But not always. Although overturning precedent can be “a jolt to the legal system,” he said, it is sometimes right and necessary. He cited the landmark Brown v. Board of Education ruling of 1954, which outlawed public school segregation and in so doing overturned the Plessy v. Ferguson decision of the 19th Century that had upheld “separate but equal” facilities. (…)

Mr. Specter questioned the nominee about a memorandum he wrote in 1981, while a lawyer in the Reagan administration, in which he referred to the “so-called right to privacy.”

The senator wanted to know if the wording indicated that Judge Roberts was lukewarm to the concept of a right to privacy, or if in fact he believed that privacy was a right embodied in the Constitution.

“Senator, I do,” the judge replied. He said that right was spelled out in the First and Fourth Amendments, protecting free speech and freedom from unreasonable searches, as well as the lesser-known Third Amendment, protecting homeowners against having soldiers quartered in their homes against their will. (…)

As for whether a president could “authorize” unlawful torture, Judge Roberts said, “I believe that no one is above the law.” “

*** Update:
WaPo“

“Roberts was asked about his statement in a 2003 Senate hearing, when he was seeking confirmation as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit and said he regarded Roe v. Wade as “the settled law of the land.”

“Well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis ,” Roberts said. (…)

Roberts said he agrees that “the right to privacy is protected under the Constitution in various ways.” He said it was “fair” to say he does not hold the view today that was reflected in a 1981 memo, when he was a young lawyer in the Reagan administration and skeptically referred to a “so-called” right to privacy.”

Footnote below the fold, for Sebastian (and anyone else)

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