Boumediene’s Impact on the Military Commissions

An important question left open by the Supreme Court’s Boumediene decision announced yesterday, which held that Guantánamo detainees have a constitutional entitlement to petition federal courts for writs of habeas corpus, is what impact it will have on the military commission trials just getting underway there.

On one hand, the Attorney General of the United States has boldly declared the trials will press on unfettered by the decision. On the other hand, Hamdan’s current military defense counsel has already announced he will use the decision as the basis of an immediate challenge that his client’s constitutional right to a speedy trial has been violated.  I think the legal and practical reality falls somewhere in between.

Boumediene explicitly addresses only the issue of the detainees’ right to challenge the basic grounds for their detention, saying nothing about trials per se. Yet in holding that the constitutional right to petition for the writ extends to those detained at Guantanamo, it is only logical to infer that the right must include the ability to challenge those government actions which fall within the constitutional scope of the writ elsewhere. Congress presumably can limit the application of statutory habeas at Guantánamo largely as it sees fit, but cannot constrain its constitutional exercise.

Most American lawyers’ exposure to habeas corpus is based upon its primary modern usage as a means to collaterally challenge state convictions. This use is extensively governed by statute and requires prior exhaustion of all other legal means of appeal. It was likely with this application in mind that some U.S. lawyers have concluded that Boumediene will have little immediate impact on the military commissions. But there is a rich, and unique, American history of habeas challenges to military trials. For the first 200 years of American military justice, the only federal court review available for military trials was that provided by habeas and other collateral attacks, and such review was limited exclusively to questions of jurisdiction.

The relevance of this point to the Guantanamo trials is twofold – first constitutional habeas clearly includes the right to challenge the jurisdiction of a military tribunal, and second, courts will generally hear jurisdictional challenges upfront. If there is no legal right to try a person, there is no value added in waiting to have a record of their unlawful trial available to review, whereas the injury suffered by the unlawfully accused increases immeasurably. Recall that the government urged the courts to abstain from deciding Hamdan’s original habeas petition until a trial had been completed. While the D.C. Circuit opinion joined by now Chief Justice Roberts endorsed this approach, the Supreme Court itself did not, overturning the original commission process in its 2006 Hamdan decision before any case had proceeded to trial.

Detainees facing military trial may have grounds to challenge commission jurisdiction on a number of fronts, including:

(1)The Military Commissions Act of 2006 limits trials to individuals determined to have been “unlawful enemy combatants,” which is logically a level beyond the “enemy combatant” designation assigned by the Combatant Status Review Tribunals. The commission defendants presumably have all the same grounds to challenge their basic CSRT classification as other detainees; if their detention is invalid then presumably a trial is even more so. But the accused presumably have additional grounds for challenge based on the need for the government to meet the higher MCA standard for trial eligibility rather than just that necessary for basic detention. This issue has already been decided by the Court of Military Commission Review which held that the commissions themselves could make the initial “unlawful enemy combatant” determination, but that outcome is now presumably subject to collateral attack.

(2) Many of the defendants currently facing proposed or approved charges, including Hamdan himself, are only accused of “conspiracy” or “providing material support to terrorism." While both these offenses are crimes under federal law, many legal scholars (myself included) do not believe that they constitute law of war violations lawfully triable by a military tribunal.

(3) Several additional defendants, such as Omar Khadr, are accused of specific hostile acts against American or allied service personnel. These charges raise basic questions about whether the accused are entitled to combatant immunity, which would bar prosecution outright. If these accused are held to fall outside the scope of that immunity, then there is real reason to question whether they can tried under the law of war for these acts. The view held by what seems to be the majority of law of war scholars (again, myself included) is that individuals without combatant immunity are liable to prosecution only for ordinary domestic crimes of murder, assault, etc. in these cases and not for law of war violations.

(4) This seems like merely stating the obvious, but the law of war is applicable only to conduct taking place during armed conflict. Under U.S. law, the President has constitutional authority to respond to an actual or imminent armed attack, but arguably only Congress can actually place the nation at war. In the wake of 9/11 the President asked for, and got, a determination that the nation was at war in the form of the Authorization for the Use of Military Force, which limited its application to those responsible for the 2001 attacks as well as those aiding or sheltering persons responsible. Presumably the President could have cited earlier attacks such as the 1998 embassy bombings in his request and asked for a retroactive determination that the conflict began before 9/11/2001, but he did not do so. Several Guantanamo detainees are facing military charges for participation in events that took place prior to 9/11 and they would seem to have a reasonable argument that the tribunals lack any jurisdiction over such matters.

(5) It may be possible to challenge whether or not the MCA fully satisfies the concerns with the trials that the Court identified in Hamdan. Certainly the statute addressed the core Hamdan holding that commission proceedings had not been authorized by Congress. But the Hamdan Court decreed that the law of war imposed a mandatory floor on trial procedures, which at a minimum would be those derivable from the language of Common Article 3 to the Geneva Conventions. So there may be room to argue upfront that the MCA's prescribed commission procedures still fall short of some aspect of international law mandates and that this is sufficient reason for the courts to intervene again without waiting for a trial to be completed.

I find it surprising that Hamdan’s attorney says he intends to pursue the speedy trial claim as his initial challenge to commission proceedings. I don’t find anything in the Court’s decision that suggests the full panoply of constitutional rights applies to Guantanamo, just habeas review. In fact I think that such a reading would be a strained one absent a clear intent by the Court to overturn the longstanding Insular Case precedents. While GTMO may be de facto U.S. territory, it doesn’t likely qualify as a place deserving higher legal standing than such de jure U.S. territories as the post-Spanish American War Philippines or early 20^th century Hawaii where full Bill of Rights protections were inapplicable. And since the Court has never held that the Bill of Rights applies to courts-martial, I find it particularly bizarre that a uniformed military attorney plans to argue that suspected terrorists are entitled to more rights before a military commission than his active duty colleagues would get before a court-martial. I believe the law of war mandates that the detainees receive trials matching the due process accorded Americans, but not more. Also, a substantial part of the delay in bringing Hamdan to trial has been caused by his predecessors' decision to take his case all the way to the Supreme Court, which resulted in a decision requiring Congress to enact a new statute followed by an entire redrafting of all the commissions’ procedural rules and establishment of a new appellate court. So Hamdan is hardly a sympathetic plaintiff on this issue!

Hamdan has a much better claim on the issue that his charges fail to state a violation of the law of war. Four Supreme Court justices were ready to reach this result two years ago; it was probably only Justice Kennedy’s belief that it was premature to address the issue that kept it from being part of the majority opinion.

Having said all this, it still remains to be seen what Boumediene's actual impact will be on the commission proceedings this summer. I do expect that various defense counsel will raise some or all of these issues in habeas petitions in the near term. But merely filing such petitions will not necessarily halt the Guantanamo proceedings unless either the federal judges to which they are assigned elect to issue injunctions, or the commission trial judges exercise discretion in staying their trials pending their outcome. If I was a commission judge, personally I would do just that. Denying a defendant a fair trial is a war crime under the customary law of war and those presiding over such trials are clearly liable to criminal prosecution themselves. So the prudent judge should want to await the outcome of any habeas review. But again, there is no legal mandate that they do so, or practical assurances that they will.

In the long run, I think it is safe to say that Boumediene means that there will now be far more federal judicial scrutiny of the military commission process than was previously provided for by the MCA. But whether the ruling will have any nearterm impact on the governments plan to press on with trials this summer remains to be seen

Comments

[andrewdb]

I think if they have combatant immunity they will be a POW and held for the duration of the conflict, which probably doesn't help them much.

I also wonder about the pre-9/11 issue - did the Nuremburg Trials charge anyone with anything before the invasion of Poland?

[james M]

I posted the following comment on the IntelDump Blog, but it is also relevant here. I got a bit flip towards the end, but you get the gist.
____________________________

This opinion appears well crafted, and more importantly well commented. We can see where the Court gets its findings, and how it has given incredible deference to the Executive and Congress. The Court has given them wide maneuvering room to come up with something that passes the smell test.

In effect they are being given the chance of a do-over with regard to re-writing the whole framework and legal rounding.

The Court was very careful not to rule on the legality of any other process other than habeas corpus.

Men of bravado in the administration may take this to be a nod that they can go forward with trials under the existing flawed system.

I think a wise man should read it as, "You should be glad that we limited our selves to just that issue, because if we had not the rest would have come tumbling down.... Now go back and re-think the whole system and re-design it your selves, before we really kick over your sandcastle."

The Court has laid a legal jurisdictional foundation, and this should give the government pause, and the latitude to re-think this from the ground up.

They need to consider if they are perusing criminal convictions, or war crimes. As pointed out above, the two are worlds apart.

If the court had gone one or two steps more it is possible that it could have ruled the whole Git-Mo process to have been deliberately un-lawful, and that may have resulted in incitements, and possibly some in the administration and the chain of command facing trial.

Right now, the court has only flooded the castle mote. The sand castle builders can retreat and reform with a more sound legal plan, or they can stay and fight on infirm ground.

I think the administration is NOT going to take the olive branch offered by the court. They sure don't react like they have been extended a helping hand. I think they are going to try to re-craft new law, or administrative rulings, to shore up the ramparts of their sandcastle.

Watch for the new trailer coming to FOX news promoting the "McCane/Bush separate but equal justice for enemy POW's". Soon to be returning on every cable election news show.

This fabulous new realty show, now in it's 6th season, with a new twist for this year: Every POW is given a chance to prove his innocence and get of the island. The lucky ones who do well on dog tricks maybe even win real food and token access to counsel. Not exactly private access but with cameras monitoring their every word and censors examining every document.

Will team-orange manage to mount an offensive so some of them can escape? Or will the producers in Washington think of new games they must play before getting daylight and real food?

Tune in for this seasons thrilling installment of escape from Gunataniomo, complete with innuendo, juicy hearsay and new plot twists that even baffle the professional stunt lawyers.

This is sure to be a hit this fall, ratings season, just press D or R on your remote.
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