An armchair spectator scores Gitmo, round 3

Having likened the 3 Guantánamo matters argued before the U.S. Supreme Court to rounds of a boxing bout, might as well extend the sports metaphor long enough to score yesterday's 3d round, recorded in this transcript and this audio. (Sampling of others' critiques here, here, here, here.)

Award for Keeping a Glove in the Ring While Hanging in the Corner
This one goes to the U.S. Constitution.
Throughout nearly 1-1/2 hours or argument only a few explicit mentions were made of the Suspension Clause (none citing its precise text), which greatly narrows governmental power to suspend the writ of habeas corpus. There's only 1 mention, at p. 66, of Johnson v. Eisentrager, a 1950 judgment that accorded virtually no constitutional protection for noncitizens abroad, a judgment that the Court in the 1st Gitmo case, Rasul v. Bush (2004), did not praise but did not overrule, either. (SCOTUSblog's Lyle Denniston asks: "Can constitutional issues be finessed?")

Most Ignored Relevant Body of Law
Human rights.
Particularly ignored yet relevant were human rights norms that the United States is obligated to uphold by dint of its ratification of the International Covenant on Civil and Political Rights. Even assuming arguendo that international humanitarian law like that codified in the Geneva Conventions does not apply fully to all of these detainees, human rights law does. It requires that each state afford each human being minimum protections, among them freedom from unjustified and unreviewable detention. It has an extraterritorial component that, as I've written, is broader than that which the U.S. government says is applicable under U.S. law. It provides concrete, actual-fact-based examples of something that troubled Chief Justice John G. Roberts, Jr. (right; see p. 17); that is, how to adjudicate a standard based on "jurisdiction and control," rather than "sovereignty." And it rejects the notion that severe deprivations of rights may occur without any recourse to remedy. Those principles would aid understanding of U.S. constitutional questions at play in this case. The failure to mention them set the scene for the next 2 items:

Missed Opportunity
This armchair spectator discerned something that perhaps was not apparent in the real time of argument: Justices on all sides struggled with the matter of timing. Justice John Paul Stevens (left) was among those who raised the issue with the government's attorney, Solicitor General Paul D. Clement:

JUSTICE STEVENS: Isn't the main issue the fact that it has taken six years to have the issue resolved -- ... They say they have been unlawfully detained for six years from the beginning. And isn't that delay relevant to the question of whether they have been provided such a wonderful set of procedures?
GENERAL CLEMENT: Well, Justice Stevens, I think the delay is going to be relevant to whether or not courts should expedite hearings, and the like. But I don't think it should cloud the basic constitutional question before the Court.

(p. 58) Detainees' attorney, Seth P. Waxman, had made early mention of that fact that petitioners have endured detention without charge for 6 years now, and he did decline Chief Justice Roberts' invitation to concede that the length of detention did not matter to a habeas court. (pp. 7-8)
Yet in these exchanges and in Justices' other mentions of the timing issue, neither attorney cited authority for his position; a listener plausibly might've thought that reminders of timing sound in equity and not in law.
That, however, is not the case. Limiting the length of deprivation of right to the precise time period of the emergency that provoked deprivation is a core concept of the law of derogation, the human rights doctrine that allows temporary, carefully circumscribed suspensions of civil liberties. (It's detailed here; posts here.) In this body of law timing is not an emotional makeweight; it is, rather, an essential element in determination of the justifiability of the suspension.
One needn't even venture abroad to make the same point, for the importance of timing is evident in recent Supreme Court decisions that have endeavored to tailor governmental measures to fit the governmental interest at stake. Consider, for example, the Court's declaration, in section III(B) of Grutter v. Bollinger: Affirmative action plans designed to promote racial and ethnic diversity may continue, but only for the next quarter-century, when, in the Court's estimation, the societal exigency that compels them will have abated. Consider too the words with which Justice Anthony M. Kennedy (right) distinguished Eisentrager at page 4 of his concurrence in Rasul v. Bush:

Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The relevance of this passage to the current dispute seems patent, as does the necessity of either side to secure the vote of Justice Kennedy. The frequency with which other Justices discussed timing suggests that they understand this. The failure to address the law surrounding the issue of timing is thus curious as well as unfortunate.

Precision Counts
Invoking a phrase that is common among opponents of the government's post-9/11 detention program, Waxman said of Guantánamo:

If our law doesn't apply, it is a law-free zone.

(p. 14) Unfortunately, there was no opportunity to build upon this rhetorical flourish. As the paragraph on "Most Ignored" demonstrates, U.S. law is not the only law at play. Stated precisely: The United States is the only entity with any ability to exercise its will at Guantánamo. Thus if the Court should agree with the court below that habeas jurisdiction does not extend to Guantánamo, it would endorse the establishment of a zone that, though yet constrained by (human rights) law, is free from sanctions for violation of that law. This is a distinction that makes a difference.

Best Hypothetical
Winner here is Justice Stephen G. Breyer (left).
He uncovered an instance in which the curtailment of judicial review might well result in a detainee's claim having no judicial review -- a result that undercuts claims that the curtailed Combatant Status Review Tribunal (CSRT) process is an adequate substitute for the writ of habeas corpus:

JUSTICE BREYER: [S]uppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped Al-Qaeda, and you had your hearing before the CSRT.
And now you go to the D.C. Circuit, and here is what you say: The CSRT is all wrong. Their procedures are terrible. But Judge, for purposes of argument, I concede those procedures are wonderful, and I also conclude it reached a perfectly good result.
Okay? So you concede it for argument's sake. But what you want to say is: Judge, I don't care how good those procedures are. I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.
That's the argument I want to make. I don't see anything in this CSRT provision that permits me to make that argument. So I'm asking you: Where can you make that argument?
GENERAL CLEMENT: I'm not sure that he could make that argument.
JUSTICE BREYER: Exactly. ... If he cannot make that argument, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make? (pp. 38-39)

Best Use of Comparative Law
Breyer, again.
Revisiting the colloquy above, he challenged Clement's claim that the unavailability of a U.S. forum for adjudicating the hypothetical question did not matter, for the reason that England would not grant such a forum, either:

JUSTICE BREYER: ... [Y]ou said well, neither could they in England. Well, that I wonder. .... After all, England doesn't have a written constitution. So it is hardly surprising if they concede everything away in England, they're not going to be able to make any argument. ... (p. 47)

Best Advocate on Behalf of His or Her Position
Hands down, this one goes to various Justices.
Several put forward their points of view clearly and concisely. None feared to challenge, and their challenges laid bare weaknesses in opponents' positions. As in prior rounds, Justices showed themselves prepared, engaged, and able to buck and weave within the complex legal ring that has resulted from the post-9/11 actions of the Court, of President George W. Bush, and of Congress.
Examples include:
Justice Antonin Scalia's sparring with detainees' attorney over the long history of habeas corpus. It began with a statement of detainees' position that recalled the declaration of former Attorney General Alberto Gonzales that there is no right to habeas:

JUSTICE SCALIA: ... Your assertion here is that there is a common law constitutional right of habeas corpus that does not depend upon any statute.
Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England.(p. 10)

Later supplying a detailed answer to the question: Justice Breyer. (pp. 24-26)
The steering by Justice David H. Souter (left) that led detainees' attorney away from what might have seemed a concession that Congress could tinker with its new-minted mechanisms a little and thus solve procedural fairness concerns:

JUSTICE SOUTER: ... [T]he Guantanamo detainees ... wouldn't they all run into the problem of -- the neutrality problem that you raised? The commanding general, the Secretary of Defense, in effect, have already said these people belong where they are. Wouldn't that make it impossible, really, at this stage of the game to substitute a military procedure?
MR. WAXMAN: I certainly think so. ... (p. 23)

Justice Souter again, along with Justice Stevens, jabbing at the government's contention that detainees' "status has been reviewed by a tribunal modeled on Army Regulation 190-8," which implements the 3d Geneva Convention as U.S. law. Clement said that in affording a "personal representative" to detainees, the new plan goes farther than the old; at this, the 2 Justices secured Clement's concessions that the "personal representative" does not act as counsel for the detainee; indeed, he is obliged to report to the government any "material intelligence information" he might learn while talking with the detainee. (pp. 32-34)
Justice Souter, joined this time by Justice Ruth Bader Ginsburg (right), also posed a challenge to a government position that long and loyal readers will recognize as my own pet peeve. Echoing a passage in their separate opinion in Hamdi v. Rumsfeld (2004) (section III(C)), they said:

JUSTICE SOUTER: ... I didn't want to get into the prisoner of war point. But if you did want to get into it, the problem with your prisoner of war point is the United States is not treating them as prisoners of war. They have not been adjudicated prisoners of war, or otherwise, under the Third Geneva Convention, and that argument on the Government's part is entirely circular.
GENERAL CLEMENT: With respect, Justice Souter ---
JUSTICE GINSBURG: General Clement, I remember in a prior hearing about Guantanamo that the Government was taking the position firmly that these detainees were not prisoners of war and, therefore, were not entitled to the protection of the Geneva conventions.
So if the Government is maintaining that position, these people are not prisoners of war, then the treatment of a prisoner of war is not relevant. (pp. 41-42)

When Clement tried to give elasticity to the concept of detention-during-wartime advanced by the plurality in Hamdi, there was this:

GENERAL CLEMENT: ... hold them as we would hold anybody else who was captured as preventative detention.
JUSTICE STEVENS: For the duration of hostilities, if you can show that they are enemies.
GENERAL CLEMENT: Well, I think if we can show that they were enemy combatants, that's exactly right.

(p. 51) The requirements of that "showing" are at the core of the case, and so the desired elasticity was snapped back.

Keeping Eyes on the Prize
This goes to Justice Ginsburg.
Throughout the argument she worked, sometimes with other Justices yet without much success, to get attorneys to address the threshold issue in the case. One such occasion:

JUSTICE GINSBURG: The D.C. Circuit ... said that the act[ion] that these people are trying to bring [--] habeas [--] doesn't exist. And it seems to me the only question before us is whether there is jurisdiction in the court of appeals to decide that threshold issue.

(p. 67) It remains to be seen whether the Court as a whole will train its focus on that preliminary issue or, as the argument itself did, go to the ropes on the myriad other issues in this litigation.

Even more on Habeas Corpus

In response to Michelle’s post my view is that there is a number of categories of norms in human rights law – (i) jus cogens norms of which there are very few and which are, clearly, non-derogable whether a treaty says so or not; (ii) expressly non-derogable norms within the scheme of a particular treaty; (iii) norms that are not expressly non-derogable but which the bodies seised with responsibility for interpreting the treaties have found to be non-derogable; and (iv) derogable norms. I don’t think one could say that the right to challenge the lawfulness of one’s detention – which is satisfied in common law countries by the writ of habeas corpus – falls into any category except the third above. Is this customary international law then? I’m reluctant to say so. I think of it more as treaty law inasmuch as the treaty-interpreters (i.e. the institutions identified within the treaty itself as having responsibility for interpreting its terms) are simply elaborating on the meaning of the treaty much like constitutional courts do with constitutional norms in domestic systems.
Diane then, in a comment to Michelle’s post, asks whether the non-derogability of the right to challenge the lawfulness of one’s detention means that “there never can be emergency detention, regardless of circumstances? Is there no accommodation of delay in hearings on detention, at least in the most extreme circumstances?” My argument is certainly that the non-derogability of the right does not mean that there can never be extended detention – in fact, my reading of the right to be free from arbitrary detention in international law (heavily influenced, by the way, by the work of Claire Macken and particularly her article “Preventive Detention and the right to personal liberty and security under Article 5 ECHR” (2006) 10(3) Int. J. of Human Rights 195) is that preventative detention including of suspected terrorists is permissible on public order and national security grounds but only if it is capable of being challenged in court. It might be useful to quote a short extract of my argument from the J. Conflict and Security Law that I mentioned yesterday to show the thrust of my reading (footnotes omitted):

The international system has sufficient inbuilt flexibility that, coupled with appropriate derogations where necessary, would allow for an effective system of detention in which detainees could challenge the lawfulness of their detention to be constructed.

In such a system it would, if necessary, be possible to have extensive grounds upon which one could be taken into detention including, as international law already permits, suspicion of involvement in international crime (including crimes against humanity into which many terrorist actions can certainly be said to fit) and preventative detention to protect against future involvement. The duration of detention prior to trial would be entirely dependent on the exigencies of the circumstances of the case which could be tested by a detainee through a habeas corpus petition and, where there was to be no trial or charge, the existence of an effective review procedure may be sufficient to deprive the detention of any prima facie arbitrary character, depending on the nature and weight of the evidence underlying the suspicion against the detainee as assessed by a court (or an arbiter with the characteristics of a court). Such a review procedure would either consist of habeas corpus petitions or an equivalent review mechanism in which the detainee would have the capacity to substantively challenge the lawfulness of their detention in an adversarial procedure, before an objective arbiter with the power to order to release from detention. In recognition of the sensitive nature of the information that may form the basis for the decision to detain, international law allows for a number of variations from ‘the norm’ including, for example, the provision of Special Representatives, the reasonability of suspicion of involvement being assessed on a 'balance of probabilities’ basis, and so on. International law allows for substantial variations on ‘normal’ procedure where those variations are strictly required by the exigencies of the situation. Instead of simply asserting the necessity to detain an individual or to deny them access to judicial oversight, therefore, a system based on
international law principles would require a case for such variations to be made out to the satisfaction, where necessary, of a court of law.

Detainees who have recourse to such a review procedure could be tried for international crimes in a military commission if necessary, provided the commission complies with international legal standards and, most importantly, in the ‘War on Terrorism’, they could be interrogated for information. This would certainly be a variation from the ‘norm’, however it would not extend to allowing the use of 'coercive interrogation techniques’ or torture, because of the prohibition of such conduct not only by the UN Convention against Torture but also by jus cogens. This, combined with the right to an effective and substantive review of the lawfulness of detention, appears to satisfy both rights-protection and national security needs to the extent possible (for one can never absolutely protect against terrorism or absolutely protect against rights abuses; one can merely try to design and use a system that minimises the threat of both to the extent possible).

A Question on Habeas Discussion...

Further to the robust dialogue of Fiona and Naomi, I was wondering what we do about the express provisions of derogation in the ICCPR (fairly well mirrored by the European Convention), notwithstanding the more recent discourse presented in the posts recently. Is it being asserted that the new discourse is now "customary international law" overriding the treaty provisions, e.g., Art. 9 of the ICCPR is not one of the articles a state is prohibited from suspending in times of emergency? I quote both Arts. 4 and 9 of the ICCPR below, just as a quick FYI.

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

More on Habeas Corpus and Suspected Terrorist Detainees

I wanted to weigh in on Naomi’s post on habeas corpus in times of emergency and reflect a little on the status of the writ in international human rights law and on the pragmatic reasons for ensuring habeas corpus in line with international legal standards.

First of all it appears that habeas corpus is, as Naomi rightly pointed out, non-derogable in at least the ICCPR and Inter-American systems. Significantly, however, the Council of Europe – whose European Court of Human Rights has always held habeas to be important but never to be non-derogable – has recently indicated that habeas may be moving towards non-derogability under the ECHR system as well. In its 17th Report on its General Activities, the European Committee for the Prevention of Torture opined that

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.

In my forthcoming article in the Journal of Conflict and Security Law (advance access available here) I outline the international legal protections of habeas corpus (or an adequate alternative) and conclude – as Naomi has done in her post – that it is generally non-derogable. Indeed – although the article does not consider this element of the international legal standards – the writ’s increasingly close connection to the prohibition on torture might suggest a possible further elevation of the right to challenge the lawfulness of one’s detention to a jus cogens standard in the future.

The non-derogability of habeas corpus, of course, puts the US Constitution in conflict with international standards because it allows for the suspension of the writ in limited circumstances, however where there has been no such suspension (and the MCA certainly constitute a suspension within the meaning of Article I(9)(A)) the international standards certainly militate towards a universal guarantee of habeas (or adequate alternative) regardless of citizenship, suspected-terrorist status, and, indeed, the location of one’s detention. (And this is my argument in a different, forthcoming article!).

When he suspended habeas corpus Abraham Lincoln – who is now so closely associated with ‘counter-terrorist’ policy in both the United States and (bizarrely) Pakistan – asked whether all the laws but one were to be upheld for the sake of habeas corpus, however the increasingly sophisticated understanding of the writ belies the simplicity of this attitude. Allowing detainees to challenge the lawfulness of their detention does not mean that suspected terrorists could not and should not be detained (even if, perhaps, there is insufficient evidence to charge them) or that criminality (including terrorism) can not be rigorously countered. It simply means that the risk of (a) mistreatment of those detained, and (b) misidentification of people for detention is minimized.

Those who support the provision of habeas rights to suspected terrorist detainees in the ‘War on Terrorism’ are often presented as idealistic civil libertarians who do not understand the risks associated with sophisticated globalised terrorism. This is as much as a simplification of our camp as is the presentation of the current US Administration as Machiavellian power-grabbers. The position that I hold, certainly, is a pragmatic one: security may require the detention of individuals but the security-liberty tradeoff only allows for this if there are sufficient safeguards to ensure that only genuine risks are detained (and the release of hundreds of people, including former Guantanamo detainees shows this has not been the case), if there is a mechanism to ensure that status is frequently and effectively assessed (and the impressive Denbeaux studies show that the CSRT do not fulfill this), and if the fundamental rights of those in detention are respected remembering that the detention is supposed to be protective rather than punitive.

The availability of the writ of habeas corpus is as close as the common law world knows to fulfilling these three pragmatic and fundamental requirements.

On Musharraf on Lincoln

As discussed in Naomi's excellent post above, Gen. Pervez Musharraf has called upon the spirit of Abraham Lincoln in an effort to justify declaring a state of emergency in Pakistan.
The invocation of Lincoln (right), the President who governed America at a time when its States were not United -- who saw a 4-year Civil War to its end in 1865 -- has taken the blogosphere by storm. With a hat tip to New York Times blogger Robert Mackey, that segment of Musharraf's speech is available in video above. Full text of the speech is here; here's what Musharraf (below) said about Lincoln:

I would at this time venture to read out an excerpt of President Abraham Lincoln, specially to all my listeners in the United States. As an idealist, Abraham Lincoln had one consuming passion during that time of crisis, and this was to preserve the Union… towards that end, he broke laws, he violated the Constitution, he usurped arbitrary power, he trampled individual liberties. His justification was necessity and explaining his sweeping violation of Constitutional limits he wrote in a letter in 1864, and I quote, 'My oath to preserve the Constitution imposed on me the duty of preserving by every indispensable means that government, that Nation of which the Constitution was the organic law. Was it possible to lose the Nation and yet preserve the Constitution?'

The transcript's from the post by Mackey, who also links to Lincoln's actual words.
What to say about all this?
1st, with regard to "emergency": Lincoln acted after a sizable portion of his country seceded from the Union, donned uniforms, and made war against Union fortresses within the seceded territories. The situation stands on a different plane from the political demonstrations and occasions of terrorist action that Pakistan's faced these last months. Musharraf's regime well have been under threat, given the awaiting decision on whether his re-election was valid, and the new in-country presence of a longtime political opponent, Benazir Bhutto (left), the woman who seeks once again to become the Pakistan's Prime Minister. But it's basic to the derogation rules Naomi discusses that the threat must be to the nation itself, and not simply to the state regime in power in that nation.
2d, with regard to Pakistan and post-9/11 United States: One senses that Musharraf invokes Lincoln because he cannot invoke Bush; that is, he looks to a U.S. President with unquestioned credibility as a source of justification. Yet even an analogy with President George W. Bush (right) would not well serve. The article of mine that Naomi so kindly cites (like my English-language article Guantánamo) questions whether, and if so, how long, the United States suffered such a threat post-9/11. It further criticizes the Bush Administration for acting as if there were a state of emergency yet refusing to discharge its obligations under the International Covenant on Civil and Political Rights. Those obligations:

-- Give precise and proper notice of what emergency measures it was taking (as Britain, incidentally, did); and
-- Tailor those measures precisely to the threat posed, both by limiting suspensions of liberty to the absolute minimum required and by ending all such suspensions as soon as the political climate
permitted.

3d, with regard to the tailoring, or proportionality, of measures by Musharraf, Bush, and Lincoln: In the U.S. periods under review there was, as there now appears to be in Pakistan, neither any wholesale suspension of the Constitution nor any dismissal of the Supreme Court. It is true that there were in the United States curtailments of recourse to habeas corpus. As we've posted, Lincoln's abrogation of the writ remains controversial to this day, and may well prove a point of discussion during the December 5 oral argument before the Supreme Court in the Boumediene challenge to Bush's Guantánamo detention policy. Yet in neither period did U.S. emergency measures go much further than that. It is true that Bush has sought to stave off judicial review of his measures, and in the Detainee Treatment Act and Military Commissions Act Congress has tried to helped him keep the courts at bay. Yet even when the U.S. judiciary brushed aside those efforts, as did the Supreme Court in Hamdan, neither political branch has suggested anything like shutting down the courts. Nor did Chief Justice Roger B. Taney's clash with Lincoln over habeas corpus result in dismissal of Taney (left) or any other member of the Court.
Try as he might, Musharraf can find no refuge in the words of American Presidents, present or past.