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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, December 16, 2006

Hamdan Only Sorta A "Person": Part I

And Also: "Should Biological Parents Have More Rights in Adoption? A Hypothetical Conversation" By Sherry F. Colb is interesting enough that her upcoming book might be worth checking out.

Salim Ahmed Hamdan lost on remand, the district court (via a ruling by Judge Robertson, a Clinton appointee) upholding the Military Commission Act, at least to the degree it does not suspend constitutionally secured habeas without there being a rebellion or invasion. The proviso is important since it holds that aliens without a firm connection to the U.S. (even those held in U.S. jurisdiction) are not covered under that security. Their habeas rights are at the sufferance of Congress.

Some suggest this is the best we can hope for, given the situation, and at least limited security ... for people like al-Marri and other residential aliens... is offered by the ruling. The law as to people like Hamdan is unclear and we should ultimately blame Congress. [Glenn Greenwald, who honestly, did not really take time to analyze the ruling, just summarize it.] And, so forth. [Links provide discussion plus links to the ruling plus to a few relevant precedents. See also the comments here.]

After reading the twenty-two page ruling, I share Talk Left's dissenting analysis -- the reasoning is simply thinly supported. A few basic thoughts come to mind. First, as noted below, the core issue (no constitutional habeas security for Hamdan) is summarily addressed in a few pages (in large part, one long paragraph). When this sort of thing was used against the administration, namely the NSA wiretap issue, it was ridiculed as lame. Think about it -- twenty two pages of .pdf file pages simply are not that many, especially when you have to deal with preliminaries, factual background, and other odds and ends. This is not necessarily wrong -- the district courts deals with loads of cases, etc., but it underlines how the matter was selectively dealt with before. Also, as seen below, conclusionary summaries are problematic when they paper over dubious arguments.

Two, the ruling is in no way compelled by precedent, though it selectively uses language to do so. Again, many will not find this conclusionary "activist" technique a problem, especially if they like the result. The judge, for instance, references Justice Breyer's concurrence in Hamdan, which noted that Congress could change the rule and give the executive the power it wants -- namely, a different sort of military commission. The judge uses the language to imply Breyer was suggesting Congress could strip statutory habeas, leaving such "enemy combatants" without relief. Quite a different matter. Also, Rasul cites various old English cases to reaffirm that opinion's argument that habeas should be supplied even to aliens at Gitmo. The judge basically decided the cases were of little use, if one looks at their facts -- in other words, he made an independent analysis rejecting the clear implication of Rasul dicta.

Finally, and most importantly, such techniques naturally lead to his final conclusion -- that Hamdan "lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus." Judge Robertson, see Glenn Greenwald, used a post-WWII case -- one I might add that Rasul et. al. went out of their way to hint should be interpreted warily, so much the dissent noted they were in effect saying it was overruled -- as the key means of deciding this question:
To answer that question, the court relied upon prior Supreme Court rulings -- in particular the 1950 case of Eisentrager v. Johnson [aka Johnson v. Eisentrager], which dismissed habeas corpus petitions brought by German nationals who were convicted of war crimes in China by a post-WWII U.S. military tribunal. Judge Robertson concluded that, under Eisentrager, aliens with no U.S. connections have no constitutional right to bring habeas corpus petitions, and Congress is therefore permitted to strip federal courts of jurisdiction to entertain such petitions.

As TL notes, the cases simply are not equivalent. The district court obviously disagreed, quickly dealing with two rejoinders:
First, [Hamdan] notes that the Eisentrager petitioners admitted that they were enemy aliens, whereas petitioner Hamdan has always objected to his classification as an unlawful enemy combatant. Here, however, as in Eisentrager (where petitioners amended their petitions to assert that they had really been civilian employees) Hamdan's "exact affiliation is . . . for our purposes, immaterial." Eisentrager. Second, Hamdan claims that, unlike the Eisentrager petitioners, he has never been afforded access to a proper tribunal. That observation is obviously true, thus far, but Hamdan is to face a military commission newly designed, because of his efforts, by a Congress that finally stepped up to its responsibility, acting according to guidelines laid down by the Supreme Court. It is difficult to see how continued habeas jurisdiction could make further improvements in his tribunal. ...

As Rasul notes, "the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus." IOW, yes, they matter. See TL for the apparent confusion. Thus, the judge needs a bit more discussion than a bare "immaterial" ipse dixit. This is especially appalling given the bill of attainder nature of the whole affair. Second, what? The judge specifically notes in footnote 17 that the ruling "does not address whether and to what extent enemy aliens may invoke other constitutional rights."

In an Orwellian move, however, he apparently has no real means of defending them. At any rate, there are possible "improvements" (guards against unconstitutional action, e.g., bill of attainder) at issue here. This is simply shoddy reasoning.

[To be continued.]