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Comments on Criminal Issues
December 14, 2007
HOW FAR DOES THE POWER OF HABEAS CORPUS EXTEND?
Houston Criminal Defense Attorney John T. Floyd Discusses Latest Gitmo Appeals before Supreme Court: Will America Remain Symbol of Liberty?
The United States Supreme Court on December 5, 2007 heard oral arguments in a case that will ultimately answer this critically important constitutional question. See: Boumediene v. Bush, 2007 WL 4252686 (U.S. 2007).
This case involves six former Algerian natives who emigrated to Bosnia and Herzegovina during the 1990s. They all acquired Bosnian citizenship except one who acquired a permanent Bosnian residency. They assimilated into their new country: marrying, having children, and building homes. They had no criminal history.
In October 2001, in the wake of the 9/11 terrorist attacks, the United States exerted tremendous pressure on Bosnian authorities to arrest these Algerian natives on suspicion that they had attempted to engage in international terrorism. This pressure came in the wake of the September 18, 2001 Congressional enactment entitled Authorization For Use of Military Force (AUMF) that gave the President the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such, nations, organizations, or persons.”
The Congressional intent of AUMF was to grant the President authority to take action against two limited classes of nations, organizations, or persons: those who were involved in any way with the September 11 attacks and those who harbored such persons. The Bush administration, however, assumed authority under AUMF beyond its initial Congressional intent to the extent that the U.S. government now says it has the authority to indefinitely detain “[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al Qaeda activities.”
In January 2002 the Supreme Court of the Federation of Bosnia and Herzegovina ordered the release of the six former Algerian natives with the support of Bosnian prosecutors who said their investigation failed to establish any criminal or terrorist-related activities by the men. That decision angered the United States. Our government pressured Bosnian police officers to effectively kidnap the men on the night they were released from a prison in Sarajevo. The Bosnian police seized the men, shackled them, put hoods over their heads, and took them to an unknown location. The next morning the Bosnian police handed the men over to U.S. military authorities stationed in Bosnia. Over the next three days the men were transported, shackled and subjected to extreme cold, to the U.S. Naval Station at Guantanamo Bay, Cuba where they remain without any formal charges ever being brought against them.
These men asked, and the Supreme Court agreed to, decide the two following issues:
• Whether the Military Commissions Act of 2006, Pub L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
•
Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over [six] years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merit.
The lower federal courts – the United States District Court and the D.C. Circuit Court of Appeals – answered these questions against the interests of these six men.
TREATMENT OF THE PRISONERS
These former Algerian natives were effectively kidnapped from their own country by the United States of America. They had been arrested by Bosnian police after the Bush administration used its AUMF powers to designate them as suspected terrorists. A lawful investigation did not link them to any criminal or terrorist activities. Bosnian prosecutors wanted them released from custody. The highest court in the country, the Supreme Court of the Federation of Bosnia and Herzegovina, concurred and ordered them released. U.S. government officials defied that judicial ruling. They pressured Bosnian police to kidnap the men as they were being released from prison and to turn them over to U.S. military authorities.
The men were placed in 8’ x 6’ cells at Guantanamo Bay. The cells have three concrete walls and steel mesh wire front. A fluorescent light burns 24 hours a day directly above each man’s steel bunk. They have been subjected to extended periods in solitary confinement, sleep deprivation, and extreme cold. In 2004 several soldiers crushed one of the men’s face into a gravel courtyard and broke one of his finger while he was shackled. During one of the periods of extended solitary confinement, the temperature in one of the men’s cell was so cold that ice formed on the air duct vent.
These men have been held under these harsh and brutal conditions without any formal charges ever being lodged against them. The government has not been able to link them to a single incident of criminal or terrorist activity against the United States.
HABEAS CORPUS RULING BY THE LOWER COURTS
Article 1, Section 9, Clause 2 of the United States Constitution is known as the Suspension Clause. It states:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
The United States Supreme Court over the last three years has issued two rulings that effectively extended the reach of habeas corpus to prisoners held without charges at Guantanamo Bay. See: Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). Rasul was particularly significant because it held that Guantanamo Bay is a “territory over which the United States exercises exclusive jurisdiction and control” and as such, inmates housed in detention facilities there could challenge their detention through habeas corpus. Id., at 476. The court made the important observation that the “historical reach of the writ of habeas corpus” extends not only to the “sovereign territory” of the United States but to “all other dominions under the sovereign’s control.” Id., at 481.82.
That constitutional finding by the Supreme Court seemingly should have been sufficient to grant the six former Algerian natives housed at Guantanamo Bay access to the courts through habeas corpus. But nothing is absolute and certain with the law as this nation wages its “war on terrorism.”
Slightly more than three months after the six men filed their writ of habeas corpus in the U.S. District Court in the District of Columbia, the court granted a government motion to dismiss the writ application based on the theory that even if all the allegations presented in the application were accepted as true, the applicants were not entitled to relief.
The district court concluded that under AUMF the President had the authority to “capture and detain those who the military determined were either responsible for the 9/11 attacks or posed a threat of future terrorist attacks.” This conclusion was made despite the fact that AUMF authorizes the President to use only the “necessary and appropriate force against those nations, organizations, or persons” directly involved in the 9/11 attacks. There was absolutely no evidence from the Bosnian investigation that the six former Algerian natives were involved in the 9/11 attacks, nor has a single shred of evidence ever been found by U.S. intelligence and military authorities during the six years after these men were kidnapped linking them to the 9/11attacks, or any other attacks against this country.
Relying upon Johnson v. Eisentrager, 399 U.S. 763 (1950), a decision involving former Nazi prisoners of war determined to have committed war crimes and a decision the Supreme Court determined in Rasul did not apply to Guantanamo Bay prisoners, the district court concluded that the six former Algerian natives kidnapped by U.S. authorities did not have any “cognizable constitutional rights” because they are neither U.S. citizens nor aliens “located within sovereign United States territory.” And despite the explicit finding in Rasul to the contrary, the district court held that “for all intents and purposes” Guantanamo Bay is not a “sovereign United States territory.” While the district court recognized that Rasul did extend the right of Guantanamo Bay prisoners to file writs of habeas corpus, the court concluded that the Supreme Court did not decide “whether the [prisoners] had any independent constitutional rights” upon which relief could be based.
In effect, the district court concluded that the six former Algerian natives kidnapped by the U.S. authorities had a right to file writs of habeas corpus but that they do not enjoy any independent constitutional or statutory rights upon which relief could be based.
In February 2007, two years after the district court issued its convoluted decision, a divided panel of the D.C. Circuit Court of Appeals vacated the district court’s ruling and said the court lacked jurisdiction over any Guantanamo Bay petitions pursuant to the Military Commissions Act of 2006 (MCA).
In the wake of Hamdan v. Rumsfeld, Congress enacted the MCA with the specific intent of removing the right of all Guantanamo Bay detainees to have any access to United States judicial system. Section 7(a) of the MCA effectively strips jurisdiction over two specific categories of cases: (1) “an application for writ of habeas corpus” filed by or on behalf of certain aliens [28 U.S.C. § 2241(e)(1)]; and (2) “any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of such any alien [§ 2241(e)(2).
In effect, the United States can kidnap, seize, interrogate, torture, and indefinitely detain any person it believes was involved in “terrorist” activity with legal impunity and that, under the MCA, no court in the United States has jurisdiction to entertain any habeas petition or complaint challenging such unlawful actions by the United States.
The essence of the D.C. Court of Appeals decision is that the MCA’s jurisdiction-stripping provision does not violate the Suspension Clause and that habeas corpus is not available to persons “without [their] presence or property within the United States.” As with the district court ruling, this secondary conclusion by the appeals court runs contrary to the finding by the Supreme Court that the availability of habeas corpus to Guantanamo Bay detainees is consistent with the “historical reach of the writ.” Id., 542 U.S. at 481-82.
Finally, even though the appeals court found that the six former Algerian natives are not “enemy aliens,” the court, like the district court, found Eisentrager controlling despite the Supreme Court’s repudiation of this very contention.
CONCLUSION
The American Bar Association in an amicus curiae brief filed with the Supreme Court in the Algerian natives case crystallized the issue before the court:
“The writ of habeas corpus is the cornerstone of the rule of law and should not be weakened by exceptions of the kind relied on by the Court of Appeals. The Founders recognized the critical role of the writ in our Constitution. History, dating back to the Magna Carta, taught them that executive detention without judicial review is anathema to the rule of law. The inclusion of the Suspension Clause in the Constitution reflects their judgment that the writ is most needed when it, and the rule of law, are under the most intense assault and that exceptions to the writ, even in times of emergency, are inconsistent with the rule of law and threaten to produce tyranny. Hence, only in time of rebellion or invasion does the Constitution authorize Congress to suspend the writ. Now is not such a time.
“Exclusion of Guantanamo detainees from the protections of habeas corpus on the ground that Guantanamo is not ‘sovereign territory’ of the United States is the very kind of evasion of the writ that the Suspension Clause sought to prevent. Such a limitation of the writ would permit the creation of a law-free zone where individuals could be deprived of their liberty without adequate judicial review. This is incompatible with the rule of law.
“In significant part due to the leadership of the United States, the concept of the Great Writ is now almost universally accepted by the world community. The ABA, in its efforts to promote the rule of law in developing countries, has emphasized the fundamental importance of judicial review of detention. Detentions at Guantanamo - in most cases for more than five years - without adequate judicial review, however, have undermined the leadership role heretofore exercised by the United States in the world community. Reaffirming the rights to habeas corpus of the detainees presently before this Court would help restore our nation's traditional role as the symbol of liberty and the rule of law.”
Congress is currently trying to undo the MCA of 2006. Many of the lawmakers, Democrats and Republican alike, who supported the Act now have regrets about doing so. These lawmakers apparently understand now that the United States cannot be “the symbol of liberty and the rule of law” when it kidnaps, tortures, and indefinitely detains people “suspected” of terrorism activities.
The bottom line is this: the United States cannot become terrorists while waging its “war on terrorism.”
SOURCES:
On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit,Petition for a Writ of Certiorari, Seth P. Waxman, Counsel of Record, Paul R.Q. Wolfson, Wilmer Cutler Pickering, Hale and Dorr LLP, 1875 Pennsylvania Ave., N.W., Washington, DC 20006. See: 2007 WL 680794 (U.S. March 5, 2007).
On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, Brief Amicus Curiae of the American Bar Association in Support of Petitioners, William H. Neukom,President,American Bar Association, 321 N. Clark Street, Chicago, IL 60610,Counsel for Amicus Curiae. See: 2007 WL 2456942 (U.S. Aug. 24, 2007).
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