U.S. District Judge Gladys Kessler said in a hearing yesterday that she found allegations of aggressive U.S. military tactics used to break the detainee hunger strike "extremely disturbing" and possibly against U.S. and international law. But Justice Department lawyers argued that even if the tactics were considered in violation of McCain's language, detainees at Guantanamo would have no recourse to challenge them in court.
It is not at all obvious that the constitution is so malleable. The constitution does permit suspension of habeas corpus rights, under Article I, Section 9, but only "when in cases of rebellion or invasion the public safety may required it." The Detainee Treatment Act of 2005 is arguably such a law, but prohibiting courts from examining the legality of someone's detention, and prohibiting the courts from examining allegations of illegal U.S. torture during the course of such a detention, are two different things entirely, and it is not at all obvious that the 5th and 8th Amendments can be suspended in the way that the habeas corpus can.
Yes, Article III of the Constitution gives Congress the right to regulate the jurisdiction of inferior Courts (which are creatures of statute) and of the U.S. Supreme Court (in cases not involving diplomats and state governments). But, Article III also provides that "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior cours as the Congress may from time to time ordain and estblish.", which tends to imply that while Congress is free to say which court may hear a particular case, it can't bar any case in which an individuals rights under the Constitution and its law and treaties are violated, from all relief in Article III courts.
This has long been the U.S. practice. For example, while the U.S. Supreme Court for much of our nation's history had very limited appellate jurisdiction over cases in which there were either criminal conviction or criminal acquittals, those individuals did have their case reviewed in Article III trial courts. Tax and administrative cases initially reviewed by administrative law judges or tax court judges (both Article I courts) are ultimately reviewable by the U.S. Courts of Appeals, which are Article III courts. Even court martials, the quintessential case of military justice adapted for the special needs of military necessity, are reviewable by the U.S. Supreme Court, an Article III court, after they have been reviewed by an Article I (i.e. non-judicial branch) U.S. Court of Appeals for the Armed Forces. Before this was made law in 1983, court martial cases could be collaterally attacked, at least in the U.S. Supreme Court, in habeas corpus petitions.
Similarly, while Congress has the power to "declare war . . . and make rules concerning captures on land and water", and those detained in Guantanamo, Afghanistan and Iraq are fairly described as coming within the class of people who have been captured on land in connection with Congessionallly authorized military action (whether or not these rise to the level of being wars is another matter), it isn't clear that this authority is absolute.
One also has to ask, of course, what manner of depravity afflicted Congress when it passed Section 1005 of the Detainee Treatment Act of 2005, and in particular Section 1005(e) relating to judicial review, introduced as what is known as the Graham-Levin Amendment, on November 10, 2005 by a 49-42 vote (i.e. shifting just four votes would have changed the result). The Democrats voting against civil liberties in this amendment were the usual suspects: Conrad (D-ND), Landrieu (D-LA), Lieberman (D-CT), Nelson (D-NE) and Wyden (D-OR); while the Republicans opposing the amendment were: Smith (R-OR), Specter (R-PA) and Sununu (R-NH); two Democrats and seven Republicans didn't vote for whatever reason. The Senators not voting were: Alexander (R-TN), Corzine (D-NJ), Domenici (R-NM), Enzi (R-WY), Hagel (R-NE), Inouye (D-HI), Lugar (R-IN), Santorum (R-PA), and Thomas (R-WY).
But, the constitution doesn't really care why the President and Congress acted as they did. Civil liberties guaranteed by the Constitution are beyond the power of either to abolish without a constitutional amendment. The Courts exist to make this so. And, there is no indication that the framers of the Constitution, by giving Congress flexibility in structuring the Court system, intended to permit it to make anyone a stranger to the laws. In any case, the Bill of Rights was enacted after the body of the U.S. Constitution, and should there be a conflict between the Bill of Rights and Article III, or between the Bill of Rights and Article I, Section 8, clause 11 (which gives Congress the power to "make rules concerning captures on land and water"), it seems to me, at least, that the Bill of Rights, as the later enacted portion of the Constitution, should prevail.
What does Section 1005(e) to 1005(h) of the Act say (emphasis added)?
(e) Judicial Review of Detention of Enemy Combatants-
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--
`(A) is currently in military custody; or
`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'.
(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW- Review under this paragraph--
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
(4) RESPONDENT- The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.
(f) Construction- Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.
(g) United States Defined- For purposes of this section, the term `United States', when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.
(h) Effective Date-
(1) IN GENERAL- This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS- Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.
Thus, the Act, in a perverse irony, both creates rights to be free from torture, and expressly demands that the government not torture anyone, and expressly denies detainees any judicial review in the judicial branch (and does not mandate any judicial review within the Defense Department itself) of the circumstances of confinement which the rest of the Act set standards to enforce.
The Act does create limited judicial review of Article I court determinations of whether someone is properly detained, and of whether someone should be executed on the basis of an Article I determination, although it does not even give detainees the power to bring a mandamus action to force the Article I courts to act on individual cases where they are required by law to do so.
To know that our nation is torturing people, and ignore it, is fundamentally wrong.