An Optimistic View of Detainee SCOTUS Prospects

Dahlia Lithwick at Salon.com says everything I could have said about Supreme Court oral arguments in the latest round of detainee cases, but better. The government looks likely to lose, but the detainees don't necessarily look likely to win (in the sense that they aren't likely to be released swiftly).

As she explains, under the Military Commission Act:

[T]he so-called Combatant Status Review Tribunals (PDF), mostly give prisoners the "right" to be tried by a judge who answers to the military; the "right" to be tried with evidence obtained by torture; the "right" to be presumed a terrorist from the outset; the "right" to be tried without a lawyer present; and the "right" to be tried with evidence that's sloppy, inaccurate, and classified.

Particularly notable was this exchange:

Breyer pushes and pushes at [current solicitor general] Clement on whether a detainee can currently make the simple argument: "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." The MCA provides for federal court review on the limited question of whether the CSRTs followed their own made-up procedures, and not on the big important matters of, er, you have the wrong guy.

"I'm not sure he can make that argument," Clement answers. "Exactly!" crows Breyer. "If he cannot make that argument, how does this become an equivalent to habeas?

Disturbingly, both U.S. Senator Ken Salazar and U.S. Representative John Salazar, both Democrats from Colorado, voted in favor of establishing these kangaroo courts, despite knowing that they were fundamentally unjust.

Her colleague explains that the Bush Administration and a few court conservatives are simply clinging to false history, call it a "big lie" in support of their claims, there there is no precedent for judicial review in these cases. For example, she notes that:

a group of constitutional law professors point out in one amicus brief, courts have allowed "detained enemy aliens" to use habeas to challenge their detention for various reasons since the War of 1812. In the 19th century, British subjects used habeas to argue that their detentions were at odds with a Pennsylvania statute. In the 1940s, German enemy aliens used the writ to argue that they shouldn't be sent off to Germany without the chance to leave on their own for another country. Crucially, other aliens throughout U.S. history were able to use habeas to challenge "the determination of their enemy alien status."

Similarly, she notes (emphasis added) that:

In the government's view, the answer is "extraordinarily limited" and "highly circumscribed." The courts don't get to look at guilt vs. innocence, or the strength of the evidence. But again, there's a bunch of experts, this time legal historians, who disagree that habeas review has only been about technicalities, like jurisdiction. It's true that courts reviewing habeas petitions don't normally look at the facts of the underlying case, but that's in the context of a criminal habeas proceeding, where a defendant has already gotten two chances to air his claims—a trial and an appeal. In cases of executive detention, on the other hand, the courts of the past "commonly exercised independent review over the factual assertions of prisoners."

The government shouldn't be afraid of using real legal procedures, if it actually has a reason to keep the 305 people it still holds at Guantanamo Bay, in many case having done so for six years without any judicial review. It isn't saving any money by conducting endless litigation in the appellate courts over preliminary matters. If the Bush Administration is telling the truth, then in almost every case, a hearing on the merits in front of a federal district court judge would resolve the case in their favor. The trouble is that the Bush Administration's fear of this kind of review leads to the opposite conclusion.