The Bush Administration Wins a Round on Military Commissions, But the District Court Ruling May Have a Silver Lining for Detainees

By MICHAEL C. DORF

Monday, Dec. 18, 2006

Last summer, the Supreme Court of the United States handed Salim Ahmed Hamdan--who stands accused of serving as the driver and bodyguard of Osama Bin Laden--a stunning victory. The President, the Court said in Hamdan's case, acted in violation of federal law in authorizing the trial of Guantanamo Bay detainees by military commission.

Last week, U.S. District Judge James Robertson took Hamdan's victory away. Or, to be more precise, Judge Robertson ruled that Congress had acted within constitutional limits when it enacted the Military Commissions Act (MCA) of 2006, and that the MCA had taken Hamdan's victory away. Should Judge Robertson's decision be upheld on appeal, the way will be cleared for trials of Guantanamo Bay detainees by military commission.

Hamdan's latest setback may suggest that his Supreme Court victory last June was in vain. As I explain below, however, Judge Robertson's opinion contains at least two important limits on executive detention. First, it makes clear that the courts have a say in deciding whether Congress is constitutionally entitled to suspend the privilege of the writ of habeas corpus. Second, it implies that detainees who are not given adequate military hearings retain a constitutional right to file for habeas corpus relief.

The District Court Ruling in a Nutshell

Judge Robertson's opinion itself provides a useful summary of the ruling. The case, he wrote, presented three questions:

(1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid "suspension" of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a "constitutional" writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ?

"The answers to these questions," Judge Robertson concluded, "are 'yes' to number (1) and 'no' to numbers (2) and (3)."

In other words, the court found that: (1) the MCA eliminated habeas corpus for alien enemy combatant detainees; (2) in doing so, the MCA cannot be constitutionally justified pursuant to the emergency power of Congress to suspend the writ of habeas corpus; but (3) the MCA's elimination of this category of habeas jurisdiction is nonetheless constitutionally valid. Let us examine these conclusions in turn.

Application of the MCA to Pending Cases

The Detainee Treatment Act (DTA) of 2005 eliminated habeas review for Guantanamo Bay detainees, but the Act's language did not make perfectly clear whether it applied to cases that had already been filed in the federal courts at the time it went into effect. The majority in the Supreme Court's Hamdan case said that the DTA did not apply to previously-filed cases, and thus allowed Hamdan's case, as well as the cases of just about every other Guantanamo Bay detainee, to go forward, despite the DTA.

Congress responded by making the MCA applicable "to all cases, without exception, pending on or after the date of the enactment of [the MCA] which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." However, Hamdan's lawyers argued that because this language did not specifically refer to "habeas" cases, it only eliminated jurisdiction for other kinds of cases.

Judge Robertson found that "all" means "all," including habeas cases. Many of us civil libertarians don't particularly like that result--both because of the importance of the role habeas petitions play in checking executive power, and because changing the law for pending cases violates the spirit, though not the letter, of the principle that legislatures should not interfere with cases once they are in the courts. (In this latter regard, the retroactive nature of the MCA bears an uncomfortable resemblance to the extraordinary legislation Congress enacted to benefit the relatives of Terri Schiavo who sought to continue her medical treatment.)

But those are reasons why the application of the MCA to pending cases is unwise or even unconstitutional. The statute's actual words leave very little doubt that Congress in fact intended the jurisdiction-stripping provision to apply to pending cases.

Suspension of the Writ?

Given that the MCA eliminates habeas for people like Hamdan, the question becomes whether that elimination is constitutional. One way in which it might be valid is pursuant to the power of Congress to suspend habeas corpus in response to "rebellion or invasion." But, Judge Robertson said, no rebellion or invasion existed when Congress enacted the MCA.

That is an interesting conclusion for at least three reasons. First, Judge Robertson did not need to address the suspension question at all--but nevertheless chose to do so. As noted above and explained more fully below, Judge Robertson concluded that Hamdan had no right to habeas, even if the writ were not validly suspended. His entire discussion of the power of Congress to suspend the writ was thus not necessary to the case. It was arguably what lawyers call "dicta."

Second, in finding that no rebellion or invasion existed, Judge Robertson implicitly rejected an argument the Administration has sometimes advanced--namely, that it is solely for Congress, rather than the courts, to determine whether the constitutional predicates for suspension exist. Congress might, after all, have thought that the conflict in Afghanistan was simply part of the armed response to the attacks of September 11, 2001, which could be deemed an "invasion."

That argument is, to be sure, weak on the merits. Congress has the power to suspend the writ in cases of invasion, where, in the words of the Constitution, "the public safety may require it." But no exigency now prevents the civilian courts from functioning.

Nonetheless, some argue, Congress alone gets to decide whether the factual predicate for a suspension exists. They say that the issue is, in lawyers' jargon, a "political question" that the courts are not qualified to answer. Judge Robertson had so little regard for this argument that he did not even address it. The closest he came to considering it was in his conclusion that Congress itself apparently did not think it was suspending the writ, because it made no findings that a rebellion or invasion warranting suspension existed.

That, in turn, brings us to the third interesting feature of Judge Robertson's suspension ruling. In finding that Congress did not purport to suspend habeas, the judge tacitly resolved another important question: whether a valid suspension of the writ requires Congress to state expressly that it is suspending habeas.

In general, the courts do not require Congress to specify what power or powers it is invoking when it passes legislation. However, because suspension of the writ of habeas corpus is such a serious measure, some civil libertarians, including Hamdan's lawyers, have argued that Congress should not be presumed to exercise that power unless it expressly so states. Judge Robertson appears to have accepted this argument.

Do Aliens Outside the United States Have a Constitutional Right to Habeas?

Even if the writ has not been suspended, however, the residual right to habeas corpus does not protect all persons in all places. In particular, the Supreme Court's 1950 decision in Johnson v. Eisentrager held that an enemy combatant who has never been in the United States, and who is held outside the territory of the United States, has no right to file a habeas corpus petition in a U.S. court.

Complicating matters further, in the 2004 case of Rasul v. Bush, the Supreme Court held that the statutory portion of the Eisentrager decision had been superseded. The Justices accordingly found that, as a matter of statutory interpretation, Guantanamo Bay detainees could file habeas corpus petitions. Of course, the MCA amends the very statute in question, making clear that Guantanamo Bay (and other enemy combatant) aliens cannot file habeas petitions. Accordingly, the third question Judge Robertson had to address was whether Hamdan's case now falls within Eisentrager's constitutional rule that aliens outside the U.S. lack habeas rights.

There are reasons to think it does not. The Court in Rasul based its ultimate holding on statutory interpretation, but in the course of its analysis, the Court also suggested that there are important constitutional differences between the prisoners in Eisentrager and the Guantanamo Bay detainees. Here is the critical language that the Rasul Court used to distinguish Eisentrager:

They [the Guantanamo detainees] are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Judge Robertson's opinion finds these distinctions irrelevant. He says that the history of habeas corpus shows that it is not available to alien enemy combatants outside the United States, even if held in a territory over which the U.S. exercises exclusive control. This argument is not entirely persuasive, however, because presumably the Supreme Court was aware of the history of habeas when it nonetheless listed the location and duration of detention as significant factors that might distinguish the facts of Rasul from those of Eisentrager.

Judge Robertson also relies on another factor that, in his view, makes Hamdan's case constitutionally indistinguishable from Eisentrager. Like Eisentrager, Hamdan will in fact have access to a tribunal--namely, the military commission that will try him. Whether that factor alone is enough to make a constitutional difference will undoubtedly be hotly contested on appeal.

The Hidden Habeas-Protective Element in Judge Robertson's Ruling

Because Hamdan is one of the relatively small number of alien detainees whom the Administration intends to put on trial, Judge Robertson had no occasion to address the most draconian aspect of the MCA: Its elimination of habeas corpus for aliens--even if they are in the United States--who have been declared unlawful enemy combatants, either by the President's unilateral action or by a so-called Combatant Status Review Tribunal ("CSRT").

The MCA provides for civilian judicial review of CSRT determinations, but nowhere requires the Administration to use a CSRT or its equivalent in order to declare some alien an unlawful enemy combatant. There can be little doubt that an alien held without any sort of a hearing should be constitutionally entitled to habeas.

But even in a case in which the government uses a CSRT to find that an alien is an unlawful enemy combatant, Judge Robertson's opinion suggests that the alien could attack that tribunal as inadequate. CSRTs permit determinations based on classified information that the alien does not receive. If a court were to find that a CSRT is not a sufficiently reliable process for determining an alleged enemy combatant's status, then the rule of Eisentrager would not apply, and the alien would be entitled to habeas corpus after all.

Moreover, because the Administration is currently detaining many more aliens than it intends to try by military commission, the implication that detainees never scheduled for trial do have a constitutional right to habeas may ultimately be a more important result than the conclusion that aliens who will be scheduled for a military trial lack such a constitutional right.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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