In the Declaration of Independence, the American colonists listed their grievances against King George: He had attempted to "render the Military independent of and superior to the Civil Power," he had deprived the colonists "of the benefits of trial by jury," he had "made Judges dependent on his Will alone," and he had transported colonists "beyond Seas to be tried for pretend Offences."
In an extraordinary brief [PDF format] filed with the United States Supreme Court this week, five experienced U.S. military lawyers have leveled precisely the same charges at another would-be King George: the current president of the United States. Only this time, the oppressed citizens aren't American colonists; they're detainees being held at the U.S. naval base at Guantánamo Bay, Cuba.
In March 2003, the U.S. Court of Appeals for the District of Columbia Circuit held that Guantánamo Bay detainees have no right to challenge their detention in any U.S. court. That decision is now before the Supreme Court, where the Bush administration is arguing for even more latitude to operate free of judicial review. Not only do the detainees lack the right to challenge their detention in U.S. court now, the administration argues, they should also be prohibited from challenging their convictions once they've been tried by a military tribunal.
The military lawyers do not quarrel with the first half of that argument -- in times of grave danger, they say, the president must have the authority to detain potential enemies who pose a threat to the United States. But once the president moves past detaining the potential enemies and begins trying and punishing them, the military lawyers say the federal courts must have a role to prevent the president from creating his own parallel world of justice (or injustice) in a "legal black hole."
The military lawyers "aren't trying to be heroes," says Neal Katyal, a Georgetown University law professor who is working with them on the case. "They didn't try to intervene in the lower courts. But once the Supreme Court took the case and the government made its position clear, they had no choice but to file something."
What they have filed is remarkable -- a sober but stinging indictment of the Bush administration's overreaching in the war on terror. Excerpts of their brief follow.
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The military attorneys assigned to the defense in the Office of Military Commissions ("OMC") in the Office of the General Counsel of the United States Department of Defense are under orders to defend named or yet-to-be-named individuals who are targets of investigations by military commissions that are to take place at Guantánamo Bay, Cuba ...
Amicus embraces the principles affirmed in Reid v. Covert:
Slight encroachments create new boundaries from which legions of power can seek new territory to capture. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure ...
We should not break faith with this nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves.
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Amicus does not challenge or expect to challenge the power of the United States to wage war as its civilian and military leaders see fit. It does not challenge or expect to challenge the government's temporary detention of enemy combatants while military activities are underway abroad.
What Amicus does challenge is the attempt by the Executive to oust Article III courts of jurisdiction over the military prosecution of individuals whom the President deems "enemy combatants."
The Government's argument that today's struggle against terrorism is tantamount to World War II obscures several fact-specific inquiries for which case-by-case review is not only important, but is essential, e.g., Is the defendant a citizen of an "enemy" nation? Was the defendant or the crime in U.S. territory? ... Are the charged crimes in connection with an armed conflict? Are those crimes violations of the Law of Nations? Such questions assume additional importance today.
Unlike earlier wars, the struggle against terrorism is potentially never-ending. The Constitution cannot countenance an open-ended Presidential power, with no civilian review whatsoever, to try anyone the President deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself.
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Amicus does not dispute the President's power to detain enemy combatants in a time of war. However, the case for civilian jurisdiction is at its apogee once the President decides to cross the threshold from detention and seeks to mete out justice in a calculated and deliberate fashion. This is a widely recognized principle of constitutional law ... Amicus believes that the Court's resolution of the question presented, which is limited to "detention," need not, and should not, resolve whether civilian courts have jurisdiction over military commissions at Guantánamo. Amicus seeks nothing more than a recognition from this Court that the case for jurisdiction for those facing tribunals stands on a different, and stronger, footing than would a case brought by a detainee who has not been designated for military prosecution.
The colonists who wrote our Declaration of Independence penned, among their charges against King George, that "[h]e has affected to render the Military independent of and superior to the Civil Power"; "depriv[ed] us, in many Cases, of the benefits of trial by jury"; "made Judges dependent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences."
Those charges describe the United States' legal position in this case. The President here asserts the power to create a legal black hole, where a simulacrum of Article III justice is dispensed but justice in fact depends on the mercy of the Executive. Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency, or even the constitutionality of the military tribunals, despite the guarantee of habeas corpus, see U.S. Const., Art. I, Sect. 9, Cl. 2, and the right to such determinations by a "competent tribunal" under the 1949 Geneva Convention.
The President's assertion of such absolute supremacy contravenes the bedrock principle that it is "the province and duty of the judicial department to say what the law is," and the similarly "'settled and invariable principle * * * that every right, when withheld, must have a remedy, and every injury its proper redress.'" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 177 (1803). This Court has never given the President the ability to proclaim himself the superior or sole expositor of the Constitution in matters of justice.
Amicus does not dispute, in any way, the President's power to wage war. And, in the theatre of war, the President does not need congressional permission to decide how and when, within the laws of war, to take custody of enemy combatants upon their capture or surrender for the purpose of detention until the war ends and repatriation is possible. That is implicit in the Commander in Chief function itself
The moment the President ventures beyond detaining enemy combatants as war prisoners to actually adjudicating their guilt and meting out punishment, however, he has moved outside the perimeter of his role as Commander in Chief and entered a zone that involves judging and punishing.
In that zone, the fact that the President entered wearing his military garb cannot obscure the fact that he is now pursuing a different goal ... assessing guilt and meting out retrospective justice rather than waging war.
Concerns that the Executive has usurped the function of the Judiciary are at their height when the Executive seeks to deny access to a right as fundamental as habeas corpus. This right is part of our Constitution's "bulwark" against "tyranny" ... and essential to the adversarial system.
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In its Supreme Court brief, the Bush administration relies heavily on the 1950 case of Johnson v. Eisentrager, where the Supreme Court held that nonresident enemy aliens caught and tried by the U.S. Army in a foreign country during a declared war had no right to seek relief in U.S. courts. The military lawyers say the Bush administration cannot rely on Eisentrager because the war on terror has never been formally declared, and because the administration has deliberately kept the detainees outside the United States in order to avoid the jurisdiction of U.S. courts.
Eisentrager's holding was confined to field tribunals, not manipulation of locale.
Eisentrager placed particular emphasis on the fact that the petitioners had been "captured outside of our territory and there held in military custody as a prisoner of war." Strong justification exists for this holding, as the President's hands should not be tied on the battlefield, particularly when the territory is under the control of many nations. And so, for example, an international tribunal for former President Saddam Hussein in Iraq would not be a matter that the American courts could review.
But when justice is administered off the battlefield, and particularly in those places where no other nation offers legal remedies, the situation shifts. In those areas, the fear of interfering with battlefield operations is at its nadir. The likelihood that the decisions are being made on the spur of the moment in the midst of crisis drops precipitously, while the likelihood that the key decisions are being made in the continental United States increases ...
There is no direct precedent on this issue because, so far as Amicus is aware, the American Government has never before consciously created a trial process, courtroom, and other accoutrements of judicial process outside the battlefield and housed them all in an area calculated to divest civilian jurisdiction.
The most direct precedent comes from 1660s England, where Lord Clarendon shipped prisoners to military "garrisons" to evade habeas corpus. Clarendon's actions, which became part of his impeachment trial, were rebuked by Parliament's 1679 Habeas Corpus Act, and form a crucial event in the development of the writ [of habeas corpus] ...
The Government's argument in this case has no logical stopping point. If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah. The President's claim is for the absence of any legal restraint whatsoever on the government, commensurate with absolute duties and subjugation for those at Guantánamo.