opinion

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The looming court battles

by Nicholas M. Jackson

Legal analysts are speculating as to whether the US Supreme Court will strike down the recently-signed Military Commissions Act of 2006 (MCA). This speculation arises partly because some legislators in Congress voted for the MCA while stating hopes that federal courts would "fix" the MCA later. Despite the MCA’s glaring wrongs, it is a huge risk to trust the Supreme Court to correct the constitutional errors created by this legislation.

Upon the MCA’s passage in Congress, attorneys for detainees almost immediately filed motions on behalf of their clients to preserve constitutional arguments for the Supreme Court. And Bush Administration attorneys quickly filed motions to dismiss the detainee cases within hours after President Bush signed the MCA into law. There are potential barriers to prevent the MCA from undergoing the strict scrutiny it deserves.

If all the lower courts presented with the MCA hold the statute strips detainees of their habeas corpus rights, the Supreme Court could simply decide not to review such lower court decisions. It can let the lower court decisions stand and they would become applicable everywhere, since courts permitted to review MCA decisions are limited by the MCA’s terms. Considering the intense interest in the MCA, it is very unlikely the Supreme Court would so brazenly shirk its duty to review this statute. Nevertheless, this outcome is possible.

Sometimes the US Supreme Court ignores basic constitutional rights raised in the lower court proceedings and defers to the military necessities asserted by a wartime president. We know from Korematsu v. US, 323 US 214 (1944) and its related cases that the Supreme Court allowed President Franklin Roosevelt to seize over a hundred thousand west coast Japanese-Americans for internment in camps around the United States. There were dissenting voices from a few Supreme Court Justices in Korematsu, but there weren’t enough votes on the Court to support the undisputable constitutional rights possessed by the Japanese-American detainees.

Korematsu is well known by legal scholars as one of the worst decisions ever issued by the US Supreme Court. It has never been explicitly overruled. Certainly the current Supreme Court Justices and their highly qualified law clerks know all the history surrounding Korematsu and will be mindful of the reputations they can make for themselves if they issue another Korematsu type of decision. Considering the case's notoriety, it also will be provocative if President Bush’s lawyers try to cite Korematsu as binding legal precedent supporting the MCA.

If the Supreme Court decides to take the MCA and reviews the statute on its merits, it will have plenty of legal precedent to guide its decision. It is well-settled under US constitutional law that aliens within the United States are entitled exactly the same protections as US citizens if accused and charged with a crime. For example, even alien Soviet spies who are illegally living in the United States are entitled Fourth Amendment protection against unlawful searches and seizures. See Abel v. United States, 362 US 217 (1960). Moreover, when aliens are brought to the United States for trial on criminal offenses they may have committed against the United States, such aliens also are entitled to the same constitutional rights afforded US citizens. This includes, for example, the Sixth Amendment right to a fair trial. See United States v. Noriega, 752 F Supp 1032 (SD Fla 1990), aff’d 917 F2d 1543 (11^th Cir), cert den 498 US 976.

It should be noted that even with the benefit of so-called “criminal-coddling” provisions found in the Bill of Rights, both Soviet spy Rudolf Abel and Panamanian dictator Manuel Antonio Noriega were convicted and sentenced to prison. Contrary to assertions by those who don’t want the Constitution to apply to people they dislike, its civil liberty and criminal procedure protections are not “get out of jail free” technicalities. Rather, it is their much-litigated fundamental and due process natures that anchor these traditional protections to the practicalities of governing a diverse and large population. There is no practical way the Constitution would ever become what its detractors fear is a "suicide pact." One key “technical” protection is habeas corpus.

The right of habeas corpus is explicitly stated within the US Constitution. The right of habeas corpus is not a protection granted piecemeal to various classes of individuals under federal statute. Rather, it is a right possessed by all persons under the Constitution until it is suspended according to the explicit standards set forth in Article 1, section 9. Rather than some kind of "poison pill" left over from the Constitutional Convention, habeas corpus keeps the Constitution alive.

In Article 1, section 9 we are told that "Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." If one takes those words at face value, say as a constitutional “strict constructionist” might read them, it is clear habeas corpus cannot be suspended unless the United States is undergoing a rebellion or an invasion. Additionally, there must be some threat to public safety caused by either the rebellion or the invasion.

Where is rebellion occurring in the United States that might justify suspension of habeas corpus under the MCA? Where are the invasions? Where has the public safety system collapsed so badly that regular business activities of our court and criminal justice systems have been unable to function? Nowhere.

The status of public safety has been so ordinary in recent times that a Houston, Texas federal court felt so unthreatened to as to sentence former Enron CEO Jeffrey Skilling to 24 years incarceration at an October 23, 2006 hearing. And a federal court in Albany, New York recently has been unconcerned about its ability to conduct a terrorism trial for Yassin Aref and Mohammed Hossain for their role in conspiring to launder $50,000 from the sale of a shoulder-fired missile. Apparently, FBI agents pretended to arrange the missile's sale from a fake arms dealer. Considering that American criminal justice wheels continue to turn, the standard for suspending habeas corpus clearly has not been met for any element required by the Constitution.

The simple fact is that the Bush Administration has suspended habeas corpus for alien unlawful combatants because it cannot win convictions against them in regular courtrooms. Bearing in mind that the CIA has whisked suspected terrorists to secret prisons all around the globe, the Bush Administration is perfectly capable of transporting such defendants to the United States for trial in regular federal district courts. President Bush needs convictions to prove he is making progress in the global war against terror. Such convictions will support his domestic and international political agendas. But Bush cannot win those convictions unless he strips away basic legal procedures detainees might use to challenge either their detentions or their convictions. The pre-trial and trial structure under the MCA is to deny President Bush’s detainees their fundamental right to fair trials.

Legal observers speculate the US Supreme Court Justices will line up on the MCA along predictable conservative v. liberal poles. It may not be a pure question of whether the MCA passes constitutional muster. It may depend upon how the various appellate court panels vote on different key issues as the MCA works its way up to the Supreme Court. Issues that are not raised at lower levels are not likely to be addressed on appeal.

Supreme Court observers predict Justice Anthony Kennedy will be the swing vote when MCA comes up for review at the Supreme Court. In other words, some legal scholars feel the fate of many detainees depends upon one man who was not elected to office. It’s not quite the same as risking one’s future on a single toss of the dice. But the risk to basic freedoms is great in contrast to the flickering hope a few Justices can correct a wrong created by hundreds of legislators in Congress.

There’s another thing to consider. Suppose President Bush’s use of military commissions allows him to crank out large numbers of convictions and sentences. Theatrical White House announcements that justice has been served to America's enemies could become the "bully pulpit" for setting new standards of American justice --- lower standards.

How soon will it be before there are calls to borrow the “efficiency” of the Guantanamo Military Commission trial procedures for use against ordinary US citizens in ordinary criminal trials? If the next Congress does not repeal the MCA or the Supreme Court does not declare it unconstitutional, probably not very long.

What Democrats and Republicans are saying about the Iraq War
N. Jackson, Court battles loom over military tribunals
E. Jackson, Driving scoundrels from their last refuge
Stimson, A nation of swine?
Weisbrot, Ecuador on the cusp of change?
Carpio, Canal expansion from a Caribbean perspective
Amnesty International, A call to bloggers to stand up for freedom
Leis, Defenseless citizens or a vigilant citizenry?

Bernal, It doesn't matter to them