New Report on Detainees' and Federal Habeas Cases

The Congressional Research Service has released a new report, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court (pdf).

This report provides an overview of the CSRT procedures, summarizes court cases related to the detentions and the use of military commissions, and summarizes the Detainee Treatment Act, as amended by the Military Commissions Act of 2006, analyzing its effects on detainee-related litigation in federal court.

The report summarizes pending legislation and provides an analysis of relevant constitutional issues that may have some bearing on Congress’s options with respect to the Guantanamo detainees.

[Hat tip to Scribe.] The report's conclusion: Congress may be asked to expand the AUMF so more people can be detained longer. [More...]

The Supreme Court has interpreted the AUMF with the assumption that Congress intended for the President to pursue the conflict in accordance with traditional law-of-war principles, and has upheld the detention of a “narrow category” of persons who fit the traditional definition of “enemy combatant” under the law of war.

Other courts have been willing to accept a broader definition of “enemy combatant” to permit the detention of individuals who were not captured in circumstances suggesting their direct participation in hostilities against the United States, but a plurality of the Supreme Court warned that a novel interpretation of the scope of the law of war might cause their understanding of permissible executive action to unravel.

Consequently, Congress may be called upon to consider legislation to support the full range of authority asserted by the executive branch in connection with the GWOT [Global War on Terror]. In the event the Court finds that the detentions in question are fully supported by statutory authorization, whether on the basis of existing law or new enactments, the key issue is likely to be whether the detentions comport with due process of law under the Constitution.

The report notes that:

The [Supreme] Court did not foreclose all options available to Congress to streamline habeas proceedings involving detainees at Guantanamo or elsewhere in connection with terrorism.

It then catalogs the pending bills regarding "extra-territorial" rendition and detention. One gives the power to order rendition and detention to the FISA court.

Certain types of renditions and detentions appear to be excluded from these general requirements, including those of persons detained by the United States in Guantanamo on the act’s date of enactment who are transferred to a foreign legal jurisdiction, as well as the rendition or detention of individuals detained or transferred by the U.S. Armed Forces under circumstances governed by, and in accordance with, the Geneva Conventions.

Otherwise, extraterritorial detention would require the authorization of the President or the Director of National Intelligence based on a certification that the failure to detain that individual “will result in a risk of imminent death or imminent serious bodily injury to any individual or imminent damage to or destruction of any United States facility” or the factual basis exists to demonstrate the individual is an international terrorist and there is reason to believe that the detention or rendition of such person is important to the national security of the United States. An application for detention must be submitted to the FISC within 72 hours in order to detain the person.

Shorter version: The President can't abridge habeas corpus on his own, but if Congress agrees, so be it?

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    Moreover, this is one of 6,780 Congressional (5.00 / 1) (#1)
    by scribe on Sun Feb 08, 2009 at 11:09:59 AM EST
    Research Service reports which someone has undertaken to dump to Wikileaks en masse.  That's right: Six thousand, seven hundred eighty reports previously unavailable to the general public.  Basically, it looks like they dumped every report since 1996.  Everything from the detention reports like this one to the revenue possibilities from commemorative postage stamps.

    I have to question who was the leaker, and why now.  The first answer which pops to mind is:  "to divert the blogosphere from the sausage we're making".  I say that because Obama sure as hell hasn't been using his email list of 3 or 13 million names or however many it is to send us a blast email asking us to call our congresscritters and get them to straighten out the stimulus.  Or anything else.  Instead, we get an EO on day one banning torture and then, while the glow from that buzz is still going on, Panetta testifying quietly in his confirmaton hearings that no one in CIA will be prosecuted for their torture.  

    And, all the while, no communication with or to the blogosphere.  The wingnuts, OTOH, are getting pushed to call their congresscritters to down the stimulus, and they are outcalling the left about 100:1.

    Remember how, when it went from the transition's change.gov to whitehouse.gov at noon on January 20, the "questions for Barack" section mysteriously disappeared? Right after the blogosphere (basically) google-bombed the question about prosecuting torturers to the top and compelled something resembling an answer.

    Suspicious minds might think that Obama and Rahm don't want the left's involvement.

    Also, it bears repeating that Neal Kaytal, who Obama has nominated to one of the senior policy positions at DoJ and who represented Hamdi (or Rasul, I forget) before the Supreme Court, has advocated (despite his advocating for the prisoners earlier) for expanded pretrial detention and executive detention without trial.

    More and more, the appointment of Professor Johnsen to the OLC is looking like a sop to the left and that part of the right that values civil liberties, and a place where she will have little if any power or influence.  After all, the OLC only writes memos on topics the Executive asks them to address.  If the phone doesn't ring and the mailbox/inbox is empty....

    No joy in Mudville....  But, thanks for the h/t.  Feels good to be recognized.

    And, TL, here's another CRS report you'll like:  DoJ's budgeting for FY 2008 and 2009.

    Can't Obama veto the legislation? (none / 0) (#2)
    by FoxholeAtheist on Sun Feb 08, 2009 at 02:31:36 PM EST
    I mean, if Congress were to pass new legislation for the continued suspension of habeas corpus, couldn't President Obama VETO it?

    Isn't suspension of habeas corpus a war crime somewhere on this planet?


    Suspension of Habeus (none / 0) (#4)
    by yourmom on Sun Feb 08, 2009 at 03:00:58 PM EST
    In our constitution:

    "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

    Technically, I suppose, we were invaded. And I am okay with it being suspended, in battle, for short periods of time, when you are dealing with an emergency. But never for even one year, and certainly not seven+.

    From the reports I read, the military tried to do the right thing, and set up gitmo as legitimate POW camp, but then civilian leadership intervened. Civilian leadership has a lot to answer for, including the corruption of the military.


    Again, can Obama veto the legislation? (none / 0) (#5)
    by FoxholeAtheist on Sun Feb 08, 2009 at 05:55:38 PM EST
    And furthermore ;-) (none / 0) (#3)
    by FoxholeAtheist on Sun Feb 08, 2009 at 02:35:44 PM EST
    Why do so few people see fit to comment on this subject? This thread has been up for hours, and crickets...