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Open Thread | Main | Puppy-Throwing Marine Expelled From the Service
June 12, 2008

The Ruling

I'm going to say right away that I only knew habeas stuff for the exam and quickly forgot it after. But here's my take anyway. Hopefully lawyers will help me clean up my errors before they do any real damage.

A writ of habeas corpus directs the government to release a detainee being unlawfully held. Today's ruling is not the issuance of such a writ. It states that our terrorists buddies have the right to petition for the writ, and federal judges have the power to review the petition to determine if the detainment is lawful (constitutional, basically).

It's not necessarily the end of the world, because a judge, who is not a total moron, will simply review the petition, find that the detainment is legal and constitutional, and deny the writ. On the hopeful side of things, then, this may just be an assertion of judicial authority to review government action and review the government's justification for detainment, and not a preview of judges throwing open the cell doors willy-nilly.

It could be the latter, of course.

It would be better for the government (as regards holding and trying these guys) if the added unknown factor of habeas review was not available to these killers. But even if that additional variable is thrown into the equation, it doesn't, hopefully, change everything if judges review the petitions and find 1) as regards enemy combatants captured during war, of course the government may hold them until a cessation of hostilities, as it always has and 2) as regards prosecuting illegal combatants, the tribunal process is a fair one that affords due process rights and is generally acceptable.

Tens of thousands -- I'm tempted to say hundreds of thousands, but I'm not sure -- habeas petitions are filed every year, by pretty much every prisoner in the country, cranking them out in prison libraries, just usually following the same template: "Every single one of my constitutional rights was and is currently being violated, so spring me from jail." The federal courts have choked on the paper make-work from so many habeas petitions. Although a habeas petition isn't technically a re-litigation of the case -- it's supposedly not about guilt or innocence (which is determined at trial) but about the government's authority to hold a detainee -- because most criminal defenses (and especially appeals) are heavy on constitutional objections, in practice the habeas filing is just a re-statement of all the bullshit (and rarely, meritorious) constitutional violation claims a prisoner has been making since at least his first appeal. So, in practice, a habeas petition is just a less-formal appeal to a federal judge.

Almost all of them are denied, usually after a very brief review. They're written pretty much on autopilot, and the reviews are largely on autopilot too. How many times, for example, can the same judge entertain the same argument that, say, the death penalty is inherently racist and therefore in violation of the 14th amendment?

I believe (but my memory fails) that Scalia himself sought to radically cut down on all the man-hours required to review all this paperwork, 99% of it total bullshit and repeating the same nonsense claims that had been already litigated and already raised in previous habeas filings, by injecting the standard that a habeas claim should make a plausible case of actual innocence, and not merely follow the jailhouse template of asserting that every single right in the constitution has been violated. Not sure how that worked out for them.

As currently practiced (and probably as has always been practiced), the writ is extraordinary (actually, I think it's classified as an "extraordinary writ") and usually not granted except in the most egregious situations.

The problem is, I guess, that lunatic liberal judges will begin deciding that imprisoning committed terrorists is an egregious situation demanding immediate judicial action. But it has to be kept in mind that these same lunatic liberal judges see an awful lot of these petitions every year, and often their political impulses will be to grant them ("Yeah, the death penalty is racist, isn't it?"). But they don't, by and large, because settled law is against them. They'd be overruled on review by a higher court... eventually.

This being a very unsettled area of the law (especially after today, where the court seems to overturn a lot of prior precedent on the issue), there is increased danger that judges will begin finding a whole raft of constitutional violations that demand immediate release of prisoners.

But a constitutional violation in normal habeas review, even if one is found, does not necessarily lead to a prisoner being released. If a prisoner is, for example, put in a hot box for five days, that may be found to be a violation of the eighth amendment guarantee against cruel and unusual punishment, but the court doesn't necessarily release him. It could simply note the violation, and make noises (while denying the writ) that similar treatment in the future will lead to the issuance of a writ, etc. But otherwise the court could hold that while a violation occurred, the writ will not issue. Yet.

The waterboarding of Khalid Shekh Mohammad will be found, I'm guessing, on review to have been in violation of the eighth amendment (and the fifth amendment's "shock the conscience" judge-made emanation), which could serve as a pretext for a writ. But judges will be very reluctant to do this, even if, politically, they're inclined to do so. They realize the outrage that would be stirred up in the public, and they realize too that their curious self-asserted position as, ultimately, the final arbiters of all questions legal and political, relies at its heart upon public acquiescence in such an odd system. And they're very cautious about ending that acquiescence, and thus their self-asserted power.

On top of that -- any district judge issuing a writ for KSM can forget about ever being elevated to an appeals court, and any appellate judge who votes to sustain such a writ can kiss off any hopes of one day being a Supreme. They may have lifetime appointments, but their promotions aren't guaranteed at all.

So waterboarding and the like may be found to have been violations, but assuming such treatment is not ongoing (which it isn't, of course), judges will probably leave it at a stern warning.

Furthermore, if I recall correctly, habeas petitions are routinely denied if a trial is ongoing or there remain appeals to exhaust. The theory being, I guess, that an ongoing trial indicates both due process and a chance at winning anyway, so filing a habeas petition before the end of a trial and exhaustion of appeals is premature.

Plus courts are constantly attempting to cut down on the number of these petitions they have to review. That's actually probably the real reason for the no-review-until-last-appeal rule.

I don't know that that general rule will be applied here -- but it should be. The time to determine if due process was respected and if a detainment is lawful is generally after a legal (or, here, quasi-legal) process has actually worked itself out.

At any rate, that's my hope -- that judges are very protective of their ultimate position in the nation's legal and policy pecking order, and that they wish to assert that, as in any other damn thing anyone does in this country, judges always get a look-see to decide if they think everything suits their current notions of "constitutional," but that they're primarily interested in asserting this power but far less interested in doing anything in particular in it. Their assertion of the power to release all these terrorists isn't necessarily an indication of their intention of doing so.

Of course, by having injected, vaguely, the entire Bill of Rights into military detentions without much guidance as to which rights actually apply (and how they apply in this odd situation), they've already done a lot of mischief, as no one currently knows, for example, whether captured enemy combatants need to be Mirandized. I think that's so absurd the answer is no (and most will assume, with some confidence, the answer is no), but they don't actually know, do they?

Corrections... Joe and Phinn state a lot more clearly that hot-box, waterboarding, and other complaints about the conditions of detainment are usually not (never?) part of a habeas review, but are instead about money damages for violations of civil rights.

I guess the 8th Amendment thing I was thinking of was, as Phinn calls it, a Preiser suit for damages.

railwriter says the number of habeas petitions in 2004 was 19,000, so I was way off with my suggestion that the number ran into the hundreds of thousands.

Catching Up Now... Reading Roberts' dissent. One part of normal habeas procedure -- the requirement that legal process and appeals be exhausted before filing -- has been tossed aside.

Not sure why non-citizen illegal combatants are afforded greater rights in habeas review than US citizens accused of more ordinary -- and less mass-murder-ish -- crimes.

I assumed -- wrongly, I see -- that while the terrorists may have the right to habeas review, they would have to wait to file until their other remedies were exhausted.

Worse Than I Thought... Again, I thought people were wrong this derails the entire Congressional scheme for tribunals. Why should it? In a normal habeas case, the process is followed, appeals are exhausted, and only then is a habeas petition entertained. I *thought* that fairly standard process was being followed, so why should it derail the whole process?

I was wrong. The Court holds that not only do the terrorists have a habeas right, but they have a Super Special Celebrity Killer Habeas Right, entitling them to judicial "review" -- pre-review, actually, as there's nothing yet to review -- of the entire scheme of the once-upcoming process before it actually unfolds. This despite the fact that the DTA actually granted a right to challenge the procedures, with later Article III court review (that is, a real judicial court defined by Article III under the constitution, and not a quasi-court as are established by Congress and run by the Executive), a right to challenge the terrorists never bothered availing themselves of.

The Court could easily have found the terrorists do have habeas rights, but that filing is premature, as they would with any other citizen criminal in the country. For reasons clear only to themselves, they didn't.

Guessing at a non-retarded opinion, I figured maybe there might be some initial habeas review to determine if these guys are being lawfully held in the first place (which, of course, they are, the same as it was lawful to hold all those Nazi prisoners we took), and that a habeas review of their criminal incarceration would only be ripe once they were actually convicted.

Nope. They went the full-on retard route. The prisoners get to challenge their trial in advance of actually having the trial.

And the majority laughingly posits that part of their reason for demanding this is to prevent delay in their claims being heard. Uh-huh.

digg this
posted by Ace at 01:56 PM

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