Newsweek quotes the wisdom of Justice Jackson in Eisentrager, stating:
In a case in 1950, Justice Robert Jackson wrote that it would be "difficult to devise a more effective fettering" of a field commander than to allow the very enemy he is trying to defeat to cause him to be called home to defend his actions in court. Obama might do well to heed Justice Jackson's words as he referees the debates that pop up in his own administration.
The implication is that Boumediene requires dragging commanders off the field of battle to be hauled before a federal judge to explain a determination that a detainee is an "enemy combatant." This is not correct in my view (interestingly, if it did, it seems that Newsweek is recommending to Obama that he defy the SCOTUS.) In any event, the key language of Boumidiene belies Newsweek's alarmist report:
[W]e recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. . . . The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.
(Emphasis supplied.) Guantanamo, says the Court, is not like Landsberg Prison in Germany. Why?
The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. When hostilities in the European
Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. . . . [T]he American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and werewolves.
"Similar threats are not apparent here; nor does the Government argue that they are. . . . The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base.
The Boumediene Court makes plain that Gitmo is not like being overseas with regard to enemy combatants. Newsweek is engaged in irrational scare tactics. But it also drives home the point of the problem - the whole idea of shielding enemy combatants from the Geneva Conventions is what has landed the Bush Administration detainee policy in the briar patch of habeas standards. For in Boumediene, the Court is not applying the standard of determining whether a competent tribunal under Article V of the Geneva Convention has been convocated to determine a combatant's status, it is applying the standard of what is required for a court to determine a habeas petition. This is precisely the point made by a conservative here:
[T]he third and final move to say that the US is in per se violation, across the board violation, of the Geneva Conventions is to argue, well, the US has not held adequate and required hearings before a proper tribunal to determine the status of the detainees. My view - as a matter of policy, not international law - is that the Bush administration made a grave prudential and moral error in not abiding by its own 1977 DoD regulations concerning the brief and unappealable three officer hearings to be used in cases where legal combatant status was at issue. Those regulations were seen by the ICRC and by everyone else as going far beyond the standard required to offer a hearing and a tribunal. The Bush administration has contested that it even needed to offer such hearings - doing so not so much from a view of the interpretation of the Geneva Conventions as from a quite unrelated constitutional theory about the unitary power of the executive in matters of war. It has been losing on the big constitutional theory, and carrying down with it a vital but unrelated view of obligations under the Geneva Conventions.
(Emphasis supplied.) Now I find that commenter's view of the Geneva Convention unsustainable but one has to ask themselves why in heaven's name did the Bush Administration depart from standing DOD guidelines? The answer to me is obvious - because they wanted to engage in "enhanced interrogation" of these detainees. And you could not do that if you accepted that the Geneva Conventions applied because then the detainees would have rights, specifically rights to speak to third parties like the International Red Cross.
In our names was this done. The stain will not wash away.
Speaking for me only
